AN ACT
relating to the adoption of a nonsubstantive revision of statutes relating to the licensing and regulation of certain professions and business practices, including conforming amendments, repeals, and penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. ADOPTION OF CODE. The Occupations Code is adopted to read as follows:
OCCUPATIONS CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
[Chapters 2-50 reserved for expansion]
TITLE 2. GENERAL PROVISIONS RELATING TO LICENSING
CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 52. TRANSFER OF LICENSE
CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION
CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY
CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY
[Chapters 56-100 reserved for expansion]
TITLE 3. HEALTH PROFESSIONS
SUBTITLE A. PROVISIONS APPLYING TO HEALTH PROFESSIONS GENERALLY
CHAPTER 101. HEALTH PROFESSIONS COUNCIL
CHAPTER 102. SOLICITATION OF PATIENTS
CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION IN ABORTION
PROCEDURE
CHAPTER 104. HEALING ART PRACTITIONERS
[Chapters 105-150 reserved for expansion]
SUBTITLE B. PHYSICIANS
CHAPTER 151. GENERAL PROVISIONS
CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS
CHAPTER 153. POWERS AND DUTIES
CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
CHAPTER 155. LICENSE TO PRACTICE MEDICINE
CHAPTER 156. LICENSE RENEWAL
CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN MEDICAL
ACTS
CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE CERTAIN DRUGS AND
SUPPLIES
CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION
CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS
[Chapter 161 reserved for expansion]
CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT HEALTH
CORPORATIONS
CHAPTER 163. DISTRICT REVIEW COMMITTEES
CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES
CHAPTER 165. PENALTIES
[Chapters 166-200 reserved for expansion]
SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES
CHAPTER 201. CHIROPRACTORS
CHAPTER 202. PODIATRISTS
CHAPTER 203. MIDWIVES
CHAPTER 204. PHYSICIAN ASSISTANTS
CHAPTER 205. ACUPUNCTURE
[Chapters 206-250 reserved for expansion]
SUBTITLE D. DENTISTRY
CHAPTER 251. GENERAL PROVISIONS RELATING TO PRACTICE
OF DENTISTRY
CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS
CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL
CHAPTER 254. BOARD POWERS AND DUTIES
CHAPTER 255. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS
CHAPTER 257. LICENSE RENEWAL
CHAPTER 258. PRACTICE BY DENTIST
CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR PROFESSIONAL
ACTIVITIES
CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES
CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER REVIEW
COMMITTEE
CHAPTER 262. REGULATION OF DENTAL HYGIENISTS
CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS
CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS
CHAPTER 265. REGULATION OF DENTAL ASSISTANTS
CHAPTER 266. REGULATION OF DENTAL LABORATORIES
[Chapters 267-300 reserved for expansion]
SUBTITLE E. REGULATION OF NURSING
CHAPTER 301. REGISTERED NURSES
CHAPTER 302. LICENSED VOCATIONAL NURSES
CHAPTER 303. NURSING PEER REVIEW
[Chapters 304-350 reserved for expansion]
SUBTITLE F. PROFESSIONS RELATED TO EYES AND VISION
CHAPTER 351. OPTOMETRISTS AND THERAPEUTIC OPTOMETRISTS
CHAPTER 352. OPTICIANS
CHAPTER 353. CONTACT LENS PRESCRIPTION ACT
[Chapters 354-400 reserved for expansion]
SUBTITLE G. PROFESSIONS RELATED TO HEARING AND SPEECH
CHAPTER 401. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
CHAPTER 402. HEARING INSTRUMENT FITTERS AND DISPENSERS
[Chapters 403-450 reserved for expansion]
SUBTITLE H. PROFESSIONS RELATED TO CERTAIN TYPES OF THERAPY
CHAPTER 451. ATHLETIC TRAINERS
CHAPTER 452. EXECUTIVE COUNCIL OF PHYSICAL THERAPY AND
OCCUPATIONAL THERAPY EXAMINERS
CHAPTER 453. PHYSICAL THERAPISTS
CHAPTER 454. OCCUPATIONAL THERAPISTS
CHAPTER 455. MASSAGE THERAPY
[Chapters 456-500 reserved for expansion]
SUBTITLE I. REGULATION OF PSYCHOLOGY AND COUNSELING
CHAPTER 501. PSYCHOLOGISTS
CHAPTER 502. MARRIAGE AND FAMILY THERAPISTS
CHAPTER 503. LICENSED PROFESSIONAL COUNSELORS
CHAPTER 504. CHEMICAL DEPENDENCY COUNSELORS
CHAPTER 505. SOCIAL WORKERS
[Chapters 506-550 reserved for expansion]
SUBTITLE J. PHARMACY AND PHARMACISTS
CHAPTER 551. GENERAL PROVISIONS
CHAPTER 552. TEXAS STATE BOARD OF PHARMACY
CHAPTER 553. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
CHAPTER 554. BOARD POWERS AND DUTIES; RULEMAKING AUTHORITY
CHAPTER 555. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
CHAPTER 556. ADMINISTRATIVE INSPECTIONS AND WARRANTS
CHAPTER 557. PHARMACIST-INTERNS
CHAPTER 558. LICENSE TO PRACTICE PHARMACY
CHAPTER 559. RENEWAL OF LICENSE TO PRACTICE PHARMACY
CHAPTER 560. LICENSING OF PHARMACIES
CHAPTER 561. RENEWAL OF PHARMACY LICENSE
CHAPTER 562. PRACTICE BY LICENSE HOLDER
CHAPTER 563. PRESCRIPTION REQUIREMENTS; DELEGATION OF
ADMINISTRATION AND PROVISION OF DANGEROUS
DRUGS
CHAPTER 564. PROGRAM TO AID IMPAIRED PHARMACISTS
AND PHARMACY STUDENTS
CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES; REINSTATEMENT
OF LICENSE
CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS
CHAPTER 567. LABELING REQUIREMENTS FOR CERTAIN PRESCRIPTION
DRUGS OR DRUG PRODUCTS
[Chapters 568-600 reserved for expansion]
SUBTITLE K. PROFESSIONS RELATED TO USE OF CERTAIN
MEDICAL EQUIPMENT
CHAPTER 601. MEDICAL RADIOLOGIC TECHNOLOGISTS
CHAPTER 602. MEDICAL PHYSICISTS
CHAPTER 603. PERFUSIONISTS
CHAPTER 604. RESPIRATORY CARE PRACTITIONERS
CHAPTER 605. ORTHOTISTS AND PROSTHETISTS
[Chapters 606-650 reserved for expansion]
SUBTITLE L. FUNERAL DIRECTING AND EMBALMING
CHAPTER 651. FUNERAL DIRECTING AND EMBALMING
[Chapters 652-700 reserved for expansion]
SUBTITLE M. REGULATION OF OTHER HEALTH PROFESSIONS
CHAPTER 701. DIETITIANS
CHAPTER 702. HEALTH SPAS
[Chapters 703-800 reserved for expansion]
TITLE 4. PROFESSIONS RELATED TO ANIMAL HEALTH
CHAPTER 801. VETERINARIANS
[Chapters 802-900 reserved for expansion]
TITLE 5. REGULATION OF FINANCIAL AND LEGAL SERVICES
SUBTITLE A. FINANCIAL SERVICES
CHAPTER 901. ACCOUNTANTS
[Chapters 902-950 reserved for expansion]
SUBTITLE B. LEGAL SERVICES
CHAPTER 951. PREPAID LEGAL SERVICES
CHAPTER 952. LAWYER REFERRAL SERVICES
[Titles 6-8 reserved for expansion]
TITLE 9. REGULATION OF BARBERS, COSMETOLOGISTS,
AND RELATED OCCUPATIONS
CHAPTER 1601. BARBERS
CHAPTER 1602. COSMETOLOGISTS
[Chapters 1603-1700 reserved for expansion]
TITLE 10. OCCUPATIONS RELATED TO LAW ENFORCEMENT AND SECURITY
CHAPTER 1701. LAW ENFORCEMENT OFFICERS
CHAPTER 1702. PRIVATE INVESTIGATORS AND PRIVATE SECURITY
AGENCIES
CHAPTER 1703. POLYGRAPH EXAMINERS
CHAPTER 1704. REGULATION OF BAIL BOND SURETIES
[Chapters 1705-1800 reserved for expansion]
TITLE 11. REGULATION OF SALES AND SOLICITATION
CHAPTER 1801. COMMISSION MERCHANTS
CHAPTER 1802. AUCTIONEERS
CHAPTER 1803. SOLICITATION FOR PUBLIC SAFETY ORGANIZATIONS
CHAPTER 1804. SOLICITATION FOR VETERANS ORGANIZATIONS
CHAPTER 1805. SALE OF SECONDHAND BUSINESS MACHINES
[Title 12 reserved for expansion]
TITLE 13. SPORTS, AMUSEMENTS, AND ENTERTAINMENT
SUBTITLE A. GAMING
CHAPTER 2001. BINGO
CHAPTER 2002. CHARITABLE RAFFLES
CHAPTER 2003. INSPECTION AND REGULATION OF GAMBLING VESSELS
[Chapters 2004-2050 reserved for expansion]
SUBTITLE B. SPORTS
CHAPTER 2051. ATHLETE AGENTS
CHAPTER 2052. COMBATIVE SPORTS
CHAPTER 2053. RIDING STABLES
[Chapters 2054-2100 reserved for expansion]
SUBTITLE C. ARTS AND MUSIC
CHAPTER 2101. CONSIGNMENT OF ART WORKS
CHAPTER 2102. COLLECTION OF ROYALTIES ON NONDRAMATIC MUSICAL
WORKS
CHAPTER 2103. LICENSING AND PERFORMING FEES FOR CERTAIN
RECORDINGS
CHAPTER 2104. REGULATION OF OUTDOOR MUSIC FESTIVALS
CHAPTER 2105. REGULATION OF TALENT AGENCIES
[Chapters 2106-2150 reserved for expansion]
SUBTITLE D. OTHER AMUSEMENTS AND ENTERTAINMENT
CHAPTER 2151. REGULATION OF AMUSEMENT RIDES
CHAPTER 2152. REGULATION OF CIRCUSES, CARNIVALS, AND ZOOS
CHAPTER 2153. COIN-OPERATED MACHINES
CHAPTER 2154. REGULATION OF FIREWORKS AND FIREWORKS DISPLAYS
CHAPTER 2155. HOTELS AND BOARDINGHOUSES
CHAPTER 2156. THEATERS
CHAPTER 2157. REGULATION OF MOTION PICTURE THEATERS
OCCUPATIONS CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
Sec. 1.001. PURPOSE OF CODE
Sec. 1.002. CONSTRUCTION OF CODE
Sec. 1.003. REFERENCE IN LAW TO STATUTE REVISED BY CODE
CHAPTER 1. GENERAL PROVISIONS
Sec. 1.001. PURPOSE OF CODE. (a) This code is enacted as a part of the state's continuing statutory revision program, begun by the Texas Legislative Council in 1963 as directed by the legislature in the law codified as Section 323.007, Government Code. The program contemplates a topic-by-topic revision of the state's general and permanent statute law without substantive change.
(b) Consistent with the objectives of the statutory revision program, the purpose of this code is to make the law encompassed by this code more accessible and understandable by:
(1) rearranging the statutes into a more logical order;
(2) employing a format and numbering system designed to facilitate citation of the law and to accommodate future expansion of the law;
(3) eliminating repealed, duplicative, unconstitutional, expired, executed, and other ineffective provisions; and
(4) restating the law in modern American English to the greatest extent possible. (New.)
Sec. 1.002. CONSTRUCTION OF CODE. Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expressly provided by this code. (New.)
Sec. 1.003. REFERENCE IN LAW TO STATUTE REVISED BY CODE. A reference in a law to a statute or a part of a statute revised by this code is considered to be a reference to the part of this code that revises that statute or part of that statute. (New.)
[Chapters 2-50 reserved for expansion]
TITLE 2. GENERAL PROVISIONS
RELATING TO LICENSING
CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 51.001. DEFINITIONS
Sec. 51.002. APPLICATION OF SUNSET ACT
[Sections 51.003-51.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT AND COMMISSION
Sec. 51.051. TEXAS DEPARTMENT OF LICENSING AND REGULATION
Sec. 51.052. APPOINTMENT OF COMMISSION
Sec. 51.053. COMMISSION MEMBERSHIP; ELIGIBILITY
Sec. 51.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 51.055. TERMS; VACANCY
Sec. 51.056. PRESIDING OFFICER
Sec. 51.057. GROUNDS FOR REMOVAL
Sec. 51.058. COMPENSATION; REIMBURSEMENT
Sec. 51.059. MEETINGS
Sec. 51.060. CIVIL LIABILITY
[Sections 51.061-51.100 reserved for expansion]
SUBCHAPTER C. COMMISSIONER AND OTHER DEPARTMENT PERSONNEL
Sec. 51.101. COMMISSIONER
Sec. 51.102. COMMISSIONER TERM; VACANCY
Sec. 51.103. COMMISSIONER POWERS AND DUTIES
Sec. 51.104. PERSONNEL
Sec. 51.105. DIVISION OF RESPONSIBILITIES
Sec. 51.106. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 51.107. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY
POLICY; REPORT
[Sections 51.109-51.200 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 51.201. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 51.202. FEES
Sec. 51.203. RULES
Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 51.205. LICENSE EXPIRATION AND RENEWAL
Sec. 51.206. ANNUAL REPORT
[Sections 51.207-51.250 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 51.251. PUBLIC INTEREST INFORMATION
Sec. 51.252. COMPLAINTS
Sec. 51.253. PUBLIC PARTICIPATION
[Sections 51.254-51.300 reserved for expansion]
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 51.301. IMPOSITION OF PENALTY
Sec. 51.302. AMOUNT OF PENALTY
Sec. 51.303. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 51.304. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 51.305. HEARING ON RECOMMENDATIONS
Sec. 51.306. DECISION BY COMMISSION
Sec. 51.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 51.308. COLLECTION OF PENALTY
Sec. 51.309. REMITTANCE OF PENALTY AND INTEREST
Sec. 51.310. ADMINISTRATIVE PROCEDURE
[Sections 51.311-51.350 reserved for expansion]
SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 51.351. INSPECTIONS AND INVESTIGATIONS
Sec. 51.352. INJUNCTIVE RELIEF; CIVIL PENALTY
Sec. 51.353. ADMINISTRATIVE SANCTIONS
Sec. 51.354. RIGHT TO HEARING; ADMINISTRATIVE
PROCEDURE
CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 51.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Commission of Licensing and Regulation.
(2) "Commissioner" means the commissioner of licensing and regulation.
(3) "Department" means the Texas Department of Licensing and Regulation. (V.A.C.S. Art. 9100, Sec. 1.)
Sec. 51.002. APPLICATION OF SUNSET ACT. The Texas Commission of Licensing and Regulation and the Texas Department of Licensing and Regulation are subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission and the department are abolished September 1, 2003. (V.A.C.S. Art. 9100, Sec. 4.)
[Sections 51.003-51.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT AND COMMISSION
Sec. 51.051. TEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The Texas Department of Licensing and Regulation is the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature.
(b) The department is governed by the commission and the commissioner. (V.A.C.S. Art. 9100, Sec. 2.)
Sec. 51.052. APPOINTMENT OF COMMISSION. (a) The commission consists of six members appointed by the governor with the advice and consent of the senate.
(b) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 9100, Secs. 3(a), (b).)
Sec. 51.053. COMMISSION MEMBERSHIP; ELIGIBILITY. (a) Each member of the commission must be a representative of the general public.
(b) A person is not eligible for appointment as a member of the commission if the person or the person's spouse:
(1) is registered, certified, or licensed by the department;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the department;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the department; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the department, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses. (V.A.C.S. Art. 9100, Sec. 5.)
Sec. 51.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in a field regulated by the department may not be a member of the commission and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in a field regulated by the department may not be a member of the commission and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the commission or act as the general counsel to the commission 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 commission. (V.A.C.S. Art. 9100, Sec. 6.)
Sec. 51.055. TERMS; VACANCY. (a) Members of the commission serve staggered six-year terms. The terms of two members expire on February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 9100, Sec. 7.)
Sec. 51.056. PRESIDING OFFICER. (a) The commission shall elect one of its members as presiding officer. The presiding officer serves in that capacity for a period of two years.
(b) The presiding officer may vote on all matters before the commission. (V.A.C.S. Art. 9100, Sec. 8.)
Sec. 51.057. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the commission that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the commission;
(2) does not maintain during service on the commission the qualifications required for appointment to the commission;
(3) violates a prohibition established by Section 51.054;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the commission.
(b) The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists.
(c) If the commissioner has knowledge that a potential ground for removal exists, the commissioner shall notify the presiding officer of the commission of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 9100, Sec. 9.)
Sec. 51.058. COMPENSATION; REIMBURSEMENT. (a) A commission member may not receive compensation for service on the commission.
(b) A commission member is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a commission member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act. (V.A.C.S. Art. 9100, Sec. 10.)
Sec. 51.059. MEETINGS. (a) The commission shall meet at least once in each quarter of the calendar year.
(b) The commission may meet at other times at the call of the presiding officer or as provided by commission rules. (V.A.C.S. Art. 9100, Sec. 11.)
Sec. 51.060. CIVIL LIABILITY. A member of the commission is not liable in a civil action for an act performed in good faith while performing duties as a commission member. (V.A.C.S. Art. 9100, Sec. 3(c).)
[Sections 51.061-51.100 reserved for expansion]
SUBCHAPTER C. COMMISSIONER AND OTHER DEPARTMENT PERSONNEL
Sec. 51.101. COMMISSIONER. The commission shall appoint the commissioner who serves as executive director of the department. (V.A.C.S. Art. 9100, Sec. 13(a) (part).)
Sec. 51.102. COMMISSIONER TERM; VACANCY. (a) The commissioner serves a one-year term that expires on March 1. A commissioner is eligible for reappointment by the commission.
(b) If a vacancy occurs during the commissioner's term, the commission shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 9100, Sec. 13(b).)
Sec. 51.103. COMMISSIONER POWERS AND DUTIES. The commissioner shall:
(1) perform any duties assigned by the commission or specified by law;
(2) administer and enforce the department's programs; and
(3) issue licenses, registrations, certificates, and permits authorized by the department's programs and prescribe necessary forms. (V.A.C.S. Art. 9100, Secs. 13(a) (part), (c).)
Sec. 51.104. PERSONNEL. (a) The commissioner may employ persons to perform the department's work and may prescribe their duties and compensation, subject to the personnel policies adopted by the commission and the commission's approval of the budget.
(b) Subject to the commission's personnel policies, the commissioner may remove any department employee. (V.A.C.S. Art. 9100, Sec. 15(a).)
Sec. 51.105. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly define the respective responsibilities of the commission, the commissioner, and the staff of the department. (V.A.C.S. Art. 9100, Sec. 12(e).)
Sec. 51.106. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The commission shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 9100, Sec. 12(d).)
Sec. 51.107. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The commissioner or the commissioner's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting. The program may not penalize or otherwise adversely affect an employee who chooses not to move from one office location to another.
(b) The commissioner or the commissioner's designee shall develop a system of annual performance evaluations. All merit pay for department employees must be based on the system established under this subsection. (V.A.C.S. Art. 9100, Secs. 15(b), (c).)
Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The commissioner or the commissioner's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the department workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the department workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must cover an annual period, be updated at least annually, and be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 9100, Secs. 15(d), (e), (f).)
[Sections 51.109-51.200 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 51.201. GENERAL POWERS AND DUTIES OF COMMISSION. (a) The commission shall:
(1) supervise the commissioner's administration of the department;
(2) formulate the policy objectives for the department; and
(3) approve the department's operating budget and the department's requests for legislative appropriations.
(b) The commission may adopt rules as necessary for its own procedures. (V.A.C.S. Art. 9100, Secs. 12(a), (b), (c).)
Sec. 51.202. FEES. (a) The commission shall set fees, in amounts reasonable and necessary to cover the costs of administering the programs or activities, for:
(1) licenses, registrations, certificates, titles, and permits issued by the commissioner;
(2) license, registration, certificate, title, and permit renewals and late renewals;
(3) examinations; and
(4) any other program or activity administered by the department for which a fee is authorized.
(b) The commissioner by rule may provide for prorating the fees set by the commission for the initial issuance of a license, registration, certificate, or permit, so that a person regulated by the department pays only that portion of the applicable fee that is allocable to the number of months during which the license, registration, certificate, or permit is valid.
(c) The commissioner shall develop cost management procedures that enable the commission to determine with reasonable accuracy the cost to the department of each program and activity for which a fee is charged. (V.A.C.S. Art. 9100, Secs. 12(f), (h), 13(d).)
Sec. 51.203. RULES. The commissioner shall adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the department. (V.A.C.S. Art. 9100, Sec. 14(a) (part).)
Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commissioner may not adopt rules restricting advertising or competitive bidding by a person regulated by the department except to prohibit false, misleading, or deceptive practices by that person.
(b) The commissioner may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the department a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement used by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 9100, Secs. 14(b), (c).)
Sec. 51.205. LICENSE EXPIRATION AND RENEWAL. (a) The commission may adopt a system under which licenses, registrations, certificates, or permits expire on various dates during the year and may provide for a renewal period that exceeds 12 months.
(b) The commission shall notify a person regulated by the department of the impending expiration of the person's license, registration, certificate, or permit. (V.A.C.S. Art. 9100, Sec. 12(g).)
Sec. 51.206. ANNUAL REPORT. (a) The commissioner shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 9100, Sec. 13(e).)
[Sections 51.207-51.250 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 51.251. PUBLIC INTEREST INFORMATION. (a) The department shall prepare information of public interest describing the functions of the commission and department and the procedures by which complaints are filed with and resolved by the commission or department.
(b) The department shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 9100, Sec. 16(a).)
Sec. 51.252. COMPLAINTS. (a) The commissioner by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. The department may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the department;
(2) on a sign prominently displayed in the place of business of each person regulated by the department; or
(3) in a bill for service provided by a person regulated by the department.
(b) The department shall keep an information file about each complaint filed with the commission or department that the commission or department has authority to resolve.
(c) If a written complaint is filed with the commission or department that the commission or department has authority to resolve, the department, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 9100, Secs. 16(b), (c).)
Sec. 51.253. PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction.
(b) The commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the commission's programs. (V.A.C.S. Art. 9100, Secs. 16(d), (e).)
[Sections 51.254-51.300 reserved for expansion]
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 51.301. IMPOSITION OF PENALTY. In addition to or in lieu of a sanction imposed on a person under Section 51.353, the commission may impose an administrative penalty on the person. (V.A.C.S. Art. 9100, Secs. 12(i) (part); 17(b) (part).)
Sec. 51.302. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 9100, Secs. 17(b) (part), (e), (f) (part).)
Sec. 51.303. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If, after investigation of a possible violation and the facts surrounding the possible violation, the commissioner determines that a violation occurred, the commissioner shall issue a preliminary report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the preliminary report is issued, the commissioner shall give written notice of the violation to the person on whom the penalty may be imposed.
(c) The notice issued under this section must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 9100, Secs. 17(f) (part), (g).)
Sec. 51.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the commissioner's determination and recommended administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the commissioner's determination, the commission by order shall approve the determination and require the person to pay the recommended penalty. (V.A.C.S. Art. 9100, Secs. 17(h), (i).)
Sec. 51.305. HEARING ON RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the commissioner shall set a hearing and give written notice of the hearing to the person.
(b) The commissioner may employ a hearings officer for this purpose.
(c) The hearings officer shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commission a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 9100, Secs. 17(d) (part), (j) (part).)
Sec. 51.306. DECISION BY COMMISSION. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commission by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The commissioner shall give notice of the commission's order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty imposed;
(3) a statement of the right of the person to judicial review of the commission's order; and
(4) any other information required by law. (V.A.C.S. Art. 9100, Secs. 12(i) (part); 17(j) (part), (k).)
Sec. 51.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the commission's order becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both, and:
(A) forward the amount imposed to the department for deposit in an escrow account; or
(B) give the department a supersedeas bond in a form approved by the commissioner that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the decision is final.
(b) A person who is financially unable to comply with Subsection (a)(2) is entitled to judicial review if the person files with the court, as part of the person's petition for judicial review, a sworn statement that the person is unable to meet the requirements of that subsection. (V.A.C.S. Art. 9100, Secs. 17(l), (m).)
Sec. 51.308. COLLECTION OF PENALTY. If the person on whom the administrative penalty is imposed violates Section 51.307(a), the department or the attorney general may bring an action to collect the penalty. (V.A.C.S. Art. 9100, Sec. 17(n) (part).)
Sec. 51.309. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed, the commissioner shall:
(1) remit to the person the appropriate amount, plus accrued interest, if the person paid the amount of the penalty; or
(2) execute a release of the bond, if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid to the commissioner and ending on the date the penalty is remitted. (V.A.C.S. Art. 9100, Sec. 17(p).)
Sec. 51.310. ADMINISTRATIVE PROCEDURE. (a) The commissioner by rule shall prescribe procedures for the determination and appeal of a decision to impose an administrative penalty.
(b) A proceeding under this subchapter to impose an administrative penalty is considered to be a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 9100, Sec. 17(d) (part).)
[Sections 51.311-51.350 reserved for expansion]
SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 51.351. INSPECTIONS AND INVESTIGATIONS. (a) The department may conduct inspections or investigations as necessary to enforce the laws administered by the department.
(b) The department, during reasonable business hours, may:
(1) enter the business premises of a person regulated by the department or a person suspected of being in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the commissioner related to a regulatory program administered by the department; and
(2) examine and copy records pertinent to the inspection or investigation. (V.A.C.S. Art. 9100, Sec. 19.)
Sec. 51.352. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The attorney general or the commissioner may institute an action for injunctive relief to restrain a violation by and to collect a civil penalty from a person that appears to be in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the commissioner related to the regulatory program.
(b) The amount of a civil penalty may not exceed $1,000 for each violation or $250,000 in the aggregate.
(c) An action filed under this section must be filed in a district court in Travis County.
(d) The attorney general and the department may recover reasonable expenses incurred in obtaining injunctive relief under this section, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses. (V.A.C.S. Art. 9100, Sec. 18.)
Sec. 51.353. ADMINISTRATIVE SANCTIONS. (a) The commissioner shall adopt rules relating to administrative sanctions that may be enforced against a person regulated by the department. If a person violates a law establishing a regulatory program administered by the department or a rule or order of the commissioner relating to the program, the commissioner may:
(1) issue a written reprimand to the person that specifies the violation;
(2) revoke or suspend the person's license, registration, certificate, or permit; or
(3) place the person on probation if the person's license, registration, certificate, or permit has been suspended.
(b) If a suspension is probated, the commissioner may require the person to:
(1) report regularly to the commissioner on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the commissioner; or
(3) continue or renew professional education in those areas that are the basis for the probation until the person attains a degree of skill satisfactory to the commissioner. (V.A.C.S. Art. 9100, Secs. 17(a), (c).)
Sec. 51.354. RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE. (a) A person is entitled to a hearing if the commissioner proposes to suspend or revoke a license, registration, certificate, or permit.
(b) The commissioner may employ a hearings officer for this purpose.
(c) The commissioner by rule shall prescribe procedures for the determination and appeal of a decision to suspend or revoke a license, registration, certificate, or permit.
(d) A proceeding under this chapter to suspend or revoke a license, registration, certificate, or permit is considered to be a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 9100, Sec. 17(d) (part).)
CHAPTER 52. TRANSFER OF LICENSE
Sec. 52.001. TRANSFER OF LICENSE PERMITTED
Sec. 52.002. AUTHORITY TO ENGAGE IN OCCUPATION AFTER ACQUIRING
LICENSE
Sec. 52.003. MULTIPLE HOLDERS OF SINGLE LICENSE PROHIBITED
Sec. 52.004. SALE OF CERTAIN LICENSES
CHAPTER 52. TRANSFER OF LICENSE
Sec. 52.001. TRANSFER OF LICENSE PERMITTED. Except as otherwise provided by law, a person who owns or holds a license to engage in an occupation issued in accordance with the laws of this state may transfer the license in the records of the licensing entity. (V.A.C.S. Art. 5221h; New.)
Sec. 52.002. AUTHORITY TO ENGAGE IN OCCUPATION AFTER ACQUIRING LICENSE. A person who purchases or is assigned a license to engage in an occupation may engage in that occupation under the license during the unexpired term of the license after the person has complied with the legal requirements provided for in original applications for those licenses. (V.A.C.S. Art. 5221i (part).)
Sec. 52.003. MULTIPLE HOLDERS OF SINGLE LICENSE PROHIBITED. This chapter does not permit two or more persons to engage in the same occupation under one license at the same time. (V.A.C.S. Art. 5221i (part).)
Sec. 52.004. SALE OF CERTAIN LICENSES. (a) A license held by a person to engage in an occupation is considered an asset of the person and may be sold in the same manner as the person's other property if the entity operating under the license is closed out by legal process.
(b) A person who purchases a license sold under Subsection (a) may engage in that occupation under the license or transfer the license to another person.
(c) A license transferred under Subsection (b) may be transferred only one time. (V.A.C.S. Art. 5221i (part).)
CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 53.001. APPLICABILITY OF CERTAIN DEFINITIONS
Sec. 53.002. APPLICABILITY OF CHAPTER
[Sections 53.003-53.020 reserved for expansion]
SUBCHAPTER B. INELIGIBILITY FOR LICENSE
Sec. 53.021. AUTHORITY TO REVOKE, SUSPEND, OR DENY
LICENSE
Sec. 53.022. FACTORS IN DETERMINING WHETHER CONVICTION
RELATES TO OCCUPATION
Sec. 53.023. ADDITIONAL FACTORS FOR LICENSING AUTHORITY
TO CONSIDER
Sec. 53.024. PROCEEDINGS GOVERNED BY ADMINISTRATIVE
PROCEDURE ACT
Sec. 53.025. GUIDELINES
[Sections 53.026-53.050 reserved for expansion]
SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION,
OR DENIAL OF LICENSE
Sec. 53.051. NOTICE
Sec. 53.052. JUDICIAL REVIEW
CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 53.001. APPLICABILITY OF CERTAIN DEFINITIONS. The definitions provided by Chapter 2001, Government Code, apply to this chapter. (V.A.C.S. Art. 6252-13c, Sec. 1.)
Sec. 53.002. APPLICABILITY OF CHAPTER. This chapter does not apply to:
(1) the Supreme Court of Texas, a person licensed under the court's authority on behalf of the judicial department of government, or an applicant for a license issued under the court's authority on behalf of the judicial department of government;
(2) a peace officer or an applicant for a license as a peace officer described by Article 2.12, Code of Criminal Procedure; or
(3) a person who:
(A) is licensed by the Texas State Board of Medical Examiners, the Texas State Board of Pharmacy, the State Board of Dental Examiners, or the State Board of Veterinary Medical Examiners; and
(B) has been convicted of a felony under Chapter 481 or 483 or Section 485.033, Health and Safety Code. (V.A.C.S. Art. 6252-13c, Sec. 2; Art. 6252-13d, Sec. 5.)
[Sections 53.003-53.020 reserved for expansion]
SUBCHAPTER B. INELIGIBILITY FOR LICENSE
Sec. 53.021. AUTHORITY TO REVOKE, SUSPEND, OR DENY LICENSE. (a) A licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation.
(b) A license holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision. (V.A.C.S. Art. 6252-13c, Secs. 4(a), (e).)
Sec. 53.022. FACTORS IN DETERMINING WHETHER CONVICTION RELATES TO OCCUPATION. In determining whether a criminal conviction directly relates to an occupation, the licensing authority shall consider:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;
(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. (V.A.C.S. Art. 6252-13c, Sec. 4(b).)
Sec. 53.023. ADDITIONAL FACTORS FOR LICENSING AUTHORITY TO CONSIDER. (a) In determining the fitness to perform the duties and discharge the responsibilities of the licensed occupation of a person who has been convicted of a crime, the licensing authority shall consider, in addition to the factors listed in Section 53.022:
(1) the extent and nature of the person's past criminal activity;
(2) the age of the person when the crime was committed;
(3) the amount of time that has elapsed since the person's last criminal activity;
(4) the conduct and work activity of the person before and after the criminal activity;
(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and
(6) other evidence of the person's fitness, including letters of recommendation from:
(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;
(B) the sheriff or chief of police in the community where the person resides; and
(C) any other person in contact with the convicted person.
(b) The applicant has the responsibility, to the extent possible, to obtain and provide to the licensing authority the recommendations of the prosecution, law enforcement, and correctional authorities as required by Subsection (a)(6).
(c) In addition to fulfilling the requirements of Subsection (b), the applicant shall furnish proof in the form required by the licensing authority that the applicant has:
(1) maintained a record of steady employment;
(2) supported the applicant's dependents;
(3) maintained a record of good conduct; and
(4) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted. (V.A.C.S. Art. 6252-13c, Sec. 4(c).)
Sec. 53.024. PROCEEDINGS GOVERNED BY ADMINISTRATIVE PROCEDURE ACT. A proceeding before a licensing authority to establish factors required to be considered under this subchapter is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 6252-13c, Sec. 4(d).)
Sec. 53.025. GUIDELINES. (a) Each licensing authority shall issue guidelines relating to the practice of the licensing authority under this chapter. The guidelines must state the reasons a particular crime is considered to relate to a particular license and any other criterion that affects the decisions of the licensing authority.
(b) A state licensing authority that issues guidelines under this section shall file the guidelines with the secretary of state for publication in the Texas Register.
(c) A local or county licensing authority that issues guidelines under this section shall post the guidelines at the courthouse for the county in which the licensing authority is located or publish the guidelines in a newspaper having countywide circulation in that county.
(d) Amendments to the guidelines, if any, shall be issued annually. (V.A.C.S. Art. 6252-13d, Sec. 4.)
[Sections 53.026-53.050 reserved for expansion]
SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION,
OR DENIAL OF LICENSE
Sec. 53.051. NOTICE. A licensing authority that suspends or revokes a license or denies a person a license or the opportunity to be examined for a license because of the person's prior conviction of a crime and the relationship of the crime to the license shall notify the person in writing of:
(1) the reason for the suspension, revocation, denial, or disqualification;
(2) the review procedure provided by Section 53.052; and
(3) the earliest date the person may appeal the action of the licensing authority. (V.A.C.S. Art. 6252-13d, Sec. 2.)
Sec. 53.052. JUDICIAL REVIEW. (a) A person whose license has been suspended or revoked or who has been denied a license or the opportunity to take an examination under Section 53.021 and who has exhausted the person's administrative appeals may file an action in the district court in the county in which the licensing authority is located for review of the evidence presented to the licensing authority and the decision of the licensing authority.
(b) The petition for an action under Subsection (a) must be filed not later than the 30th day after the date the licensing authority's decision is final and appealable. (V.A.C.S. Art. 6252-13d, Sec. 3.)
CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY
Sec. 54.001. DEFINITIONS
Sec. 54.002. EXAMINATION SCHEDULED ON RELIGIOUS HOLY DAY
CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY
Sec. 54.001. DEFINITIONS. In this chapter:
(1) "Religious holy day" means a day on which the tenets of a religious organization prohibit the organization's members from participating in secular activities.
(2) "Religious organization" means an organization that qualifies under Section 11.20, Tax Code.
(3) "State agency" means an agency in the executive, legislative, or judicial branch of state government that administers an examination for licensing or other regulatory purposes. (V.A.C.S. Art. 6252-16d, Subsecs. (b), (c), (d).)
Sec. 54.002. EXAMINATION SCHEDULED ON RELIGIOUS HOLY DAY. (a) Each state agency shall adopt a procedure to permit an examinee who wishes to observe a religious holy day on which the person's religious beliefs prevent the person from taking an examination to take an examination scheduled to be administered by the agency on that religious holy day on an alternate date.
(b) Each state agency shall adopt rules as necessary to implement this section. (V.A.C.S. Art. 6252-16d, Subsecs. (a), (e).)
CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY
Sec. 55.001. DEFINITIONS
Sec. 55.002. EXEMPTION FROM PENALTY FOR FAILURE TO RENEW
LICENSE
CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY
Sec. 55.001. DEFINITIONS. In this chapter:
(1) "License" means a license, certificate, registration, permit, or other form of authorization required by law or a state agency rule that must be obtained by an individual to engage in a particular business.
(2) "State agency" means a department, board, bureau, commission, committee, division, office, council, or agency of the state. (V.A.C.S. Art. 9027, Sec. 1.)
Sec. 55.002. EXEMPTION FROM PENALTY FOR FAILURE TO RENEW LICENSE. A state agency that issues a license shall adopt rules to exempt an individual who holds a license issued by the agency from any increased fee or other penalty imposed by the agency for failing to renew the license in a timely manner if the individual establishes to the satisfaction of the agency that the individual failed to renew the license in a timely manner because the individual was on active duty in the United States armed forces serving outside this state. (V.A.C.S. Art. 9027, Sec. 2.)
[Chapters 56-100 reserved for expansion]
TITLE 3. HEALTH PROFESSIONS
SUBTITLE A. PROVISIONS APPLYING TO HEALTH PROFESSIONS GENERALLY
CHAPTER 101. HEALTH PROFESSIONS COUNCIL
SUBCHAPTER A. HEALTH PROFESSIONS COUNCIL
Sec. 101.001. HEALTH PROFESSIONS COUNCIL
Sec. 101.002. COMPOSITION OF COUNCIL
Sec. 101.003. OFFICERS
Sec. 101.004. COMPENSATION OF MEMBERS
Sec. 101.005. COUNCIL STAFF
Sec. 101.006. BUDGET
Sec. 101.007. DUTIES OF COUNCIL
[Sections 101.008-101.050 reserved for expansion]
SUBCHAPTER B. TELEPHONE COMPLAINT SYSTEM
Sec. 101.051. TELEPHONE COMPLAINT SYSTEM
Sec. 101.052. TELEPHONE LISTING
Sec. 101.053. CONFIDENTIALITY
[Sections 101.054-101.100 reserved for expansion]
SUBCHAPTER C. TRAINING PROGRAM
Sec. 101.101. TRAINING PROGRAM
Sec. 101.102. PROGRAM REQUIREMENTS
[Sections 101.103-101.150 reserved for expansion]
SUBCHAPTER D. REPORTING REQUIREMENTS
Sec. 101.151. ANNUAL REPORT
[Sections 101.152-101.200 reserved for expansion]
SUBCHAPTER E. GROUNDS FOR LICENSE REVOCATION OR DENIAL
Sec. 101.201. FALSE, MISLEADING, OR DECEPTIVE ADVERTISING
Sec. 101.202. FAILURE TO PROVIDE BILLING INFORMATION
Sec. 101.203. OVERCHARGING OR OVERTREATING
Sec. 101.204. REMEDIES
[Sections 101.205-101.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT
Sec. 101.251. CIVIL PENALTY
Sec. 101.252. INJUNCTION
Sec. 101.253. REMEDIES NOT EXCLUSIVE
CHAPTER 101. HEALTH PROFESSIONS COUNCIL
SUBCHAPTER A. HEALTH PROFESSIONS COUNCIL
Sec. 101.001. HEALTH PROFESSIONS COUNCIL. In this chapter, "council" means the Health Professions Council. (New.)
Sec. 101.002. COMPOSITION OF COUNCIL. The council consists of 14 members, with one member appointed by each of the following:
(1) the Texas Board of Chiropractic Examiners;
(2) the State Board of Dental Examiners;
(3) the Texas Optometry Board;
(4) the Texas State Board of Pharmacy;
(5) the Texas State Board of Podiatric Medical Examiners;
(6) the State Board of Veterinary Medical Examiners;
(7) the Texas State Board of Medical Examiners;
(8) the Board of Nurse Examiners;
(9) the Texas State Board of Examiners of Psychologists;
(10) the Board of Vocational Nurse Examiners;
(11) the entity that regulates the practice of physical therapy;
(12) the entity that regulates the practice of occupational therapy;
(13) the health licensing division of the Texas Department of Health; and
(14) the governor's office. (V.A.C.S. Art. 4512p, Sec. 1(b).)
Sec. 101.003. OFFICERS. The council shall elect from the council's members a presiding officer and assistant presiding officer to conduct the business of the council. (V.A.C.S. Art. 4512p, Sec. 1(c).)
Sec. 101.004. COMPENSATION OF MEMBERS. A member of the council is not entitled to receive compensation or a per diem for the member's service on the council. (V.A.C.S. Art. 4512p, Sec. 1(d).)
Sec. 101.005. COUNCIL STAFF. The council may employ staff or designate staff for the council from the employees of the regulatory agencies listed in Section 101.002 as necessary for the council to carry out the council's duties. (V.A.C.S. Art. 4512p, Sec. 1(e).)
Sec. 101.006. BUDGET. The council shall adopt an annual budget that is funded by a prorated assessment paid by the regulatory agencies listed in Section 101.002. (V.A.C.S. Art. 4512p, Sec. 1(f).)
Sec. 101.007. DUTIES OF COUNCIL. The council shall:
(1) administer the functions provided by this chapter; and
(2) provide a means for the regulatory agencies represented on the council to coordinate administrative and regulatory efforts. (V.A.C.S. Art. 4512p, Sec. 1(a).)
[Sections 101.008-101.050 reserved for expansion]
SUBCHAPTER B. TELEPHONE COMPLAINT SYSTEM
Sec. 101.051. TELEPHONE COMPLAINT SYSTEM. The council shall establish and operate a toll-free telephone complaint system to provide assistance and referral services for persons making a complaint relating to a health profession regulated by the state. (V.A.C.S. Art. 4512p, Sec. 2(a).)
Sec. 101.052. TELEPHONE LISTING. A state agency that regulates a health profession shall list the toll-free telephone number of the complaint system with the agency's regular telephone number. (V.A.C.S. Art. 4512p, Sec. 2(b).)
Sec. 101.053. CONFIDENTIALITY. A complaint, adverse report, or other information regarding the content of a complaint in the possession of the council or its employee or agent relating to a person initiating a complaint or the license holder who is the subject of the complaint is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than:
(1) a council employee or agent involved in collecting complaint information;
(2) the specific council member agency or board responsible for regulating the health profession in which the person who is the subject of the complaint is a license holder; or
(3) an employee or agent of the member agency or board who is involved in the discipline of license holders. (V.A.C.S. Art. 4512p, Sec. 2(c).)
[Sections 101.054-101.100 reserved for expansion]
SUBCHAPTER C. TRAINING PROGRAM
Sec. 101.101. TRAINING PROGRAM. (a) The council shall establish a training program for the governing bodies of state agencies that regulate health professions.
(b) Before a member of a governing body may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of the training program established under this section. (V.A.C.S. Art. 4512p, Secs. 3(a), (b).)
Sec. 101.102. PROGRAM REQUIREMENTS. The training program must provide information to a participant regarding:
(1) the enabling legislation that created the governing body to which the member is appointed;
(2) the programs operated by the state agency governed by the governing body;
(3) the role and functions of that state agency;
(4) the rules of that state agency with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for that state agency;
(6) the results of the most recent formal audit of that state agency;
(7) the requirements of the:
(A) open meetings law, Chapter 551, Government Code;
(B) open records law, Chapter 552, Government Code; and
(C) administrative procedure law, Chapter 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by that state agency or the Texas Ethics Commission. (V.A.C.S. Art. 4512p, Sec. 3(c).)
[Sections 101.103-101.150 reserved for expansion]
SUBCHAPTER D. REPORTING REQUIREMENTS
Sec. 101.151. ANNUAL REPORT. (a) The council shall prepare an annual report that includes:
(1) a statistical compilation of enforcement actions taken by a regulatory agency listed in Section 101.002;
(2) recommendations for statutory changes to improve the regulation of the health care professions; and
(3) other relevant information and recommendations determined necessary by the council.
(b) The council shall send the report to the governor, the lieutenant governor, and the speaker of the house of representatives not later than February 1 of each year. (V.A.C.S. Art. 4512p, Secs. 8(a), (b), (c).)
[Sections 101.152-101.200 reserved for expansion]
SUBCHAPTER E. GROUNDS FOR LICENSE REVOCATION OR DENIAL
Sec. 101.201. FALSE, MISLEADING, OR DECEPTIVE ADVERTISING. (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification.
(b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:
(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;
(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;
(3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;
(4) contains a testimonial;
(5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional;
(6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;
(7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;
(8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or
(9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. (V.A.C.S. Art. 4512p, Secs. 4(a) (part), (b).)
Sec. 101.202. FAILURE TO PROVIDE BILLING INFORMATION. On the written request of a patient, a health care professional shall provide, in plain language, a written explanation of the charges for professional services previously made on a bill or statement for the patient. (V.A.C.S. Art. 4512p, Sec. 5(a).)
Sec. 101.203. OVERCHARGING OR OVERTREATING. A health care professional may not persistently or flagrantly overcharge or overtreat a patient. (V.A.C.S. Art. 4512p, Sec. 5(b).)
Sec. 101.204. REMEDIES. (a) A violation of this subchapter is subject to action by the appropriate health licensing agency as a ground for revocation or denial of a license.
(b) A violation of Section 101.201 is grounds for action under Section 17.47, 17.58, 17.60, or 17.61, Business & Commerce Code, by the consumer protection division of the office of the attorney general.
(c) A violation of Section 101.201 does not create a private cause of action, including an action for breach of warranty or for an implied contract or warranty for good and workmanlike service. (V.A.C.S. Art. 4512p, Secs. 4(a) (part), (c), 5(c).)
[Sections 101.205-101.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT
Sec. 101.251. CIVIL PENALTY. (a) A person who violates this chapter is liable to the state for a civil penalty in an amount not to exceed $1,000 for each violation. Each day a violation occurs constitutes a separate violation.
(b) The attorney general may initiate an action under this section by filing suit in a district court in Travis County or in the county in which the violation occurred.
(c) The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this section, including court costs, reasonable attorney's fees, reasonable investigative costs, witness fees, and deposition expenses.
(d) A civil penalty recovered under this section shall be deposited in the state treasury. (V.A.C.S. Art. 4512p, Sec. 6.)
Sec. 101.252. INJUNCTION. (a) The attorney general or the appropriate health licensing agency may bring an action for an injunction to stop a violation or threatened violation of this chapter.
(b) The attorney general or health licensing agency may recover reasonable expenses incurred in obtaining an injunction under this section, including court costs, reasonable attorney's fees, reasonable investigative costs, witness fees, and deposition expenses. (V.A.C.S. Art. 4512p, Sec. 7.)
Sec. 101.253. REMEDIES NOT EXCLUSIVE. The remedies provided by this chapter are in addition to any other remedy provided by law, including rules. (V.A.C.S. Art. 4512p, Sec. 9.)
CHAPTER 102. SOLICITATION OF PATIENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 102.001. SOLICITING PATIENTS; OFFENSE
Sec. 102.002. REBUTTABLE PRESUMPTION
Sec. 102.003. FEDERAL LAW; CONSTRUCTION
Sec. 102.004. APPLICABILITY TO ADVERTISING
Sec. 102.005. APPLICABILITY TO CERTAIN ENTITIES
Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE
Sec. 102.007. APPLICABILITY
Sec. 102.008. DISCIPLINARY ACTION
Sec. 102.009. INJUNCTION
Sec. 102.010. CIVIL PENALTIES
Sec. 102.011. SUIT FOR INJUNCTIVE RELIEF OR ASSESSMENT
OF CIVIL PENALTY
[Sections 102.012-102.050 reserved for expansion]
SUBCHAPTER B. HEALING ARTS
Sec. 102.051. SOLICITING PATIENTS; OFFENSE
Sec. 102.052. APPLICABILITY TO PHYSICIANS
Sec. 102.053. EXCEPTION FOR CERTAIN ADVERTISING
Sec. 102.054. ACCESSIBILITY AND USE OF WITNESS TESTIMONY
CHAPTER 102. SOLICITATION OF PATIENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 102.001. SOLICITING PATIENTS; OFFENSE. (a) A person commits an offense if the person knowingly offers to pay or agrees to accept, directly or indirectly, overtly or covertly any remuneration in cash or in kind to or from another for securing or soliciting a patient or patronage for or from a person licensed, certified, or registered by a state health care regulatory agency.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the person:
(1) has previously been convicted of an offense under this section; or
(2) was employed by a federal, state, or local government at the time of the offense. (Health and Safety Code Secs. 161.091(a), (d) (part).)
Sec. 102.002. REBUTTABLE PRESUMPTION. It is a rebuttable presumption that a person violated Section 102.001 if:
(1) the person refers or accepts a referral of a patient to an inpatient mental health facility or chemical dependency treatment facility;
(2) before the patient is discharged or furloughed from the facility, the person pays the referring person or accepts payment from the facility for outpatient services to be provided by the referring person after the patient is discharged or furloughed from the facility; and
(3) the referring person does not provide the outpatient services for which payment was made and does not return to the facility the payment received for those services. (Health and Safety Code Sec. 161.091(b).)
Sec. 102.003. FEDERAL LAW; CONSTRUCTION. Section 102.001 permits any payment, business arrangement, or payment practice permitted by 42 U.S.C. Section 1320a-7b(b) or any regulation adopted under that law. (Health and Safety Code Sec. 161.091(e).)
Sec. 102.004. APPLICABILITY TO ADVERTISING. Section 102.001 does not prohibit advertising, unless the advertising is:
(1) false, misleading, or deceptive; or
(2) not readily subject to verification, if the advertising claims professional superiority or the performance of a professional service in a superior manner. (Health and Safety Code Sec. 161.091(c).)
Sec. 102.005. APPLICABILITY TO CERTAIN ENTITIES. Section 102.001 does not apply to:
(1) a licensed insurer;
(2) a governmental entity, including:
(A) an intergovernmental risk pool established under Chapter 172, Local Government Code; and
(B) an "institution" as defined in the Texas State College and University Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's Texas Insurance Code);
(3) a group hospital service corporation; or
(4) a health maintenance organization that reimburses, provides, offers to provide, or administers hospital, medical, dental, or other health-related benefits under a health benefits plan for which it is the payor. (Health and Safety Code Sec. 161.091(f).)
Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE. (a) A person commits an offense if:
(1) the person, in a manner otherwise permitted under Section 102.001, accepts remuneration to secure or solicit a patient or patronage for a person licensed, certified, or registered by a state health care regulatory agency; and
(2) does not, at the time of initial contact and at the time of referral, disclose to the patient:
(A) the person's affiliation, if any, with the person for whom the patient is secured or solicited; and
(B) that the person will receive, directly or indirectly, remuneration for securing or soliciting the patient.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the person:
(1) has previously been convicted of an offense under this section; or
(2) was employed by a federal, state, or local government at the time of the offense. (Health and Safety Code Secs. 161.092(a), (b).)
Sec. 102.007. APPLICABILITY. (a) This subchapter does not apply to a health care information service that:
(1) provides its services to a consumer only by telephone communication on request initiated by the consumer and without charge to the consumer;
(2) provides information about health care providers to enable consumer selection of health care provider services without any direct influence by a health care provider on actual consumer selection of those services;
(3) in response to each consumer inquiry, on a nondiscriminatory basis, provides information identifying health care providers who substantially meet the consumer's detailed criteria based on consumer responses to standard questions designed to elicit a consumer's criteria for a health care provider, including criteria concerning location of the practice, practice specialties, costs and payment policies, acceptance of insurance coverage, general background and practice experience, and various personal characteristics;
(4) does not attempt through its standard questions for solicitation of consumer criteria or through any other means to lead a consumer to select or consider selection of a particular health care provider for health care provider services;
(5) identifies to a consumer:
(A) all health care providers substantially meeting the consumer's stated criteria who are located within the zip code area in which the consumer elects to obtain services from a health care provider; or
(B) all health care providers substantially meeting the consumer's stated criteria who are located in zip code areas in the closest proximity to the elected zip code area if no health care provider substantially meeting the consumer's criteria is located within that zip code area;
(6) discloses to each consumer the relationship between the health care information service and health care providers participating in its services;
(7) does not provide or represent itself as providing diagnostic or counseling services or assessment of illness or injury and does not make any promise of cure or guarantee of treatment;
(8) does not provide or arrange for transportation of a consumer to or from the location of a health care provider;
(9) does not limit the scope of or direct its advertising or other marketing of its services to a particular health care provider specialty, to a particular segment of the population, or to persons suffering from a particular illness, condition, or infirmity;
(10) charges to and collects a fee from a health care provider participating in its services that is set in advance, is consistent with the fair market value for those information services, and is not based on the potential value of a patient to a health care provider or on the value of or a percentage of the value of a professional service provided by the health care provider;
(11) does not limit participation by a health care provider in its services to a particular health care specialty or to a particular service provided by a health care provider;
(12) does not limit participation by a health care provider in its services for a reason other than:
(A) failure to have a current license without limitation to practice in this state;
(B) failure to maintain professional liability insurance while participating in the service;
(C) significant dissatisfaction of consumers of the health care information service that is documented and can be proved;
(D) a decision by a peer review committee that the health care provider has failed to meet prescribed standards or has not acted in a professional or ethical manner; or
(E) termination of the contract between the health care provider and the health care information service by either party under the terms of the contract;
(13) maintains a customer service department to handle complaints and answer questions for consumers;
(14) maintains a customer follow-up system to monitor consumer satisfaction; and
(15) does not use, maintain, distribute, or provide for any purpose any information that will identify a particular consumer, such as a name, address, or telephone number, obtained from a consumer seeking its services other than for the purposes of:
(A) providing the information to the health care provider with whom an appointment is made;
(B) performing administrative functions necessary to operate the health care information service;
(C) providing directly to a consumer, at the request of that consumer on that consumer's initial contact with the health care information service, information relating to health-related support groups or providers of health-care-related services or equipment within the area of interest requested by the consumer; or
(D) conducting analytical research on data obtained through provision of services and preparing statistical reports that generally analyze that data but do not in any manner identify one or more specific consumers.
(b) In this section:
(1) "Health care information service" means a person who provides information to a consumer regarding health care providers that can enable the consumer to select one or more health care providers to furnish health care services.
(2) "Health care provider" means a person licensed, certified, or registered by a state health care regulatory agency other than:
(A) a mental health facility as defined by Section 571.003, Health and Safety Code; or
(B) a treatment facility as defined by Section 464.001, Health and Safety Code. (Health and Safety Code Sec. 161.0915.)
Sec. 102.008. DISCIPLINARY ACTION. A violation of Section 102.001 or 102.006 is grounds for disciplinary action by the regulatory agency that issued a license, certification, or registration to the person who committed the violation. (Health and Safety Code Secs. 161.091(d) (part), 161.092(c).)
Sec. 102.009. INJUNCTION. (a) The attorney general or the appropriate district or county attorney, in the name of the state, may institute and conduct an action in a district court of Travis County or of a county in which any part of the violation occurs for an injunction or other process against a person who is violating this subchapter.
(b) The district court may grant any prohibitory or mandatory relief warranted by the facts, including a temporary restraining order, temporary injunction, or permanent injunction. (Health and Safety Code Sec. 161.093.)
Sec. 102.010. CIVIL PENALTIES. (a) A person who violates this subchapter is subject to a civil penalty of not more than $10,000 for each day of violation and each act of violation. In determining the amount of the civil penalty, the court shall consider:
(1) the person's previous violations;
(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;
(3) whether the health and safety of the public was threatened by the violation;
(4) the demonstrated good faith of the person; and
(5) the amount necessary to deter future violations.
(b) The attorney general or the appropriate district or county attorney, in the name of the state, may institute and conduct an action authorized by this section in a district court of Travis County or of a county in which any part of the violation occurs.
(c) A penalty collected under this section by the attorney general shall be deposited to the credit of the general revenue fund. A penalty collected under this section by a district or county attorney shall be deposited to the credit of the general fund of the county in which the suit was heard. (Health and Safety Code Secs. 161.094(a), (b), (e).)
Sec. 102.011. SUIT FOR INJUNCTIVE RELIEF OR ASSESSMENT OF CIVIL PENALTY. (a) The party bringing a suit under this subchapter may:
(1) combine a suit to assess and recover civil penalties with a suit for injunctive relief; or
(2) file a suit to assess and recover civil penalties independently of a suit for injunctive relief.
(b) The party bringing the suit may recover reasonable expenses incurred in obtaining civil penalties, injunctive relief, or both, including investigation costs, court costs, reasonable attorney's fees, witness fees, and deposition expenses.
(c) The civil penalty and injunction authorized by this subchapter are in addition to any other civil, administrative, or criminal action provided by law. (Health and Safety Code Secs. 161.094(c), (d), (f).)
[Sections 102.012-102.050 reserved for expansion]
SUBCHAPTER B. HEALING ARTS
Sec. 102.051. SOLICITING PATIENTS; OFFENSE. (a) A person commits an offense if the person:
(1) practices the art of healing with or without the use of medicine; and
(2) employs or agrees to employ, pays or promises to pay, or rewards or promises to reward another for soliciting or securing a patient or patronage.
(b) A person commits an offense if the person accepts or agrees to accept anything of value for soliciting or securing a patient or patronage for a person who practices the art of healing with or without the use of medicine.
(c) An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $200. Each violation of this section is a separate offense.
(d) For purposes of this section, a person who practices the art of healing includes a masseur and an optometrist. (V.A.C.S. Art. 4505a, Sec. 1.)
Sec. 102.052. APPLICABILITY TO PHYSICIANS. This subchapter does not apply to a practitioner of medicine subject to regulation under Subtitle B. (V.A.C.S. Art. 4505a, Sec. 2.)
Sec. 102.053. EXCEPTION FOR CERTAIN ADVERTISING. Section 102.051 does not prohibit:
(1) placement in a newspaper of an advertisement of the person's profession, business, or place of business; or
(2) advertisement by handbill and payment for services in distributing the handbill. (V.A.C.S. Art. 4505b.)
Sec. 102.054. ACCESSIBILITY AND USE OF WITNESS TESTIMONY. (a) A person is not exempt from giving testimony in a proceeding to enforce Section 102.051.
(b) The testimony a person gives in a proceeding to enforce Section 102.051 may not be used against that person in any criminal action or proceeding. A criminal action or proceeding may not be brought against a person because of the testimony given by that person in a proceeding to enforce Section 102.051. (V.A.C.S. Art. 4505c.)
CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION
IN ABORTION PROCEDURE
Sec. 103.001. RIGHT TO OBJECT
Sec. 103.002. DISCRIMINATION PROHIBITED
Sec. 103.003. REMEDIES
Sec. 103.004. DUTY OF CERTAIN PRIVATE ENTITIES TO MAKE
FACILITIES AVAILABLE
CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION
IN ABORTION PROCEDURE
Sec. 103.001. RIGHT TO OBJECT. A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to directly or indirectly performing or participating in an abortion procedure may not be required to directly or indirectly perform or participate in the procedure. (V.A.C.S. Art. 4512.7, Sec. 1.)
Sec. 103.002. DISCRIMINATION PROHIBITED. (a) A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee, or an applicant for one of those positions, who refuses to perform or participate in an abortion procedure.
(b) A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee because of the person's willingness to participate in an abortion procedure at another facility.
(c) An educational institution may not discriminate against an applicant for admission or employment as a student, intern, or resident because of the applicant's attitude concerning abortion. (V.A.C.S. Art. 4512.7, Sec. 3.)
Sec. 103.003. REMEDIES. A person whose rights under this chapter are violated may sue a hospital, health care facility, or educational institution in district court in the county where the hospital, facility, or institution is located for:
(1) an injunction against any further violation;
(2) appropriate affirmative relief, including admission or reinstatement of employment with back pay plus 10 percent interest; and
(3) any other relief necessary to ensure compliance with this chapter. (V.A.C.S. Art. 4512.7, Sec. 4.)
Sec. 103.004. DUTY OF CERTAIN PRIVATE ENTITIES TO MAKE FACILITIES AVAILABLE. A private hospital or private health care facility is not required to make its facilities available for the performance of an abortion unless a physician determines that the life of the mother is immediately endangered. (V.A.C.S. Art. 4512.7, Sec. 2.)
CHAPTER 104. HEALING ART PRACTITIONERS
Sec. 104.001. SHORT TITLE
Sec. 104.002. HEALING ART
Sec. 104.003. REQUIRED IDENTIFICATION
Sec. 104.004. OTHER PERSONS USING TITLE "DOCTOR"
Sec. 104.005. ENFORCEMENT
Sec. 104.006. APPLICABILITY TO ESTABLISHED CHURCH
Sec. 104.007. PENALTIES
CHAPTER 104. HEALING ART PRACTITIONERS
Sec. 104.001. SHORT TITLE. This chapter may be cited as the Healing Art Identification Act. (V.A.C.S. Art. 4590e, Sec. 1 (part).)
Sec. 104.002. HEALING ART. The healing art includes any system, treatment, operation, diagnosis, prescription, or practice to ascertain, cure, relieve, adjust, or correct a human disease, injury, or unhealthy or abnormal physical or mental condition. (V.A.C.S. Art. 4590e, Sec. 2.)
Sec. 104.003. REQUIRED IDENTIFICATION. (a) A person subject to this section who uses the person's name on a written or printed professional identification, including a sign, pamphlet, stationery, or letterhead, or who uses the person's signature as a professional identification shall designate as required by this section the healing art the person is licensed to practice.
(b) A person who is licensed by the Texas State Board of Medical Examiners and holds a doctor of medicine degree shall use:
(1) physician or surgeon, M.D.;
(2) doctor, M.D.; or
(3) doctor of medicine, M.D.
(c) A person who is licensed by the Texas State Board of Medical Examiners and holds a doctor of osteopathy degree shall use:
(1) physician or surgeon, D.O.;
(2) osteopathic physician or surgeon;
(3) doctor, D.O.;
(4) doctor of osteopathy;
(5) doctor of osteopathic medicine;
(6) osteopath; or
(7) D.O.
(d) A person who is licensed by the State Board of Dental Examiners shall use:
(1) dentist;
(2) doctor, D.D.S.;
(3) doctor of dental surgery;
(4) D.D.S.; or
(5) doctor of dental medicine, D.M.D.
(e) A person who is licensed by the Texas Board of Chiropractic Examiners shall use:
(1) chiropractor;
(2) doctor, D.C.;
(3) doctor of chiropractic; or
(4) D.C.
(f) A person who is licensed by the Texas Optometry Board shall use:
(1) optometrist;
(2) doctor, optometrist;
(3) doctor of optometry; or
(4) O.D.
(g) A person who is licensed by the Texas State Board of Podiatric Medical Examiners shall use:
(1) chiropodist;
(2) doctor, D.S.C.;
(3) doctor of surgical chiropody;
(4) D.S.C.;
(5) podiatrist;
(6) doctor, D.P.M.;
(7) doctor of podiatric medicine; or
(8) D.P.M. (V.A.C.S. Art. 4590e, Sec. 3.)
Sec. 104.004. OTHER PERSONS USING TITLE "DOCTOR." In using the title "doctor" as a trade or professional asset or on any manner of professional identification, including a sign, pamphlet, stationery, or letterhead, or as a part of a signature, a person other than a person described by Section 104.003 shall designate the authority under which the title is used or the college or honorary degree that gives rise to the use of the title. (V.A.C.S. Art. 4590e, Sec. 4.)
Sec. 104.005. ENFORCEMENT. (a) On the request of a healing art licensing board listed in Section 104.003, the district or county attorney shall file and prosecute appropriate judicial proceedings in the name of the state against a person who violates Section 104.003.
(b) The district or county attorney shall file the proceeding in the district court of the county in which the violation occurs. (V.A.C.S. Art. 4590e, Sec. 5.)
Sec. 104.006. APPLICABILITY TO ESTABLISHED CHURCH. This chapter does not affect the use of the principles or teachings of an established church in ministering, without the use of any drug or material remedy, to the sick or suffering by prayer if:
(1) sanitary and quarantine laws are complied with; and
(2) the person ministering or offering to minister does not maintain an office, other than to exercise the principles or teachings of the church of which the person is a bona fide member. (V.A.C.S. Art. 4590e, Sec. 1 (part).)
Sec. 104.007. PENALTIES. (a) A person who violates this chapter commits an offense. An offense under this section is a misdemeanor punishable by:
(1) on conviction of a first offense, a fine of $100;
(2) on conviction of a second offense, a fine of $500; and
(3) on conviction of a third offense:
(A) a fine of $1,000; or
(B) revocation of the person's license to practice the healing art.
(b) On conviction of the person, the district court shall notify the licensing board that issued the license. (V.A.C.S. Art. 4590e, Sec. 6.)
[Chapters 105-150 reserved for expansion]
SUBTITLE B. PHYSICIANS
CHAPTER 151. GENERAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 151.001. SHORT TITLE
Sec. 151.002. DEFINITIONS
Sec. 151.003. LEGISLATIVE FINDINGS
Sec. 151.004. APPLICATION OF SUNSET ACT
Sec. 151.005. GOVERNMENTAL DISCRIMINATION PROHIBITED
[Sections 151.006-151.050 reserved for expansion]
SUBCHAPTER B. APPLICATION AND CONSTRUCTION OF SUBTITLE
Sec. 151.051. DISCRIMINATION BASED ON TYPE OF ACADEMIC
MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS
PROHIBITED
Sec. 151.052. EXEMPTIONS
Sec. 151.053. APPLICATION TO CERTAIN PERSONS PROVIDING
NUTRITIONAL ADVICE
Sec. 151.054. APPLICATION TO SELF-CARE
Sec. 151.055. APPLICATION TO CERTAIN INDEPENDENT
CONTRACTOR AGREEMENTS
Sec. 151.056. APPLICATION TO TELEMEDICINE
SUBTITLE B. PHYSICIANS
CHAPTER 151. GENERAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 151.001. SHORT TITLE. This subtitle may be cited as the Medical Practice Act. (V.A.C.S. Art. 4495b, Sec. 1.01.)
Sec. 151.002. DEFINITIONS. (a) In this subtitle:
(1) "Board" means the Texas State Board of Medical Examiners.
(2) "Continuing threat to the public welfare" means a real and present danger to the health of a physician's patients from the acts or omissions of the physician caused through the physician's lack of competence, impaired status, or failure to care adequately for the physician's patients, as determined by:
(A) the board;
(B) a medical peer review committee in this state;
(C) a physician licensed to practice medicine in this state or otherwise lawfully practicing medicine in this state;
(D) a physician engaged in graduate medical education or training; or
(E) a medical student.
(3) "Disciplinary order" means an action taken under Section 164.001, 164.053, 164.058, or 164.101.
(4) "Doctor of osteopathic medicine" includes a doctor of osteopathy, an osteopath, an osteopathic physician, and an osteopathic surgeon.
(5) "Health care entity" means:
(A) a hospital licensed under Chapter 241 or 577, Health and Safety Code;
(B) an entity, including a health maintenance organization, group medical practice, nursing home, health science center, university medical school, or other health care facility, that:
(i) provides medical care or health care services; and
(ii) follows a formal peer review process to further quality medical care or health care;
(C) a professional society or association of physicians, or a committee of such a society or association, that follows a formal peer review process to further quality medical care or health care; or
(D) an organization established by a professional society or association of physicians, hospitals, or both, that:
(i) collects and verifies the authenticity of documents and other information concerning the qualifications, competence, or performance of licensed health care professionals; and
(ii) acts as a health care facility's agent under the Health Care Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.).
(6) "Legally authorized representative" of a patient means:
(A) a parent or legal guardian if the patient is a minor;
(B) a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;
(C) an agent of the patient authorized under a durable power of attorney for health care;
(D) an attorney ad litem appointed for the patient;
(E) a guardian ad litem appointed for the patient;
(F) a personal representative or statutory beneficiary if the patient is deceased; or
(G) an attorney retained by the patient or by another person listed by this subdivision.
(7) "Medical peer review" or "professional review action" means the evaluation of medical and health care services, including evaluation of the qualifications of professional health care practitioners and of patient care provided by those practitioners. The term includes evaluation of the:
(A) merits of a complaint relating to a health care practitioner and a determination or recommendation regarding the complaint;
(B) accuracy of a diagnosis;
(C) quality of the care provided by a health care practitioner;
(D) report made to a medical peer review committee concerning activities under the committee's review authority;
(E) report made by a medical peer review committee to another committee or to the board as permitted or required by law; and
(F) implementation of the duties of a medical peer review committee by a member, agent, or employee of the committee.
(8) "Medical peer review committee" or "professional review body" means a committee of a health care entity, the governing board of a health care entity, or the medical staff of a health care entity, that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians, including evaluation of the performance of those functions specified by Section 85.204, Health and Safety Code. The term includes an employee or agent of the committee, including an assistant, investigator, intervenor, attorney, and any other person or organization that serves the committee.
(9) "Medical records" means all records relating to the history, diagnosis, treatment, or prognosis of a patient.
(10) "Operation" means the application of surgery or the performance of surgical services.
(11) "Person" means an individual, unless the term is expressly made applicable to a partnership, association, or corporation.
(12) "Physician" means a person licensed to practice medicine in this state.
(13) "Practicing medicine" means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:
(A) publicly professes to be a physician or surgeon; or
(B) directly or indirectly charges money or other compensation for those services.
(14) "Surgery" includes:
(A) surgical services, procedures, and operations; and
(B) the procedures described in the surgery section of the common procedure coding system as adopted by the Health Care Financing Administration of the United States Department of Health and Human Services.
(b) The terms "physician" and "surgeon" are synonyms. As used in this subtitle, the terms "practitioner" and "practitioner of medicine" include physicians and surgeons. (V.A.C.S. Art. 4495b, Secs. 1.03(a)(2), (3), (4), (5), (6), (9), (10), (11), (12), (15), (16), (17), as added Acts 74th Leg., R.S., Chs. 536 and 965, (17), as added Acts 74th Leg., R.S., Ch. 856, (18); New.)
Sec. 151.003. LEGISLATIVE FINDINGS. The legislature finds that:
(1) the practice of medicine is a privilege and not a natural right of individuals and as a matter of public policy it is necessary to protect the public interest through enactment of this subtitle to regulate the granting of that privilege and its subsequent use and control; and
(2) the board should remain the primary means of licensing, regulating, and disciplining physicians. (V.A.C.S. Art. 4495b, Sec. 1.02 (part).)
Sec. 151.004. APPLICATION OF SUNSET ACT. The Texas State Board of Medical Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this subtitle expires September 1, 2005. (V.A.C.S. Art. 4495b, Sec. 5.10.)
Sec. 151.005. GOVERNMENTAL DISCRIMINATION PROHIBITED. (a) A program supported in whole or in part by the state or by a political subdivision of the state may not discriminate against a health care practitioner because the practitioner is a physician specializing in ophthalmology.
(b) A law or policy of the state or of a political subdivision of the state that requires or encourages a person to obtain vision care or medical eye care that is within the scope of practice of an optometrist or therapeutic optometrist may not discriminate against a health care practitioner because the practitioner is a physician specializing in ophthalmology. (V.A.C.S. Art. 4552-6.01, Subsecs. (a) (part), (b) (part).)
[Sections 151.006-151.050 reserved for expansion]
SUBCHAPTER B. APPLICATION AND CONSTRUCTION OF SUBTITLE
Sec. 151.051. DISCRIMINATION BASED ON TYPE OF ACADEMIC MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS PROHIBITED. (a) A hospital, institution, or program that is licensed by the state, is operated by the state or a political subdivision of the state, or directly or indirectly receives state financial assistance may not differentiate in regard to a person licensed under this subtitle solely on the basis of the academic medical degree held by the person. The hospital, institution, program, state agency, or political subdivision may adopt rules and requirements relating to qualifications for medical staff appointments, including reappointments and the termination of appointments, the delineation of clinical privileges, or the curtailment of clinical privileges of persons who are appointed to that medical staff or permitted to participate in educational programs if those rules and requirements do not differentiate solely on the basis of the academic medical degree held by the affected physician and are:
(1) determined on a reasonable basis, such as the professional and ethical qualifications of the physician;
(2) based on reasonable standards;
(3) applied without irrelevant considerations;
(4) supported by sufficient evidence; and
(5) not arbitrary or capricious.
(b) The limitations imposed under this section relating to discrimination based on the academic medical degree of a physician do not apply to practice limitations adopted by:
(1) a medical school or college, including a program of a medical school or college; or
(2) any office or offices of physicians, singularly or in groups, in the conduct of their profession.
(c) This subtitle may not be construed in a manner that:
(1) discriminates against a school or system of medical practice; or
(2) affects the use of the principles or teachings of any church in ministering to the sick or suffering by prayer or pastoral counseling without the use of a drug or other material substance represented as medically effective. (V.A.C.S. Art. 4495b, Secs. 1.02 (part), 3.06(a).)
Sec. 151.052. EXEMPTIONS. (a) This subtitle does not apply to:
(1) a dentist, licensed under the laws of this state, engaged strictly in the practice of dentistry;
(2) a licensed optometrist or therapeutic optometrist engaged strictly in the practice of optometry or therapeutic optometry as defined by law;
(3) a licensed chiropractor engaged strictly in the practice of chiropractic as defined by law;
(4) a registered nurse or licensed vocational nurse engaged strictly in the practice of nursing in accordance with the applicable licensing acts and other laws of this state;
(5) a licensed podiatrist engaged strictly in the practice of podiatry as defined by law;
(6) a licensed or certified psychologist engaged strictly in the practice of psychology as defined by law;
(7) a licensed physical therapist engaged strictly in the practice of physical therapy in accordance with the law relating to physical therapy practice;
(8) a commissioned or contract surgeon in the United States uniformed services or Public Health Service in the performance of that person's duties if the person is not engaged in private practice;
(9) a person who furnishes medical assistance in an emergency or disaster situation if no charge is made for the medical assistance;
(10) a student in training in a board-approved medical school while performing, under the supervision of a licensed practitioner, the duties assigned in the course of training;
(11) a legally qualified physician of another state who is in this state for consultation with a physician licensed in this state but who does not:
(A) maintain an office in this state; or
(B) appoint a place in this state for seeing, examining, or treating a patient; or
(12) any other activity that the board designates as exempt from the application of this subtitle.
(b) Notwithstanding Subsection (a)(10), a medical resident, intern, or fellow is required to register and is subject to the other applicable provisions of this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.06(b).)
Sec. 151.053. APPLICATION TO CERTAIN PERSONS PROVIDING NUTRITIONAL ADVICE. (a) This subtitle does not prohibit a person from giving advice regarding the use and role of food and food ingredients, including dietary supplements.
(b) Subsection (a) does not authorize a person to:
(1) practice medicine; or
(2) state, in violation of law, that a product might cure a disease, disorder, or condition. (V.A.C.S. Art. 4495b, Sec. 3.06(c).)
Sec. 151.054. APPLICATION TO SELF-CARE. (a) This subtitle does not prohibit:
(1) a person from providing or seeking advice or information relating to that person's self-care; or
(2) the dissemination of information relating to self-care.
(b) This section does not confer authority to practice medicine. (V.A.C.S. Art. 4495b, Sec. 3.06(e).)
Sec. 151.055. APPLICATION TO CERTAIN INDEPENDENT CONTRACTOR AGREEMENTS. This subtitle does not prohibit a hospital from entering into an independent contractor agreement with a physician to provide services at the hospital or at another health care facility owned or operated by the hospital and:
(1) paying the physician a minimum guaranteed amount to ensure the physician's availability;
(2) billing and collecting from patients the physician's professional fees; or
(3) retaining the collected professional fees up to the amount of the minimum guaranteed amount plus a reasonable collection fee. (V.A.C.S. Art. 4495b, Sec. 3.06(f).)
Sec. 151.056. APPLICATION TO TELEMEDICINE. (a) A person who is physically located in another jurisdiction but who, through the use of any medium, including an electronic medium, performs an act that is part of a patient care service initiated in this state, including the taking of an x-ray examination or the preparation of pathological material for examination, and that would affect the diagnosis or treatment of the patient, is considered to be engaged in the practice of medicine in this state and is subject to appropriate regulation by the board.
(b) This section does not apply to the act of:
(1) a medical specialist located in another jurisdiction who provides only episodic consultation services on request to a physician licensed in this state who practices in the same medical specialty;
(2) a physician located in another jurisdiction who is providing consultation services to a medical school as defined by Section 61.501, Education Code; or
(3) a physician located in another jurisdiction who is providing consultation services to an institution subject to:
(A) Subchapter C, Chapter 73, Education Code; or
(B) Subchapter K, Chapter 74, Education Code. (V.A.C.S. Art. 4495b, Sec. 3.06(i).)
CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS
SUBCHAPTER A. ORGANIZATION OF BOARD
Sec. 152.001. TEXAS STATE BOARD OF MEDICAL EXAMINERS
Sec. 152.002. BOARD MEMBERSHIP
Sec. 152.003. ADDITIONAL MEMBERSHIP REQUIREMENTS
Sec. 152.004. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 152.005. TERMS; VACANCY
Sec. 152.006. GROUNDS FOR REMOVAL
Sec. 152.007. PER DIEM
Sec. 152.008. OFFICERS
Sec. 152.009. MEETINGS; QUORUM REQUIREMENTS
Sec. 152.010. TRAINING; GUIDELINES
[Sections 152.011-152.050 reserved for expansion]
SUBCHAPTER B. EXECUTIVE DIRECTOR AND OTHER PERSONNEL
Sec. 152.051. EXECUTIVE DIRECTOR
Sec. 152.052. EXECUTIVE DIRECTOR POWERS AND DUTIES
Sec. 152.053. SURETY BOND
Sec. 152.054. CHIEF OPERATING OFFICER; MEDICAL DIRECTOR
Sec. 152.055. PERSONNEL
Sec. 152.056. DIVISION OF RESPONSIBILITIES
Sec. 152.057. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 152.058. CAREER LADDER; ANNUAL PERFORMANCE
EVALUATIONS
Sec. 152.059. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS
SUBCHAPTER A. ORGANIZATION OF BOARD
Sec. 152.001. TEXAS STATE BOARD OF MEDICAL EXAMINERS. The Texas State Board of Medical Examiners is an agency of the executive branch of state government with the power to regulate the practice of medicine. (V.A.C.S. Art. 4495b, Sec. 2.01.)
Sec. 152.002. BOARD MEMBERSHIP. (a) The board consists of 18 members appointed by the governor with the advice and consent of the senate as follows:
(1) twelve members who are learned and eminent physicians licensed in this state for at least three years before the appointment, nine of whom must be graduates of a reputable medical school or college with a degree of doctor of medicine (M.D.) and three of whom must be graduates of a reputable medical school or college with a degree of doctor of osteopathic medicine (D.O.); and
(2) six members who represent the public.
(b) Appointments to the board shall be made without regard to race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4495b, Secs. 2.02 (part), 2.03 (part), 2.05(b) (part), (c) (part), (d) (part).)
Sec. 152.003. ADDITIONAL MEMBERSHIP REQUIREMENTS. (a) In this section:
(1) "Direct provider of health care" includes:
(A) an athletic trainer;
(B) a chiropractor;
(C) a dentist;
(D) a hospital administrator;
(E) a licensed vocational nurse;
(F) a nursing home administrator;
(G) an optometrist;
(H) a pharmacist;
(I) a physical therapist;
(J) a physician assistant;
(K) a podiatrist;
(L) a psychologist;
(M) a registered nurse; and
(N) a social psychotherapist.
(2) "Fiduciary position or interest" means a position or interest with respect to an entity that has the character of a trust. The term includes:
(A) a member of a board of directors;
(B) an officer;
(C) a majority shareholder;
(D) an agent; and
(E) a person who, directly or through that person's spouse, receives more than one-tenth of the person's annual income from compensation for research into or instruction in the provision of health care received from:
(i) a health care entity or other person, association, or organization engaged in the provision of health care; or
(ii) a person, association, or organization engaged in producing drugs or analogous products.
(3) "Immediate family member" means the parent, spouse, child, or sibling of a person who resides in the same household as the person.
(4) "Provider of health care" means:
(A) a direct provider of health care:
(i) whose primary current activity is the provision of health care to persons or the administration of facilities or institutions in which that care is provided, including hospitals, long-term care facilities, out-patient facilities, and health maintenance organizations;
(ii) who, if required by law or otherwise, has received professional or other training in the provision of that care or administration; and
(iii) who is licensed or certified or otherwise claims the authority to provide that care or administration;
(B) a person who is an indirect provider of health care in that the person holds a fiduciary position with or has a fiduciary interest in a health care entity;
(C) a member of the immediate family of a person described by this subdivision;
(D) a person who is engaged in or employed by an entity issuing a policy or contract of individual or group health insurance or hospital or medical service benefits; or
(E) a person who is employed by, on the board of directors of, or holds elective office by or under the authority of a unit of federal, state, or local government or any organization that receives a significant part of its funding from a unit of federal, state, or local government.
(b) A public member may not be:
(1) licensed to practice medicine;
(2) financially involved in any organization subject to regulation by the board; or
(3) a provider of health care.
(c) Each public member must be a resident of this state for at least the five years preceding appointment.
(d) Each physician board member must be actively engaged in:
(1) the practice of medicine for at least the five years preceding appointment; and
(2) medical peer review at a health care entity for at least the three years preceding appointment. (V.A.C.S. Art. 4495b, Secs. 2.05(b) (part), (c) (part), (d) (part), (e).)
Sec. 152.004. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade or professional association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A person is ineligible for appointment to the board if, at the time of appointment, the person is younger than 18 years of age or is a stockholder, paid full-time faculty member, or a member of the board of trustees of a medical school.
(c) A person may not be a member of the board if the person is serving as the president, vice president, secretary, or treasurer of a statewide or national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine, or is an employee of such an organization.
(d) An officer, employee, or paid consultant of a Texas trade or professional association in the field of health care may not be a board member or employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(e) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade or professional association in the field of health care may not be a board member or employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(f) A person may not serve as a member of the board or act as 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. (V.A.C.S. Art. 4495b, Secs. 2.03 (part); 2.05(f), (g), (h), (i), (j), (k); 2.09(g).)
Sec. 152.005. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms.
(b) If a vacancy occurs during a member's term, the governor shall appoint a person to fill the vacancy. (V.A.C.S. Art. 4495b, Secs. 2.02 (part), 2.03 (part).)
Sec. 152.006. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 152.002;
(2) does not maintain during service on the board the qualifications required by Section 152.002;
(3) violates a prohibition established by Section 152.004;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4495b, Sec. 2.04.)
Sec. 152.007. PER DIEM. (a) Each board member is entitled to receive a per diem as set by legislative appropriation for each day that the member engages in the business of the board.
(b) If the General Appropriations Act does not prescribe the amount of the per diem, the per diem consists of actual expenses for meals, lodging, and transportation, plus $100. (V.A.C.S. Art. 4495b, Sec. 2.06.)
Sec. 152.008. OFFICERS. Not later than December after each regular session of the legislature, the governor shall appoint from the members of the board a president and the board shall elect from its members a vice president, secretary-treasurer, and other officers as are required, in the board's opinion, to carry out the board's duties. (V.A.C.S. Art. 4495b, Sec. 2.07(a).)
Sec. 152.009. MEETINGS; QUORUM REQUIREMENTS. (a) The board shall conduct regular meetings at least four times a year at the times and places the board considers most convenient for applicants and board members.
(b) The board may hold special meetings in accordance with rules adopted by the board.
(c) After hearing all evidence and arguments in an open meeting, the board may conduct deliberations relating to license applications and disciplinary actions in executive sessions. The board shall vote and announce its decisions in open session.
(d) A majority of the appointed board members constitutes a quorum for all purposes except for a board activity related to examining the credentials of license applicants as provided by Section 155.053. (V.A.C.S. Art. 4495b, Secs. 2.07(b), 2.08.)
Sec. 152.010. TRAINING; GUIDELINES. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.
(b) The training program shall provide information to a participant regarding:
(1) this subtitle;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. Each board member shall comply with the training requirements established by the other state agency or entity. (V.A.C.S. Art. 4495b, Secs. 2.081, 2.09(x).)
[Sections 152.011-152.050 reserved for expansion]
SUBCHAPTER B. EXECUTIVE DIRECTOR AND OTHER PERSONNEL
Sec. 152.051. EXECUTIVE DIRECTOR. (a) The board shall appoint an executive director. The executive director serves as the chief executive and administrative officer of the board.
(b) The executive director serves at the pleasure of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)
Sec. 152.052. EXECUTIVE DIRECTOR POWERS AND DUTIES. The executive director shall administer and enforce this subtitle under the supervision and at the direction of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)
Sec. 152.053. SURETY BOND. (a) The executive director shall file a surety bond with the board. The bond must be:
(1) in an amount not less than $10,000;
(2) issued in compliance with the insurance laws of this state; and
(3) payable to the state for the use of the state if the executive director does not faithfully discharge the duties of the office.
(b) The board shall pay the premium on the surety bond. (V.A.C.S. Art. 4495b, Sec. 3.01(f).)
Sec. 152.054. CHIEF OPERATING OFFICER; MEDICAL DIRECTOR. (a) The executive director may employ a chief operating officer to:
(1) administer, implement, and monitor systems and necessary measures to promote the quality and efficiency of board operations; and
(2) perform other duties as assigned by the executive director.
(b) If the executive director is not a physician licensed to practice in this state, the executive director shall appoint a medical director who is:
(1) a physician licensed to practice in this state; and
(2) primarily responsible for implementing and maintaining policies, systems, and measures regarding clinical and professional issues and determinations.
(c) The chief operating officer or medical director acts under the supervision and at the direction of the executive director. (V.A.C.S. Art. 4495b, Sec. 2.09(b-1).)
Sec. 152.055. PERSONNEL. (a) The board shall employ, compensate, and provide persons as determined necessary by the board to administer this subtitle, including administrators, clerks, employees, consultants, and professionals.
(b) The board shall reimburse those persons for actual and necessary expenses, including investigation expenses, travel expenses, and other incidental expenses, incurred in the performance of official duties as determined by the board.
(c) An employee of the board may not be employed by or paid a fee for services provided by a statewide or national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine.
(d) A person is not eligible to serve as an employee of the board if the person is related within the second degree by affinity or within the third degree by consanguinity, as determined under Chapter 573, Government Code, to a person who is employed by or paid a fee for services provided by an organization described by Subsection (c). (V.A.C.S. Art. 4495b, Secs. 2.09(e), (f).)
Sec. 152.056. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)
Sec. 152.057. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this subtitle; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4495b, Sec. 2.09(y).)
Sec. 152.058. CAREER LADDER; ANNUAL PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry-level positions concurrently with any public posting.
(b) The board shall develop a system of annual performance evaluations of the board's employees based on measurable job tasks. Any merit pay authorized by the board must be based on the system established under this subsection. (V.A.C.S. Art. 4495b, Secs. 2.09(u), (v).)
Sec. 152.059. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that are in compliance with requirements adopted under Chapter 21, Labor Code;
(2) a comprehensive analysis of the board's workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board's workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually and reviewed by the Commission on Human Rights for compliance with requirements adopted under Chapter 21, Labor Code; and
(3) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4495b, Sec. 2.10, as added Acts 73rd Leg., R.S., Ch. 862.)
CHAPTER 153. POWERS AND DUTIES
SUBCHAPTER A. GENERAL POWERS AND DUTIES
OF BOARD
Sec. 153.001. ADOPTION OF RULES
Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 153.003. RULES REGARDING MAINTENANCE OF PATIENT
RECORDS
Sec. 153.004. RULES REGARDING TELEMEDICINE SERVICES
Sec. 153.005. EXECUTIVE COMMITTEE; APPOINTMENT OF OTHER
COMMITTEES
Sec. 153.006. CRIMINAL RECORD REPORT
Sec. 153.007. AUTHORITY TO ISSUE SUBPOENA OR ADMINISTER
OATH
Sec. 153.008. BOARD RECORDS
Sec. 153.009. USE OF OFFICIAL SEAL
Sec. 153.010. ADOPTION OF FEE SCHEDULE BY BOARD PROHIBITED
Sec. 153.011. WAIVER OF FEE OR PENALTY BY BOARD PROHIBITED
Sec. 153.012. BOARD DUTIES REGARDING COMPLAINTS
Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL
[Sections 153.014-153.050 reserved for expansion]
SUBCHAPTER B. FEES; FUNDS; AUDIT
Sec. 153.051. FEES; BUDGET
Sec. 153.052. MEDICAL LICENSING FUND ACCOUNT
Sec. 153.053. DISPOSITION OF CERTAIN FEES
Sec. 153.054. CHARGES FOR CERTAIN RECORDS AND OTHER
MATERIAL
Sec. 153.055. ANNUAL REPORT
CHAPTER 153. POWERS AND DUTIES
SUBCHAPTER A. GENERAL POWERS AND DUTIES
OF BOARD
Sec. 153.001. ADOPTION OF RULES. The board may adopt rules and bylaws as necessary to:
(1) govern its own proceedings;
(2) perform its duties;
(3) regulate the practice of medicine in this state; and
(4) enforce this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(a) (part).)
Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4495b, Sec. 3.085.)
Sec. 153.003. RULES REGARDING MAINTENANCE OF PATIENT RECORDS. The board by rule shall establish the period for which patient records must be maintained. (V.A.C.S. Art. 4495b, Sec. 5.085.)
Sec. 153.004. RULES REGARDING TELEMEDICINE SERVICES. (a) In consultation with the Health and Human Services Commission and the commissioner of insurance, the board may adopt rules as necessary to:
(1) ensure that appropriate care is provided to Medicaid and Medicare patients who receive services that are provided through telemedicine; and
(2) prevent abuse and fraud in the use of telemedicine services for Medicaid and Medicare patients.
(b) The rules adopted under Section (a)(2) may include rules relating to filing of claims and records required to be maintained in relation to telemedicine. (V.A.C.S. Art. 4495b, Sec. 5.11.)
Sec. 153.005. EXECUTIVE COMMITTEE; APPOINTMENT OF OTHER COMMITTEES. (a) Except as otherwise provided by this subtitle, the board may act under its rules through the executive director, the executive committee, or another committee. Except as otherwise provided by this subtitle, the executive committee consists of the president, vice president, and secretary-treasurer of the board.
(b) The board may appoint committees from its membership. A committee appointed from the board membership shall:
(1) consider matters relating to the enforcement of this subtitle and the rules adopted under this subtitle as referred to the committee; and
(2) make recommendations to the board regarding those matters.
(c) Each committee must have at least one member who meets the qualifications for a physician member under Sections 152.002 and 152.003 and holds the degree of doctor of osteopathic medicine and one member who meets the qualifications for a public member under Section 152.003. If a member appointed to a committee declines to accept the appointment or is determined to not be qualified under this subtitle to serve on the committee, the vacancy on the committee may be filled by any other board member regardless of qualification.
(d) If members who meet the qualifications of Subsection (c) are not elected to the executive committee, the board shall appoint additional members to that committee so that at least one executive committee member meets the qualifications for a physician member under Sections 152.002 and 152.003 and holds the degree of doctor of osteopathic medicine and one executive committee member meets the qualifications for a public member under Section 152.003. (V.A.C.S. Art. 4495b, Secs. 2.09(b) (part), (i) (part).)
Sec. 153.006. CRIMINAL RECORD REPORT. (a) The board may receive criminal record reports from any law enforcement agency or another source regarding a license holder or license applicant.
(b) Each criminal record report received from the Department of Public Safety is for the exclusive use of the board and is privileged. The report may not be released or otherwise disclosed to any person or agency by the board except on court order.
(c) A license applicant whose application is subject to denial or a license holder whose license is subject to revocation or suspension because of adverse information contained in the criminal record report is entitled to a hearing before the board before any action on the license application or before the license may be revoked or suspended. (V.A.C.S. Art. 4495b, Sec. 2.09(h) (part).)
Sec. 153.007. AUTHORITY TO ISSUE SUBPOENA OR ADMINISTER OATH. (a) The board may issue a subpoena or a subpoena duces tecum to compel the attendance of a witness and the production of books, records, and documents. The board may administer oaths and take testimony regarding any matter within its jurisdiction.
(b) The board may delegate the authority granted under Subsection (a) to the executive director or the secretary-treasurer of the board.
(c) A subpoena issued at the request of the board staff may be served either personally by the board's investigators or by certified mail.
(d) The board shall pay, for photocopies subpoenaed at the request of the board's staff, a reasonable fee in an amount not to exceed the amount the board may charge for copies of its records. (V.A.C.S. Art. 4495b, Sec. 2.09(i) (part).)
Sec. 153.008. BOARD RECORDS. (a) The board shall maintain a record of its proceedings. The record maintained under this subsection is public information.
(b) For each license applicant, the board shall also maintain a record that shows:
(1) the name, age, and place and duration of residence of the applicant;
(2) the time spent by the applicant in medical study, including the respective medical schools; and
(3) the years and schools from which degrees were granted to the applicant.
(c) The record maintained under Subsection (b) must indicate whether an applicant was issued or denied a license. The record constitutes prima facie evidence of each matter contained in the record.
(d) A certified copy of a record maintained under this section, under the hand and seal of the secretary-treasurer of the board, is admissible in evidence in all courts. (V.A.C.S. Art. 4495b, Sec. 2.09(d).)
Sec. 153.009. USE OF OFFICIAL SEAL. Each certificate issued by the board shall be attested with the official seal of the board. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)
Sec. 153.010. ADOPTION OF FEE SCHEDULE BY BOARD PROHIBITED. The board may not establish a fee schedule for medical services. (V.A.C.S. Art. 4495b, Sec. 2.09(a) (part).)
Sec. 153.011. WAIVER OF FEE OR PENALTY BY BOARD PROHIBITED. The board may not waive collection of a fee or penalty assessed under this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(k) (part).)
Sec. 153.012. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4495b, Secs. 4.02(d), (e).)
Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL. The board shall be represented in court proceedings by the attorney general. (V.A.C.S. Art. 4495b, Sec. 2.09(l) (part).)
[Sections 153.014-153.050 reserved for expansion]
SUBCHAPTER B. FEES; FUNDS; AUDIT
Sec. 153.051. FEES; BUDGET. (a) The board by rule shall set reasonable and necessary fees in amounts sufficient to cover the cost of administering this subtitle.
(b) The board may not adjust a fee established on or before September 1, 1993, to an amount less than the amount of the fee on September 1, 1993.
(c) The board shall by annual budget determine the manner of handling the funds received under this subtitle and the purposes for which those funds may be used. The budgeted expenses authorized by the board shall be paid from the funds received by the board and are not a charge on the general revenue of the state. (V.A.C.S. Art. 4495b, Sec. 2.09(k) (part).)
Sec. 153.052. MEDICAL LICENSING FUND ACCOUNT. The medical licensing fund account is an account in the general revenue fund. Unless otherwise provided by this subtitle, the board shall deposit each fee, charge, and penalty received by the board in the state treasury to the credit of the medical licensing fund account. (V.A.C.S. Art. 4495b, Sec. 2.10(a), as added Acts 73rd Leg., R.S., Ch. 36.)
Sec. 153.053. DISPOSITION OF CERTAIN FEES. (a) This section applies to each fee assessed for:
(1) processing an application for and administering a partial or complete license examination;
(2) processing an application for and issuing an annual registration receipt of a license holder;
(3) processing and granting a license by reciprocity to a license holder of another state; and
(4) processing an application for reinstatement and issuing a reinstated license after a lapse or cancellation of a license.
(b) Of each fee collected, the board shall deposit $50 to the credit of the foundation school fund and $150 to the credit of the general revenue fund. (V.A.C.S. Art. 4495b, Secs. 3.11A(a), (b) (part).)
Sec. 153.054. CHARGES FOR CERTAIN RECORDS AND OTHER MATERIAL. The board may set and collect a fee in an amount sufficient to reimburse the board for the actual expense incurred for:
(1) each copy of a record maintained by the board; or
(2) any printed material published by the board. (V.A.C.S. Art. 4495b, Sec. 3.10(b), as amended Acts 73rd Leg., R.S., Ch. 862.)
Sec. 153.055. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4495b, Sec. 3.10(d).)
CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
SUBCHAPTER A. PUBLIC INTEREST INFORMATION
Sec. 154.001. PUBLIC INTEREST INFORMATION
Sec. 154.002. INFORMATION FOR PUBLIC DISSEMINATION
Sec. 154.003. INFORMATION FOR PHYSICIANS
Sec. 154.004. DISCLOSURE OF DISCIPLINARY ORDERS
Sec. 154.005. PUBLIC PARTICIPATION
[Sections 154.006-154.050 reserved for expansion]
SUBCHAPTER B. COMPLAINT PROCEDURES
Sec. 154.051. COMPLAINT INITIATION
Sec. 154.052. RECORDS OF COMPLAINTS
Sec. 154.053. NOTIFICATION CONCERNING COMPLAINT
Sec. 154.054. COMPLAINT INFORMATION TO HEALTH CARE ENTITY
Sec. 154.055. RELEASE OF COMPLAINT INFORMATION TO
LEGISLATIVE COMMITTEE
Sec. 154.056. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION; DISPOSITION
Sec. 154.057. CONDUCT OF INVESTIGATION; USE OF
INVESTIGATORS AS PEACE OFFICERS
Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY
CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
SUBCHAPTER A. PUBLIC INTEREST INFORMATION
Sec. 154.001. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4495b, Sec. 2.09(s)(1).)
Sec. 154.002. INFORMATION FOR PUBLIC DISSEMINATION. (a) The board shall prepare:
(1) an alphabetical list of the names of the license holders;
(2) an alphabetical list of the names of the license holders by the county in which the license holder's principal place of practice is located;
(3) a summary of the board's functions;
(4) a copy of this subtitle and a list of other laws relating to the practice of medicine;
(5) a copy of the board's rules; and
(6) other information considered appropriate by the board.
(b) The board shall provide:
(1) a copy of the information prepared under Subsection (a) to each person who requests a copy; and
(2) copies of the information prepared under Subsection (a) to each public library in this state that requests the copies. (V.A.C.S. Art. 4495b, Secs. 2.09(q), (r).)
Sec. 154.003. INFORMATION FOR PHYSICIANS. (a) The board shall disseminate at least twice a year and at other times determined necessary by the board information of significant interest to the physicians of this state. The information must include summaries of:
(1) disciplinary orders made against physicians licensed in this state;
(2) board activities and functions;
(3) pertinent changes in this subtitle or board rules; and
(4) attorney general opinions.
(b) The requirements of this section are in addition to the reporting requirements imposed under Section 164.060.
(c) The board shall disseminate the information to:
(1) each physician practicing in this state;
(2) each health care entity and other board-designated health care institution operating in this state;
(3) each member of a health-related legislative committee;
(4) a member of the public who submits a written request; and
(5) public libraries throughout this state. (V.A.C.S. Art. 4495b, Sec. 2.09(p).)
Sec. 154.004. DISCLOSURE OF DISCIPLINARY ORDERS. (a) On written request the board shall make available to the general public on payment of a reasonable fee to cover expenses and to appropriate state agencies information that includes:
(1) a summary of any previous disciplinary order by the board against a specific physician licensed in this state;
(2) the date of the order; and
(3) the current status of the order.
(b) If the board is not required under other state law to establish a toll-free telephone number, the board shall establish an eight-hour toll-free telephone number to make the information required by this section immediately available to any caller. (V.A.C.S. Art. 4495b, Sec. 2.09(s)(3) (part).)
Sec. 154.005. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4495b, Secs. 2.09(z), (aa) (part).)
[Sections 154.006-154.050 reserved for expansion]
SUBCHAPTER B. COMPLAINT PROCEDURES
Sec. 154.051. COMPLAINT INITIATION. (a) The board by rule shall establish methods by which members of the public and license holders are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person or entity regulated under this subtitle;
(2) on a sign prominently displayed in the place of business of each person or entity regulated under this subtitle; or
(3) in a bill for service provided by a person or entity regulated under this subtitle.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional.
(c) A person, including a partnership, association, corporation, or other entity, may file a complaint against a license holder with the board. The board may file a complaint on its own initiative. (V.A.C.S. Art. 4495b, Secs. 2.09(s)(2), (3) (part); 4.02(a) (part).)
Sec. 154.052. RECORDS OF COMPLAINTS. The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each potential witness contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for the dismissal of a complaint;
(4) the schedule for the disposition of the complaint prepared as required under Section 154.056 and a notation of any change in the schedule; and
(5) other relevant information. (V.A.C.S. Art. 4495b, Secs. 4.02(b), (k) (part); 4.05(c) (part).)
Sec. 154.053. NOTIFICATION CONCERNING COMPLAINT. (a) The board shall notify a physician who is the subject of a complaint filed with the board that a complaint has been filed and shall notify the physician of the nature of the complaint unless the notice would jeopardize an investigation.
(b) Each party shall be notified of the projected time requirements for pursuing the complaint. Each party to the complaint must be notified of a change in the schedule not later than the 14th day after the date the change is made unless the notice would jeopardize an investigation.
(c) If a written complaint is filed with the board that the board has authority to resolve, the board, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an investigation. (V.A.C.S. Art. 4495b, Secs. 4.02(c), (g) (part), (k) (part); 4.05(c) (part).)
Sec. 154.054. COMPLAINT INFORMATION TO HEALTH CARE ENTITY. On written request, the board shall provide information to a health care entity regarding:
(1) a complaint filed against a license holder that was resolved after investigation by:
(A) a disciplinary order of the board; or
(B) an agreed settlement; and
(2) the basis of and current status of any complaint under active investigation. (V.A.C.S. Art. 4495b, Sec. 4.05(c) (part).)
Sec. 154.055. RELEASE OF COMPLAINT INFORMATION TO LEGISLATIVE COMMITTEE. (a) On request from a legislative committee created under Subchapter B, Chapter 301, Government Code, the board shall release all information regarding a complaint against a physician to aid in a legitimate legislative inquiry. The board may release the information only to the members of the committee.
(b) In complying with a request under Subsection (a), the board may not identify the complainant or the patient and may reveal the identity of the affected physician only to the members of the committee. (V.A.C.S. Art. 4495b, Sec. 2.09(w).)
Sec. 154.056. GENERAL RULES REGARDING COMPLAINT INVESTIGATION; DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this section must:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of the dismissal of a complaint and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint;
(4) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.
(d) The board shall adopt other rules as appropriate to administer this subchapter. (V.A.C.S. Art. 4495b, Secs. 4.02(a) (part), (j), (k) (part), (l).)
Sec. 154.057. CONDUCT OF INVESTIGATION; USE OF INVESTIGATORS AS PEACE OFFICERS. (a) Except as otherwise provided by this subchapter, each investigation of a complaint filed under this subtitle shall be conducted by the board or by a person authorized by the board to conduct the investigation.
(b) The board shall make a preliminary investigation of the complaint. The board shall first determine whether the physician constitutes a continuing threat to the public welfare.
(c) The board may commission investigators as peace officers to enforce this subtitle. An investigator commissioned as a peace officer under this subsection may not carry a firearm or exercise the powers of arrest. (V.A.C.S. Art. 4495b, Secs. 4.02(f) (part), (g) (part).)
Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY. Each complaint against a physician that requires a determination of medical competency shall be reviewed by a board member, consultant, or employee with a medical background considered sufficient by the board. (V.A.C.S. Art. 4495b, Sec. 4.02(f) (part).)
CHAPTER 155. LICENSE TO PRACTICE MEDICINE
SUBCHAPTER A. LICENSE REQUIREMENTS
Sec. 155.001. LICENSE REQUIRED
Sec. 155.002. ISSUANCE OF LICENSE
Sec. 155.003. GENERAL ELIGIBILITY REQUIREMENTS
Sec. 155.004. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRADUATES
OF CERTAIN FOREIGN MEDICAL SCHOOLS
Sec. 155.005. ELIGIBILITY REQUIREMENTS OF FOREIGN MEDICAL SCHOOL
STUDENTS IN FIFTH PATHWAY PROGRAM
Sec. 155.006. APPLICATION FOR LICENSE BY EXAMINATION
Sec. 155.007. APPLICATION PROCESS
Sec. 155.008. CRIMINAL RECORD CHECK
[Sections 155.009-155.050 reserved for expansion]
SUBCHAPTER B. LICENSE EXAMINATION
Sec. 155.051. EXAMINATION REQUIRED
Sec. 155.052. GENERAL EXAMINATION PROCEDURES
Sec. 155.053. PUBLIC MEMBER PARTICIPATION IN EXAMINATION
Sec. 155.054. EXAMINATION SUBJECTS
Sec. 155.055. NOTICE OF EXAMINATION RESULTS
Sec. 155.056. REEXAMINATION
Sec. 155.057. PRESERVATION OF EXAMINATION MATERIALS
Sec. 155.058. APPLICATION OF OPEN RECORDS AND OPEN MEETINGS LAW
TO EXAMINATION PROCEDURES
[Sections 155.059-155.100 reserved for expansion]
SUBCHAPTER C. RECIPROCITY AND CERTAIN TEMPORARY
LICENSES OR PERMITS
Sec. 155.101. LICENSE ISSUED UNDER RECIPROCAL AGREEMENT
Sec. 155.102. TEMPORARY LICENSE FOR CERTAIN OUT-OF-STATE
PRACTITIONERS
Sec. 155.103. TEMPORARY RECIPROCAL LICENSE FOR CERTAIN
PHYSICIANS EMPLOYED BY DEPARTMENT OF MENTAL
HEALTH AND MENTAL RETARDATION
Sec. 155.104. OTHER TEMPORARY LICENSES
Sec. 155.105. INSTITUTIONAL PERMIT
Sec. 155.106. CERTIFICATION OF LICENSE TO OTHER STATES
[Sections 155.107-155.150 reserved for expansion]
SUBCHAPTER D. ISSUANCE OF NEW OR DUPLICATE LICENSE
Sec. 155.151. DUPLICATE LICENSE
Sec. 155.152. ISSUANCE OF NEW LICENSE ON CHANGE OF NAME
CHAPTER 155. LICENSE TO PRACTICE MEDICINE
SUBCHAPTER A. LICENSE REQUIREMENTS
Sec. 155.001. LICENSE REQUIRED. A person may not practice medicine in this state unless the person holds a license issued under this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)
Sec. 155.002. ISSUANCE OF LICENSE. The board may issue a license to practice medicine to a person who:
(1) submits to the board a license application as required by this chapter;
(2) presents satisfactory proof that the person meets the eligibility requirements established by this chapter; and
(3) satisfactorily completes an examination or reexamination conducted under this chapter. (V.A.C.S. Art. 4495b, Secs. 3.04(a) (part), 3.05(a) (part), (c) (part).)
Sec. 155.003. GENERAL ELIGIBILITY REQUIREMENTS. (a) To be eligible to take the license examination and to be issued a license under this chapter, an applicant must present proof satisfactory to the board that the applicant:
(1) is at least 21 years of age;
(2) is of good professional character;
(3) has completed at least 60 semester hours of college courses, other than courses in medical school, that at the time of completion were acceptable to The University of Texas for credit on a bachelor of arts degree or a bachelor of science degree;
(4) is a graduate of a medical or osteopathic school or college approved by the board at the time the degree was conferred; and
(5) has completed a one-year program of graduate medical training approved by the board.
(b) An applicant is eligible for examination before the applicant meets the requirement established by Subsection (a)(5) but is not eligible for an unrestricted license until all the requirements of Subsection (a) are satisfied.
(c) To be recognized by the board for the purposes of this chapter, all medical or osteopathic medical education an applicant receives in the United States must be accredited by an accrediting body officially recognized by the United States Department of Education as the accrediting body for medical education leading to the doctor of medicine degree or the doctor of osteopathy degree. This subsection does not apply to postgraduate medical education or training.
(d) An applicant who is unable to meet the requirement established by Subsection (c) for recognition of the applicant's medical or osteopathic medical education is eligible for an unrestricted license if the applicant:
(1) received the education in a hospital or teaching institution sponsoring or participating in a program of graduate medical education accredited by the Accrediting Council for Graduate Medical Education, the American Osteopathic Association, or the board if the hospital or teaching institution has an agreement with the applicant's school; or
(2) is specialty board certified by a specialty board approved by the American Osteopathic Association or the American Board of Medical Specialties. (V.A.C.S. Art. 4495b, Secs. 3.04(a), (b), (d), (f).)
Sec. 155.004. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRADUATES OF CERTAIN FOREIGN MEDICAL SCHOOLS. (a) This section applies only to a license applicant who is a graduate of a medical school that:
(1) is located outside the United States and Canada; and
(2) was not board approved at the time the applicant's degree was conferred.
(b) To be eligible for a license under this chapter, an applicant subject to this section must, in addition to meeting the requirements of Section 155.003, present proof satisfactory to the board that the applicant:
(1) is a graduate of a school whose curriculum meets the requirements for an unapproved medical school as determined by a committee of experts selected by the Texas Higher Education Coordinating Board;
(2) has successfully completed at least three years of graduate medical training in the United States or Canada that was approved by the board on the date the training was completed;
(3) is eligible for a license to practice medicine in the country in which the school is located;
(4) holds a valid certificate issued by the Educational Commission for Foreign Medical Graduates;
(5) is able to communicate in English; and
(6) has passed the license examination under Subchapter B required by the board of each applicant.
(c) The board by rule may establish an alternate educational requirement than that established by Section 155.003(a)(3) for an applicant subject to this section.
(d) The board by rule may require, in addition to other license requirements, that an applicant who is subject to this section, or the school of which the applicant is a graduate, provide additional information to the board concerning the school before the board approves the applicant.
(e) The board may refuse to issue a license to an applicant subject to this section if the board determines that the applicant:
(1) does not possess the qualifications necessary to provide the same standard of medical care as provided by a physician licensed in this state; or
(2) failed to provide evidence to establish to the board's satisfaction that the applicant completed medical education or professional training substantially equivalent to that provided by a medical school in this state. (V.A.C.S. Art. 4495b, Secs. 3.04(g), (h), (i), (j).)
Sec. 155.005. ELIGIBILITY REQUIREMENTS OF FOREIGN MEDICAL SCHOOL STUDENTS IN FIFTH PATHWAY PROGRAM. (a) To be eligible for a license under this chapter, an applicant who has been a student of a foreign medical school must present proof satisfactory to the board that the applicant:
(1) meets the requirements of Section 155.003 or Section 155.101;
(2) has studied medicine in a medical school located outside the United States and Canada that is acceptable to the board;
(3) has completed all of the didactic work of the foreign medical school but has not graduated from the school;
(4) has attained a score satisfactory to a medical school in the United States approved by the Liaison Committee on Medical Education on a qualifying examination and has satisfactorily completed one academic year of supervised clinical training for foreign medical students, as defined by the American Medical Association Council on Medical Education (Fifth Pathway Program), under the direction of the medical school in the United States;
(5) has attained a passing score on the Educational Commission for Foreign Medical Graduates examination or another examination, if required by the board;
(6) has successfully completed at least three years of graduate medical training in the United States or Canada that was approved by the board as of the date the training was completed; and
(7) has passed the license examination under Subchapter B required by the board of each applicant.
(b) An applicant who satisfies the requirements of this section is not required to:
(1) meet any requirement of the foreign medical school beyond completion of the didactic work; or
(2) be certified by the Educational Commission for Foreign Medical Graduates.
(c) A hospital that is licensed by this state, that is operated by this state or a political subdivision of this state, or that directly or indirectly receives state financial assistance may not require a person who has been a student of a foreign medical school but has not graduated from the school to satisfy any requirements other than those listed in Subsection (a) before beginning an internship or residency.
(d) For purposes of licensing under this chapter, a document granted by a medical school located outside the United States issued after the completion of all the didactic work of the medical school is considered the equivalent of a degree of doctor of medicine or doctor of osteopathy on certification by the medical school in the United States in which the training was received that the person to whom the document was issued satisfactorily completed the requirements listed in Subsection (a)(4). (V.A.C.S. Art. 4495b, Sec. 3.041.)
Sec. 155.006. APPLICATION FOR LICENSE BY EXAMINATION. Each application for a license by examination must be:
(1) in writing;
(2) verified by affidavit;
(3) filed with the board on forms prescribed by the board; and
(4) accompanied by documents and a fee as the board determines to be reasonable. (V.A.C.S. Art. 4495b, Sec. 3.04(c).)
Sec. 155.007. APPLICATION PROCESS. (a) The executive director shall review each application for a license by examination or reciprocity and shall:
(1) recommend to the board each applicant eligible for a license; and
(2) report to the board the name of each applicant determined to be ineligible for a license, together with the reasons for that determination.
(b) An applicant determined to be ineligible for a license by the executive director may request review of that determination by a committee of the board. The applicant must request the review not later than the 20th day after the date the applicant receives notice of the determination.
(c) The executive director may refer an application to the board committee for a recommendation concerning eligibility. If the committee determines that the applicant is ineligible for a license, the committee shall submit that determination, together with the reasons for the determination, to the board unless the applicant requests a hearing not later than the 20th day after the date the applicant receives notice of the determination.
(d) The committee may refer an application for determination of eligibility to the full board.
(e) A hearing requested under Subsection (c) shall be held before an administrative law judge of the State Office of Administrative Hearings and must comply with:
(1) Chapter 2001, Government Code; and
(2) the rules of:
(A) the State Office of Administrative Hearings; and
(B) the board.
(f) After receipt of the administrative law judge's proposed findings of fact and conclusions of law, the board shall determine the applicant's eligibility. The board shall provide an applicant who is denied a license a written statement containing the reasons for the board's action.
(g) Each report received or gathered by the board on a license applicant is confidential and is not subject to disclosure under Chapter 552, Government Code. The board may disclose a report to an appropriate licensing authority in another state. (V.A.C.S. Art. 4495b, Sec. 3.01(h).)
Sec. 155.008. CRIMINAL RECORD CHECK. The board shall submit to the Department of Public Safety a complete set of fingerprints of each license applicant, and the department shall classify and check the fingerprints against those in the department's fingerprint records. The department shall certify to the board its findings regarding the criminal record of the applicant or the applicant's lack of a criminal record. (V.A.C.S. Art. 4495b, Sec. 2.09(h) (part).)
[Sections 155.009-155.050 reserved for expansion]
SUBCHAPTER B. LICENSE EXAMINATION
Sec. 155.051. EXAMINATION REQUIRED. Each applicant for a license to practice medicine in this state not otherwise eligible for a license under this subtitle must pass an examination approved by board rule. (V.A.C.S. Art. 4495b, Sec. 3.05(c) (part).)
Sec. 155.052. GENERAL EXAMINATION PROCEDURES. (a) Each examination for a license to practice medicine must be prepared by a national testing service or prepared by the board and validated by qualified independent testing professionals. The examination must be conducted in writing and in English.
(b) A license examination must be uniform and conducted in a fair and impartial manner to all persons and to each school or system of medicine. Each license applicant who takes an examination must be given questions identical to those received by each other applicant examined at the same time.
(c) The board may give the license examination in two or more parts.
(d) The board shall determine the credit to be given a license applicant on answers turned in on the subjects of complete and partial examination. The board's decision is final.
(e) The board may establish examination fees.
(f) The board shall give each license applicant notice of the date and place of the examination.
(g) In addition to the requirements prescribed by this subchapter, the board may require applicants to comply with other requirements for examination that the board considers appropriate. (V.A.C.S. Art. 4495b, Secs. 3.05(a) (part), (b), (c) (part).)
Sec. 155.053. PUBLIC MEMBER PARTICIPATION IN EXAMINATION. (a) A public member of the board may not participate in the preparation of an examination used to examine the academic and professional credentials of a license applicant or to examine the applicant orally or in writing.
(b) Each public member shall be given notice of, and may be present at, each examination or deliberation concerning the results of an examination and may participate in the development and establishment of the procedures and criteria for each examination. (V.A.C.S. Art. 4495b, Sec. 2.09(m).)
Sec. 155.054. EXAMINATION SUBJECTS. Each license examination must cover:
(1) those subjects generally taught by medical schools, a knowledge of which is commonly and generally required of each candidate for the degree of doctor of medicine or doctor of osteopathy conferred by a board-approved school or college of medicine; and
(2) the subject of medical jurisprudence. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)
Sec. 155.055. NOTICE OF EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of a licensing examination not later than the 90th day after the date the examination is administered. However, if an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 30th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the board shall provide to the person a summarized analysis of the person's performance on the examination that consists of the person's score on each portion of the examination. (V.A.C.S. Art. 4495b, Secs. 3.05(e), (f).)
Sec. 155.056. REEXAMINATION. (a) A license applicant who is refused a license because of failure to pass the examination is entitled to take a subsequent examination at a time fixed by the board on payment of a fee set by the board.
(b) An applicant may not take more than two subsequent examinations under Subsection (a). (V.A.C.S. Art. 4495b, Sec. 3.05(c) (part).)
Sec. 155.057. PRESERVATION OF EXAMINATION MATERIALS. The board shall preserve all examination questions and answers, with the grades attached, in the board's executive office or in another repository as directed by board rule until the first anniversary of the date of the examination. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)
Sec. 155.058. APPLICATION OF OPEN RECORDS AND OPEN MEETINGS LAW TO EXAMINATION PROCEDURES. (a) The following are exempt from Chapters 551 and 552, Government Code:
(1) examination questions that may be used in the future;
(2) examinations; and
(3) deliberations and records relating to the professional character and fitness of applicants for examination.
(b) Subsection (a)(2) does not prohibit the board from providing an examination to an applicant who has taken that examination.
(c) Notwithstanding Subsection (a)(3), the board shall disclose records relating to the professional character and fitness of an individual applicant to that applicant on written request, other than information supplied to the board by a person who requests that the information not be disclosed. (V.A.C.S. Art. 4495b, Sec. 3.05(d).)
[Sections 155.059-155.100 reserved for expansion]
SUBCHAPTER C. RECIPROCITY AND CERTAIN TEMPORARY
LICENSES OR PERMITS
Sec. 155.101. LICENSE ISSUED UNDER RECIPROCAL AGREEMENT. (a) On payment of the required fee, the board may issue a license to practice medicine to an applicant who:
(1) is a graduate of a medical college determined to be acceptable by the board; and
(2) holds a license or other authority to practice medicine issued by another state or a Canadian province that:
(A) has requirements for physician registration and practice that are substantially equivalent to those established by the laws of this state; and
(B) grants the same reciprocal privileges to persons licensed by the board.
(b) An application for a license under this section must be in writing and sworn to by the applicant on a form prescribed by the board. The oath is a part of the application.
(c) The application must:
(1) state that:
(A) the license or other authority under which the applicant has most recently practiced medicine in the state or Canadian province from which the applicant is transferring to this state or in the uniformed service of the United States in which the applicant served is in force and is not restricted, canceled, suspended, or revoked;
(B) the applicant is the person to whom the license or other authority and the diploma were issued;
(C) proceedings have not been instituted against the applicant for the restriction, cancellation, suspension, or revocation of the license or other authority to practice medicine by the state, Canadian province, or uniformed service of the United States in which it was issued; and
(D) a prosecution is not pending against the applicant in any state, federal, or Canadian court for an offense that is a felony under the laws of this state;
(2) include a description of any sanctions imposed by or disciplinary matters pending in the state or Canadian province in which the applicant was or is licensed or otherwise authorized to practice medicine; and
(3) include evidence of postgraduate training as required by the board.
(d) The application must be accompanied by:
(1) a diploma or photograph of a diploma awarded to the applicant by an acceptable medical college and a certified transcript showing courses and grades;
(2) a license, certified copy of a license, or similar evidence of other authority to practice medicine issued to the applicant by the other state or the Canadian province;
(3) a certification made by the president or secretary of the board that issued the license or other authority or a registration office of the state or Canadian province that issued the license or other authority stating that:
(A) the license or other authority has not been canceled, suspended, or revoked; and
(B) the statement of the qualifications made in the application for a license in this state is accurate; and
(4) evidence of a passing grade on an examination required by the board.
(e) An applicant for a license under this section must be eligible for examination by the board.
(f) The board by rule may require, in addition to other license requirements, that an applicant who holds a license issued by another state or Canadian province and who is a graduate of a medical school located outside the United States and Canada, or the school of which the applicant is a graduate, provide additional information to the board concerning the school before the board approves the applicant.
(g) The board may refuse to issue a license to an applicant who holds a license issued by another state or a Canadian province and who graduated from a medical school outside the United States and Canada if the board determines that the applicant does not possess the qualifications necessary to provide the same standard of medical care as provided by a physician licensed in this state. The board may not refuse to issue a license to an applicant under this subsection if the applicant:
(1) has held a license or other authority to practice medicine issued by another state or a Canadian province for the five years preceding the date of application for a license to practice in this state;
(2) is not the subject of a sanction imposed by or disciplinary matter pending in any state or Canadian province in which the applicant is licensed or otherwise authorized to practice medicine; and
(3) either:
(A) is specialty board certified by a board that is:
(i) a member of the American Board of Medical Specialties; or
(ii) a specialty board approved by the American Osteopathic Association; or
(B) successfully passes an examination as determined by board rule.
(h) In addition to the requirements prescribed by this section, the board may require an applicant for a reciprocal license to comply with other requirements that the board considers appropriate. (V.A.C.S. Art. 4495b, Sec. 3.03.)
Sec. 155.102. TEMPORARY LICENSE FOR CERTAIN OUT-OF-STATE PRACTITIONERS. (a) On application, the board may issue to an eligible applicant a temporary license to practice medicine. A temporary license expires on the 181st day after the date of issuance and may not be renewed except as provided by Subsection (f).
(b) To be eligible for a temporary license under this section, an applicant must:
(1) hold a current, active, and unrestricted license, that is not subject to any pending disciplinary matters, as a physician in another state that has licensing requirements substantially equivalent to the requirements of this subtitle;
(2) have passed a national or other examination recognized by the board relating to the practice of medicine; and
(3) be sponsored by a person licensed by the board under this subtitle with whom the temporary license holder may practice under this section.
(c) The board may exempt an applicant for a temporary license from the requirement of Subsection (b)(3) if the board determines that compliance with that requirement constitutes a hardship to the applicant.
(d) The board shall issue a license under this subtitle to the holder of a temporary license issued under this section if:
(1) the temporary license holder passes the examination required by Subchapter B;
(2) the board verifies that the temporary license holder has satisfied the academic and experience requirements for a license under this subtitle; and
(3) the temporary license holder has satisfied any other license requirements under this subtitle.
(e) The board shall assemble the documents and information necessary to process a temporary license holder's application for a license not later than the 90th day after the date the temporary license is issued and shall complete the processing of the application not later than the 90th day after the date the documents and information are assembled. If the board has not completed the processing of the application by the 180th day after the date the temporary license is issued, the board shall review the application to determine the cause of the delay.
(f) A temporary license subject to this subsection may be renewed for an additional 180 days at the discretion of the executive director. (V.A.C.S. Art. 4495b, Sec. 3.0305.)
Sec. 155.103. TEMPORARY RECIPROCAL LICENSE FOR CERTAIN PHYSICIANS EMPLOYED BY DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION. (a) In this section:
(1) "National Practitioner Data Bank" means the National Practitioner Data Bank established by the United States Department of Health and Human Services under Title 45, Code of Federal Regulations, Part 60.
(2) "Rural hospital" means a hospital located in a county with a population of 35,000 or less.
(b) The board shall issue a temporary reciprocal license to an applicant who applies to the board in the manner prescribed by the board, pays the required fee, and:
(1) holds a license or other authority to practice medicine issued by another state or a Canadian province that has requirements for physician registration and practice that are substantially equivalent to those established by the laws of this state;
(2) has accepted employment with a rural hospital of the Texas Department of Mental Health and Mental Retardation; and
(3) has not been the subject of disciplinary action taken by a medical disciplinary authority of another jurisdiction.
(c) The board may not require an examination for a license issued under this section.
(d) The board may not issue a license under this section if the National Practitioner Data Bank contains information about the applicant that indicates the existence of:
(1) an adverse action regarding the applicant's:
(A) license or other authority to practice medicine;
(B) clinical privileges; or
(C) membership; or
(2) a medical malpractice payment.
(e) A license issued under this section expires on the earlier of:
(1) the date the physician ceases to be employed by a rural hospital of the Texas Department of Mental Health and Mental Retardation; or
(2) the second anniversary of the date the license is issued.
(f) A license issued under this section may not be renewed. (V.A.C.S. Art. 4495b, Sec. 3.031.)
Sec. 155.104. OTHER TEMPORARY LICENSES. Except as provided by Sections 155.102 and 155.103, the board may adopt rules and set fees relating to granting temporary licenses and extending the expiration dates of temporary licenses. The board by rule shall set a time limit for the term of a temporary license. (V.A.C.S. Art. 4495b, Sec. 2.09(c) (part).)
Sec. 155.105. INSTITUTIONAL PERMIT. (a) The board by rule may issue an institutional permit to a physician not otherwise licensed by the board who is participating in a graduate medical education training program approved by the board.
(b) The board shall charge a fee for an institutional permit. The fee shall be deposited in the medical registration fund account.
(c) An institutional permit does not authorize the performance of a medical act by the permit holder unless the act is performed:
(1) as a part of the graduate medical education program; and
(2) under the supervision of a physician. (V.A.C.S. Art. 4495b, Sec. 3.01(b).)
Sec. 155.106. CERTIFICATION OF LICENSE TO OTHER STATES. On the request of a license holder, the board shall issue a certificate that endorses the license issued by the board to other states. The board shall charge a fee for the issuance of the certificate. (V.A.C.S. Art. 4495b, Sec. 2.09(t).)
[Sections 155.107-155.150 reserved for expansion]
SUBCHAPTER D. ISSUANCE OF NEW OR DUPLICATE LICENSE
Sec. 155.151. DUPLICATE LICENSE. (a) If a license issued under this subtitle is lost or destroyed, the license holder may apply to the board for a duplicate license. The application must be on a form prescribed by the board, accompanied by an affidavit of the loss or destruction that states that the applicant is the person to whom the license was issued and other information concerning the loss or destruction of the license as required by the board.
(b) On payment of a fee set by the board, the board shall issue a duplicate license to the person. (V.A.C.S. Art. 4495b, Sec. 3.09(a).)
Sec. 155.152. ISSUANCE OF NEW LICENSE ON CHANGE OF NAME. The board may issue a new license to a license holder if the license holder changes the license holder's name. (V.A.C.S. Art. 4495b, Sec. 3.09(b).)
CHAPTER 156. LICENSE RENEWAL
SUBCHAPTER A. RENEWAL AND REGISTRATION
Sec. 156.001. ANNUAL REGISTRATION REQUIRED; REGISTRATION
PROCEDURE
Sec. 156.002. EXEMPTION FOR CERTAIN RETIRED PHYSICIANS
Sec. 156.003. STAGGERED RENEWAL SYSTEM
Sec. 156.004. NOTICE OF LICENSE EXPIRATION
Sec. 156.005. RENEWAL OF CERTAIN LICENSES
Sec. 156.006. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 156.007. REGISTRATION RECEIPT
Sec. 156.008. PRACTICING MEDICINE WITHOUT ANNUAL
REGISTRATION PROHIBITED
Sec. 156.009. INACTIVE STATUS
[Sections 156.010-156.050 reserved for expansion]
SUBCHAPTER B. CONTINUING MEDICAL EDUCATION REQUIREMENTS
Sec. 156.051. REPORTING PROGRAM; RULES; EXEMPTION
Sec. 156.052. PRESUMPTION OF COMPLIANCE FOR CERTAIN LICENSE
HOLDERS
Sec. 156.053. TEMPORARY EXEMPTION
Sec. 156.054. AUTHORITY OF BOARD TO REQUIRE ADDITIONAL
HOURS
Sec. 156.055. CONTINUING EDUCATION IN PAIN TREATMENT
CHAPTER 156. LICENSE RENEWAL
SUBCHAPTER A. RENEWAL AND REGISTRATION
Sec. 156.001. ANNUAL REGISTRATION REQUIRED; REGISTRATION PROCEDURE. (a) Each person licensed to practice medicine in this state must register with the board annually.
(b) Except as provided by Section 156.002, the application for registration must be accompanied by an annual registration fee in an amount set by the board regardless of whether the person is practicing medicine in this state.
(c) The person must file with the board a written application for registration on a form provided by the board that includes:
(1) the person's name and mailing address;
(2) the address of each place at which the person is engaged in the practice of medicine; and
(3) other necessary information as prescribed by the board.
(d) If the person is licensed to practice medicine by another state or country or by the uniformed services of the United States, the application must include a description of any investigation the person knows is in progress and any sanction imposed by or disciplinary matter pending in the state, country, or service regarding the person.
(e) The board shall renew the license of an applicant who complies with this section. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), (g) (part), 3.02(a).)
Sec. 156.002. EXEMPTION FOR CERTAIN RETIRED PHYSICIANS. (a) The board by rule may exempt a retired physician from the annual registration fee requirement.
(b) A retired physician licensed by the board whose only practice is voluntary charity care is exempt from the annual registration fee requirement. (V.A.C.S. Art. 4495b, Sec. 3.01(g) (part).)
Sec. 156.003. STAGGERED RENEWAL SYSTEM. (a) A person must apply for annual registration on or before January 1 each year. The board by rule may adopt a system under which registrations expire on various dates during the year.
(b) If the board adopts a staggered renewal system under Subsection (a), the board shall adjust accordingly the date for license cancellation due to nonpayment. For the year in which the expiration date is changed, registration fees payable on or before January 1 shall be prorated on a monthly basis so that each registrant pays only that portion of the registration fee that is allocable to the number of months during which the registration is valid. On renewal of the registration on the new expiration date, the total registration fee is payable. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), 3.02(b).)
Sec. 156.004. NOTICE OF LICENSE EXPIRATION. The board shall provide written notice to each physician at the physician's last known address according to the board's records at least 30 days before the expiration date of a license and shall allow a 30-day grace period for payment of the annual registration fee from the date of the expiration of the license. (V.A.C.S. Art. 4495b, Sec. 3.01(c)(6).)
Sec. 156.005. RENEWAL OF CERTAIN LICENSES. (a) A person may renew an unexpired license by paying the required fee to the board on or before the expiration date of the license.
(b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the board the required fee and a fee that is equal to one-half of the amount of the annual registration fee.
(c) If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the board all unpaid fees and a fee that is equal to the amount of the annual registration fee.
(d) If the person's license has been expired for one year or longer, the license is considered to have been canceled, unless an investigation is pending, and the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4495b, Secs. 3.01(c)(1), (2), (3), (4).)
Sec. 156.006. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination the expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for not more than two years preceding the renewal application.
(b) The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4495b, Sec. 3.01(c)(5).)
Sec. 156.007. REGISTRATION RECEIPT. (a) On receipt of a registration application, accompanied by the proper fee, the board, after ascertaining from the records of the board or from other sources considered reliable by the board that the applicant for registration is a physician in this state, shall issue to the applicant an annual registration receipt certifying that the applicant has filed the application and has paid the registration fee for the year.
(b) The filing of the registration application, the payment of the fee, and the issuance of the receipt does not entitle the receipt holder to practice medicine in this state unless:
(1) the receipt holder has been previously licensed as a physician by the board, as prescribed by law; and
(2) the license to practice medicine is in effect. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), (e) (part).)
Sec. 156.008. PRACTICING MEDICINE WITHOUT ANNUAL REGISTRATION PROHIBITED. (a) Practicing medicine without an annual registration receipt for the current year as provided by this subchapter has the same effect as, and is subject to all penalties of, practicing medicine without a license.
(b) In a prosecution for the unlawful practice of medicine, the receipt showing payment of the annual registration fee required by this chapter does not constitute evidence that the receipt holder is lawfully entitled to practice medicine. (V.A.C.S. Art. 4495b, Secs. 3.01(d), (e) (part).)
Sec. 156.009. INACTIVE STATUS. The board may adopt rules and set reasonable fees relating to placing license holders on inactive status. The board by rule shall set a time limit for the period during which a license holder may remain on inactive status. (V.A.C.S. Art. 4495b, Sec. 2.09(c) (part).)
[Sections 156.010-156.050 reserved for expansion]
SUBCHAPTER B. CONTINUING MEDICAL EDUCATION REQUIREMENTS
Sec. 156.051. REPORTING PROGRAM; RULES; EXEMPTION. (a) The board by rule shall adopt, monitor, and enforce a reporting program for the continuing medical education of license holders. The board shall adopt and administer rules that:
(1) establish the number of hours of continuing medical education the board determines appropriate as a prerequisite to the annual registration of a license under this subtitle;
(2) require at least one-half of the hours of continuing medical education established under Subdivision (1) to be board approved; and
(3) adopt a process to assess a license holder's participation in continuing medical education courses.
(b) In approving continuing medical education hours under Subsection (a)(2), the board shall consider the standards of:
(1) the American Medical Association adopted by that association for its Physician's Recognition Award; or
(2) the American Osteopathic Association.
(c) The board shall permit the hours that are not subject to board approval under Subsection (a)(2) to consist of self-study or equivalent self-directed continuing medical education according to guidelines determined by the board.
(d) This section does not apply to a license holder who is retired and is exempt by rule from paying the annual registration fee. (V.A.C.S. Art. 4495b, Secs. 3.025(a), (e).)
Sec. 156.052. PRESUMPTION OF COMPLIANCE FOR CERTAIN LICENSE HOLDERS. A license holder is presumed to be in compliance with the requirements of this subchapter if, during the 36 months preceding the date of the required annual registration, the license holder becomes board certified or recertified in a medical specialty and that medical specialty program considers the standards of:
(1) the American Board of Medical Specialties;
(2) the American Medical Association;
(3) the Advisory Board for Osteopathic Specialists and Boards of Certification; or
(4) the American Osteopathic Association. (V.A.C.S. Art. 4495b, Sec. 3.025(b).)
Sec. 156.053. TEMPORARY EXEMPTION. (a) The board may temporarily exempt a license holder from the continuing medical education requirement for:
(1) catastrophic illness;
(2) military service outside this state for longer than one year;
(3) medical practice and residence outside the United States for longer than one year; or
(4) good cause shown on the written application of the license holder that provides evidence satisfactory to the board that the license holder is unable to comply with the requirement.
(b) A temporary exemption granted under Subsection (a) may not exceed one year but may be renewed annually. (V.A.C.S. Art. 4495b, Secs. 3.025(c), (d).)
Sec. 156.054. AUTHORITY OF BOARD TO REQUIRE ADDITIONAL HOURS. This subchapter does not prevent the board from taking disciplinary action with respect to a license holder or license applicant by requiring additional hours of continuing medical education, including education in specific course subjects. (V.A.C.S. Art. 4495b, Sec. 3.025(f).)
Sec. 156.055. CONTINUING EDUCATION IN PAIN TREATMENT. A physician licensed under this subtitle who submits an application for renewal of a license that designates a direct patient care practice and whose practice includes treating patients for pain is encouraged to include continuing medical education in pain treatment among the hours of continuing medical education completed to comply with Section 156.051(a)(2). (V.A.C.S. Art. 4495d.)
CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN
MEDICAL ACTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 157.001. GENERAL AUTHORITY OF PHYSICIAN TO DELEGATE
Sec. 157.002. GENERAL DELEGATION OF ADMINISTRATION AND PROVISION
OF DANGEROUS DRUGS
Sec. 157.003. EMERGENCY CARE
Sec. 157.004. DELEGATION REGARDING CERTAIN CARE FOR NEWBORNS;
LIABILITY
Sec. 157.005. PERFORMANCE OF DELEGATED ACT NOT PRACTICING WITHOUT
MEDICAL LICENSE
Sec. 157.006. LIMITATION ON BOARD RULES REGARDING DELEGATION
Sec. 157.007. APPLICABILITY OF OTHER LAWS
[Sections 157.008-157.050 reserved for expansion]
SUBCHAPTER B. DELEGATION TO ADVANCED PRACTICE NURSES AND
PHYSICIAN ASSISTANTS
Sec. 157.051. DEFINITIONS
Sec. 157.052. PRESCRIBING AT SITES SERVING CERTAIN MEDICALLY
UNDERSERVED POPULATIONS
Sec. 157.053. PRESCRIBING AT PHYSICIAN PRIMARY PRACTICE
SITES
Sec. 157.054. PRESCRIBING AT FACILITY-BASED PRACTICE SITES
Sec. 157.055. ORDERS AND PROTOCOLS
Sec. 157.056. PRESCRIPTION INFORMATION
Sec. 157.057. ADDITIONAL IMPLEMENTATION METHODS
Sec. 157.058. DELEGATION TO CERTIFIED REGISTERED NURSE
ANESTHETIST
Sec. 157.059. DELEGATION REGARDING CERTAIN OBSTETRICAL
SERVICES
Sec. 157.060. PHYSICIAN LIABILITY FOR DELEGATED ACT
[Sections 157.061-157.100 reserved for expansion]
SUBCHAPTER C. DELEGATION TO PHARMACISTS
Sec. 157.101. DELEGATION TO PHARMACIST
CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN
MEDICAL ACTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 157.001. GENERAL AUTHORITY OF PHYSICIAN TO DELEGATE. (a) A physician may delegate to a qualified and properly trained person acting under the physician's supervision any medical act that a reasonable and prudent physician would find within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician:
(1) the act:
(A) can be properly and safely performed by the person to whom the medical act is delegated;
(B) is performed in its customary manner; and
(C) is not in violation of any other statute; and
(2) the person to whom the delegation is made does not represent to the public that the person is authorized to practice medicine.
(b) The delegating physician remains responsible for the medical acts of the person performing the delegated medical acts.
(c) The board may determine whether:
(1) an act constitutes the practice of medicine, not inconsistent with this chapter; and
(2) a medical act may be properly or safely delegated by physicians. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(1).)
Sec. 157.002. GENERAL DELEGATION OF ADMINISTRATION AND PROVISION OF DANGEROUS DRUGS. (a) In this section:
(1) "Administering" means the direct application of a drug to the body of a patient by injection, inhalation, ingestion, or any other means.
(2) "Provision" means the supply of one or more unit doses of a drug, medicine, or dangerous drug.
(b) A physician may delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs in the physician's office, as ordered by the physician, that are used or required to meet the immediate needs of the physician's patients. The administration or provision of the dangerous drugs must be performed in compliance with laws relating to the practice of medicine and state and federal laws relating to those dangerous drugs.
(c) A physician may also delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs through a facility licensed by the Texas State Board of Pharmacy, as ordered by the physician, that are used or required to meet the immediate needs of the physician's patients. The administration of those dangerous drugs must be in compliance with laws relating to the practice of medicine, professional nursing, and pharmacy and state and federal drug laws. The provision of those dangerous drugs must be in compliance with:
(1) laws relating to the practice of medicine, professional nursing, and pharmacy;
(2) state and federal drug laws; and
(3) rules adopted by the Texas State Board of Pharmacy.
(d) In the provision of services and the administration of therapy by public health departments, as officially prescribed by the Texas Department of Health for the prevention or treatment of specific communicable diseases or health conditions for which the Texas Department of Health is responsible for control under state law, a physician may delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs, as ordered by the physician, that are used or required to meet the needs of the patients. The provision of those dangerous drugs must be in compliance with laws relating to the practice of medicine, professional nursing, and pharmacy. An order for the prevention or treatment of a specific communicable disease or health condition for which the Texas Department of Health is responsible for control under state law may not be inconsistent with this chapter and may not be used to perform an act or duty that requires the exercise of independent medical judgment.
(e) The administration or provision of the drugs may be delegated through a physician's order, a standing medical order, a standing delegation order, or another order defined by the board.
(f) Subsections (b) and (c) do not authorize a physician or a person acting under the supervision of a physician to keep a pharmacy, advertised or otherwise, for the retail sale of dangerous drugs, other than as authorized under Section 158.003, without complying with the applicable laws relating to the dangerous drugs.
(g) A drug or medicine provided under Subsection (b) or (c) must be supplied in a suitable container labeled in compliance with applicable drug laws. A qualified and trained person, acting under the supervision of a physician, may specify at the time of the provision of the drug the inclusion on the container of the date of the provision and the patient's name and address. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(2), (3), (4).)
Sec. 157.003. EMERGENCY CARE. The authority to delegate medical acts to a properly qualified person as provided by this subchapter applies to emergency care provided by emergency medical personnel certified by the Texas Department of Health. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(7).)
Sec. 157.004. DELEGATION REGARDING CERTAIN CARE FOR NEWBORNS; LIABILITY. (a) It is the policy of this state that the prevention of ophthalmia neonatorum in newborn infants is of paramount importance for the protection of the health of the children of this state.
(b) The authority to delegate medical acts to a midwife under Chapter 203 applies to the possession and administration of eye prophylaxis for the prevention of ophthalmia neonatorum.
(c) A physician who issues a standing delegation order to a midwife under Chapter 203 is not liable in connection with an act performed under that standing delegation order if the midwife provides proof of documentation under that chapter before the order is issued. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(8).)
Sec. 157.005. PERFORMANCE OF DELEGATED ACT NOT PRACTICING WITHOUT MEDICAL LICENSE. A person to whom a physician delegates the performance of a medical act is not considered to be practicing medicine without a license by performing the medical act unless the person acts with knowledge that the delegation and the action taken under the delegation is a violation of this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(i).)
Sec. 157.006. LIMITATION ON BOARD RULES REGARDING DELEGATION. The board shall promote a physician's exercise of professional judgment to decide which medical acts may be safely delegated by not adopting rules containing, except as absolutely necessary, global prohibitions or restrictions on the delegation of medical acts. (V.A.C.S. Art. 4495b, Sec. 1.02 (part).)
Sec. 157.007. APPLICABILITY OF OTHER LAWS. An act delegated by a physician under this chapter must comply with other applicable laws. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(B)(i), (6)(E), (6)(J)(v); 3.061(b).)
[Sections 157.008-157.050 reserved for expansion]
SUBCHAPTER B. DELEGATION TO ADVANCED PRACTICE NURSES
AND PHYSICIAN ASSISTANTS
Sec. 157.051. DEFINITIONS. In this subchapter:
(1) "Advanced practice nurse" has the meaning assigned to that term by Section 301.152. The term includes an advanced nurse practitioner.
(2) "Carrying out or signing a prescription drug order" means completing a prescription drug order presigned by the delegating physician, or the signing of a prescription by a registered nurse or physician assistant after that person has been designated to the board by the delegating physician as a person delegated to sign a prescription.
(3) "Physician assistant" means a person who holds a license issued under Chapter 204. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(ii), (iii) (part), (vii), (6)(G)(i), (ii), (iv) (part); New.)
Sec. 157.052. PRESCRIBING AT SITES SERVING CERTAIN MEDICALLY UNDERSERVED POPULATIONS. (a) In this section:
(1) "Health manpower shortage area" means:
(A) an urban or rural area of this state that:
(i) is not required to conform to the geographic boundaries of a political subdivision but is a rational area for the delivery of health service;
(ii) the secretary of health and human services determines has a health manpower shortage; and
(iii) is not reasonably accessible to an adequately served area;
(B) a population group that the secretary of health and human services determines has a health manpower shortage; or
(C) a public or nonprofit private medical facility or other facility that the secretary of health and human services determines has a health manpower shortage, as described by 42 U.S.C. Section 254e(a)(1).
(2) "Medically underserved area" means:
(A) an area in this state with a medically underserved population;
(B) an urban or rural area designated by the secretary of health and human services as an area in this state with a shortage of personal health services or a population group designated by the secretary as having a shortage of those services, as described by 42 U.S.C. Section 300e-1(7); or
(C) an area defined as medically underserved by rules adopted by the Texas Board of Health based on:
(i) demographics specific to this state;
(ii) geographic factors that affect access to health care; and
(iii) environmental health factors.
(3) "Registered nurse" means a registered nurse recognized by the Board of Nurse Examiners as having the specialized education and training required under Section 301.152.
(4) "Site serving a medically underserved population" means:
(A) a site located in a medically underserved area;
(B) a site located in a health manpower shortage area;
(C) a clinic designated as a rural health clinic under 42 U.S.C. Section 1395x(aa);
(D) a public health clinic or a family planning clinic under contract with the Texas Department of Human Services or the Texas Department of Health;
(E) a site located in an area in which the Texas Department of Health determines there is an insufficient number of physicians providing services to eligible clients of federal, state, or locally funded health care programs; or
(F) a site that the Texas Department of Health determines serves a disproportionate number of clients eligible to participate in federal, state, or locally funded health care programs.
(b) After making a determination under this section that a site serves a medically underserved population, the Texas Department of Health shall publish notice of its determination in the Texas Register and provide an opportunity for public comment in the manner provided for a proposed rule under Chapter 2001, Government Code.
(c) At a site serving a medically underserved population, a physician licensed by the board may delegate to a registered nurse or physician assistant acting under adequate physician supervision the act of administering, providing, or carrying out or signing a prescription drug order, as authorized by the physician through a physician's order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. The authority of a physician to delegate the carrying out or signing of prescription drug orders is limited to dangerous drugs.
(d) An advertisement for a site serving a medically underserved population must include the name and business address of the supervising physician for the site.
(e) Physician supervision is adequate for the purposes of this section if a delegating physician:
(1) is responsible for the formulation or approval of the physician's order, standing medical order, standing delegation order, or other order or protocol, and periodically reviews the order and the services provided patients under the order;
(2) is on-site to provide medical direction and consultation at least once every 10 business days during which the advanced practice nurse or physician assistant is on-site providing care;
(3) receives a daily status report from the advanced practice nurse or physician assistant on any problem or complication encountered; and
(4) is available through direct telecommunication for consultation, patient referral, or assistance with a medical emergency. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(A), (B)(ii), (D), (E)(i), (iv), (v), (vi), (F), (H); New.)
Sec. 157.053. PRESCRIBING AT PHYSICIAN PRIMARY PRACTICE SITES. (a) In this section, "primary practice site" means:
(1) the practice location of a physician at which the physician spends the majority of the physician's time;
(2) a licensed hospital, a licensed long-term care facility, or a licensed adult care center where both the physician and the physician assistant or advanced practice nurse are authorized to practice;
(3) a clinic operated by or for the benefit of a public school district to provide care to the students of that district and the siblings of those students, if consent to treatment at that clinic is obtained in a manner that complies with Chapter 32, Family Code;
(4) the residence of an established patient; or
(5) another location at which the physician is physically present with the physician assistant or advanced practice nurse.
(b) At a physician's primary practice site, a physician licensed by the board may delegate to a physician assistant or an advanced practice nurse acting under adequate physician supervision the act of administering, providing, or carrying out or signing a prescription drug order as authorized through a physician's order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. Providing a drug and carrying out or signing a prescription drug order under this section is limited to dangerous drugs.
(c) Physician supervision of the carrying out and signing of prescription drug orders must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the particular advanced practice nurse or physician assistant. A physician shall provide continuous supervision, but the constant physical presence of the physician is not required.
(d) An alternate physician may provide appropriate supervision on a temporary basis as defined and established by board rule.
(e) A physician's authority to delegate the carrying out or signing of a prescription drug order at the physician's primary practice site under this section is limited to:
(1) three physician assistants or advanced practice nurses or their full-time equivalents practicing at the physician's primary practice site; and
(2) the patients with whom the physician has established or will establish a physician-patient relationship.
(f) For purposes of Subsection (e)(2), the physician is not required to see the patient within a specific period. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(A) (part), (C), (D), (F), (G)(iii).)
Sec. 157.054. PRESCRIBING AT FACILITY-BASED PRACTICE SITES. (a) A physician licensed by the board may delegate, to one or more physician assistants or advanced practice nurses acting under adequate physician supervision whose practice is facility-based at a licensed hospital or licensed long-term care facility, the administration or provision of a drug and the carrying out or signing of a prescription drug order if the physician is:
(1) the medical director or chief of medical staff of the facility in which the physician assistant or advanced practice nurse practices;
(2) the chair of the facility's credentialing committee;
(3) a department chair of a facility department in which the physician assistant or advanced practice nurse practices; or
(4) a physician who consents to the request of the medical director or chief of medical staff to delegate the carrying out or signing of a prescription drug order at the facility in which the physician assistant or advanced practice nurse practices.
(b) A physician's authority to delegate under Subsection (a) is limited as follows:
(1) the delegation must be made under a physician's order, standing medical order, standing delegation order, or another order or protocol developed in accordance with policies approved by the facility's medical staff or a committee of the facility's medical staff as provided by the facility bylaws;
(2) the delegation must occur in the facility in which the physician is the medical director, the chief of medical staff, the chair of the credentialing committee, or a department chair;
(3) the delegation may not permit the carrying out or signing of prescription drug orders for the care or treatment of the patients of any other physician without the prior consent of that physician;
(4) delegation in a long-term care facility must be by the medical director and is limited to the carrying out and signing of prescription drug orders to not more than three advanced practice nurses or physician assistants or their full-time equivalents;
(5) a physician may not delegate at more than one licensed hospital or more than two long-term care facilities unless approved by the board; and
(6) the authority of a physician to delegate the carrying out or signing of a prescription drug order under this section is limited to dangerous drugs.
(c) Physician supervision of the carrying out and signing of prescription drug orders must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the particular advanced practice nurse or physician assistant. A physician shall provide continuous supervision, but the constant physical presence of the physician is not required.
(d) An alternate physician may provide appropriate supervision on a temporary basis as defined and established by board rule. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(A) (part), (C), (D), (H).)
Sec. 157.055. ORDERS AND PROTOCOLS. A protocol or other order shall be defined in a manner that promotes the exercise of professional judgment by the advanced practice nurse and physician assistant commensurate with the education and experience of that person. Under this section, an order or protocol used by a reasonable and prudent physician exercising sound medical judgment:
(1) is not required to describe the exact steps that an advanced practice nurse or a physician assistant must take with respect to each specific condition, disease, or symptom; and
(2) may state the types or categories of medications that may be prescribed or the types or categories of medications that may not be prescribed. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(C), (6)(B).)
Sec. 157.056. PRESCRIPTION INFORMATION. The following information must be provided on each prescription subject to this subchapter:
(1) the patient's name and address;
(2) the drug to be dispensed;
(3) directions to the patient regarding the taking of the drug and the dosage;
(4) the intended use of the drug, if appropriate;
(5) the name, address, and telephone number of the physician;
(6) the name, address, telephone number, and identification number of the registered nurse or physician assistant completing or signing the prescription drug order;
(7) the date; and
(8) the number of refills permitted. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(iii) (part), (6)(G)(iv) (part).)
Sec. 157.057. ADDITIONAL IMPLEMENTATION METHODS. The board may adopt additional methods to implement:
(1) a physician's prescription; or
(2) the delegation of the signing of a prescription under a physician's order, standing medical order, standing delegation order, or other order or protocol. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(iii) (part), (6)(G)(iv) (part).)
Sec. 157.058. DELEGATION TO CERTIFIED REGISTERED NURSE ANESTHETIST. (a) In a licensed hospital or ambulatory surgical center, a physician may delegate to a certified registered nurse anesthetist the ordering of drugs and devices necessary for the nurse anesthetist to administer an anesthetic or an anesthesia-related service ordered by the physician.
(b) The physician's order for anesthesia or anesthesia-related services is not required to specify a drug, dose, or administration technique.
(c) Pursuant to the physician's order and in accordance with facility policies or medical staff bylaws, the nurse anesthetist may select, obtain, and administer those drugs and apply the medical devices appropriate to accomplish the order and maintain the patient within a sound physiological status.
(d) This section shall be liberally construed to permit the full use of safe and effective medication orders to use the skills and services of certified registered nurse anesthetists. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(6)(I).)
Sec. 157.059. DELEGATION REGARDING CERTAIN OBSTETRICAL SERVICES. (a) In this section, "provide" means to supply, for a term not to exceed 48 hours, one or more unit doses of a controlled substance for the immediate needs of a patient.
(b) A physician may delegate to a physician assistant offering obstetrical services and certified by the board as specializing in obstetrics or an advanced practice nurse recognized by the Board of Nurse Examiners as a nurse midwife the act of administering or providing controlled substances to the physician assistant's or nurse midwife's clients during intrapartum and immediate postpartum care.
(c) The physician may not delegate the use of a prescription sticker or the use or issuance of an official prescription form under Section 481.075, Health and Safety Code.
(d) The delegation of authority to administer or provide controlled substances under Subsection (b) must be under a physician's order, medical order, standing delegation order, or protocol that requires adequate and documented availability for access to medical care.
(e) The physician's orders, medical orders, standing delegation orders, or protocols must require the reporting of or monitoring of each client's progress, including complications of pregnancy and delivery and the administration and provision of controlled substances by the nurse midwife or physician assistant to the clients of the nurse midwife or physician assistant.
(f) The authority of a physician to delegate under this section is limited to:
(1) three nurse midwives or physician assistants or their full-time equivalents; and
(2) the designated facility at which the nurse midwife or physician assistant provides care.
(g) The controlled substance must be supplied in a suitable container that is labeled in compliance with the applicable drug laws and must include:
(1) the patient's name and address;
(2) the drug to be provided;
(3) the name, address, and telephone number of the physician;
(4) the name, address, and telephone number of the nurse midwife or physician assistant; and
(5) the date.
(h) This section does not authorize a physician, physician assistant, or nurse midwife to operate a retail pharmacy as defined under Subtitle J.
(i) This section authorizes a physician to delegate the act of administering or providing a controlled substance to a nurse midwife or physician assistant but does not require physician delegation of:
(1) further acts to a nurse midwife; or
(2) the administration of medications by a physician assistant or registered nurse other than as provided by this section. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(J)(i), (ii), (iii), (iv), (vi), (vii), (viii), (ix).)
Sec. 157.060. PHYSICIAN LIABILITY FOR DELEGATED ACT. Unless the physician has reason to believe the physician assistant or advanced practice nurse lacked the competency to perform the act, a physician is not liable for an act of a physician assistant or advanced practice nurse solely because the physician signed a standing medical order, a standing delegation order, or another order or protocol authorizing the physician assistant or advanced practice nurse to administer, provide, carry out, or sign a prescription drug order. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(6)(K).)
[Sections 157.061-157.100 reserved for expansion]
SUBCHAPTER C. DELEGATION TO PHARMACISTS
Sec. 157.101. DELEGATION TO PHARMACIST. (a) In this section, "pharmacist" has the meaning assigned by Section 551.003.
(b) A physician may delegate to a properly qualified and trained pharmacist acting under adequate physician supervision the performance of specific acts of drug therapy management authorized by the physician through the physician's order, standing medical order, standing delegation order, or other order or protocol as defined by board rule.
(c) Physician supervision is considered to be adequate for the purposes of this section if a delegating physician:
(1) is responsible for the formulation or approval of the physician's order, standing medical order, standing delegation order, or other order or protocol and periodically reviews the order or protocol and the services provided to a patient under the order or protocol;
(2) has established a physician-patient relationship with each patient who is provided drug therapy management by a delegated pharmacist;
(3) is geographically located so as to be able to be physically present daily to provide medical care and supervision;
(4) receives, as appropriate, a periodic status report on each patient, including any problem or complication encountered; and
(5) is available through direct telecommunication for consultation, assistance, and direction.
(d) This section does not restrict the use of a preestablished health care program or restrict a physician from authorizing the provision of patient care by use of a preestablished health care program if the patient is institutionalized and the care is to be delivered in a licensed hospital with an organized medical staff that has authorized standing delegation orders, standing medical orders, or protocols.
(e) This section does not limit, expand, or change any provision of law relating to therapeutic drug substitution or administration of medication, including Section 554.004.
(f) The board by rule shall establish the minimum content of a written order or protocol. The order or protocol may not permit the delegation of medical diagnosis. (V.A.C.S. Art. 4495b, Secs. 3.061(a), (c), (d), (e), (f), (g).)
CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE
CERTAIN DRUGS AND SUPPLIES
Sec. 158.001. PROVISION OF DRUGS AND OTHER SUPPLIES
Sec. 158.002. PROVISION OF FREE SAMPLES
Sec. 158.003. DISPENSING OF DANGEROUS DRUGS IN CERTAIN
RURAL AREAS
CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE
CERTAIN DRUGS AND SUPPLIES
Sec. 158.001. PROVISION OF DRUGS AND OTHER SUPPLIES. (a) A physician licensed under this subtitle may supply a patient with any drug, remedy, or clinical supply necessary to meet the patient's immediate needs.
(b) This section does not permit a physician to operate a retail pharmacy without complying with Chapter 558. (V.A.C.S. Art. 4495b, Sec. 5.09(a).)
Sec. 158.002. PROVISION OF FREE SAMPLES. (a) This chapter does not prohibit a physician from supplying a pharmaceutical sample to a patient free of charge if, in the physician's opinion, it is advantageous to the patient, in adhering to a course of treatment prescribed by the physician, to receive the sample.
(b) A pharmaceutical sample provided under this section must be:
(1) provided to the physician from the manufacturer free of charge and delivered to a patient free of any direct or indirect charge;
(2) prepackaged by the original manufacturer and not repackaged; and
(3) marked on the immediate container to indicate that it is a sample or recorded in records that indicate it is a sample.
(c) Each state and federal labeling and recordkeeping requirement must be followed and documented. A record maintained under Subsection (b)(3) must be accessible as provided under state and federal law. (V.A.C.S. Art. 4495b, Sec. 5.09(b) (part).)
Sec. 158.003. DISPENSING OF DANGEROUS DRUGS IN CERTAIN RURAL AREAS. (a) In this section, "reimbursement for cost" means an additional charge, separate from that imposed for the physician's professional services, that includes the cost of the drug product and all other actual costs to the physician incidental to providing the dispensing service. The term does not include a separate fee imposed for the act of dispensing the drug itself.
(b) This section applies to an area located in a county with a population of 5,000 or less, or in a municipality or an unincorporated town with a population of less than 2,500, that is within a 15-mile radius of the physician's office and in which a pharmacy is not located. This section does not apply to a municipality or an unincorporated town that is adjacent to a municipality with a population of 2,500 or more.
(c) A physician who practices medicine in an area described by Subsection (b) may:
(1) maintain a supply of dangerous drugs in the physician's office to be dispensed in the course of treating the physician's patients; and
(2) be reimbursed for the cost of supplying those drugs without obtaining a license under Chapter 558.
(d) A physician who dispenses dangerous drugs under Subsection (c) shall:
(1) comply with each labeling provision under Subtitle J applicable to that class of drugs; and
(2) oversee compliance with packaging and recordkeeping provisions applicable to that class of drugs.
(e) A physician who desires to dispense dangerous drugs under this section shall notify both the Texas State Board of Pharmacy and the board that the physician practices in an area described by Subsection (b). The physician may continue to dispense dangerous drugs in the area until the Texas State Board of Pharmacy determines, after notice and hearing, that the physician no longer practices in an area described by Subsection (b). (V.A.C.S. Art. 4495b, Sec. 5.09(c).)
CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION
Sec. 159.001. DEFINITION
Sec. 159.002. CONFIDENTIAL COMMUNICATIONS
Sec. 159.003. EXCEPTIONS TO CONFIDENTIALITY IN COURT OR
ADMINISTRATIVE PROCEEDINGS
Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER
SITUATIONS
Sec. 159.005. CONSENT FOR RELEASE OF CONFIDENTIAL
INFORMATION
Sec. 159.006. INFORMATION FURNISHED BY PHYSICIAN
Sec. 159.007. MEDIUM BY WHICH INFORMATION IS PROVIDED
Sec. 159.008. PHYSICIAN FEES FOR INFORMATION
Sec. 159.009. INJUNCTION; CAUSE OF ACTION FOR UNAUTHORIZED
RELEASE OF CONFIDENTIAL INFORMATION
CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION
Sec. 159.001. DEFINITION. In this chapter, "patient" means a person who, to receive medical care, consults with or is seen by a physician. (V.A.C.S. Art. 4495b, Sec. 5.08(m).)
Sec. 159.002. CONFIDENTIAL COMMUNICATIONS. (a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.
(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.
(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(d) The prohibitions of this chapter continue to apply to a confidential communication or record relating to a patient regardless of when the patient receives the services of a physician, except for medical records at least 100 years old that are requested for historical research purposes.
(e) The privilege of confidentiality may be claimed by the patient or by the physician. The physician may claim the privilege of confidentiality only on behalf of the patient. The physician's authority to claim the privilege is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4495b, Secs. 5.08(a), (b), (c), (d), (e), (f).)
Sec. 159.003. EXCEPTIONS TO CONFIDENTIALITY IN COURT OR ADMINISTRATIVE PROCEEDINGS. (a) An exception to the privilege of confidentiality in a court or administrative proceeding exists:
(1) in a proceeding brought by a patient against a physician, including:
(A) a malpractice proceeding; or
(B) a criminal proceeding or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to a claim or defense of the physician;
(2) if the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information as provided by Section 159.005;
(3) in a proceeding to substantiate and collect on a claim for medical services provided to the patient;
(4) in a civil action or administrative proceeding, if relevant, brought by the patient or a person on the patient's behalf, if the patient or person is attempting to recover monetary damages for a physical or mental condition including the patient's death;
(5) in a disciplinary investigation or proceeding conducted under this subtitle, if the board protects the identity of any patient whose medical records are examined other than a patient:
(A) for whom an exception exists under Subdivision (1); or
(B) who has submitted written consent to the release of the medical records as provided by Section 159.005;
(6) in a criminal investigation of a physician in which the board is participating, or assisting in the investigation or proceeding by providing certain medical records obtained from the physician, if the board protects the identity of a patient whose medical records are provided in the investigation or proceeding other than a patient:
(A) for whom an exception exists under Subdivision (1); or
(B) who has submitted written consent to the release of the medical records as provided by Section 159.005;
(7) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under Chapter 462, 574, or 593, Health and Safety Code;
(8) if the patient's physical or mental condition is relevant to the execution of a will;
(9) if the information is relevant to a proceeding brought under Section 159.009;
(10) in a criminal prosecution in which the patient is a victim, witness, or defendant;
(11) to satisfy a request for medical records of a deceased or incompetent person under Section 4.01(e), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); or
(12) to a court or a party to an action under a court order or court subpoena.
(b) This section does not authorize the release of confidential information to investigate or substantiate criminal charges against a patient.
(c) Records or communications are not discoverable under Subsection (a)(10) until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion of the records or communications. That determination does not constitute a determination as to the admissibility of the information. (V.A.C.S. Art. 4495b, Sec. 5.08(g) (part).)
Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER SITUATIONS. An exception to the privilege of confidentiality in a situation other than a court or administrative proceeding, allowing disclosure of confidential information by a physician, exists only with respect to the following:
(1) a governmental agency, if the disclosure is required or authorized by law;
(2) medical or law enforcement personnel, if the physician determines that there is a probability of:
(A) imminent physical injury to the patient, the physician, or another person; or
(B) immediate mental or emotional injury to the patient;
(3) qualified personnel for research or for a management audit, financial audit, or program evaluation, but the personnel may not directly or indirectly identify a patient in any report of the research, audit, or evaluation or otherwise disclose identity in any manner;
(4) those parts of the medical records reflecting charges and specific services provided if necessary in the collection of fees for medical services provided by a physician, professional association, or other entity qualified to provide or arrange for medical services;
(5) a person who has the written consent of the patient or other person authorized to act on the patient's behalf for the release of confidential information, as provided by Section 159.005;
(6) a person, corporation, or governmental agency involved in the payment or collection of fees for medical services provided by a physician;
(7) another physician or other personnel acting under the direction of the physician who participate in the diagnosis, evaluation, or treatment of the patient;
(8) an official legislative inquiry regarding state hospitals or state schools, if:
(A) information or a record that identifies a patient or client is not released for any purpose unless proper consent to the release is given by the patient; and
(B) only records created by the state hospital or school or its employees are included; or
(9) health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient. (V.A.C.S. Art. 4495b, Sec. 5.08(h).)
Sec. 159.005. CONSENT FOR RELEASE OF CONFIDENTIAL INFORMATION. (a) Consent for the release of confidential information must be in writing and signed by:
(1) the patient;
(2) a parent or legal guardian of the patient if the patient is a minor;
(3) a legal guardian of the patient if the patient has been adjudicated incapacitated to manage the patient's personal affairs;
(4) an attorney ad litem appointed for the patient, as authorized by:
(A) Subtitle C, Title 7, Health and Safety Code;
(B) Subtitle D, Title 7, Health and Safety Code;
(C) Chapter XIII, Texas Probate Code; or
(D) Chapter 107, Family Code; or
(5) a personal representative of the patient if the patient is deceased.
(b) The written consent must specify:
(1) the information or medical records to be covered by the release;
(2) the reasons or purposes for the release; and
(3) the person to whom the information is to be released.
(c) The patient, or other person authorized to consent, is entitled to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed before the written notice of the withdrawal.
(d) A patient may not bring an action against a physician for a disclosure made by the physician in good faith reliance on an authorized consent if the physician did not have written notice that the authorization was revoked.
(e) A person who receives information made confidential by this subtitle may disclose the information only to the extent consistent with the authorized purposes for which consent to release the information is obtained. (V.A.C.S. Art. 4495b, Sec. 5.08(j).)
Sec. 159.006. INFORMATION FURNISHED BY PHYSICIAN. (a) Unless the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, a physician who receives a written consent for release of information as provided by Section 159.005 shall furnish copies of the requested medical records, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient. The physician shall furnish the information not later than the 30th day after the date of receipt of the request.
(b) The physician may delete confidential information about another patient or a family member of the patient who has not consented to the release.
(c) If the physician denies the request, in whole or in part, the physician shall:
(1) furnish the patient with a written statement, signed and dated, providing the reason for the denial; and
(2) place a copy of the statement denying the request in the patient's medical records. (V.A.C.S. Art. 4495b, Sec. 5.08(k).)
Sec. 159.007. MEDIUM BY WHICH INFORMATION IS PROVIDED. A person who is authorized to provide a copy of a record or a summary or narrative of the record to another person under this chapter may provide the copy, summary, or narrative on paper or using any other appropriate medium to which the person who is to provide and the person who is to receive the copy, summary, or narrative agree. (V.A.C.S. Art. 4495b, Sec. 5.08(n).)
Sec. 159.008. PHYSICIAN FEES FOR INFORMATION. (a) Except as provided by Subsection (b), a physician:
(1) may charge a reasonable fee, as prescribed by board rule, for copying medical records; and
(2) is not required to permit examination or copying of the records until the fee is paid unless there is a medical emergency.
(b) A physician may not charge a fee for copying medical records under Subsection (a) to the extent the fee is prohibited under Subchapter M, Chapter 161, Health and Safety Code. (V.A.C.S. Art. 4495b, Secs. 5.08(o), (p).)
Sec. 159.009. INJUNCTION; CAUSE OF ACTION FOR UNAUTHORIZED RELEASE OF CONFIDENTIAL INFORMATION. (a) A person aggrieved by a violation of this chapter relating to the unauthorized release of confidential and privileged communications may petition the district court of the county in which the person resides, or in the case of a nonresident of the state, the district court of Travis County, for appropriate injunctive relief. The petition takes precedence over all civil matters on the docketed court except those matters to which equal precedence on the docket is granted by law.
(b) The aggrieved person may prove a cause of action for civil damages. (V.A.C.S. Art. 4495b, Sec. 5.08(l).)
CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS
SUBCHAPTER A. REQUIREMENTS RELATING TO MEDICAL PEER REVIEW
Sec. 160.001. APPLICATION OF FEDERAL LAW
Sec. 160.002. REPORT OF MEDICAL PEER REVIEW
Sec. 160.003. REPORT BY CERTAIN PRACTITIONERS
Sec. 160.004. REPORT REGARDING CERTAIN IMPAIRED PHYSICIANS
Sec. 160.005. REPORT CONFIDENTIAL; COMMUNICATION NOT
PRIVILEGED
Sec. 160.006. BOARD CONFIDENTIALITY
Sec. 160.007. CONFIDENTIALITY RELATING TO MEDICAL PEER REVIEW
COMMITTEE
Sec. 160.008. USE OF CERTAIN CONFIDENTIAL INFORMATION
Sec. 160.009. COMPLIANCE WITH SUBPOENA
Sec. 160.010. IMMUNITY FROM CIVIL LIABILITY
Sec. 160.011. NOT STATE ACTION
Sec. 160.012. DISCIPLINE OR DISCRIMINATION PROHIBITED
Sec. 160.013. EXPUNGEMENT OF REPORT MADE IN BAD FAITH
Sec. 160.014. ACTION BY HEALTH CARE ENTITY NOT PRECLUDED
[Sections 160.015-160.050 reserved for expansion]
SUBCHAPTER B. REQUIREMENTS RELATING TO INSURERS
Sec. 160.051. DEFINITIONS
Sec. 160.052. REPORT FROM INSURER OR PHYSICIAN
Sec. 160.053. CONTENTS OF REPORT; ADDITIONAL INFORMATION
Sec. 160.054. REPORT NOT EVIDENCE
Sec. 160.055. SANCTIONS FOR FAILURE TO REPORT
Sec. 160.056. CIVIL LIABILITY
[Sections 160.057-160.100 reserved for expansion]
SUBCHAPTER C. REQUIREMENTS RELATING TO CERTAIN
CONVICTIONS OR ADJUDICATIONS
Sec. 160.101. REPORT BY COURT TO DEPARTMENT OF PUBLIC
SAFETY
Sec. 160.102. REPORT BY COURT TO BOARD
CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS
SUBCHAPTER A. REQUIREMENTS RELATING TO MEDICAL PEER REVIEW
Sec. 160.001. APPLICATION OF FEDERAL LAW. The Health Care Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.) applies to a professional review action or medical peer review conducted by a professional review body or medical peer review committee in this state on or after September 1, 1987. (V.A.C.S. Art. 4495b, Sec. 5.06(a).)
Sec. 160.002. REPORT OF MEDICAL PEER REVIEW. (a) A medical peer review committee or health care entity shall report in writing to the board the results and circumstances of a medical peer review that:
(1) adversely affects the clinical privileges of a physician for a period longer than 30 days;
(2) accepts a physician's surrender of clinical privileges either:
(A) while the physician is under an investigation by the medical peer review committee relating to possible incompetence or improper professional conduct; or
(B) in return for not conducting an investigation or proceeding relating to possible incompetence or improper professional conduct; or
(3) adversely affects the membership of a physician in a professional society or association, if the medical peer review is conducted by that society or association.
(b) The duty to report under this section may not be nullified through contract. (V.A.C.S. Art. 4495b, Sec. 5.06(b) (part).)
Sec. 160.003. REPORT BY CERTAIN PRACTITIONERS. (a) This section applies to:
(1) a medical peer review committee in this state;
(2) a physician licensed in this state or otherwise lawfully practicing medicine in this state;
(3) a physician engaged in graduate medical education or training;
(4) a medical student;
(5) a physician assistant or acupuncturist licensed in this state or otherwise lawfully practicing in this state; and
(6) a physician assistant student or acupuncturist student.
(b) A person or committee subject to this section shall report relevant information to the board relating to the acts of a physician in this state if, in the opinion of the person or committee, that physician poses a continuing threat to the public welfare through the practice of medicine.
(c) The duty to report under this section may not be nullified through contract. (V.A.C.S. Art. 4495b, Sec. 5.06(d) (part).)
Sec. 160.004. REPORT REGARDING CERTAIN IMPAIRED PHYSICIANS. (a) This section applies to:
(1) a committee of a professional medical society or association operating under written bylaws approved by the policymaking body or governing board of the society or association and composed primarily of physicians;
(2) the staff of that committee; or
(3) a district or local intervenor participating in a program established to aid physicians whose ability to practice medicine is impaired, or reasonably believed to be impaired, by drug or alcohol abuse or mental or physical illness.
(b) A person or committee subject to this section:
(1) may report to the board or to a health care entity in which an affected physician has clinical privileges the name of the impaired physician together with pertinent information relating to that impairment; and
(2) shall report to the board and any known health care entity in which the physician has clinical privileges if the person or committee determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare.
(c) Except as otherwise provided by this subtitle, each proceeding and record of a person described by Subsection (a) is confidential, and any communication made to the person or committee is privileged from disclosure in the manner provided under this subchapter for information submitted by a medical peer review committee. This confidentiality and privilege from disclosure applies to all information developed under this section, including information developed before September 1, 1991. (V.A.C.S. Art. 4495b, Sec. 5.06(e).)
Sec. 160.005. REPORT CONFIDENTIAL; COMMUNICATION NOT PRIVILEGED. (a) A report made under this subchapter is confidential and is not subject to disclosure under Chapter 552, Government Code.
(b) In a proceeding brought under this chapter or Chapter 158, 159, or 162, evidence may not be excluded on the ground that it consists of a privileged communication unless it is a communication between attorney and client. (V.A.C.S. Art. 4495b, Sec. 5.06(c).)
Sec. 160.006. BOARD CONFIDENTIALITY. (a) A record, report, or other information received and maintained by the board under this subchapter or Subchapter B, including any material received or developed by the board during an investigation or hearing, is confidential. The board may disclose this information only:
(1) in a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;
(2) to the physician licensing or disciplinary authority of another jurisdiction, to a local, state, or national professional medical society or association, or to a medical peer review committee located inside or outside this state that is concerned with granting, limiting, or denying a physician hospital privileges;
(3) under a court order; or
(4) to qualified personnel for bona fide research or educational purposes, if personally identifiable information relating to any physician or other individual is first deleted.
(b) Any known hospital suspension of a physician for a term of 30 days or longer relating to the physician's competence and a disciplinary order of the board against a physician are not confidential.
(c) A record or report disclosed by the board under this subchapter and a record or report received, maintained, or developed by the board, a medical peer review committee, a member of the committee, or a health care entity are not available for discovery or court subpoena and may not be introduced into evidence in any action for damages, including a medical professional liability action that arises out of the provision of or failure to provide a medical or health care service. (V.A.C.S. Art. 4495b, Secs. 5.06(s)(1) (part), (2) (part), (3).)
Sec. 160.007. CONFIDENTIALITY RELATING TO MEDICAL PEER REVIEW COMMITTEE. (a) Except as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged.
(b) If a judge makes a preliminary finding that a proceeding or record of a medical peer review committee or a communication made to the committee is relevant to an anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. Section 1983, the proceeding, record, or communication is not confidential to the extent it is considered relevant.
(c) A record or proceeding of a medical peer review committee or a written or oral communication made to the committee may be disclosed to:
(1) another medical peer review committee;
(2) an appropriate state or federal agency;
(3) a national accreditation body;
(4) the board; or
(5) the state board of registration or licensing of physicians of another state.
(d) If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a health care entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision. Disclosure to the affected physician of confidential peer review committee information relevant to the matter under review does not constitute waiver of the confidentiality requirements established under this subtitle.
(e) Unless disclosure is required or authorized by law, a record or determination of or a communication to a medical peer review committee is not subject to subpoena or discovery and is not admissible as evidence in any civil judicial or administrative proceeding without waiver of the privilege of confidentiality executed in writing by the committee. The evidentiary privileges created by this subtitle may be invoked by a person or organization in a civil judicial or administrative proceeding unless the person or organization secures a waiver of the privilege executed in writing by the chair, vice chair, or secretary of the affected medical peer review committee.
(f) If, under Sections 160.008(a) and (b), a person participating in peer review, a medical peer review committee, or a health care entity named as a defendant in a civil action filed as a result of participation in peer review may use otherwise confidential information in the defendant's own defense, a plaintiff in the proceeding may disclose a record or determination of or a communication to a medical peer review committee in rebuttal to information supplied by the defendant.
(g) A person seeking access to privileged information must plead and prove waiver of the privilege. A member, employee, or agent of a medical peer review committee who provides access to an otherwise privileged communication or record in cooperation with a law enforcement authority in a criminal investigation is not considered to have waived any privilege established under this subtitle. (V.A.C.S. Art. 4495b, Secs. 5.06(g), (h), (i) (part), (j).)
Sec. 160.008. USE OF CERTAIN CONFIDENTIAL INFORMATION. (a) This section applies to a person participating in peer review, a medical peer review committee, or a health care entity named as a defendant in a civil action filed as a result of participation in peer review.
(b) A defendant subject to this section may use otherwise confidential information obtained for legitimate internal business and professional purposes, including use in the defendant's own defense. Use of confidential information under this subsection does not constitute a waiver of the confidential and privileged nature of medical peer review committee proceedings.
(c) A defendant subject to this section may file a counterclaim in a pending action or may prove a cause of action in a subsequent action to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original action is determined to be frivolous or brought in bad faith. (V.A.C.S. Art. 4495b, Secs. 5.06(o), (p).)
Sec. 160.009. COMPLIANCE WITH SUBPOENA. (a) The governing body and medical staff of each health care entity and any other person shall comply with a subpoena for documents or information issued by the board under Section 153.007 or 204.308. The disclosure of documents or information under such a subpoena does not constitute a waiver of the privilege associated with medical peer review committee proceedings.
(b) Failure to comply with a subpoena under Subsection (a) constitutes grounds for disciplinary action against the person or entity by the appropriate licensing board. (V.A.C.S. Art. 4495b, Sec. 5.06(k).)
Sec. 160.010. IMMUNITY FROM CIVIL LIABILITY. (a) The following are immune from civil liability:
(1) a person who, in good faith, reports or furnishes information to a medical peer review committee or the board;
(2) a member, employee, or agent of the board, a medical peer review committee, or a medical organization committee, or a medical organization district or local intervenor, who takes an action or makes a recommendation within the scope of the functions of the board, committee, or intervenor program, if that member, employee, agent, or intervenor acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person; and
(3) a member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.
(b) A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review.
(c) A person, medical peer review committee, or health care entity that, without malice, participates in medical peer review or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from that act.
(d) A person or health care entity required to report to the board may not be found liable in a civil action for failure to report to the board unless the failure was committed knowingly or wilfully, except that the appropriate state licensing body may take action against a licensed person or entity for not reporting as required under this subtitle. (V.A.C.S. Art. 4495b, Secs. 5.06(l), (m), (n), (t).)
Sec. 160.011. NOT STATE ACTION. The reporting or assistance provided for in this subchapter does not constitute state action on the reporting or assisting medical peer review committee or its parent organization. (V.A.C.S. Art. 4495b, Sec. 5.06(u).)
Sec. 160.012. DISCIPLINE OR DISCRIMINATION PROHIBITED. (a) A person may not suspend, terminate, or otherwise discipline or discriminate against a person who reports to the board under this subtitle.
(b) A person has a cause of action against a health care entity, or an owner or employee of a health care entity, that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person for reporting to the board under Section 160.002, 160.003, or 160.004. The person may recover:
(1) the greater of:
(A) actual damages, including damages for mental anguish regardless of whether other injury is shown; or
(B) $1,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(c) In addition to amounts recovered under Subsection (b), a person whose employment is suspended or terminated in violation of this section is entitled to:
(1) either:
(A) reinstatement in the person's former position; or
(B) severance pay in an amount equal to three months of the person's most current salary; and
(2) compensation for wages lost during the period of suspension or termination.
(d) A person who brings an action under this section has the burden of proof. It is a rebuttable presumption that the person's employment was suspended or terminated for reporting an act that imperils the welfare of a patient if:
(1) the person is suspended or terminated not later than the 90th day after the date of making a report in good faith; and
(2) the board or a court determines that the reported case made the subject of the cause of action was a case in which the person was required to report under Section 160.002, 160.003, or 160.004.
(e) An action under this section may be brought in the district court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) the defendant conducts business. (V.A.C.S. Art. 4495b, Sec. 5.06(q).)
Sec. 160.013. EXPUNGEMENT OF REPORT MADE IN BAD FAITH. If a court makes a final determination that a report or complaint made to the board was made in bad faith, the complaint shall be expunged from the physician's or applicant's individual historical record. (V.A.C.S. Art. 4495b, Sec. 5.06(r) (part).)
Sec. 160.014. ACTION BY HEALTH CARE ENTITY NOT PRECLUDED. The filing of a report with the board under this subchapter, or an investigation or disposition by the board, does not in itself preclude any action by a health care entity to suspend, restrict, or revoke the privileges or membership of the physician. (V.A.C.S. Art. 4495b, Sec. 5.06(f) (part).)
[Sections 160.015-160.050 reserved for expansion]
SUBCHAPTER B. REQUIREMENTS RELATING TO INSURERS
Sec. 160.051. DEFINITIONS. In this subchapter:
(1) "Commissioner" means the commissioner of insurance.
(2) "Insurer" means an insurer or other entity that provides medical professional liability insurance covering a physician in this state. (V.A.C.S. Art. 4495b, Sec. 5.05(a) (part); New.)
Sec. 160.052. REPORT FROM INSURER OR PHYSICIAN. (a) Each insurer shall submit to the board the report or other information described by Section 160.053 at the time prescribed. The insurer shall provide the report or information with respect to:
(1) a notice of claim letter or complaint filed against an insured in a court, if the notice of claim letter or complaint seeks damages relating to the insured's conduct in providing or failing to provide a medical or health care service; and
(2) settlement of a claim or lawsuit made on behalf of the insured.
(b) A physician practicing medicine in this state shall report the information required under Section 160.053 if the physician:
(1) does not carry or is not covered by medical professional liability insurance; or
(2) is insured by a nonadmitted carrier or other entity providing medical liability insurance that is not reporting under this subchapter. (V.A.C.S. Art. 4495b, Sec. 5.05(a) (part).)
Sec. 160.053. CONTENTS OF REPORT; ADDITIONAL INFORMATION. (a) Not later than the 30th day after the date an insurer receives a notice of claim letter or complaint from an insured, the insurer shall furnish to the board:
(1) the name of the insured and the insured's Texas medical license number;
(2) the policy number; and
(3) a copy of the notice of claim letter or complaint.
(b) The board, in consultation with the commissioner, shall adopt rules for reporting additional information as the board requires. In adopting the rules, the board shall consider other claim reports required under state and federal statutes in determining the information to be reported, form of the report, and frequency of reporting. Additional information the board requires may include:
(1) the date of a judgment, dismissal, or settlement;
(2) whether an appeal has been taken and by which party; and
(3) the amount of the settlement or judgment against the insured. (V.A.C.S. Art. 4495b, Secs. 5.05(b), (c).)
Sec. 160.054. REPORT NOT EVIDENCE. In the trial of an action against a physician based on the physician's conduct in providing or failing to provide a medical or health care service, a report or other information submitted to the board under this subchapter and the fact that the report or information has been submitted to the board may not be offered in evidence or used in any manner. (V.A.C.S. Art. 4495b, Sec. 5.05(e).)
Sec. 160.055. SANCTIONS FOR FAILURE TO REPORT. The commissioner may impose sanctions authorized by Section 7, Article 1.10, Insurance Code, on an insurer who fails to report information as required by this subchapter. (V.A.C.S. Art. 4495b, Sec. 5.05(g).)
Sec. 160.056. CIVIL LIABILITY. A person or entity is not liable for any action taken by the person or entity under this subchapter, and a cause of action does not arise against that person or entity, if the person or entity is:
(1) an insurer reporting under this subchapter;
(2) an agent or employee of that insurer; or
(3) a member, employee, or representative of the board. (V.A.C.S. Art. 4495b, Sec. 5.05(d).)
[Sections 160.057-160.100 reserved for expansion]
SUBCHAPTER C. REQUIREMENTS RELATING TO CERTAIN
CONVICTIONS OR ADJUDICATIONS
Sec. 160.101. REPORT BY COURT TO DEPARTMENT OF PUBLIC SAFETY. (a) This section applies to a person known to be a physician who is licensed or otherwise lawfully practicing in this state or applying to be licensed and who is convicted of or placed on deferred adjudication for:
(1) a felony;
(2) a misdemeanor involving moral turpitude;
(3) a violation of a state or federal narcotics or controlled substances law; or
(4) an offense involving fraud or abuse under the Medicare or Medicaid program.
(b) Not later than the 30th day after the date a person described by Subsection (a) is convicted of an offense listed in that subsection or is placed on deferred adjudication for an offense listed in that subsection, the clerk of the court in which the person is convicted or placed on deferred adjudication shall prepare and forward to the Department of Public Safety the information required by Chapter 60, Code of Criminal Procedure.
(c) The duty of a clerk to prepare and forward information under Subsection (b) is not affected by:
(1) any subsequent appeal of the conviction for the offense reported; or
(2) any subsequent dismissal of proceedings related to the placement on deferred adjudication for the offense reported. (V.A.C.S. Art. 4495b, Sec. 5.07(a).)
Sec. 160.102. REPORT BY COURT TO BOARD. Not later than the 30th day after the date a court finds that a physician is mentally ill or mentally incompetent, the clerk of the court of record in which the finding is entered shall prepare and forward to the board a certified abstract of record, regardless of whether the adjudication or finding is subsequently withheld or appealed. (V.A.C.S. Art. 4495b, Sec. 5.07(b).)
[Chapter 161 reserved for expansion]
CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT
HEALTH CORPORATIONS
Sec. 162.001. CERTIFICATION BY BOARD
Sec. 162.002. LIMITATION ON PHYSICIAN FEES
Sec. 162.003. REFUSAL TO CERTIFY; REVOCATION
CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT
HEALTH CORPORATIONS
Sec. 162.001. CERTIFICATION BY BOARD. (a) The board by rule shall certify a health organization that:
(1) applies for certification on a form approved by the board; and
(2) presents proof satisfactory to the board that the organization meets the requirements of Subsection (b) or (c).
(b) The board shall approve and certify a health organization that:
(1) is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) organized to:
(A) conduct scientific research and research projects in the public interest in the field of medical science, medical economics, public health, sociology, or a related area;
(B) support medical education in medical schools through grants and scholarships;
(C) improve and develop the capabilities of individuals and institutions studying, teaching, and practicing medicine;
(D) deliver health care to the public; or
(E) instruct the general public in medical science, public health, and hygiene and provide related instruction useful to individuals and beneficial to the community;
(2) is organized and incorporated solely by persons licensed by the board; and
(3) has as its directors and trustees persons who are:
(A) licensed by the board; and
(B) actively engaged in the practice of medicine.
(c) The board shall certify a health organization to contract with or employ physicians licensed by the board if the organization:
(1) is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Sec. 501(c)(3)); and
(2) is organized and operated as:
(A) a migrant, community, or homeless health center under the authority of and in compliance with 42 U.S.C. Section 254b or 254c; or
(B) a federally qualified health center under 42 U.S.C. Section 1396d(l)(2)(B). (V.A.C.S. Art. 4495b, Secs. 5.01(a), (b).)
Sec. 162.002. LIMITATION ON PHYSICIAN FEES. A physician who provides professional medical services for a health organization certified under Section 162.001(c) shall provide those services free of charge, or at a reduced fee commensurate with the patient's ability to pay, in compliance with 42 U.S.C. Section 254b or 254c. (V.A.C.S. Art. 4495b, Sec. 5.01(c).)
Sec. 162.003. REFUSAL TO CERTIFY; REVOCATION. On a determination that a health organization is established, organized, or operated in violation of or with the intent to violate this subtitle, the board:
(1) may refuse to certify the health organization on application for certification by the organization under Section 162.001; and
(2) shall revoke a certification made under Section 162.001 to that organization. (V.A.C.S. Art. 4495b, Secs. 5.01(d), (e).)
CHAPTER 163. DISTRICT REVIEW COMMITTEES
Sec. 163.001. DEFINITIONS
Sec. 163.002. DESIGNATION OF DISTRICTS
Sec. 163.003. COMMITTEE
Sec. 163.004. BOARD RULES REGARDING COMMITTEES
Sec. 163.005. COMMITTEE AUTHORITY LIMITED
CHAPTER 163. DISTRICT REVIEW COMMITTEES
Sec. 163.001. DEFINITIONS. In this chapter:
(1) "Committee" means a district review committee.
(2) "District" means a district established under Section 163.002. (V.A.C.S. Art. 4495b, Sec. 5.03(a).)
Sec. 163.002. DESIGNATION OF DISTRICTS. (a) The board shall designate:
(1) the number of districts; and
(2) the geographic area of a district composed of various counties.
(b) The board may revise, as it considers appropriate and after a public hearing, the number of districts and the designation of the counties located in a district.
(c) If the number of districts or a county's designation in a district is revised, the board shall follow the same procedure that applied to the initial designation. (V.A.C.S. Art. 4495b, Sec. 5.03(b).)
Sec. 163.003. COMMITTEE. (a) A committee consists of five members appointed by the governor, as follows:
(1) three physician members who are doctors of medicine (M.D.);
(2) one physician member who is a doctor of osteopathic medicine (D.O.); and
(3) one public member.
(b) A member must:
(1) have resided in the district for longer than three years before the date of the appointment; and
(2) meet the qualifications for:
(A) physician members of the board under Section 152.002, if the member is a physician member; or
(B) public members of the board under Section 152.002, if the member is a public member.
(c) A member of the committee serves a six-year term.
(d) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term.
(e) A member of the committee is entitled to receive a per diem for actual duty in the same manner provided for board members.
(f) A member of a committee is subject to law and the rules of the board as if the committee member were a member of the board, except that a committee member is not subject to Chapter 572, Government Code. (V.A.C.S. Art. 4495b, Secs. 5.03(c), (d), (e), (f), (g).)
Sec. 163.004. BOARD RULES REGARDING COMMITTEES. The board may adopt rules reasonably necessary to implement this chapter relating to:
(1) per diem and expenses of committee members;
(2) matters to be heard or considered by a committee;
(3) the conduct of committee hearings;
(4) the authority the board may delegate to a committee; and
(5) other matters regarding the actions, duties, and responsibilities of a committee. (V.A.C.S. Art. 4495b, Sec. 5.03(h).)
Sec. 163.005. COMMITTEE AUTHORITY LIMITED. A committee may not finally dispose of a complaint against a person licensed by the board or issue a final order or rule. The board shall finally dispose of each complaint against a person licensed by the board and has the sole authority to issue final orders and rules. (V.A.C.S. Art. 4495b, Sec. 5.03(i).)
CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 164.001. DISCIPLINARY AUTHORITY OF BOARD; METHODS
OF DISCIPLINE
Sec. 164.002. BOARD DISPOSITION OF COMPLAINTS, CONTESTED
CASES, AND OTHER MATTERS
Sec. 164.003. INFORMAL PROCEEDINGS
Sec. 164.004. COMPLIANCE WITH DUE PROCESS REQUIREMENTS
Sec. 164.005. INITIATION OF CHARGES; FORMAL COMPLAINT
Sec. 164.006. SERVICE OF NOTICE
Sec. 164.007. ADMINISTRATIVE HEARINGS; CONFIDENTIALITY
ISSUES
Sec. 164.008. RIGHT TO COUNSEL
Sec. 164.009. JUDICIAL REVIEW
Sec. 164.010. MONITORING OF LICENSE HOLDER
Sec. 164.011. LICENSE STATUS PENDING APPEAL
[Sections 164.012-164.050 reserved for expansion]
SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS
Sec. 164.051. GROUNDS FOR DENIAL OR DISCIPLINARY ACTION
Sec. 164.052. PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE
APPLICANT
Sec. 164.053. UNPROFESSIONAL OR DISHONORABLE CONDUCT
Sec. 164.054. ADDITIONAL REQUIREMENTS REGARDING DRUG
RECORDS
Sec. 164.055. PROHIBITED ACTS REGARDING ABORTION
Sec. 164.056. PHYSICAL OR MENTAL EXAMINATION; HEARING
Sec. 164.057. REQUIRED SUSPENSION OR REVOCATION OF LICENSE
FOR CERTAIN FELONY OFFENSES
Sec. 164.058. REQUIRED SUSPENSION OF LICENSE OF INCARCERATED
PHYSICIAN
Sec. 164.059. TEMPORARY SUSPENSION
Sec. 164.060. REPORT OF BOARD ACTIONS
Sec. 164.061. SURRENDER OF LICENSE
[Sections 164.062-164.100 reserved for expansion]
SUBCHAPTER C. PROBATION OF LICENSE
Sec. 164.101. PROBATION
Sec. 164.102. PERSONS INELIGIBLE FOR PROBATION
Sec. 164.103. RESCISSION OF PROBATION
[Sections 164.104-164.150 reserved for expansion]
SUBCHAPTER D. LICENSE REINSTATEMENT
Sec. 164.151. APPLICATION FOR LICENSE REINSTATEMENT
Sec. 164.152. APPLICATION PERIOD
Sec. 164.153. CERTAIN PERSONS INELIGIBLE FOR REINSTATEMENT
Sec. 164.154. EFFECT OF LICENSE REINSTATEMENT ON CERTAIN
PROSECUTIONS OR PENALTIES
[Sections 164.155-164.200 reserved for expansion]
SUBCHAPTER E. OTHER ACTIONS
Sec. 164.201. REVIEW BY BOARD IF THREE OR MORE MALPRACTICE
CLAIMS
Sec. 164.202. REHABILITATION ORDER
Sec. 164.203. EFFECT OF REHABILITATION ORDER
Sec. 164.204. AUDIT OF REHABILITATION ORDER
CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 164.001. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. (a) Except for good cause shown, the board, on determining a violation of this subtitle or a board rule or for any cause for which the board may refuse to admit a person to its examination or to issue or renew a license, including an initial conviction or the initial finding of the trier of fact of guilt of a felony or misdemeanor involving moral turpitude, shall:
(1) revoke or suspend a license;
(2) place on probation a person whose license is suspended; or
(3) reprimand a license holder.
(b) Except as otherwise provided by Sections 164.057 and 164.058, the board, on determining that a person committed an act described by Sections 164.051 through 164.054, shall enter an order to:
(1) deny the person's application for a license or other authorization to practice medicine;
(2) administer a public reprimand;
(3) suspend, limit, or restrict the person's license or other authorization to practice medicine, including:
(A) limiting the practice of the person to or excluding one or more specified activities of medicine; or
(B) stipulating periodic board review;
(4) revoke the person's license or other authorization to practice medicine;
(5) require the person to submit to care, counseling, or treatment of physicians designated by the board as a condition for:
(A) the issuance or renewal of a license or other authorization to practice medicine; or
(B) continued practice under a license;
(6) require the person to participate in an educational or counseling program prescribed by the board;
(7) require the person to practice under the direction of a physician designated by the board for a specified period;
(8) require the person to perform public service considered appropriate by the board; or
(9) assess an administrative penalty against the person as provided by Section 165.001.
(c) Notwithstanding Subsection (b), the board shall revoke, suspend, or deny a physician's license if the board determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare.
(d) In addition to any other disciplinary action authorized by this section, the board may issue a written reprimand to a license holder who violates this subtitle or require that a license holder who violates this subtitle participate in continuing education programs. The board shall specify the continuing education programs to be attended and the number of hours that must be completed by the license holder to fulfill the requirements of this subsection.
(e) For any sanction imposed under this chapter as the result of a hearing conducted by the State Office of Administrative Hearings, that office shall use the schedule of sanctions adopted by board rule. (V.A.C.S. Art. 4495b, Secs. 4.01(a), 4.12(a), (b), (c), (e).)
Sec. 164.002. BOARD DISPOSITION OF COMPLAINTS, CONTESTED CASES, AND OTHER MATTERS. (a) Unless precluded by law, the board may dispose of any complaint or matter relating to this subtitle or of any contested case by a stipulation, agreed settlement, or consent order.
(b) The board shall dispose of a complaint, contested case, or other matter in writing. If appropriate, the affected physician shall sign the writing.
(c) An agreed disposition is a disciplinary order for purposes of reporting under this subtitle and of administrative hearings and proceedings by state and federal regulatory agencies regarding the practice of medicine. An agreed disposition is public information.
(d) In civil litigation, an agreed disposition is a settlement agreement under Rule 408, Texas Rules of Evidence. This subsection does not apply to a license holder who has previously entered into an agreed disposition with the board of a different disciplinary matter or whose license the board is seeking to revoke. (V.A.C.S. Art. 4495b, Secs. 4.02(h), (i).)
Sec. 164.003. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must require that:
(1) the complainant and the license holder be provided an opportunity to be heard;
(2) the board's legal counsel or a representative of the attorney general be present to advise the board or the board's staff; and
(3) a member of the board's staff at the meeting present to the board's representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.
(c) An affected physician is entitled to:
(1) reply to the staff's presentation; and
(2) present the facts the physician reasonably believes the physician could prove by competent evidence or qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the board representative shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases. (V.A.C.S. Art. 4495b, Sec. 4.025.)
Sec. 164.004. COMPLIANCE WITH DUE PROCESS REQUIREMENTS. (a) Except in the case of a suspension under Section 164.059 or under the terms of an agreement between the board and a license holder, a revocation, suspension, involuntary modification, or other disciplinary action relating to a license is not effective unless, before board proceedings are instituted:
(1) the board gives notice, in a manner consistent with the notice requirements under Section 154.053, to the affected license holder of the facts or conduct alleged to warrant the intended action; and
(2) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license, at the license holder's option, either in writing or through personal appearance at an informal meeting with one or more representatives of the board.
(b) If the license holder chooses to personally appear and an informal meeting is held, the board's staff and the board's representatives are subject to the ex parte provisions of Chapter 2001, Government Code, with regard to contacts with board members and administrative law judges concerning the case. (V.A.C.S. Art. 4495b, Secs. 4.02(m), (n).)
Sec. 164.005. INITIATION OF CHARGES; FORMAL COMPLAINT. (a) In this section, "formal complaint" means a written statement made by a credible person under oath that is filed and presented by a board representative charging a person with having committed an act that, if proven, could affect the legal rights or privileges of a license holder or other person under the board's jurisdiction.
(b) Unless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board.
(c) A charge must be in the form of a written affidavit that:
(1) is filed with the board's records custodian or assistant records custodian; and
(2) details the nature of the charge as required by this subtitle or other applicable law.
(d) The board president or a designee shall ensure a copy of the charges is served on the respondent or the respondent's counsel of record.
(e) The president or designee shall notify the State Office of Administrative Hearings of a formal complaint.
(f) A formal complaint must allege with reasonable certainty each specific act relied on by the board to constitute a violation of a specific statute or rule. The formal complaint must be specific enough to:
(1) enable a person of common understanding to know what is meant by the formal complaint; and
(2) give the person who is the subject of the formal complaint notice of each particular act alleged to be a violation of a specific statute or rule.
(g) The board shall adopt rules to promote discovery by each party to a contested case. (V.A.C.S. Art. 4495b, Sec. 4.03.)
Sec. 164.006. SERVICE OF NOTICE. (a) Service of process to notify the respondent of a hearing about the charges against the person must be served in accordance with Chapter 2001, Government Code.
(b) If service described by Subsection (a) is impossible or cannot be effected, the board shall publish once a week for two successive weeks a notice of the hearing in a newspaper published in the county of the last known place of practice in this state of the person, if known.
(c) If the license holder is not currently practicing in this state as evidenced by information in the board files, or if the last county of practice is unknown, the notice shall be published in a newspaper in Travis County.
(d) If publication of notice is used, the date of hearing may not be earlier than the 10th day after the date of the last publication. (V.A.C.S. Art. 4495b, Sec. 4.04.)
Sec. 164.007. ADMINISTRATIVE HEARINGS; CONFIDENTIALITY ISSUES. (a) The board by rule shall adopt procedures governing formal disposition of a contested case under Chapter 2001, Government Code. A formal hearing shall be conducted by an administrative law judge employed by the State Office of Administrative Hearings. After receiving the administrative law judge's findings of fact and conclusions of law, the board shall determine the charges on the merits.
(b) Notwithstanding this subtitle or other law, the board may employ, retain, and compensate:
(1) attorneys, consultants, and other professionals as necessary and appropriate to serve as board consultants or special counsel to prosecute complaints filed with the board on behalf of the hearings division and investigating division; and
(2) court reporters and other staff necessary to prepare for or represent the board in the hearings authorized by this section.
(c) Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder.
(d) Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under Section 164.005 or from the license holder's counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint. The board is not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
(e) Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.
(f) Investigative information in the possession of the board or an employee or agent relating to discipline of a license holder may be disclosed to:
(1) the appropriate licensing authority of:
(A) another state; or
(B) a territory or country in which the license holder is licensed or has applied for a license; or
(2) a medical peer review committee reviewing an application for privileges or the qualifications of the license holder with respect to retaining privileges.
(g) If investigative information in the possession of the board or its employees or agents indicates that a crime may have been committed, the board shall report the information to the appropriate law enforcement agency.
(h) The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency. Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation. (V.A.C.S. Art. 4495b, Secs. 4.05(a), (b), (c) (part).)
Sec. 164.008. RIGHT TO COUNSEL. In a hearing involving a disciplinary action under this subtitle, the respondent is entitled to appear personally, by counsel, or both. (V.A.C.S. Art. 4495b, Sec. 4.06.)
Sec. 164.009. JUDICIAL REVIEW. A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final. (V.A.C.S. Art. 4495b, Sec. 4.09.)
Sec. 164.010. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system to monitor compliance with the requirements of this subtitle of license holders who are the subject of disciplinary action.
(b) Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder ordered by the board to perform certain acts; and
(2) identify and monitor license holders who are the subject of disciplinary action and who present a continuing threat to the public welfare through the practice of medicine. (V.A.C.S. Art. 4495b, Sec. 4.11(a).)
Sec. 164.011. LICENSE STATUS PENDING APPEAL. (a) The board's decision on a disciplinary matter may not be enjoined or stayed except on application to the appropriate court after notice to the board.
(b) A person may not practice medicine or deliver health care services in violation of a disciplinary order or action of the board while an appeal is pending unless the order or action is stayed by the appropriate court.
(c) A stay may not be granted if the license holder's continued practice presents a danger to the public. A stay may not be granted for a term that exceeds 120 days. (V.A.C.S. Art. 4495b, Sec. 4.08.)
[Sections 164.012-164.050 reserved for expansion]
SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS
Sec. 164.051. GROUNDS FOR DENIAL OR DISCIPLINARY ACTION. (a) The board may refuse to admit a person to its examination or refuse to issue a license to practice medicine and may take disciplinary action against a person if the person:
(1) commits an act prohibited under Section 164.052;
(2) is convicted of:
(A) a felony; or
(B) a misdemeanor involving moral turpitude;
(3) commits or attempts to commit a direct or indirect violation of a rule adopted under this subtitle, either as a principal, accessory, or accomplice;
(4) is unable to practice medicine with reasonable skill and safety to patients because of:
(A) illness;
(B) drunkenness;
(C) excessive use of drugs, narcotics, chemicals, or another substance; or
(D) a mental or physical condition;
(5) is found by a court judgment to be of unsound mind;
(6) fails to practice medicine in an acceptable professional manner consistent with public health and welfare;
(7) is removed, suspended, or is subject to disciplinary action taken by the person's peers in a local, regional, state, or national professional medical association or society, or is disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board finds that the action:
(A) was based on unprofessional conduct or professional incompetence that was likely to harm the public; and
(B) was appropriate and reasonably supported by evidence submitted to the board;
(8) is subject to repeated or recurring meritorious health care liability claims that in the board's opinion evidence professional incompetence likely to injure the public; or
(9) holds a license to practice medicine subject to disciplinary action by another state, or subject to disciplinary action by the uniformed services of the United States, based on acts by the person that are prohibited under Section 164.052 or are similar to acts described by this subsection.
(b) Action taken by a professional medical association, society, or hospital medical staff under Subsection (a)(7) does not constitute state action.
(c) A certified copy of the record of another state that takes action described by Subsection (a)(9) is conclusive evidence of that action. (V.A.C.S. Art. 4495b, Sec. 3.08 (part).)
Sec. 164.052. PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE APPLICANT. (a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;
(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an examination;
(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;
(6) uses an advertising statement that is false, misleading, or deceptive;
(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;
(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;
(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;
(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;
(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;
(15) associates in the practice of medicine with a person:
(A) whose license to practice medicine has been suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion; or
(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board.
(b) For purposes of Subsection (a)(12), conduct that subverts or attempts to subvert the medical licensing examination process includes, as prescribed by board rules, conduct that violates:
(1) the security of the examination materials;
(2) the standard of test administration; or
(3) the accreditation process. (V.A.C.S. Art. 4495b, Sec. 3.08 (part).)
Sec. 164.053. UNPROFESSIONAL OR DISHONORABLE CONDUCT. (a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician:
(1) commits an act that violates the laws of this state if the act is connected with the physician's practice of medicine;
(2) fails to keep complete and accurate records of purchases and disposals of:
(A) drugs listed in Chapter 481, Health and Safety Code; or
(B) controlled substances scheduled in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(3) writes prescriptions for or dispenses to a person who:
(A) is known to be an abuser of narcotic drugs, controlled substances, or dangerous drugs; or
(B) the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous drugs;
(4) writes false or fictitious prescriptions for:
(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or
(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(5) prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed;
(6) prescribes, administers, or dispenses in a manner inconsistent with public health and welfare:
(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or
(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(7) persistently or flagrantly overcharges or overtreats patients;
(8) fails to supervise adequately the activities of those acting under the supervision of the physician; or
(9) delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.
(b) A complaint, indictment, or conviction of a violation of law is not necessary for the enforcement of Subsection (a)(1). Proof of the commission of the act while in the practice of medicine or under the guise of the practice of medicine is sufficient for the board's action.
(c) Subsection (a)(3) does not apply to a person the physician is treating for:
(1) the person's use of narcotics after the physician notifies the board in writing of the name and address of the person being treated; or
(2) intractable pain under the Intractable Pain Treatment Act (Article 4495c, Revised Statutes). (V.A.C.S. Art. 4495b, Sec. 3.08(4) (part).)
Sec. 164.054. ADDITIONAL REQUIREMENTS REGARDING DRUG RECORDS. (a) Each physician shall keep a record of the physician's purchase and disposal of drugs and controlled substances described by Section 164.053(a)(2) that includes:
(1) the date of purchase and the date of the sale or disposal of the drugs and controlled substances by the physician;
(2) the name and address of the person receiving the drugs or controlled substances; and
(3) the reason for the disposing or dispensing of the drugs or controlled substances to the person.
(b) Failure to keep the records required by this section for a reasonable time constitutes grounds for revoking, canceling, suspending, or placing on probation the physician's license.
(c) The board or its representative may enter and inspect a physician's place of practice during reasonable business hours to:
(1) verify the accuracy of the records; and
(2) perform an inventory of the prescription drugs on hand. (V.A.C.S. Art. 4495b, Sec. 3.08(4) (part).)
Sec. 164.055. PROHIBITED ACTS REGARDING ABORTION. (a) The board may take an appropriate disciplinary action against a physician who violates Section 170.002, Health and Safety Code. The board may refuse to admit to examination or refuse to issue a license or renewal license to a person who violates that section.
(b) The sanctions provided by Subsection (a) are in addition to any other grounds for refusal to admit persons to examination under this subtitle or to issue a license or renew a license to practice medicine under this subtitle. The criminal penalties provided by Section 165.152 do not apply to a violation of Section 170.002, Health and Safety Code. (V.A.C.S. Art. 4495b, Secs. 4.011(c), (e).)
Sec. 164.056. PHYSICAL OR MENTAL EXAMINATION; HEARING. (a) In enforcing Section 164.051(a)(4), the board, on probable cause, shall request the affected physician to submit to a mental or physical examination by physicians designated by the board.
(b) If the affected physician refuses to submit to the examination, the board shall issue an order requiring the physician to show cause why the physician should not be required to submit to the examination and shall schedule a hearing on the order not later than the 30th day after the date on which notice is served on the physician. The physician shall be notified by either personal service or certified mail with return receipt requested.
(c) At the hearing, the physician and the physician's attorney are entitled to present testimony and other evidence showing that the physician should not be required to submit to the examination. After a hearing, the board shall issue an order either requiring the physician to submit to the examination or withdrawing the request for examination. (V.A.C.S. Art. 4495b, Sec. 3.08(16) (part).)
Sec. 164.057. REQUIRED SUSPENSION OR REVOCATION OF LICENSE FOR CERTAIN FELONY OFFENSES. (a) The board shall suspend a physician's license on proof that the physician has been initially convicted of a felony or subject to an initial finding by the trier of fact of guilt of a felony under:
(1) Chapter 481 or 483, Health and Safety Code;
(2) Section 485.033, Health and Safety Code; or
(3) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.).
(b) On final conviction for a felony described by Subsection (a), the board shall revoke the physician's license. (V.A.C.S. Art. 4495b, Sec. 4.01(b).)
Sec. 164.058. REQUIRED SUSPENSION OF LICENSE OF INCARCERATED PHYSICIAN. Regardless of the offense, the board shall suspend the license of a physician serving a prison term in a state or federal penitentiary during the term of the incarceration. (V.A.C.S. Art. 4495b, Sec. 4.01(c).)
Sec. 164.059. TEMPORARY SUSPENSION. (a) The president of the board, with board approval, shall appoint a three-member disciplinary panel consisting of board members to determine whether a person's license to practice medicine should be temporarily suspended.
(b) If the disciplinary panel determines from the evidence or information presented to the panel that a person licensed to practice medicine would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend the license of that person.
(c) A license may be suspended under this section without notice or hearing on the complaint if:
(1) institution of proceedings for a hearing before the board is initiated simultaneously with the temporary suspension; and
(2) a hearing is held under Chapter 2001, Government Code, and this subtitle as soon as possible.
(d) Notwithstanding Chapter 551, Government Code, the disciplinary panel may hold a meeting by telephone conference call if immediate action is required and convening of the panel at one location is inconvenient for any member of the disciplinary panel. (V.A.C.S. Art. 4495b, Sec. 4.13.)
Sec. 164.060. REPORT OF BOARD ACTIONS. (a) Not later than the first working day after the date a board order is issued taking disciplinary action against a physician, the board shall report the action to the appropriate health care facilities and hospitals, if known by the board.
(b) Not later than the 30th day after the date the board takes disciplinary action against a physician, the board shall report that action, in writing, to:
(1) the appropriate health care facilities and hospitals, if not previously notified in writing;
(2) professional societies of physicians in this state;
(3) the entity responsible for the administration of Medicare and Medicaid in this state;
(4) the United States Secretary of Health and Human Services or the secretary's designee; and
(5) the complainant.
(c) If the board, during its review of a complaint against a physician, discovers an act or omission that may constitute a felony, a misdemeanor involving moral turpitude, a violation of state or federal narcotics or controlled substance laws, or an offense involving fraud or abuse under the Medicare or Medicaid programs, the board shall immediately report that act or omission to the appropriate prosecuting authority.
(d) Notwithstanding Subsection (c), the board may exercise discretion in the case of an impaired physician who is actively participating in board-approved or sanctioned care, counseling, or treatment. (V.A.C.S. Art. 4495b, Sec. 4.14.)
Sec. 164.061. SURRENDER OF LICENSE. (a) The board may accept the voluntary surrender of a license.
(b) A surrendered license may not be returned unless the board determines, under board rules, that the license holder is competent to resume practice. (V.A.C.S. Art. 4495b, Sec. 4.05(d).)
[Sections 164.062-164.100 reserved for expansion]
SUBCHAPTER C. PROBATION OF LICENSE
Sec. 164.101. PROBATION. (a) The board on majority vote may probate an order canceling, revoking, or suspending a license or imposing any other method of discipline if the probationer conforms to each order, condition, and rule the board establishes as a term of probation.
(b) At the time probation is granted the board shall establish the term of the probationary period.
(c) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in the areas that are the basis of the probation. (V.A.C.S. Art. 4495b, Secs. 4.11(b) (part), 4.12(d).)
Sec. 164.102. PERSONS INELIGIBLE FOR PROBATION. (a) The board may not grant probation to a physician who constitutes, through the practice of medicine, a continuing threat to the public welfare.
(b) Except on an express determination, based on substantial evidence, that granting probation is in the best interests of the public and of the person whose license has been suspended, revoked, or canceled, the board may not grant probation to a person whose license has been canceled, revoked, or suspended because of a felony conviction under:
(1) Chapter 481 or 483, Health and Safety Code;
(2) Section 485.033, Health and Safety Code; or
(3) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). (V.A.C.S. Art. 4495b, Sec. 4.11(b) (part).)
Sec. 164.103. RESCISSION OF PROBATION. (a) At any time during a probation term, on a showing of adequate grounds, the board may hold a hearing and, on proof of a violation of the probation order, may:
(1) rescind the probation and enforce the board's original order; and
(2) impose any disciplinary action permitted under Section 164.001 in addition to or instead of enforcing the original order.
(b) The board shall revoke or suspend a probationer's license if the board determines that the probationer constitutes, through the practice of medicine, a continuing threat to the public welfare.
(c) A hearing to rescind probation is subject to the requirements established under this chapter for other charges. (V.A.C.S. Art. 4495b, Secs. 4.11(c), (d).)
[Sections 164.104-164.150 reserved for expansion]
SUBCHAPTER D. LICENSE REINSTATEMENT
Sec. 164.151. APPLICATION FOR LICENSE REINSTATEMENT. (a) On application, the board may reissue a license to practice medicine to a person whose license has been canceled, revoked, or suspended.
(b) The application must be:
(1) accompanied by the fees set by the board; and
(2) made in the manner and form and under the conditions required by the board.
(c) In addition to the other requirements imposed under this subchapter, to be eligible for reinstatement or reissuance of a license an applicant must prove that the reinstatement or reissuance is in the best interests of:
(1) the public; and
(2) the person whose license has been canceled, revoked, or suspended.
(d) A decision by the board to deny an application to reinstate or reissue a license is subject to judicial review in the manner provided by Section 164.009. (V.A.C.S. Art. 4495b, Secs. 4.10(a) (part), (b), (c).)
Sec. 164.152. APPLICATION PERIOD. (a) A person may not apply for reinstatement of a license that was revoked before the first anniversary of the date on which the revocation was issued or became final.
(b) If the board denies the application for reinstatement, the applicant may not reapply more frequently than annually. (V.A.C.S. Art. 4495b, Sec. 4.10(a) (part).)
Sec. 164.153. CERTAIN PERSONS INELIGIBLE FOR REINSTATEMENT. Except on an express determination based on substantial evidence contained in an investigative report indicating that reinstatement or reissue of the license is in the best interests of the public and of the person whose license has been canceled, revoked, or suspended, the board may not reinstate or reissue a license to a person whose license has been canceled, revoked, or suspended because of a felony conviction under:
(1) Chapter 481 or 483, Health and Safety Code;
(2) Section 485.033, Health and Safety Code; or
(3) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). (V.A.C.S. Art. 4495b, Sec. 4.10(a) (part).)
Sec. 164.154. EFFECT OF LICENSE REINSTATEMENT ON CERTAIN PROSECUTIONS OR PENALTIES. If a physician has had charges filed against the physician during a period in which the physician's license was not in force or was suspended, revoked, or canceled, or if penalties have been incurred by the physician during that period, the reinstatement of the physician's license does not abate the prosecution or penalties. (V.A.C.S. Art. 4495b, Sec. 3.07(h).)
[Sections 164.155-164.200 reserved for expansion]
SUBCHAPTER E. OTHER ACTIONS
Sec. 164.201. REVIEW BY BOARD IF THREE OR MORE MALPRACTICE CLAIMS. The board shall review information relating to a physician against whom three or more malpractice claims have been reported under Subchapter B, Chapter 154, within a five-year period in the same manner as if a complaint against the physician had been made to the board under Section 154.051. (V.A.C.S. Art. 4495b, Sec. 5.05(f).)
Sec. 164.202. REHABILITATION ORDER. The board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder, based on:
(1) intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;
(2) self-reported intemperate use of drugs or alcohol during the five years preceding the report that could adversely affect the reporter's ability to practice medicine safely, if the reporting individual has not previously been the subject of a substance abuse-related order of the board;
(3) a judgment by a court that the applicant or license holder is of unsound mind;
(4) a determination of impairment based on a mental or physical examination offered to establish the impairment in an evidentiary hearing before the board in which the applicant or license holder was provided an opportunity to respond; or
(5) an admission by the applicant or license holder indicating that the applicant or license holder suffers from a potentially dangerous limitation or an inability to practice medicine with reasonable skill and safety by reason of illness or as a result of any physical or mental condition. (V.A.C.S. Art. 4495b, Sec. 3.081(a).)
Sec. 164.203. EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 164.202 is a nondisciplinary private order. If entered by agreement, the order is:
(1) an agreed disposition or settlement agreement for purposes of civil litigation as provided under Section 164.002; and
(2) exempt from Chapter 552, Government Code.
(b) A rehabilitation order imposed under Section 164.202 must contain findings of fact and conclusions of law. The order may impose a revocation, cancellation, suspension, period of probation or restriction, or any other term authorized by Section 164.001 or agreed to by the board and the person subject to the order.
(c) A violation of a rehabilitation order may result in disciplinary action under this subtitle or under the terms of the agreed order. A violation of a rehabilitation order is grounds for disciplinary action based on:
(1) unprofessional or dishonorable conduct; or
(2) any provision of this subtitle that applies to the conduct that resulted in the violation.
(d) A violation of a rehabilitation order is grounds for temporary suspension of the person's license under Section 164.059. This section does not prevent or limit the authority of the board to take action to temporarily suspend a license under that section. (V.A.C.S. Art. 4495b, Secs. 3.081(b), (c), (d), (e).)
Sec. 164.204. AUDIT OF REHABILITATION ORDER. (a) The board shall maintain a rehabilitation order imposed under Section 164.202 in a confidential file. The file is subject to an independent audit by the state auditor or a private auditor with whom the board contracts to perform the audit to ensure that only qualified license holders are subject to rehabilitation orders.
(b) An audit may be performed at any time at the direction of the board. The board shall ensure that an audit is performed at least once in each three-year period.
(c) The audit results are public information and shall be reported in a manner that maintains the anonymity of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b, Sec. 3.081(f).)
CHAPTER 165. PENALTIES
SUBCHAPTER A. ADMINISTRATIVE PENALTIES
Sec. 165.001. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 165.002. PROCEDURE
Sec. 165.003. AMOUNT OF PENALTY
Sec. 165.004. NOTICE OF VIOLATION AND PENALTY
Sec. 165.005. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 165.006. COLLECTION OF PENALTY
Sec. 165.007. DETERMINATION BY COURT
Sec. 165.008. REMITTANCE OF PENALTY AND INTEREST
[Sections 165.009-165.050 reserved for expansion]
SUBCHAPTER B. INJUNCTIVE RELIEF
Sec. 165.051. INJUNCTION AUTHORITY
[Sections 165.052-165.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTIES
Sec. 165.101. CIVIL PENALTY
Sec. 165.102. LIMITATION ON CIVIL PENALTY
Sec. 165.103. RECOVERY OF EXPENSES BY ATTORNEY GENERAL;
DEPOSIT
[Sections 165.104-165.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL PENALTIES
Sec. 165.151. GENERAL CRIMINAL PENALTY
Sec. 165.152. PRACTICING MEDICINE IN VIOLATION OF SUBTITLE
Sec. 165.153. CRIMINAL PENALTIES FOR ADDITIONAL HARM
Sec. 165.154. TAMPERING WITH GOVERNMENTAL RECORD; PERJURY
OFFENSES
Sec. 165.155. SOLICITATION OF PATIENTS; PENALTY
Sec. 165.156. MISREPRESENTATION REGARDING ENTITLEMENT TO
PRACTICE MEDICINE
Sec. 165.157. DUTY TO ASSIST IN CERTAIN PROSECUTIONS
Sec. 165.158. UNAUTHORIZED RELEASE OF CONFIDENTIAL
INFORMATION
Sec. 165.159. PRACTICING MEDICINE WITHOUT REGISTRATION
Sec. 165.160. EFFECT ON CRIMINAL PROSECUTION
CHAPTER 165. PENALTIES
SUBCHAPTER A. ADMINISTRATIVE PENALTIES
Sec. 165.001. IMPOSITION OF ADMINISTRATIVE PENALTY. The board by order may impose an administrative penalty against a person licensed or regulated under this subtitle who violates this subtitle or a rule or order adopted under this subtitle. (V.A.C.S. Art. 4495b, Sec. 4.125(a).)
Sec. 165.002. PROCEDURE. (a) The board by rule shall prescribe the procedure by which it may impose an administrative penalty.
(b) A proceeding under this section is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4495b, Secs. 4.125(d), (e).)
Sec. 165.003. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4495b, Secs. 4.125(b), (c).)
Sec. 165.004. NOTICE OF VIOLATION AND PENALTY. (a) If the board by order determines that a violation has occurred and imposes an administrative penalty, the board shall notify the affected person of the board's order.
(b) The notice must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4495b, Sec. 4.125(f).)
Sec. 165.005. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order imposing the administrative penalty is final, the person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court an affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4495b, Secs. 4.125(g), (h), (i).)
Sec. 165.006. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4495b, Sec. 4.125(j).)
Sec. 165.007. DETERMINATION BY COURT. (a) If on appeal the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4495b, Sec. 4.125(k).)
Sec. 165.008. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4495b, Sec. 4.125(l).)
[Sections 165.009-165.050 reserved for expansion]
SUBCHAPTER B. INJUNCTIVE RELIEF
Sec. 165.051. INJUNCTION AUTHORITY. In addition to any other action authorized by law, the board may institute an action in its own name to enjoin a violation of this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(j).)
[Sections 165.052-165.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTIES
Sec. 165.101. CIVIL PENALTY. (a) If it appears that a person is in violation of or is threatening to violate this subtitle or a rule or order adopted by the board, the attorney general may institute an action for a civil penalty of $1,000 for each violation.
(b) Each day a violation continues constitutes a separate violation.
(c) An action filed under this section must be filed in a district court in Travis County or the county in which the violation occurred. (V.A.C.S. Art. 4495b, Secs. 4.126(a), (b).)
Sec. 165.102. LIMITATION ON CIVIL PENALTY. The attorney general may not institute an action for a civil penalty against a person described by Section 151.053 or 151.054 if the person is not in violation of or threatening to violate this subtitle or a rule or order adopted by the board. (V.A.C.S. Art. 4495b, Sec. 4.126(e).)
Sec. 165.103. RECOVERY OF EXPENSES BY ATTORNEY GENERAL; DEPOSIT. (a) The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this subchapter, including:
(1) court costs;
(2) reasonable attorney's fees;
(3) investigative costs;
(4) witness fees; and
(5) deposition expenses.
(b) A civil penalty recovered by the attorney general under this subchapter shall be deposited in the general revenue fund. (V.A.C.S. Art. 4495b, Secs. 4.126(c), (d).)
[Sections 165.104-165.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL PENALTIES
Sec. 165.151. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates this subtitle or a rule of the board.
(b) If another penalty is not specified for the offense, an offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 3.07(g).)
Sec. 165.152. PRACTICING MEDICINE IN VIOLATION OF SUBTITLE. (a) A person commits an offense if the person practices medicine in this state in violation of this subtitle.
(b) Each day a violation continues constitutes a separate offense.
(c) An offense under Subsection (a) is a Class A misdemeanor, except that if it is shown in the trial of the offense that the defendant has previously been convicted under Subsection (a), the offense is a felony of the third degree.
(d) On final conviction of an offense under this section, a person forfeits all rights and privileges conferred by virtue of a license issued under this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)
Sec. 165.153. CRIMINAL PENALTIES FOR ADDITIONAL HARM. (a) A person commits an offense if the person practices medicine without a license or permit and causes another person:
(1) physical or psychological harm; or
(2) financial harm.
(b) An offense under Subsection (a)(1) is a felony of the third degree.
(c) An offense under Subsection (a)(2) is a state jail felony. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)
Sec. 165.154. TAMPERING WITH GOVERNMENTAL RECORD; PERJURY OFFENSES. (a) A person commits an offense if the person makes a false statement:
(1) in the person's application for a license; or
(2) under oath to obtain a license or to secure the registration of a license to practice medicine.
(b) An offense under this section:
(1) constitutes tampering with a governmental record or perjury as provided by the Penal Code; and
(2) shall be punished on conviction as provided by that code. (V.A.C.S. Art. 4495b, Sec. 3.07(b).)
Sec. 165.155. SOLICITATION OF PATIENTS; PENALTY. (a) A physician commits an offense if the physician employs or agrees to employ, pays or promises to pay, or rewards or promises to reward any person, firm, association, partnership, or corporation for securing or soliciting a patient or patronage.
(b) Each payment, reward, or fee or agreement to pay or accept a reward or fee constitutes a separate offense.
(c) A physician commits an offense if the physician accepts or agrees to accept a payment or other thing of value for securing or soliciting patronage for another physician.
(d) This section does not prohibit advertising except that which:
(1) is false, misleading, or deceptive; or
(2) advertises professional superiority or the performance of professional service in a superior manner and which is not readily subject to verification.
(e) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 3.07(c).)
Sec. 165.156. MISREPRESENTATION REGARDING ENTITLEMENT TO PRACTICE MEDICINE. A person, partnership, trust, association, or corporation commits an offense if the person, partnership, trust, association, or corporation, through the use of any letters, words, or terms affixed on stationery or on advertisements, or in any other manner, indicates that the person, partnership, trust, association, or corporation is entitled to practice medicine if the person, partnership, trust, association, or corporation is not licensed to do so. (V.A.C.S. Art. 4495b, Sec. 3.07(e).)
Sec. 165.157. DUTY TO ASSIST IN CERTAIN PROSECUTIONS. (a) The board and the board's employees shall assist the local prosecuting officers of each county in the enforcement of:
(1) state laws prohibiting the unlawful practice of medicine;
(2) this subtitle; and
(3) other matters.
(b) Except as otherwise provided by law, a prosecution is subject to the direction and control of the prosecuting officers. This subtitle does not deprive those officers of any authority vested by law. (V.A.C.S. Art. 4495b, Sec. 2.09(l) (part).)
Sec. 165.158. UNAUTHORIZED RELEASE OF CONFIDENTIAL INFORMATION. (a) A person commits an offense if the person unlawfully discloses confidential information described by Section 160.006 that is possessed by the board.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 5.06(s)(4).)
Sec. 165.159. PRACTICING MEDICINE WITHOUT REGISTRATION. (a) A person commits an offense if the person practices medicine without complying with the registration requirements imposed by this subtitle.
(b) An offense under Subsection (a) constitutes the offense of practicing medicine without a license. (V.A.C.S. Art. 4495b, Sec. 3.07(d).)
Sec. 165.160. EFFECT ON CRIMINAL PROSECUTION. This subtitle does not bar a criminal prosecution for a violation of this subtitle or a rule adopted under this subtitle. (V.A.C.S. Art. 4495b, Sec. 4.07.)
[Chapters 166-200 reserved for expansion]
SUBTITLE C. OTHER PROFESSIONS PERFORMING
MEDICAL PROCEDURES
CHAPTER 201. CHIROPRACTORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 201.001. DEFINITIONS
Sec. 201.002. PRACTICE OF CHIROPRACTIC
Sec. 201.003. APPLICATIONS AND EXEMPTIONS
Sec. 201.004. APPLICATION OF SUNSET ACT
[Sections 201.005-201.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
Sec. 201.051. BOARD; MEMBERSHIP
Sec. 201.052. MEMBERSHIP ELIGIBILITY
Sec. 201.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 201.054. TERMS; VACANCY
Sec. 201.055. OFFICERS
Sec. 201.056. GROUNDS FOR REMOVAL
Sec. 201.057. PER DIEM; REIMBURSEMENT
Sec. 201.058. MEETINGS
Sec. 201.059. ADVISORY COMMISSION
Sec. 201.060. BOARD SEAL
[Sections 201.061-201.100 reserved for expansion]
SUBCHAPTER C. BOARD PERSONNEL
Sec. 201.101. DIVISION OF RESPONSIBILITIES
Sec. 201.102. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 201.103. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 201.104. EQUAL EMPLOYMENT OPPORTUNITY; REPORT
[Sections 201.105-201.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 201.151. GENERAL POWERS AND DUTIES
Sec. 201.152. RULES
Sec. 201.153. FEES
Sec. 201.154. CERTIFICATION FOR MANIPULATION UNDER
ANESTHESIA PROHIBITED
Sec. 201.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 201.156. BOARD DUTIES REGARDING COMPLAINTS
Sec. 201.157. IMMUNITY
Sec. 201.158. BOARD COMMITTEES
Sec. 201.159. RECORDS
Sec. 201.160. PAYMENT OF BONDS AND OTHER EXPENSES
Sec. 201.161. APPROPRIATION FROM STATE TREASURY PROHIBITED
Sec. 201.162. ANNUAL REPORT
[Sections 201.163-201.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 201.201. PUBLIC INTEREST INFORMATION
Sec. 201.202. PUBLIC PARTICIPATION
Sec. 201.203. COMPLAINTS
Sec. 201.204. RECORDS OF COMPLAINTS
Sec. 201.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
[Sections 201.206-201.250 reserved for expansion]
SUBCHAPTER F. PEER REVIEW COMMITTEES
Sec. 201.251. APPOINTMENT OF PEER REVIEW COMMITTEES
Sec. 201.252. COMMITTEE MEMBER ELIGIBILITY
Sec. 201.253. EXECUTIVE PEER REVIEW COMMITTEE
Sec. 201.254. DUTIES OF PEER REVIEW COMMITTEE
Sec. 201.255. REQUEST FOR INFORMATION
[Sections 201.256-201.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 201.301. LICENSE REQUIRED
Sec. 201.302. LICENSING EXAMINATION APPLICATION
Sec. 201.303. EDUCATIONAL REQUIREMENTS
Sec. 201.304. EXAMINATION REQUIREMENTS
Sec. 201.305. EXAMINATION PROCEDURE
Sec. 201.306. EXAMINATION RESULTS
Sec. 201.307. REEXAMINATION
Sec. 201.308. TEMPORARY LICENSE
Sec. 201.309. PROVISIONAL LICENSE
Sec. 201.310. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE
HOLDER
Sec. 201.311. INACTIVE STATUS
Sec. 201.312. ACCREDITATION OF FACILITIES
[Sections 201.313-201.350 reserved for expansion]
SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL
Sec. 201.351. ANNUAL REGISTRATION
Sec. 201.352. APPLICATION FOR ANNUAL REGISTRATION
Sec. 201.353. LICENSE EXPIRATION DATE
Sec. 201.354. LICENSE RENEWAL
Sec. 201.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 201.356. CONTINUING EDUCATION
[Sections 201.357-201.400 reserved for expansion]
SUBCHAPTER I. PATIENT CONFIDENTIALITY
Sec. 201.401. DEFINITION OF PATIENT
Sec. 201.402. PATIENT CONFIDENTIALITY
Sec. 201.403. EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE
PROCEDURE
Sec. 201.404. EXCEPTIONS TO CONFIDENTIALITY FOR OTHER
CIRCUMSTANCES
Sec. 201.405. CONSENT FOR RELEASE
[Sections 201.406-201.450 reserved for expansion]
SUBCHAPTER J. REQUIREMENTS REGARDING USE OF CHIROPRACTIC
ASSISTANTS AND TECHNOLOGY
Sec. 201.451. DELEGATION TO ASSISTANTS
Sec. 201.452. USE OF X-RAY
[Sections 201.453-201.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 201.501. DISCIPLINARY POWERS OF BOARD
Sec. 201.502. GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION
OF LICENSE
Sec. 201.503. SCHEDULE OF SANCTIONS
Sec. 201.504. INFORMAL PROCEEDINGS
Sec. 201.505. HEARINGS
Sec. 201.506. ENFORCEMENT COMMITTEE
Sec. 201.507. TEMPORARY LICENSE SUSPENSION
Sec. 201.508. POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT
AND COUNTY ATTORNEYS
Sec. 201.509. REPRESENTATION BY ATTORNEY GENERAL
Sec. 201.510. RIGHT TO APPEAL
Sec. 201.511. REISSUANCE OF LICENSE
[Sections 201.512-201.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 201.551. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 201.552. AMOUNT OF PENALTY
Sec. 201.553. ENFORCEMENT COMMITTEE RECOMMENDATIONS
Sec. 201.554. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 201.555. HEARING ON ENFORCEMENT COMMITTEE
RECOMMENDATIONS
Sec. 201.556. DECISION BY BOARD
Sec. 201.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 201.558. COLLECTION OF PENALTY
Sec. 201.559. DETERMINATION BY COURT
Sec. 201.560. REMITTANCE OF PENALTY AND INTEREST
Sec. 201.561. ADMINISTRATIVE PROCEDURE
[Sections 201.562-201.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 201.601. INJUNCTIVE RELIEF
Sec. 201.602. MONITORING LICENSE HOLDER
Sec. 201.603. CIVIL PENALTY
Sec. 201.604. GENERAL CRIMINAL PENALTY
Sec. 201.605. CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE
CHAPTER 201. CHIROPRACTORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 201.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Chiropractic Examiners.
(2) "Chiropractor" means a person licensed to practice chiropractic by the board. (V.A.C.S. Art. 4512b, Sec. 3(a) (part); Art. 4512b(1), Sec. 1.)
Sec. 201.002. PRACTICE OF CHIROPRACTIC. (a) In this section, "incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing.
(b) A person practices chiropractic under this chapter if the person:
(1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body;
(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system;
(3) represents to the public that the person is a chiropractor; or
(4) uses the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name.
(c) The practice of chiropractic does not include:
(1) incisive or surgical procedures;
(2) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription; or
(3) the use of x-ray therapy or therapy that exposes the body to radioactive materials. (V.A.C.S. Art. 4512b, Secs. 1(a), 13a.)
Sec. 201.003. APPLICATIONS AND EXEMPTIONS. (a) This chapter does not apply to a registered nurse licensed under Chapter 301, a vocational nurse licensed under Chapter 302, a person who provides spinal screening services as authorized by Chapter 37, Health and Safety Code, a physical therapist licensed under Chapter 453, or a massage therapist or a massage therapy instructor qualified and registered under Chapter 455 if:
(1) the person does not represent to the public that the person is a chiropractor or use the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name or practice; and
(2) the person practices strictly within the scope of the license or registration held in compliance with all laws relating to the license and registration.
(b) This chapter does not limit or affect the rights and powers of a physician licensed in this state to practice medicine.
(c) This section does not affect or prevent a student enrolled in a college of chiropractic in this state from engaging in all phases of clinical practice if the practice is:
(1) part of the curriculum; and
(2) conducted under the supervision of a licensed chiropractor or a licensed physician. (V.A.C.S. Art. 4512b, Secs. 5a(b), 13.)
Sec. 201.004. APPLICATION OF SUNSET ACT. The Texas Board of Chiropractic Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512b, Sec. 3(i).)
[Sections 201.005-201.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
Sec. 201.051. BOARD; MEMBERSHIP. (a) The Texas Board of Chiropractic Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six chiropractors who are reputable practicing chiropractors and who have resided in this state for at least five years preceding appointment; and
(2) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512b, Secs. 3(a) (part), (b) (part).)
Sec. 201.052. MEMBERSHIP ELIGIBILITY. (a) A person is not eligible to serve as a member of the board if the person:
(1) is a member of the faculty or board of trustees of a chiropractic school;
(2) is a stockholder in a chiropractic school or college; or
(3) has a financial interest in a chiropractic school or college.
(b) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512b, Secs. 3(a) (part), (b) (part), (c) (part).)
Sec. 201.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of, or who is related within the first degree by affinity or within the first degree by consanguinity to, an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 4512b, Secs. 3(d), (e), (f), (g).)
Sec. 201.054. TERMS; VACANCY. (a) Members of the board are appointed for staggered six-year terms. The terms of one-third of the members expire on February 1 of each odd-numbered year.
(b) A person may not be appointed to serve more than two terms.
(c) If a vacancy occurs because of the death or resignation of a board member, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 4512b, Sec. 3(h) (part).)
Sec. 201.055. OFFICERS. (a) The governor shall designate a chiropractic member of the board as the board's president. The president serves in that capacity at the will of the governor.
(b) The board shall elect one of its members as vice president and one of its members as secretary-treasurer at the first board meeting after the biennial appointment of board members.
(c) The secretary-treasurer shall file a surety bond in favor of the board in the amount of not less than $5,000 conditioned on the faithful discharge of the secretary-treasurer's duties. (V.A.C.S. Art. 4512b, Secs. 3(h) (part), 4(a) (part).)
Sec. 201.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 201.051 and 201.052(b);
(2) does not maintain during service on the board the qualifications required by Sections 201.051 and 201.052(b);
(3) violates a prohibition established by Section 201.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the governor and the attorney general that a potential ground for removal exists. (V.A.C.S. Art. 4512b, Sec. 3b.)
Sec. 201.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4512b, Sec. 11(c).)
Sec. 201.058. MEETINGS. (a) The board shall hold regular meetings to examine applicants and transact business at least twice each year at the times and places determined by the board.
(b) A special meeting may be held at the call of three board members. (V.A.C.S. Art. 4512b, Sec. 4(a) (part).)
Sec. 201.059. ADVISORY COMMISSION. (a) An advisory commission to advise the board consists of:
(1) three chiropractors appointed by the board;
(2) two chiropractors licensed in this state and appointed by the board from a list submitted by the president or governing body of each chiropractic college;
(3) two physicians licensed and appointed by the Texas State Board of Medical Examiners;
(4) one registered nurse licensed and appointed by the Board of Nurse Examiners; and
(5) one pharmacist licensed and appointed by the Texas State Board of Pharmacy.
(b) The advisory commission shall advise the board on scientific and technical matters regarding new and experimental diagnostic and treatment practices, procedures, or instruments that are within the meaning of practicing chiropractic under Section 201.002.
(c) Each member of the advisory commission serves at the will of the authority that appointed the member to the advisory commission.
(d) The presiding officer of the advisory commission shall be selected from among the three members of the commission appointed by the board.
(e) A member of the advisory commission serves without compensation. Each member is entitled to reimbursement for actual expenses incurred in carrying out the member's official duties, subject to the approval of the presiding officer of the advisory commission. (V.A.C.S. Art. 4512b, Sec. 12b.)
Sec. 201.060. BOARD SEAL. The seal of the board consists of a five-point star with the words, "The State of Texas," and the words, "Texas Board of Chiropractic Examiners," around the margin. (V.A.C.S. Art. 4512b, Sec. 22.)
[Sections 201.061-201.100 reserved for expansion]
SUBCHAPTER C. BOARD PERSONNEL
Sec. 201.101. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512b, Sec. 3d.)
Sec. 201.102. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide as often as necessary to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4512b, Sec. 3c(b).)
Sec. 201.103. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4512b, Secs. 4(e), (f).)
Sec. 201.104. EQUAL EMPLOYMENT OPPORTUNITY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of the significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must be:
(1) prepared to cover an annual period;
(2) updated annually;
(3) reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports made to the legislature. (V.A.C.S. Art. 4512b, Sec. 4c.)
[Sections 201.105-201.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 201.151. GENERAL POWERS AND DUTIES. The board shall administer the purposes of and enforce this chapter. (V.A.C.S. Art. 4512b, Sec. 3(a) (part).)
Sec. 201.152. RULES. (a) The board may adopt rules and bylaws:
(1) necessary to:
(A) perform the board's duties; and
(B) regulate the practice of chiropractic; and
(2) relating to the board's proceedings and the board's examination of an applicant for a license to practice chiropractic.
(b) The board shall adopt rules for the enforcement of this chapter. The board shall issue all opinions based on a vote of a majority of the board at a regular or special meeting. The issuance of a disciplinary action or disciplinary order of the board is not limited by this subsection. (V.A.C.S. Art. 4512b, Secs. 4(a) (part), (c); 4a (part).)
Sec. 201.153. FEES. (a) The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter. The board may not set a fee in an amount that is less than the amount of that fee on September 1, 1993.
(b) Each of the following fees imposed under Subsection (a) is increased by $200:
(1) the fee for an annual renewal of a license;
(2) the fee for a provisional license;
(3) the fee for an examination; and
(4) the fee for a reexamination.
(c) For each $200 fee increase collected under Subsection (b), $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund. (V.A.C.S. Art. 4512b, Secs. 2(a) (part), 11(b), 11B(a), (b) (part).)
Sec. 201.154. CERTIFICATION FOR MANIPULATION UNDER ANESTHESIA PROHIBITED. Notwithstanding any other provision of this chapter, the board may not adopt a process to certify chiropractors to perform manipulation under anesthesia. (V.A.C.S. Art. 4512b, Sec. 13b(a).)
Sec. 201.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4512b, Sec. 17b.)
Sec. 201.156. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board.
(c) The board by rule shall adopt procedures concerning:
(1) the retention of information files on license holders; and
(2) the expunction of files on license holders, including complaints, adverse reports, and other investigative information on license holders. (V.A.C.S. Art. 4512b, Secs. 14(l), (m); 14c.1(c), (d), (e).)
Sec. 201.157. IMMUNITY. In the absence of fraud, conspiracy, or malice, a member or employee of the board, a witness called to testify by the board, or a consultant or hearing officer is not liable in a civil action for any alleged injury, wrong, loss, or damage for any investigation, report, recommendation, statement, evaluation, finding, order, or award made in the course of performing the person's official duties. (V.A.C.S. Art. 4512b(2).)
Sec. 201.158. BOARD COMMITTEES. (a) The board may appoint committees from its own members.
(b) A committee appointed from the members of the board shall:
(1) consider matters referred to the committee relating to the enforcement of this chapter and the rules adopted by the board; and
(2) make recommendations to the board.
(c) The board may delegate to a committee of the board an authority granted to the board under Section 201.505(c). (V.A.C.S. Art. 4512b, Secs. 4a (part), 4b (part).)
Sec. 201.159. RECORDS. (a) The board shall preserve a record of its proceedings in a register that contains:
(1) the name, age, place, and duration of residence of each applicant for a license;
(2) the amount of time spent by the applicant in the study of chiropractic in respective chiropractic schools; and
(3) other information the board desires to record.
(b) The register shall show whether an applicant was rejected or licensed.
(c) On May 1 of each year, the secretary-treasurer of the board shall send an official copy of the register to the secretary of state to be kept as a permanent record.
(d) The information recorded in the register is prima facie evidence of the matters contained in the register. A certified copy of the register with the seal of the board or the seal of the secretary of state is admissible as evidence in any court of this state. (V.A.C.S. Art. 4512b, Sec. 5.)
Sec. 201.160. PAYMENT OF BONDS AND OTHER EXPENSES. The board shall pay the following expenses:
(1) the premium of a bond required by the board of an officer or employee of the board; and
(2) the necessary expenses of an employee of the board incurred in the performance of the employee's duties. (V.A.C.S. Art. 4512b, Sec. 11(d).)
Sec. 201.161. APPROPRIATION FROM STATE TREASURY PROHIBITED. The legislature may not appropriate money, other than fees, from the state treasury for an expenditure made necessary by this chapter. (V.A.C.S. Art. 4512b, Sec. 2(a) (part).)
Sec. 201.162. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4512b, Sec. 4(d).)
[Sections 201.163-201.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 201.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512b, Sec. 3a(a).)
Sec. 201.202. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512b, Secs. 4d(a), (b) (part).)
Sec. 201.203. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board; or
(2) on a sign prominently displayed in the place of business of each person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512b, Secs. 3a(b), (c).)
Sec. 201.204. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The board's information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 201.205 and a notification of any change in the schedule; and
(5) other relevant information.
(b) Except as provided by Subsection (c), if a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
(c) If a written complaint that the board has authority to resolve is referred to the enforcement committee, the board at least semiannually and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512b, Secs. 14(f), (g); 14c.1(a), (b); 14c.2(b) (part).)
Sec. 201.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this section must:
(1) distinguish between categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has the opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of a complaint in a timely manner; and
(2) establish a schedule for conducting each phase of the complaint process that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The board shall notify the parties to the complaint of the projected time requirements for pursuing the complaint.
(d) The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made.
(e) The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512b, Sec. 14c.2.)
[Sections 201.206-201.250 reserved for expansion]
SUBCHAPTER F. PEER REVIEW COMMITTEES
Sec. 201.251. APPOINTMENT OF PEER REVIEW COMMITTEES. The board shall appoint local chiropractic peer review committees. The board shall appoint the members of the peer review committee from a list of nominees submitted by the local chiropractic association to conduct peer review procedures. (V.A.C.S. Art. 4512b(1), Secs. 2(a), (c) (part); 3(c) (part).)
Sec. 201.252. COMMITTEE MEMBER ELIGIBILITY. (a) Only a chiropractor who has completed a program of peer review training approved by the board is eligible to serve on a chiropractic peer review committee.
(b) A member of a local peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance.
(c) The board shall establish requirements for peer review training programs that do not discriminate against any chiropractor. (V.A.C.S. Art. 4512b, Sec. 17a(b); Art. 4512b(1), Secs. 2(c) (part), 3(c) (part), 5 (part).)
Sec. 201.253. EXECUTIVE PEER REVIEW COMMITTEE. (a) The board shall appoint an executive chiropractic peer review committee to direct the activities of the local committees. The executive peer review committee consists of six volunteer members. The executive peer review committee shall elect a presiding officer from its members.
(b) The executive peer review committee shall conduct hearings relating to disputes referred by a local peer review committee and shall make its recommendations based solely on evidence presented in the hearings.
(c) A member of an executive peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance. (V.A.C.S. Art. 4512b(1), Secs. 2(b), 3(b), 5 (part).)
Sec. 201.254. DUTIES OF PEER REVIEW COMMITTEE. (a) Each local chiropractic peer review committee shall:
(1) review and evaluate chiropractic treatment and services in disputes involving a chiropractor and a patient or a person obligated to pay a fee for chiropractic services or treatment; and
(2) mediate in a dispute involving a chiropractor and a patient or person obligated to pay a fee for chiropractic services or treatment.
(b) Each local peer review committee shall report its findings and recommendations to the executive chiropractic peer review committee. A local peer review committee shall refer a dispute that is not resolved at the local level to the executive peer review committee.
(c) In the absence of fraud, conspiracy, or malice, a member of a peer review committee is not liable in a civil action for a finding, evaluation, recommendation, or other action made or taken by the member as a member of the committee or by the committee. The immunity granted by this subsection does not limit the operation of federal or state antitrust laws as applied to the conduct of a local or executive peer review committee that involves price fixing or any other unreasonable restraint of trade.
(d) A member of a peer review committee may not participate in committee deliberations or other activities involving chiropractic services or treatment rendered or performed by the member.
(e) Except for the express immunity provided by Subsection (c), this section does not deprive any person of a right or remedy, legal or equitable. (V.A.C.S. Art. 4512b(1), Secs. 3(a), 4, 5 (part), 6.)
Sec. 201.255. REQUEST FOR INFORMATION. The board may request from a chiropractic peer review committee information pertaining to actions taken by the peer review committee. (V.A.C.S. Art. 4512b, Sec. 17a(a).)
[Sections 201.256-201.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 201.301. LICENSE REQUIRED. A person may not practice chiropractic unless the person holds a license issued by the board. (V.A.C.S. Art. 4512b, Sec. 5a(a).)
Sec. 201.302. LICENSING EXAMINATION APPLICATION. (a) An applicant for a license by examination must present satisfactory evidence to the board that the applicant:
(1) is at least 18 years of age;
(2) is of good moral character;
(3) has completed 60 semester hours of college courses at a school other than a chiropractic school; and
(4) is either a graduate or a final semester student of a bona fide reputable chiropractic school.
(b) An application for examination must be:
(1) made in writing;
(2) verified by affidavit;
(3) filed with the secretary-treasurer of the board on a form prescribed by the board; and
(4) accompanied by a fee.
(c) Each applicant shall be given reasonable notice of the time and place of the examination. (V.A.C.S. Art. 4512b, Sec. 10(a) (part).)
Sec. 201.303. EDUCATIONAL REQUIREMENTS. (a) To comply with the requirements of Section 201.302(a)(3), the applicant must submit to the board a transcript of credits that certifies that the applicant has satisfactorily completed 60 or more semester hours of college credits at a college or university that issues credits accepted by The University of Texas at Austin for a bachelor of arts or bachelor of science degree.
(b) The credits required under Subsection (a) include the satisfactory completion of courses in anatomy, physiology, chemistry, bacteriology, pathology, hygiene, and public health. In this subsection, "satisfactory completion" means an average of 75 percent or better in each course.
(c) The board may charge a fee of not more than $50 for verifying that the applicant has satisfied the requirements of this section.
(d) A bona fide reputable chiropractic school that satisfies Section 201.302(a)(4) is one that:
(1) has entrance requirements and a course of instruction as high as those of a better class of chiropractic schools in the United States;
(2) maintains a resident course of instruction equivalent to:
(A) not less than four terms of eight months each; or
(B) not less than the number of semester hours required by The University of Texas for a bachelor of arts or bachelor of science degree;
(3) provides a course of instruction in the fundamental subjects listed in Section 201.305(b); and
(4) has the necessary teaching staff and facilities for proper instruction in all of the fundamental subjects listed in Section 201.305(b). (V.A.C.S. Art. 4512b, Secs. 10(a) (part), (d) (part).)
Sec. 201.304. EXAMINATION REQUIREMENTS. (a) To receive a license, an applicant for a license by examination must pass:
(1) the required and optional parts of the examination given by the National Board of Chiropractic Examiners, including the written clinical competency examination, under conditions established by board rule;
(2) a practical examination given by the board; and
(3) a written examination testing the applicant's knowledge and understanding of the laws relating to the practice of chiropractic in this state.
(b) The board shall periodically determine whether applicants who hold National Board of Chiropractic Examiners certificates have been adequately examined. If the board determines that those applicants have not been adequately examined, the board shall require those applicants to submit to an additional examination prepared by the board.
(c) The board may give an examination during the applicant's last semester of college if the board receives evidence indicating the applicant has satisfactory grades. Immediately after the applicant graduates from chiropractic college, the applicant must forward to the board evidence of satisfactory completion of the applicant's course of study. (V.A.C.S. Art. 4512b, Secs. 10(a) (part), (b), (g).)
Sec. 201.305. EXAMINATION PROCEDURE. (a) Each examination for a license to practice chiropractic shall be conducted in writing in the English language and in a fair and impartial manner.
(b) Examinations shall be conducted on practical and theoretical chiropractic and in the subjects of anatomy-histology, chemistry, bacteriology, physiology, symptomatology, pathology and analysis of the human spine, and hygiene and public health. Each applicant examined at the same time shall be given identical questions.
(c) The board shall have the examination validated by an independent testing entity. The board may use an examination purchased from a national testing center only if the national testing center has the examination validated by an independent testing professional.
(d) Applicants may be known to the examiners only by numbers, without a name or another method of identification on examination papers by which members of the board could identify an applicant, until after the general averages of the applicants' numbers in the class are determined and the licenses are granted or refused. (V.A.C.S. Art. 4512b, Sec. 12 (part).)
Sec. 201.306. EXAMINATION RESULTS. (a) The board shall notify each applicant of the results of the examination not later than the 30th day after the date the licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify the applicant of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed longer than 90 days after the examination date, the board shall notify the applicant of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination.
(d) An applicant shall be granted a license to practice chiropractic if the applicant scores an average grade of at least 75 percent in each subject on the examination.
(e) All questions and answers, with the grades attached, authenticated by the signature of the examiner, shall be preserved in the executive office of the board for at least one year.
(f) Each license shall be attested by the seal of the board and signed by all members of the board or a quorum of the board. (V.A.C.S. Art. 4512b, Secs. 10(e), (f); 12 (part).)
Sec. 201.307. REEXAMINATION. (a) An applicant who fails to pass the required examination may take another examination on subjects required in the original examination as prescribed by the board.
(b) The board by rule shall establish the number of times and the conditions under which an applicant may retake an examination. The board may require an applicant to fulfill additional educational requirements.
(c) If the applicant makes satisfactory grades in the subjects prescribed and taken on reexamination, the board shall grant to the applicant a license to practice chiropractic.
(d) The board shall determine the grade to be given an applicant on the answers turned in on the subjects of complete and partial examination.
(e) The board's decision under this section is final. (V.A.C.S. Art. 4512b, Sec. 10(c).)
Sec. 201.308. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license.
(b) The board by rule shall provide a time limit for the period a temporary license is valid. (V.A.C.S. Art. 4512b, Sec. 8e.)
Sec. 201.309. PROVISIONAL LICENSE. (a) A person may apply for a provisional license to practice chiropractic by paying a fee and filing a written application with the board on a form prescribed by the board.
(b) An applicant for a provisional license must:
(1) be licensed in good standing to practice chiropractic for at least two years in another state or foreign country that:
(A) has licensing requirements substantially equivalent to the requirements of this chapter; and
(B) maintains professional standards considered by the board to be equivalent to the standards provided by this chapter;
(2) have passed a national or other examination recognized by the board relating to the practice of chiropractic; and
(3) be sponsored by a person licensed by the board under this chapter with whom the provisional license holder may practice chiropractic.
(c) An applicant is not required to comply with Subsection (b)(3) if the board determines that compliance constitutes a hardship to the applicant.
(d) An applicant for a provisional license must provide with the application:
(1) a license or a certified copy of a license issued to the applicant after examination to practice chiropractic in another state or foreign country; and
(2) an affidavit of the president or secretary of the board of chiropractic examiners that issued the license, or of a chiropractic registration officer of the other state or foreign country, stating that:
(A) the accompanying license has not been canceled or revoked; and
(B) the statements or qualifications contained in the application for a chiropractic license in this state are true.
(e) As a part of the application, the applicant shall subscribe to an oath in writing before an officer authorized by law to administer oaths stating that:
(1) the license under which the applicant practiced chiropractic in another jurisdiction was in full force and not suspended or canceled at the time the person moved from the area;
(2) the applicant is the person to whom the license was issued;
(3) a proceeding has not been instituted against the applicant for the cancellation of the license; and
(4) a proceeding is not pending against the applicant in any state or federal court for an offense that would constitute a felony in this state.
(f) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license under Section 201.310. (V.A.C.S. Art. 4512b, Secs. 9(a), (b), (c) (part).)
Sec. 201.310. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. (a) The board shall issue a license to the holder of a provisional license if:
(1) the applicant passes the part of the examination under Section 201.304 that relates to the applicant's knowledge and understanding of the laws relating to the practice of chiropractic in this state;
(2) the board verifies that the applicant has met the academic and experience requirements for a license under this chapter; and
(3) the applicant satisfies any other license requirements under this chapter.
(b) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend the 180-day limit if the results of an examination have not been received by the board. (V.A.C.S. Art. 4512b, Secs. 9(c) (part), (d).)
Sec. 201.311. INACTIVE STATUS. (a) The board by rule shall adopt a system by which a license holder may place the license on inactive status. A license holder must apply for inactive status, on a form prescribed by the board, before the expiration date of the license.
(b) A license holder whose license is on inactive status:
(1) is not required to pay license renewal fees; and
(2) may not perform an activity regulated under this chapter.
(c) A license holder whose license is on inactive status may return to active practice by notifying the board in writing. The board shall remove the license holder's license from inactive status after the holder pays an administrative fee and complies with any educational or other requirements established by board rules.
(d) The board by rule shall establish a rule setting a limit on the time a license holder's license may remain on inactive status. (V.A.C.S. Art. 4512b, Sec. 8d.)
Sec. 201.312. ACCREDITATION OF FACILITIES. (a) The board by rule shall adopt requirements for licensing and regulating chiropractic facilities as necessary to protect the public health, safety, and welfare.
(b) The rules adopted under this section must:
(1) specify the licensing requirements for a chiropractic facility;
(2) prescribe the structure of the facility licensing program; and
(3) provide for the issuance of only one facility license to an owner of a chiropractic facility without regard to the number of chiropractic facilities owned by the owner. (V.A.C.S. Art. 4512b, Sec. 12a.)
[Sections 201.313-201.350 reserved for expansion]
SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL
Sec. 201.351. ANNUAL REGISTRATION. A chiropractor may not practice chiropractic in this state unless the chiropractor annually registers with the board not later than January 1 of each year. (V.A.C.S. Art. 4512b, Sec. 8 (part).)
Sec. 201.352. APPLICATION FOR ANNUAL REGISTRATION. (a) A person required to register shall:
(1) file annually with the board a written application for registration; and
(2) pay, with the application, an annual registration fee to the board.
(b) The application must include:
(1) the person's full name, age, post office address, and place of residence;
(2) each place where the person is engaged in the practice of chiropractic;
(3) the college of chiropractic from which the person graduated; and
(4) the number and date of the person's license.
(c) On receipt of the application and registration fee, the board shall determine whether the applicant is licensed to practice chiropractic in this state based on the records of the board or other sources the board considers reliable.
(d) If the board determines that the applicant is licensed to practice chiropractic in this state, the board shall issue an annual registration receipt certifying that the applicant has filed an application and paid the registration fee.
(e) The registration receipt is not evidence in a prosecution for the unlawful practice of chiropractic under Section 201.605 that the person is lawfully entitled to practice chiropractic. (V.A.C.S. Art. 4512b, Sec. 8 (part).)
Sec. 201.353. LICENSE EXPIRATION DATE. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.
(b) For a year in which the license expiration date is changed, license fees payable on January 1 shall be prorated on a monthly basis so that each license holder pays only the portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512b, Sec. 8c.)
Sec. 201.354. LICENSE RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(b) At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.
(c) The annual renewal fee applies to each person licensed by the board, even if the person is not practicing chiropractic in this state.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and an additional fee equal to one-half of the examination fee for the license. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and an additional fee equal to the examination fee for the license.
(e) Except as provided by Section 201.355, a person may not renew a license that has been expired for one year or more. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(f) A person who practices chiropractic without an annual renewal receipt for the current year practices chiropractic without a license. (V.A.C.S. Art. 4512b, Secs. 8a(a), (b), (c), (d), (e) (part), (f); 8b(a) (part).)
Sec. 201.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee that is equal to the amount of the examination fee for the license. (V.A.C.S. Art. 4512b, Sec. 8a(e) (part).)
Sec. 201.356. CONTINUING EDUCATION. (a) The board by rule shall:
(1) assess the continuing education needs of license holders;
(2) adopt requirements for mandatory continuing education for license holders in subjects relating to the practice of chiropractic;
(3) establish a minimum number of hours of continuing education required to renew a license; and
(4) develop a process to evaluate and approve continuing education courses.
(b) The board may require license holders to attend continuing education courses specified by the board. The board shall adopt a procedure to assess a license holder's participation and performance in continuing education programs.
(c) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties.
(d) The board shall notify license holders of approved continuing education courses at least annually. (V.A.C.S. Art. 4512b, Secs. 8b(b), (c), (d).)
[Sections 201.357-201.400 reserved for expansion]
SUBCHAPTER I. PATIENT CONFIDENTIALITY
Sec. 201.401. DEFINITION OF PATIENT. In this subchapter, "patient" means any person who consults or is seen by a chiropractor to receive chiropractic care. (V.A.C.S. Art. 4512b, Sec. 1b(l).)
Sec. 201.402. PATIENT CONFIDENTIALITY. (a) Communications between a chiropractor and a patient relating to or in connection with any professional services provided by a chiropractor to the patient are confidential and privileged and may not be disclosed except as provided by this subchapter.
(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor that are created or maintained by a chiropractor are confidential and privileged and may not be disclosed except as provided by this subchapter.
(c) A person who receives information from the confidential communications or records, excluding a person listed in Section 201.404(a) who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(d) The prohibitions of this section apply to confidential communications or records concerning any patient regardless of when the patient received the services of a chiropractor.
(e) The privilege of confidentiality may be claimed by the patient or chiropractor acting on the patient's behalf. The authority of a chiropractor to claim the privilege of confidentiality on behalf of a patient is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4512b, Secs. 1b(a), (b), (c), (d), (e), (f).)
Sec. 201.403. EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE PROCEDURE. (a) Section 201.402 does not apply in a court or administrative proceeding:
(1) brought by a patient against a chiropractor, including:
(A) a malpractice proceeding; and
(B) any criminal or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to the claims or defense of the chiropractor;
(2) in which the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information, as provided by Section 201.405;
(3) brought to substantiate and collect on a claim for chiropractic services rendered to the patient;
(4) brought by the patient or a person on the patient's behalf who is attempting to recover monetary damages for any physical or mental condition, including death of the patient;
(5) brought in connection with a disciplinary investigation of a chiropractor under this chapter, except as provided by Subsection (b);
(6) brought in connection with a criminal investigation of a chiropractor if the board is participating or assisting in the investigation or proceeding by providing certain records obtained from the chiropractor, except as provided by Subsection (c); and
(7) brought in connection with a criminal prosecution in which the patient is a victim, witness, or defendant except as provided by Subsection (d).
(b) The board shall protect the identity of any patient whose chiropractic records are examined in connection with an investigation or proceeding described by Subsection (a)(5), excluding patients described by Subsection (a)(1) and patients who have submitted written consent to the release of their chiropractic records as provided by Section 201.405.
(c) The board shall protect the identity of any patient whose records are provided in connection with an investigation or proceeding described by Subsection (a)(6), excluding patients described by Subsection (a)(1) and patients who have submitted written consent to the release of their chiropractic records as provided by Section 201.405. The board does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient.
(d) In a proceeding described by Subsection (a)(7), records or communications are not discoverable until the court in which the prosecution is pending makes an in camera determination of relevancy. A determination of relevancy by a court under this subsection is not a determination of the admissibility of any record or communication.
(e) Information is discoverable in a court or administrative proceeding in this state if the court or administrative body has jurisdiction over the subject matter of the proceeding. (V.A.C.S. Art. 4512b, Sec. 1b(g).)
Sec. 201.404. EXCEPTIONS TO CONFIDENTIALITY FOR OTHER CIRCUMSTANCES. (a) In circumstances other than court or administrative proceedings, exceptions to Section 201.402 exist only for:
(1) a governmental agency, if the disclosure is required or permitted by law except as provided by Subsection (b);
(2) medical or law enforcement personnel, if the chiropractor determines that a probability of imminent physical injury to the patient, the chiropractor, or others exists or a probability of immediate mental or emotional injury to the patient exists;
(3) qualified personnel for the purpose of management audits, financial audits, program evaluations, or research, under the conditions provided by Subsection (c);
(4) those parts of the records reflecting charges and specific services performed, if necessary to collect fees for services provided by a chiropractor, a professional association, or another entity qualified to render or arrange for services;
(5) any person who possesses a written consent described by Section 201.405;
(6) an individual, corporation, or governmental agency involved in paying or collecting fees for services performed by a chiropractor;
(7) another chiropractor or personnel under the direction of the chiropractor who participate in the diagnosis, evaluation, or treatment of the patient; or
(8) an official legislative inquiry of state hospitals or state schools under the conditions provided under Subsection (d).
(b) A governmental agency shall protect the identity of any patient whose chiropractic records are examined under Subsection (a)(1).
(c) Personnel described by Subsection (a)(3) may not directly or indirectly identify a patient in any report of research, audit, or evaluation or otherwise disclose a patient's identity in any manner.
(d) Information released under Subsection (a)(8) may not include:
(1) information or records that identify a patient or client for any purpose without proper consent given by the patient; and
(2) records that were not created by the state hospital or school or its employees. (V.A.C.S. Art. 4512b, Sec. 1b(h).)
Sec. 201.405. CONSENT FOR RELEASE. (a) In this section, "chiropractic records" means any record relating to the history, diagnosis, treatment, or prognosis of a patient.
(b) Consent for the release of confidential information must be in writing and signed by:
(1) the patient;
(2) a parent or legal guardian if the patient is a minor;
(3) a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;
(4) an attorney ad litem appointed for the patient, as authorized by:
(A) Subtitle B, Title 6, Health and Safety Code;
(B) Subtitle C, D, or E, Title 7, Health and Safety Code;
(C) Chapter XIII, Texas Probate Code;
(D) Chapter 107, Family Code; or
(E) another applicable provision; or
(5) a personal representative if the patient is deceased.
(c) The written consent must specify:
(1) the information records covered by the release;
(2) the reason or purpose for the release; and
(3) the person to whom the information is to be released.
(d) The patient or the person authorized to consent to disclosure under this section may withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed before written notice of the withdrawal.
(e) A person who receives information made confidential by this chapter may disclose the information to another only to the extent that disclosure is consistent with the authorized purposes for which consent to release the information was obtained.
(f) A chiropractor shall furnish copies of chiropractic records or a summary or narrative of the records requested under a written consent for release of the information. The chiropractor shall furnish the information within a reasonable time. The patient or a person acting on the patient's behalf shall pay a reasonable fee for the information provided by the chiropractor. The chiropractor may delete confidential information about another person who has not consented to the release.
(g) A chiropractor who determines that access to information requested under Subsection (f) would be harmful to the physical, mental, or emotional health of the patient may refuse to release the information requested under this section. (V.A.C.S. Art. 4512b, Secs. 1b(j), (k).)
[Sections 201.406-201.450 reserved for expansion]
SUBCHAPTER J. REQUIREMENTS REGARDING USE OF CHIROPRACTIC
ASSISTANTS AND TECHNOLOGY
Sec. 201.451. DELEGATION TO ASSISTANTS. (a) The board by rule shall establish guidelines relating to the tasks and procedures that a chiropractor may delegate to an assistant.
(b) A chiropractor who delegates a task or procedure under this section retains full responsibility for the task or procedure. (V.A.C.S. Art. 4512b, Sec. 6.)
Sec. 201.452. USE OF X-RAY. (a) The board may require evidence of proper training and safety in the use of analytical and diagnostic x-ray in conformity with:
(1) Chapter 401, Health and Safety Code; and
(2) rules of the Texas Radiation Control Agency and the Texas Department of Health.
(b) This section does not modify or amend:
(1) Section 201.002 by enlarging the scope of the practice of chiropractic or the acts that a chiropractor is authorized to perform; or
(2) Chapter 151.
(c) The board shall implement any federal and state requirements relating to radiologic training of the employees of a chiropractor. (V.A.C.S. Art. 4512b, Sec. 14b.)
[Sections 201.453-201.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 201.501. DISCIPLINARY POWERS OF BOARD. (a) On a determination that a person has violated this chapter or a rule adopted by the board under this chapter, the board:
(1) shall revoke or suspend the person's license, place on probation a person whose license has been suspended, or reprimand a license holder; or
(2) may impose an administrative penalty.
(b) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.
(c) In addition to other disciplinary actions authorized by this chapter, the board may require a license holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education programs that the license holder may attend and the number of hours that the license holder must complete.
(d) Disciplinary proceedings of the board are governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512b, Secs. 14(a), (c), (k).)
Sec. 201.502. GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION OF LICENSE. (a) The board may refuse to admit a person to examinations and may revoke or suspend a license or place a license holder on probation for a period determined by the board for:
(1) violating this chapter or a rule adopted under this chapter;
(2) engaging in deception or fraud in the practice of chiropractic;
(3) presenting to the board or using a license, certificate, or diploma that was illegally or fraudulently obtained;
(4) presenting to the board an untrue statement or a document or testimony that was illegally used to pass the examination;
(5) being convicted of a crime involving moral turpitude or a felony;
(6) procuring or assisting in the procuring of an abortion;
(7) engaging in grossly unprofessional conduct or dishonorable conduct of a character likely to deceive or defraud the public;
(8) having a habit of intemperance or drug addiction or another habit that, in the opinion of the board, endangers the life of a patient;
(9) using an advertising statement that tends to mislead or deceive the public;
(10) directly or indirectly employing or associating with a person who, in the course of the person's employment, commits an act constituting the practice of chiropractic when the person is not licensed to practice chiropractic;
(11) advertising professional superiority, or advertising the performance of professional services in a superior manner;
(12) purchasing, selling, bartering, using, or offering to purchase, sell, barter, or use a chiropractic degree, license, certificate, or diploma or transcript of a license, certificate, or diploma in or relating to an application to the board for a license to practice chiropractic;
(13) altering with fraudulent intent a chiropractic license, certificate, or diploma or transcript of a chiropractic license, certificate, or diploma;
(14) impersonating or acting as proxy for another in an examination required by this chapter for a chiropractic license;
(15) impersonating a licensed chiropractor;
(16) allowing one's chiropractic license to be used by another person to practice chiropractic;
(17) being proved insane by a person having authority to make that determination;
(18) failing to use proper diligence in the practice of chiropractic or using gross inefficiency in the practice of chiropractic;
(19) failing to clearly differentiate a chiropractic office or clinic from another business or enterprise;
(20) personally soliciting a patient or causing a patient to be solicited by the use of a case history of another patient of another chiropractor;
(21) using for the purpose of soliciting patients an accident report prepared by a peace officer in a manner prohibited by Section 38.12, Penal Code; or
(22) advertising using the term "physician" or "chiropractic physician" or any combination or derivation of the term "physician."
(b) Notwithstanding Subsection (a)(22), the term "chiropractic physician" may be used for the express purpose of filing a claim for necessary services within the definition of chiropractic under this chapter if the billing for the services has universally applied, predetermined coding or description requirements that are a prerequisite to appropriate reimbursement. (V.A.C.S. Art. 4512b, Sec. 14a (part).)
Sec. 201.503. SCHEDULE OF SANCTIONS. (a) The board by rule shall adopt a schedule of the maximum amount of sanctions that may be assessed against a license holder for each category of violation of this chapter. In establishing the schedule of sanctions or in imposing the amount of an administrative penalty under this chapter, the board shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, or gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(b) The State Office of Administrative Hearings shall use the schedule of sanctions for any sanction imposed as the result of a hearing conducted by that office. (V.A.C.S. Art. 4512b, Secs. 14(d), (e).)
Sec. 201.504. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4512b, Sec. 14d.)
Sec. 201.505. HEARINGS. (a) A person is entitled to a hearing before the board if the board proposes to:
(1) refuse the person's application for a license;
(2) suspend or revoke the person's license; or
(3) place on probation or reprimand the person.
(b) The board is not bound by strict rules of evidence or procedure in conducting its proceedings and hearings, but the board must base its determination on sufficient legal evidence.
(c) The board may:
(1) issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and other documents;
(2) administer oaths; and
(3) take testimony concerning all matters within its jurisdiction. (V.A.C.S. Art. 4512b, Secs. 4b (part); 14(j).)
Sec. 201.506. ENFORCEMENT COMMITTEE. (a) The board shall appoint an enforcement committee to:
(1) oversee and conduct the investigation of complaints filed with the board under this chapter; and
(2) perform other enforcement duties as directed by the board.
(b) The enforcement committee consists of three board members. Two members must be chiropractors, and one member must be a representative of the public.
(c) The attorney general shall provide legal counsel to the enforcement committee concerning enforcement matters, including the investigation and disposition of complaints. (V.A.C.S. Art. 4512b, Sec. 14c.)
Sec. 201.507. TEMPORARY LICENSE SUSPENSION. (a) The enforcement committee may temporarily suspend the license of a license holder on an emergency basis if the enforcement committee determines from the evidence or information presented to the committee that the continued practice of chiropractic by the license holder constitutes a continuing or imminent threat to the public welfare.
(b) The board by rule shall adopt procedures for the temporary suspension of a license under this section.
(c) A license temporarily suspended under this section may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings under this chapter should be initiated against the license holder is scheduled to be held not later than the 14th day after the date of the suspension.
(d) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time required by this subsection, the suspended license is automatically reinstated.
(e) A temporary suspension may also be ordered on a vote of two-thirds of the board. (V.A.C.S. Art. 4512b, Sec. 19b.)
Sec. 201.508. POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT AND COUNTY ATTORNEYS. (a) A district court may revoke or suspend a chiropractor's license on proof of a violation of the law relating to the practice of chiropractic.
(b) On the request of the board, a district or county attorney shall represent the state by filing and prosecuting a judicial proceeding for the revocation, cancellation, or suspension of the chiropractor's license.
(c) The district or county attorney may institute the judicial proceeding by filing a petition that:
(1) is in writing;
(2) states the grounds for prosecution; and
(3) is signed officially by the prosecuting officer.
(d) Citation must be issued in the name of the state in the manner and form as in other cases and shall be served on the defendant, who is required to answer within the time and manner provided by law in civil cases.
(e) If a chiropractor, after proper citation, is found guilty or fails to appear and deny the charge, the court shall:
(1) enter an order to suspend or revoke the chiropractor's license; and
(2) give proper judgment for costs. (V.A.C.S. Art. 4512b, Secs. 15 (part), 16.)
Sec. 201.509. REPRESENTATION BY ATTORNEY GENERAL. (a) The board may apply to the attorney general for representation by stating that the board previously requested the representation of a district or county attorney under Section 201.508 and the district or county attorney failed to prosecute or proceed against the person accused of violating this chapter.
(b) The attorney general shall institute a civil or criminal proceeding against the person in the county of the person's residence. (V.A.C.S. Art. 4512b, Sec. 17.)
Sec. 201.510. RIGHT TO APPEAL. (a) A person whose license to practice chiropractic has been revoked or suspended or against whom the board has imposed an administrative penalty may appeal to a district court in the county where the person resides.
(b) The decision of the board may not be enjoined or stayed unless the person appeals the board's decision as provided by Subsection (a) and provides notices to the board. (V.A.C.S. Art. 4512b, Sec. 14(h).)
Sec. 201.511. REISSUANCE OF LICENSE. (a) On application, the board may reissue a license to practice chiropractic to a person whose license has been canceled or suspended.
(b) An applicant whose license has been canceled or revoked:
(1) may not apply for reissuance before the first anniversary of the date the license was canceled or revoked; and
(2) must apply for reissuance in the manner and form required by the board. (V.A.C.S. Art. 4512b, Sec. 14(i).)
[Sections 201.512-201.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 201.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter if the person violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4512b, Sec. 19a(a) (part).)
Sec. 201.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000.
(b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (V.A.C.S. Art. 4512b, Sec. 19a(a) (part).)
Sec. 201.553. ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) On a determination by the enforcement committee that a violation of this chapter or a rule or order adopted under this chapter occurred, the committee may issue a report to the board stating:
(1) the facts on which the determination is based; and
(2) the enforcement committee's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the violation by certified mail to the person on whom the penalty may be imposed.
(c) The notice issued under this section must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512b, Secs. 14e(a), (b).)
Sec. 201.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date a person receives the notice under Section 201.553, the person may:
(1) accept in writing the enforcement committee's determination and recommended administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the enforcement committee's determination, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4512b, Secs. 14e(c), (d).)
Sec. 201.555. HEARING ON ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) A hearing set by the executive director under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings.
(c) The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of a proposed administrative penalty. (V.A.C.S. Art. 4512b, Sec. 14e(e) (part).)
Sec. 201.556. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that:
(1) a violation has occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512b, Secs. 14e(e) (part), (f).)
Sec. 201.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the director may, at the direction of the enforcement committee, file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay the enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512b, Secs. 14e(g), (h), (i).)
Sec. 201.558. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may, at the direction of the enforcement committee, refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4512b, Sec. 14e(j).)
Sec. 201.559. DETERMINATION BY COURT. (a) If a court sustains the finding that a violation occurred after the court reviews the order of the board imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the finding that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S Art. 4512b, Sec. 19a(c).)
Sec. 201.560. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512b, Sec. 19a(d).)
Sec. 201.561. ADMINISTRATIVE PROCEDURE. All proceedings under this subchapter are subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512b, Sec. 19a(f).)
[Sections 201.562-201.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 201.601. INJUNCTIVE RELIEF. (a) The board may institute in the board's name an action to restrain a violation of this chapter. An action under this subsection is in addition to any other action authorized by law.
(b) The state may sue for an injunction to restrain the practice of chiropractic in violation of this chapter.
(c) The state shall be represented in suits for injunction by:
(1) the attorney general;
(2) the district attorney of the district in which the defendant resides; or
(3) the county attorney of the county in which the defendant resides.
(d) A suit for injunction under Subsection (b) may not be filed before the final conviction for a violation of this chapter of the party sought to be enjoined.
(e) The state is not required to show that a person is personally injured by the defendant's unlawful practice of chiropractic.
(f) A court may not grant a temporary or permanent injunction until a hearing of the complaint on its merits. A court may not issue an injunction or restraining order until the final trial and final judgment on the merits of the suit.
(g) If the defendant is shown to have been unlawfully practicing chiropractic or to have been about to unlawfully practice chiropractic, the court shall perpetually enjoin the defendant from practicing chiropractic in the manner that was the subject of the suit.
(h) A defendant who disobeys the injunction is subject to the penalties provided by law for the violation of an injunction. The remedy by injunction is in addition to a criminal prosecution.
(i) A suit for injunction under this section shall be advanced for trial on the docket of the trial court and advanced and tried in the appellate courts in the same manner as other suits for injunction. (V.A.C.S. Art. 4512b, Secs. 4b (part); 18.)
Sec. 201.602. MONITORING LICENSE HOLDER. The board by rule shall develop a system for monitoring compliance with the requirements of this chapter of a license holder who is the subject of disciplinary action. Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license holder who is the subject of disciplinary action and who presents a continuing threat to the public welfare through the practice of chiropractic. (V.A.C.S. Art. 4512b, Sec. 14(b).)
Sec. 201.603. CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted by the board under this chapter is liable to the state for a civil penalty of $1,000 for each day of violation.
(b) At the request of the board, the attorney general shall bring an action to recover a civil penalty authorized by this section. (V.A.C.S. Art. 4512b, Sec. 19a(b).)
Sec. 201.604. GENERAL CRIMINAL PENALTY. Except as provided by Section 201.605, a person commits an offense if the person violates this chapter. An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $500 or by confinement in the county jail for not more than 30 days. (V.A.C.S. Art. 4512b, Secs. 5a(c) (part), 19.)
Sec. 201.605. CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE. (a) A person commits an offense if the person violates Section 201.301.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) If it is shown on the trial of the offense that the defendant has been previously convicted under Subsection (a), the offense is a felony of the third degree.
(d) Each day of violation constitutes a separate offense. (V.A.C.S. Art. 4512b, Sec. 5a(c) (part).)
CHAPTER 202. PODIATRISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 202.001. DEFINITIONS
Sec. 202.002. APPLICATION OF SUNSET ACT
Sec. 202.003. APPLICATION OF CHAPTER
[Sections 202.004-202.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS
Sec. 202.051. BOARD MEMBERSHIP
Sec. 202.052. OATH OF OFFICE
Sec. 202.053. PUBLIC MEMBER ELIGIBILITY
Sec. 202.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 202.055. TERMS
Sec. 202.056. GROUNDS FOR REMOVAL
Sec. 202.057. PER DIEM; REIMBURSEMENT
Sec. 202.058. OFFICERS
Sec. 202.059. MEETINGS
Sec. 202.060. LOCATION OF OFFICES
Sec. 202.061. TRAINING
[Sections 202.062-202.100 reserved for expansion]
SUBCHAPTER C. BOARD PERSONNEL
Sec. 202.101. DIVISION OF RESPONSIBILITIES
Sec. 202.102. QUALIFICATIONS AND STANDARDS OF CONDUCT
Sec. 202.103. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 202.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 202.105-202.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 202.151. GENERAL RULEMAKING AUTHORITY
Sec. 202.152. RULES REGARDING ADVERTISING AND COMPETITIVE
BIDDING
Sec. 202.153. FEES
Sec. 202.154. COMMITTEES
Sec. 202.155. CONTRACTS WITH OTHER STATE AGENCIES
Sec. 202.156. BOARD RECORDS
Sec. 202.157. BOARD PROCEEDINGS
Sec. 202.158. BOARD DUTIES REGARDING COMPLAINTS
Sec. 202.159. ANNUAL REPORT REGARDING FUNDS
[Sections 202.160-202.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 202.201. PUBLIC INTEREST INFORMATION
Sec. 202.202. COMPLAINTS
Sec. 202.203. COMPLAINT RECORDS
Sec. 202.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
Sec. 202.205. PUBLIC PARTICIPATION
[Sections 202.206-202.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 202.251. LICENSE REQUIRED
Sec. 202.252. LICENSE APPLICATION
Sec. 202.253. GROUNDS FOR DENIAL OF LICENSE
Sec. 202.254. EXAMINATION
Sec. 202.255. EXAMINATION RESULTS
Sec. 202.256. REEXAMINATION
Sec. 202.257. ISSUANCE OF LICENSE
Sec. 202.258. REFUSAL OF ADMITTANCE TO EXAMINATION
Sec. 202.259. TEMPORARY LICENSE
Sec. 202.260. PROVISIONAL LICENSE
Sec. 202.261. LIMITED LICENSE FOR PODIATRY FACULTY MEMBERS
Sec. 202.262. DISPLAY OF LICENSE
Sec. 202.263. ISSUANCE OF DUPLICATE OR AMENDED LICENSE
Sec. 202.264. INACTIVE STATUS
[Sections 202.265-202.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 202.301. ANNUAL LICENSE RENEWAL
Sec. 202.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 202.303. PRACTICE WITHOUT RENEWING LICENSE
Sec. 202.304. RENEWAL AFTER MILITARY SERVICE
Sec. 202.305. CONTINUING EDUCATION
[Sections 202.306-202.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 202.351. PODIATRY SERVICES FOR CERTAIN HEALTH
ORGANIZATIONS
Sec. 202.352. BOARD APPROVAL OF NAMES UNDER WHICH PODIATRIST
MAY PRACTICE
Sec. 202.353. MALPRACTICE CLAIM REPORTS
[Sections 202.354-202.400 reserved for expansion]
SUBCHAPTER I. PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS
Sec. 202.401. DEFINITIONS
Sec. 202.402. SCOPE OF PRIVILEGE
Sec. 202.403. CLAIM OF PRIVILEGE
Sec. 202.404. EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY
IN CERTAIN PROCEEDINGS
Sec. 202.405. OTHER EXCEPTIONS TO PRIVILEGE AND
CONFIDENTIALITY REQUIREMENTS
Sec. 202.406. CONSENT FOR RELEASE OF CONFIDENTIAL
INFORMATION
Sec. 202.407. DISCLOSURE OF RELEASED INFORMATION
[Sections 202.408-202.450 reserved for expansion]
SUBCHAPTER J. PEER REVIEW
Sec. 202.451. DEFINITIONS
Sec. 202.452. DISCLOSURE OF COMMUNICATIONS MADE TO PEER
REVIEW COMMITTEE
Sec. 202.453. INFORMATION PROVIDED TO AFFECTED PODIATRIST
Sec. 202.454. CONFIDENTIALITY REQUIREMENTS
Sec. 202.455. PRIVILEGE OF CONFIDENTIALITY; WAIVER
Sec. 202.456. IMMUNITY
Sec. 202.457. CLAIMS FOR DEFENSE COSTS
[Sections 202.458-202.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 202.501. BOARD DISCIPLINARY POWERS; ADMINISTRATIVE
PROCEDURE
Sec. 202.502. REVOCATION AND SUSPENSION OF LICENSE FOR
DRUG-RELATED FELONY CONVICTION
Sec. 202.503. PROBATION; HEARING
Sec. 202.504. REISSUANCE OF LICENSE
Sec. 202.505. REEXAMINATION IF LICENSE SUSPENDED OR
REVOKED
Sec. 202.506. APPLICATION TO CERTAIN DRUG OFFENSES
Sec. 202.507. SUBPOENA AUTHORITY
Sec. 202.508. INFORMAL PROCEEDINGS
Sec. 202.509. DISCLOSURE OF INVESTIGATIVE INFORMATION
[Sections 202.510-202.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 202.551. IMPOSITION OF PENALTY
Sec. 202.552. AMOUNT OF PENALTY
Sec. 202.553. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 202.554. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 202.555. HEARING
Sec. 202.556. DECISION BY BOARD
Sec. 202.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 202.558. COLLECTION OF PENALTY
Sec. 202.559. DETERMINATION BY COURT
Sec. 202.560. REMITTANCE OF PENALTY AND INTEREST
Sec. 202.561. ADMINISTRATIVE PROCEDURE
[Sections 202.562-202.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND
ENFORCEMENT PROVISIONS
Sec. 202.601. INJUNCTION
Sec. 202.602. MONITORING OF LICENSE HOLDER
Sec. 202.603. PROSECUTION OF VIOLATION
Sec. 202.604. CIVIL PENALTY: USE OF TRADE NAME;
INJUNCTION
Sec. 202.605. GENERAL CRIMINAL PENALTY: PRACTICING
WITHOUT LICENSE
Sec. 202.606. CRIMINAL PENALTY: AMPUTATION OF FOOT
CHAPTER 202. PODIATRISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 202.001. DEFINITIONS. (a) In this chapter:
(1) "Board" means the Texas State Board of Podiatric Medical Examiners.
(2) "Executive director" means the employee of the board who manages the board's day-to-day operations.
(3) "Podiatrist" means a person who:
(A) is licensed under this chapter to practice podiatry and who directly or indirectly charges money or other compensation for podiatric services; or
(B) publicly professes or claims to be a podiatrist, foot specialist, or doctor or uses any title, degree, letter, syllable, or word that would lead the public to believe that the person is a practitioner authorized to practice or assume the duties incident to the practice of podiatry.
(4) "Podiatry" means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. The term includes podiatric medicine.
(b) In the laws of this state:
(1) "chiropody" means podiatry; and
(2) "chiropodist" means podiatrist. (V.A.C.S. Arts. 4567, 4567a.)
Sec. 202.002. APPLICATION OF SUNSET ACT. The Texas State Board of Podiatric Medical Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4568b.)
Sec. 202.003. APPLICATION OF CHAPTER. (a) This chapter does not apply to:
(1) a physician licensed by the Texas State Board of Medical Examiners;
(2) a surgeon of the United States Army, United States Navy, or United States Public Health Service, when performing that person's official duties; or
(3) a bona fide member of an established church in ministering or offering to minister to the sick or suffering by prayer, as set forth in the principles, tenets, or teachings of the church of which the person is a bona fide member.
(b) This chapter does not prohibit the recommendation, advertising, or sale of corrective shoes, arch supports or similar mechanical appliances, or foot remedies by a manufacturer, wholesaler, or retail dealer. (V.A.C.S. Arts. 4567d, 4575.)
[Sections 202.004-202.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS
Sec. 202.051. BOARD MEMBERSHIP. (a) The Texas State Board of Podiatric Medical Examiners consists of nine members appointed by the governor as follows:
(1) six members who are reputable practicing podiatrists who have resided in this state and have been actively engaged in the practice of podiatry for the five years preceding appointment; and
(2) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, or national origin of the appointees. (V.A.C.S. Art. 4568, Subsec. (a) (part).)
Sec. 202.052. OATH OF OFFICE. Before entering office, a board member shall qualify for office by filing with the secretary of state the constitutional oath taken by the board member. (V.A.C.S. Art. 4568, Subsec. (g) (part).)
Sec. 202.053. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds 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 the board or receiving funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4568, Subsec. (b).)
Sec. 202.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the health care industry may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the health care industry may not be a board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a board member or act 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. (V.A.C.S. Art. 4568, Subsecs. (c), (d).)
Sec. 202.055. TERMS. Members of the board serve staggered six-year terms. At the expiration of the term of each member, the governor shall appoint a successor. (V.A.C.S. Art. 4568, Subsec. (g) (part).)
Sec. 202.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 202.051 or 202.053;
(2) does not maintain during service on the board the qualifications required by Section 202.051 or 202.053;
(3) violates a prohibition established by Section 202.054;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4568, Subsecs. (e), (f).)
Sec. 202.057. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to a per diem as set by legislative appropriation for each day the member engages in the business of the board.
(b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as prescribed by the General Appropriations Act.
(c) The secretary of the board is entitled to reimbursement for the secretary's necessary expenses incurred in the performance of services for the board. (V.A.C.S. Art. 4574, Subsec. (d).)
Sec. 202.058. OFFICERS. At the first regular scheduled meeting of each biennium, the board shall elect from its members a president, vice president, and secretary. (V.A.C.S. Art. 4568, Subsec. (g) (part).)
Sec. 202.059. MEETINGS. (a) The board shall hold regular meetings at least twice a year and special meetings as necessary. The board shall hold the meetings at times and places the board considers most convenient for applicants for license examinations.
(b) A special meeting shall be held on the call of the president or on the request of a majority of board members.
(c) If a quorum is not present on the day of a meeting, the members present may adjourn from day to day until a quorum is present. (V.A.C.S. Art. 4568, Subsec. (h) (part).)
Sec. 202.060. LOCATION OF OFFICES. The board shall maintain offices in Austin. (V.A.C.S. Art. 4568, Subsec. (k).)
Sec. 202.061. TRAINING. If another state agency is given authority to establish training requirements for the board, each board member shall comply with those training requirements. (V.A.C.S. Art. 4568d, Subsec. (a).)
[Sections 202.062-202.100 reserved for expansion]
SUBCHAPTER C. BOARD PERSONNEL
Sec. 202.101. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4568, Subsec. (p).)
Sec. 202.102. QUALIFICATIONS AND STANDARDS OF CONDUCT. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4568d, Subsec. (b).)
Sec. 202.103. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all non-entry-level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4568, Subsecs. (n), (o).)
Sec. 202.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4568c.)
[Sections 202.105-202.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 202.151. GENERAL RULEMAKING AUTHORITY. The board shall adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the law of this state, and the law of the United States to govern:
(1) its proceedings and activities;
(2) the regulation of the practice of podiatry; and
(3) the enforcement of the law regulating the practice of podiatry. (V.A.C.S. Art. 4568, Subsec. (j) (part).)
Sec. 202.152. RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4575b.)
Sec. 202.153. FEES. (a) The board by rule shall establish fees in amounts reasonable and necessary to cover the cost of administering this chapter. The board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date.
(b) The board may not maintain unnecessary fund balances, and fee amounts shall be established in accordance with this requirement. (V.A.C.S. Arts. 4571, Sec. 1(a) (part); 4574, Subsecs. (a), (c).)
Sec. 202.154. COMMITTEES. The board may appoint committees from its own membership. The duties of a committee are to:
(1) consider matters relating to the enforcement of the law regulating the practice of podiatry and the rules adopted in accordance with that law as referred to the committee; and
(2) make recommendations to the board with respect to the enforcement of those matters. (V.A.C.S. Art. 4568, Subsec. (j) (part).)
Sec. 202.155. CONTRACTS WITH OTHER STATE AGENCIES. The board may contract with the Texas State Board of Medical Examiners or any other appropriate state agency to provide some or all of the services necessary to carry out the board's activities. (V.A.C.S. Art. 4568, Subsec. (j) (part).)
Sec. 202.156. BOARD RECORDS. (a) The board shall keep correct records of the board's proceedings and of all money received or spent by the board. The records shall be open to public inspection at all reasonable times. The records must include:
(1) a record of proceedings relating to the examination of license applicants;
(2) a record of proceedings relating to the issuance, renewal, or refusal of a license, including information on whether an application was rejected or granted;
(3) the name, age, and known place of residence of each applicant for a license or license renewal;
(4) the name and location of the college of podiatry from which each license applicant holds credentials and the time devoted by the applicant to the study and practice of podiatry; and
(5) any other information the board desires to record.
(b) Each license and annual renewal certificate issued by the board must be numbered and recorded in a book kept by the board.
(c) Information in a record is prima facie evidence of each matter contained in the record.
(d) A certified copy of a record, under the hand and seal of the custodian of records of the board, is admissible as evidence in all courts. (V.A.C.S. Art. 4568, Subsec. (j) (part).)
Sec. 202.157. BOARD PROCEEDINGS. (a) The board is not bound by the strict rules of procedure or by the laws of evidence in the conduct of its proceedings, but a board determination must be founded on legal evidence sufficient to sustain it.
(b) Each order of the board is prima facie valid. (V.A.C.S. Arts. 4568, Subsec. (j) (part); 4570, Subsec. (f).)
Sec. 202.158. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4573c, Subsecs. (b), (c).)
Sec. 202.159. ANNUAL REPORT REGARDING FUNDS. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4568, Subsec. (m).)
[Sections 202.160-202.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 202.201. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4575c, Subsec. (a).)
Sec. 202.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notification:
(1) on each registration form, application, brochure, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4575c, Subsecs. (b), (c).)
Sec. 202.203. COMPLAINT RECORDS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule established for the complaint under Section 202.204 and a notation of a change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notification would jeopardize an undercover investigation. (V.A.C.S. Arts. 4573, Subsec. (a); 4573c(a), (e) (part).)
Sec. 202.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of all complaints in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The board shall notify each party of the projected time requirements for the complaint. The board shall notify each party to the complaint of the change in the schedule not later than the seventh day after the date the change is made.
(d) The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4573c(d), (e) (part), (f).)
Sec. 202.205. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4568, Subsecs. (q) (part), (r).)
[Sections 202.206-202.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 202.251. LICENSE REQUIRED. A person may not practice podiatry or hold the person out as a podiatrist unless the person is licensed under this chapter. (V.A.C.S. Art. 4567b (part).)
Sec. 202.252. LICENSE APPLICATION. (a) A person who desires to practice podiatry in this state shall apply in writing to the board for a license on a form prescribed by the board.
(b) The applicant shall submit any information reasonably required by the board, including evidence satisfactory to the board that the applicant:
(1) is at least 21 years of age;
(2) is of good moral character;
(3) has completed at least 90 semester hours of college courses acceptable at the time of completion for credit toward a bachelor's degree at The University of Texas;
(4) is a graduate of a reputable school of podiatry or chiropody; and
(5) has successfully completed any other course of training reasonably required by board rule relating to the safe care and treatment of patients.
(c) The applicant shall verify by affidavit the information submitted in the application.
(d) The applicant shall establish that the applicant graduated from a reputable school of podiatry or chiropody by furnishing a diploma from that school.
(e) All educational attainments or credits for evaluation under this chapter must be completed within the United States. The board may not accept educational credits attained in a foreign country that are not acceptable to The University of Texas for credit toward a bachelor's degree.
(f) For purposes of this section, a podiatry or chiropody school is reputable if:
(1) the course of instruction consists of four terms of approximately eight months each, or the substantial equivalent; and
(2) the school is approved by the board. (V.A.C.S. Art. 4570, Subsecs. (a), (b), (c).)
Sec. 202.253. GROUNDS FOR DENIAL OF LICENSE. (a) The board may refuse to admit a person to an examination, and may refuse to issue a license to practice podiatry to a person, for:
(1) presenting to the board a license, certificate, or diploma that was illegally or fraudulently obtained or engaging in fraud or deception in passing the examination;
(2) being convicted of:
(A) a felony;
(B) a crime that involves moral turpitude; or
(C) an offense under Section 202.606;
(3) engaging in habits of intemperance or drug addiction that in the board's opinion would endanger the health, well-being, or welfare of patients;
(4) engaging in grossly unprofessional or dishonorable conduct of a character that in the board's opinion is likely to deceive or defraud the public;
(5) directly or indirectly violating or attempting to violate this chapter or a rule adopted under this chapter as a principal, accessory, or accomplice;
(6) using any advertising statement of a character tending to mislead or deceive the public;
(7) advertising professional superiority or the performance of professional service in a superior manner;
(8) purchasing, selling, bartering, or using or offering to purchase, sell, barter, or use a podiatry degree, license, certificate, diploma, or a transcript of a license, certificate, or diploma, in or incident to an application to the board for a license to practice podiatry;
(9) altering, with fraudulent intent, a podiatry license, certificate, diploma, or a transcript of a podiatry license, certificate, or diploma;
(10) using a podiatry license, certificate, or diploma, or a transcript of a podiatry license, certificate, or diploma, that has been fraudulently purchased, issued, counterfeited, or materially altered;
(11) impersonating, or acting as proxy for, another person in a podiatry license examination;
(12) impersonating a license holder, or permitting another person to use the license holder's license to practice podiatry in this state, to treat or offer to treat, by any method, conditions and ailments of human feet;
(13) directly or indirectly employing a person whose license to practice podiatry has been suspended or associating in the practice of podiatry with a person whose license to practice podiatry has been suspended or who has been convicted of the unlawful practice of podiatry in this state or elsewhere;
(14) wilfully making in the application for a license to practice podiatry a material misrepresentation or material untrue statement;
(15) being unable to practice podiatry with reasonable skill and safety to a patient because of age, illness, drunkenness, or excessive use of drugs, narcotics, chemicals, or other substances or as a result of a mental or physical condition;
(16) failing to practice podiatry in an acceptable manner consistent with public health and welfare;
(17) being removed, suspended, or disciplined in another manner by the podiatrist's peers in a professional podiatry association or society, whether local, regional, state, or national in scope, or being disciplined by a licensed hospital or the medical staff of a hospital, including removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board determines that the action was:
(A) based on unprofessional conduct or professional incompetence likely to harm the public; and
(B) appropriate and reasonably supported by evidence submitted to the association, society, hospital, or medical staff; or
(18) having repeated or recurring meritorious health care liability claims filed against the podiatrist that in the board's opinion are evidence of professional incompetence likely to injure the public.
(b) In enforcing Subsection (a)(15), the board, on probable cause, shall request the affected podiatrist to submit to a mental or physical examination by a physician designated by the board. If the podiatrist refuses to submit to the examination, the board shall issue an order requiring the podiatrist to show cause why the podiatrist will not submit to the examination and shall schedule a hearing on the order not later than the 30th day after the date notice is served on the podiatrist. The podiatrist shall be notified by either personal service or certified mail with return receipt requested.
(c) At the hearing, the podiatrist and the podiatrist's attorney may present testimony and other evidence to show why the podiatrist should not be required to submit to the examination. After a complete hearing, the board shall issue an order either requiring the podiatrist to submit to the examination or withdrawing the request for examination. (V.A.C.S. Art. 4570, Subsec. (d).)
Sec. 202.254. EXAMINATION. (a) Except as provided by Section 202.261, each applicant for a license to practice podiatry in this state must pass an examination approved by the board. Each applicant shall pay to the board an examination fee at least 15 days before the date of the scheduled examination.
(b) The board may adopt and enforce rules of procedure for administering this section. A public board member may not participate in any part of the examination process for applicants for a license issued by the board that requires knowledge of the practice of podiatry.
(c) The license examination must consist of a written and practical component. The board shall determine the passing score for the examination using accepted criterion-referenced methods. The board shall have the examination validated by an independent testing professional.
(d) The examination must cover the subjects of anatomy, chemistry, dermatology, diagnosis, pharmacology, pathology, physiology, microbiology, orthopedics, and podiatry, as related to ailments of the human foot.
(e) The board shall determine the credit to be given on the examination answers. The discretion of the board on the examination is final. (V.A.C.S. Arts. 4568, Subsec. (a) (part); 4569(a), (b), (c), (d), (e), (f).)
Sec. 202.255. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date a licensing examination is administered under this chapter. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Arts. 4569(i), (k).)
Sec. 202.256. REEXAMINATION. (a) An applicant who fails an examination and is refused a license based on that failure may retake the examination. The applicant must pay the regular examination fee for any reexamination.
(b) Each reexamination must cover each subject tested in Section 202.254(d). (V.A.C.S. Arts. 4569(g), (h).)
Sec. 202.257. ISSUANCE OF LICENSE. The board shall issue a license to each applicant who possesses the qualifications required for a license and passes the examination. (V.A.C.S. Art. 4569(c) (part).)
Sec. 202.258. REFUSAL OF ADMITTANCE TO EXAMINATION. An applicant who is refused admittance to examination may try the issue in a district court in Travis County. (V.A.C.S. Art. 4570, Subsec. (e).)
Sec. 202.259. TEMPORARY LICENSE. (a) The board by rule may adopt a procedure for the issuance of a temporary license to an applicant other than an applicant for a provisional license under Section 202.260.
(b) Rules adopted under this section must establish:
(1) the criteria for issuance of a temporary license; and
(2) a maximum period during which a temporary license is valid. (V.A.C.S. Art. 4571b.)
Sec. 202.260. PROVISIONAL LICENSE. (a) On application, the board shall grant a provisional license to practice podiatry to an applicant who:
(1) is licensed in good standing as a podiatrist in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;
(2) has passed a national or other examination recognized by the board relating to the practice of podiatry; and
(3) is sponsored by a person licensed under this chapter with whom the provisional license holder may practice under this section.
(b) The board may excuse an applicant for a provisional license from the requirement of Subsection (a)(3) if the board determines that compliance with that subsection constitutes a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to the holder of a provisional license under this section if:
(1) the provisional license holder passes the examination required by Section 202.254;
(2) the board verifies that the provisional license holder has the academic and experience requirements for a license under this chapter; and
(3) the provisional license holder satisfies any other license requirements under this chapter.
(d) The board shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend that deadline to allow for the receipt of pending examination results. (V.A.C.S. Art. 4571a.)
Sec. 202.261. LIMITED LICENSE FOR PODIATRY FACULTY MEMBERS. (a) The board may issue a license to practice podiatry without administering the examination under Section 202.254 to a podiatrist who:
(1) at the time of applying for a license has accepted an appointment or is serving as a full-time member of the faculty of an educational institution in this state offering an approved or accredited course of study or training leading to a degree in podiatry;
(2) is licensed to practice podiatry in another state that has licensing requirements substantially equivalent to those established by this state; and
(3) otherwise satisfies the requirements of Section 202.252.
(b) For purposes of Subsection (a)(1), a course of study, training, or education is considered to be approved or accredited if it is approved or accredited by the board as constituting a reputable course of study, training, or education. In deciding whether to approve or accredit a course of study, training, or education, the board shall consider whether the course is approved or accredited by the Council on Podiatric Medical Education of the American Podiatric Medical Association or its successor organization.
(c) Except for the examination requirement, an applicant for a license under this section must comply with all application, license, and license renewal requirements relating to podiatry and is subject to all laws relating to the practice of podiatry.
(d) A license issued under this section permits the practice of podiatry only for purposes of instruction in the educational institution.
(e) A license issued under this section terminates when the faculty appointment of a podiatrist licensed under this section is terminated. This section does not:
(1) prohibit the podiatrist from applying for and obtaining a license; or
(2) affect a license obtained by the podiatrist by complying with Section 202.254 and other applicable laws relating to the practice of podiatry. (V.A.C.S. Art. 4569a.)
Sec. 202.262. DISPLAY OF LICENSE. (a) A person licensed under this chapter must conspicuously display both the license and an annual renewal certificate for the current year of practice at the location where the person practices.
(b) The person shall exhibit the license and renewal certificate to a board representative on the representative's official request for examination or inspection. (V.A.C.S. Art. 4571, Sec. 5.)
Sec. 202.263. ISSUANCE OF DUPLICATE OR AMENDED LICENSE. (a) If a license issued by the board is lost, destroyed, or stolen from the person to whom it was issued, the license holder shall report the fact to the board in an affidavit. The affidavit must include detailed information as to the loss, destruction, or theft, giving dates, place, and circumstances.
(b) A license holder may apply to the board for an amended license because of a lawful change in the person's name or degree designation or for any other lawful and sufficient reason. The license holder must state the reasons that the issuance of an amended license is requested.
(c) The board shall issue a duplicate or amended license on application by a license holder and payment of a fee set by the board for the duplicate or amended license. The board may not issue a duplicate or amended license unless:
(1) the license holder submits sufficient evidence to prove the license has been lost, destroyed, or stolen or establishes the lawful reason that an amended license should be issued; and
(2) the board's records show a license had been issued and was in effect at the time of the loss, destruction, or theft or on the date of the request for an amended license.
(d) If an amended license is issued, the license holder shall return the original license to the board. (V.A.C.S. Art. 4571, Sec. 4.)
Sec. 202.264. INACTIVE STATUS. The board by rule may provide for the license of a person under this chapter to be placed on inactive status. Rules adopted under this section must include a time limit for a license to remain on inactive status. (V.A.C.S. Art. 4571, Sec. 7.)
[Sections 202.265-202.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 202.301. ANNUAL LICENSE RENEWAL. (a) The board by rule may adopt a system under which licenses expire on various dates during the year, and the dates for sending notice that payment is due and dates of suspension, revocation, and assessment of a penalty for nonpayment shall be adjusted accordingly. For the year in which the license renewal date is changed, license fees payable on November 1 shall be prorated on a monthly basis so that each license holder shall pay only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
(b) At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.
(c) A person may renew the person's unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee equal to half of the amount charged for examination for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee equal to the amount charged for examination for the license.
(e) If a person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4571, Secs. 1(a) (part), (d), (e), (f), (g), (h) (part), (i).)
Sec. 202.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal.
(b) The person must pay to the board a fee equal to the amount charged for examination for the license. (V.A.C.S. Art. 4571, Sec. 1(h) (part).)
Sec. 202.303. PRACTICE WITHOUT RENEWING LICENSE. A person who practices podiatry without an annual renewal certificate for the current year is considered to be practicing without a license and is subject to all the penalties of the practice of podiatry without a license. (V.A.C.S. Art. 4571, Sec. 2.)
Sec. 202.304. RENEWAL AFTER MILITARY SERVICE. (a) Except as provided by Subsection (c), this section applies to a podiatrist whose license has been suspended or revoked, or whose annual renewal certificate has expired, while the podiatrist has been:
(1) engaged in federal service or on active duty with:
(A) the United States Army;
(B) the United States Navy;
(C) the United States Marine Corps;
(D) the United States Coast Guard; or
(E) the United States Air Force;
(2) called into service or training of the United States; or
(3) in training or education under the supervision of the United States before induction into military service.
(b) A podiatrist subject to this section may renew the podiatrist's license without paying a renewal fee for the expired license or passing an examination if, not later than the first anniversary of the date of the termination of service, training, or education described by Subsection (a), other than by dishonorable discharge, the podiatrist furnishes to the board an affidavit stating that the podiatrist has been so engaged and that the service, training, or education has terminated.
(c) This section does not apply to a podiatrist whose license is revoked under Section 202.502. (V.A.C.S. Art. 4571, Sec. 6.)
Sec. 202.305. CONTINUING EDUCATION. (a) The board shall develop a mandatory continuing education program. In developing its program, the board shall:
(1) establish by rule the minimum hours of continuing education required for license renewal;
(2) identify the key factors that lead to the competent performance of professional duties;
(3) develop a process to evaluate and approve continuing education courses; and
(4) develop a process to assess the participation and performance of license holders in continuing education courses to enable the board to evaluate the overall effectiveness of the program.
(b) The board may assess the continuing education needs of a license holder and require the license holder to attend continuing education courses specified by the board. (V.A.C.S. Art. 4571, Sec. 1(c).)
[Sections 202.306-202.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 202.351. PODIATRY SERVICES FOR CERTAIN HEALTH ORGANIZATIONS. A licensed podiatrist may contract with a health organization approved by the Texas State Board of Medical Examiners under Chapter 162 to provide podiatry services for the health organization. (V.A.C.S. Art. 4576.)
Sec. 202.352. BOARD APPROVAL OF NAMES UNDER WHICH PODIATRIST MAY PRACTICE. (a) The board may adopt rules establishing standards or guidelines for the name, including a trade name or assumed name, under which a podiatrist may conduct a practice in this state. In its rules, the board may also establish procedures to review and make determinations approving or disapproving a specific name submitted to the board by one or more podiatrists desiring to practice under a particular name.
(b) The authority granted to the board by this section includes any form of business organization under which a podiatrist conducts a practice, including:
(1) a sole proprietorship;
(2) an association;
(3) a partnership;
(4) a professional corporation;
(5) a clinic;
(6) a health maintenance organization; and
(7) a group practice with a practitioner of another branch of the healing art.
(c) A podiatrist may not practice podiatry in this state under any name, including a trade name or assumed name, unless the name is in compliance with the applicable rules adopted or determinations made under this section. (V.A.C.S. Art. 4568a, Subsecs. (a), (b), (c).)
Sec. 202.353. MALPRACTICE CLAIM REPORTS. (a) An insurer who delivers or issues for delivery in this state professional liability insurance coverage to a podiatrist who practices in this state shall furnish to the board the information specified in Subsection (b) relating to:
(1) a notice of claim letter or a complaint filed against the insured in a court, if the notice of claim letter or the complaint seeks the recovery of damages based on the insured's conduct in providing or failing to provide medical or health care services; or
(2) a settlement of a claim or other legal action made by the insurer on behalf of the insured.
(b) The insurer shall furnish the following information not later than the 30th day after the date the insurer receives the notice of claim letter or complaint against the insured:
(1) the name of the insured;
(2) the number of the insured's license to practice podiatry in this state;
(3) the insured's insurance policy number; and
(4) a copy of the notice of claim letter or complaint.
(c) If a podiatrist who practices in this state is not covered by professional liability insurance or is insured by an insurer who is not authorized to write professional liability insurance for podiatrists in this state, the affected podiatrist shall submit information to the board relating to any malpractice action brought against that podiatrist. The podiatrist shall submit the information as required by rules adopted by the board under Subsections (d)-(f).
(d) In consultation with the commissioner of insurance, the board shall adopt rules for reporting the information required under Subsections (a) and (b) and any additional information required by the board.
(e) The board shall consider other claim reports required under state or federal law in determining:
(1) any additional information to be reported;
(2) the form of the report; and
(3) reasonable reporting intervals.
(f) The board may require additional information, including:
(1) the date of a judgment, dismissal, or settlement of a malpractice action;
(2) whether an appeal has been taken and the identity of the party appealing; and
(3) the amount of any judgment or settlement.
(g) An insurer, an agent or employee of the insurer, a board member, or an employee or representative of the board is not liable or subject to a cause of action for an action taken as required under this section.
(h) A report or information submitted to the board under this section or the fact that a report or information has been submitted may not be offered in evidence or in any manner used in the trial of an action brought against a podiatrist based on the podiatrist's conduct in providing or failing to provide medical or health care services.
(i) The board shall review the information relating to a podiatrist against whom three or more malpractice claims have been reported during any five-year period in the same manner as if a complaint against that podiatrist had been made to the board under Subchapter E.
(j) The commissioner of insurance may impose the sanctions authorized by Section 7, Article 1.10, Insurance Code, against an insurer subject to this section who fails to report as prescribed by this section. (V.A.C.S. Art. 4573b.)
[Sections 202.354-202.400 reserved for expansion]
SUBCHAPTER I. PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS
Sec. 202.401. DEFINITIONS. In this subchapter:
(1) "Patient" means a person who consults or is seen by a podiatrist to receive podiatric care.
(2) "Podiatric record" means a record relating to the history, diagnosis, treatment, or prognosis of a patient. (V.A.C.S. Art. 4575d, Sec. 1.)
Sec. 202.402. SCOPE OF PRIVILEGE. (a) A communication that relates to or is in connection with professional services provided by a podiatrist for a patient is confidential and privileged and may not be disclosed except as provided by this subchapter.
(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a podiatrist that are created or maintained by a podiatrist are confidential and privileged and may not be disclosed except as provided by this subchapter.
(c) A person who receives information from confidential communications or podiatric records, other than a person listed under Section 202.405 or 202.406 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(d) The prohibitions of this section continue to apply to confidential communications or records concerning a patient without regard to when the patient received the services of a podiatrist. (V.A.C.S. Art. 4575d, Sec. 2.)
Sec. 202.403. CLAIM OF PRIVILEGE. (a) The privilege of confidentiality under this subchapter may be claimed by the patient or by a podiatrist acting on the patient's behalf.
(b) A podiatrist may claim the privilege of confidentiality only on behalf of the podiatrist's patient. The authority to claim the privilege is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4575d, Sec. 3.)
Sec. 202.404. EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY IN CERTAIN PROCEEDINGS. (a) The privilege and confidentiality requirements under this subchapter do not apply in a court or administrative proceeding if:
(1) the proceeding is brought by a patient against a podiatrist, including a malpractice proceeding, a criminal proceeding, or a license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a podiatrist;
(2) a patient or a person authorized to act on the patient's behalf submits written consent to the release of confidential information, as provided by Section 202.406; or
(3) the purpose of the proceeding is to substantiate and collect on a claim for podiatric services provided to a patient.
(b) The privilege and confidentiality requirements under this subchapter do not apply in a civil litigation or administrative proceeding brought by a patient or a person authorized to act on the patient's behalf if the plaintiff is attempting to recover monetary damages for a physical or mental condition, including the patient's death. Information that is otherwise confidential under this subchapter is discoverable in a court or administrative proceeding in this state if the information is relevant to the proceeding and the court or administrative body has jurisdiction over the subject matter under the applicable rules of procedure specified for that matter.
(c) The privilege and confidentiality requirements under this subchapter do not apply in a disciplinary investigation or proceeding against a podiatrist conducted under this chapter.
(d) The privilege and confidentiality requirements under this subchapter do not apply in a criminal investigation of or criminal proceeding against a podiatrist in which the board is participating or assisting by providing certain records obtained from the podiatrist. This subsection does not authorize the release of any confidential information to instigate or substantiate criminal charges against a patient.
(e) The board shall protect the identity of a patient whose podiatric records are examined or provided under Subsection (c) or (d), other than a patient who:
(1) is covered under Subsection (a)(1); or
(2) has submitted written consent to the release of the patient's podiatric records as provided by Section 202.406.
(f) The privilege and confidentiality requirements under this subchapter do not apply in a criminal prosecution in which the patient is a victim, witness, or defendant. Records or communications are not discoverable under this subsection until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or part of the records or communications. The court's determination does not constitute a determination as to the admissibility of the records or communications or part of the records or communications. (V.A.C.S. Art. 4575d, Sec. 4.)
Sec. 202.405. OTHER EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS. (a) The privilege and confidentiality requirements of this subchapter do not apply to, and a podiatrist may disclose information made confidential under this subchapter to:
(1) a government agency, if:
(A) the disclosure is required or permitted by law; and
(B) the agency protects the identity of a patient whose podiatric records are examined;
(2) medical or law enforcement personnel, if the podiatrist determines that there is a probability of:
(A) imminent physical injury to the patient, the podiatrist, or another person; or
(B) immediate mental or emotional injury to the patient;
(3) qualified personnel for a management audit, financial audit, program evaluation, or research;
(4) a person who presents the written consent of the patient or a person authorized to act on the patient's behalf for the release of confidential information, as provided by Section 202.406;
(5) an individual, corporation, or governmental entity involved in the payment or collection of fees for services provided by a podiatrist; or
(6) another podiatrist and a person under the direction of the podiatrist who is participating in the diagnosis, evaluation, or treatment of the patient.
(b) A person who receives information under Subsection (a)(3) may not directly or indirectly identify the patient in any report of the research, audit, or evaluation or otherwise disclose the patient's identity.
(c) Records reflecting charges and specific services provided may be disclosed only when necessary to collect fees for services provided by a podiatrist, professional association, or another entity qualified to provide or arrange for services.
(d) Records created by a state hospital, a state school, or an employee of the state hospital or state school that are otherwise confidential under this subchapter may be disclosed in an official legislative inquiry regarding the state hospital or state school. Information or records that identify a patient or client may not be released for any purpose unless proper consent to the release is given by the patient. (V.A.C.S. Art. 4575d, Sec. 5.)
Sec. 202.406. CONSENT FOR RELEASE OF CONFIDENTIAL INFORMATION. (a) Consent for the release of information made confidential under this subchapter must be made in writing and signed by:
(1) the patient;
(2) the patient's parent or legal guardian if the patient is a minor;
(3) a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;
(4) an attorney ad litem appointed for the patient, as authorized by:
(A) Subtitle B, Title 6, Health and Safety Code;
(B) Subtitle C, D, or E, Title 7, Health and Safety Code;
(C) Chapter XIII, Texas Probate Code;
(D) Chapter 107, Family Code; or
(E) another applicable law; or
(5) the patient's personal representative if the patient is deceased.
(b) The written consent required under this section must specify:
(1) the information and records covered by the release;
(2) the reason or purpose for the release; and
(3) the person to whom the information is to be released.
(c) A patient or other person authorized to consent may withdraw consent to the release of any information. Withdrawal of consent does not affect information disclosed before the written notice of the withdrawal.
(d) A podiatrist shall furnish copies of podiatric records requested or a summary or narrative of the records under a written consent for release of the information as provided by this section unless the podiatrist determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The podiatrist may delete confidential information about another person who has not consented to the release.
(e) The podiatrist shall furnish the information within a reasonable period of time. The patient or another person acting on the patient's behalf shall pay a reasonable fee charged by the podiatrist for furnishing the information. (V.A.C.S. Art. 4575d, Secs. 6, 8.)
Sec. 202.407. DISCLOSURE OF RELEASED INFORMATION. A person who receives information made confidential by this subchapter may disclose the information to another person only to the extent consistent with the authorized purposes for which consent to release the information was obtained. (V.A.C.S. Art. 4575d, Sec. 7.)
[Sections 202.408-202.450 reserved for expansion]
SUBCHAPTER J. PEER REVIEW
Sec. 202.451. DEFINITIONS. In this subchapter:
(1) "Podiatric medical society or association" means a membership organization of podiatrists:
(A) incorporated under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes); or
(B) exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 and its subsequent amendments by being listed as an exempt entity under Section 501(c) of that code.
(2) "Podiatric peer review committee" means the podiatric peer review, judicial, or grievance committee of a podiatric medical society or association that is authorized to evaluate the quality of podiatry services or the competence of a podiatrist. A committee includes the members, employees, and agents of the committee. (V.A.C.S. Art. 4573f, Sec. 1.)
Sec. 202.452. DISCLOSURE OF COMMUNICATIONS MADE TO PEER REVIEW COMMITTEE. (a) Written or oral communications made to a podiatric peer review committee and the records and proceedings of a peer review committee may be disclosed to:
(1) another podiatric peer review committee;
(2) an appropriate state or federal agency;
(3) a national accreditation body; or
(4) the board or the state board of registration or licensing of podiatrists in another state.
(b) The disclosure of confidential podiatric peer review committee information to the affected podiatrist that is relevant to the matter under review by the committee does not constitute a waiver of the confidentiality provisions of this subchapter. (V.A.C.S. Art. 4573f, Secs. 4, 5(a).)
Sec. 202.453. INFORMATION PROVIDED TO AFFECTED PODIATRIST. A podiatric peer review committee that takes action that could result in censure or suspension, restriction, limitation, or revocation of a license by the board or a denial of a podiatrist's membership or privileges in a health care entity shall provide the affected podiatrist a written copy of the committee's recommendation and a copy of the final decision, including a statement of the basis for the decision. (V.A.C.S. Art. 4573f, Sec. 5(b).)
Sec. 202.454. CONFIDENTIALITY REQUIREMENTS. (a) Except as otherwise provided by this subchapter, the proceedings and records of a podiatric peer review committee are confidential and all communications made to a podiatric peer review committee are privileged.
(b) If a court makes a preliminary finding that the proceedings, records, or communications of a podiatric peer review committee are relevant to an anticompetitive action or to an action brought under federal civil rights laws, the proceedings, records, or communications are not considered to be confidential to the extent the proceedings, records, or communications are determined to be relevant to that action. (V.A.C.S. Art. 4573f, Sec. 3.)
Sec. 202.455. PRIVILEGE OF CONFIDENTIALITY; WAIVER. (a) The records or determinations of a podiatric peer review committee or communications made to a committee are not subject to subpoena or discovery and are not admissible as evidence in a civil or administrative proceeding unless disclosure is required or authorized by law. A committee may in writing waive the privilege of confidentiality.
(b) The evidentiary privilege under this subchapter may be invoked by any person in a civil or administrative proceeding unless the person has secured a waiver of the privilege executed in writing by the chairman, vice chairman, or secretary of the affected podiatric peer review committee.
(c) If a podiatric peer review committee, a person participating in peer review, or an organization named as a defendant in a civil action filed as a result of participating in peer review is permitted to use confidential information in the defendant's defense or in a claim or suit under Section 202.457, the plaintiff in that proceeding also may disclose the records or determinations of a peer review committee or communications made to a peer review committee to rebut the defendant.
(d) A person who seeks access to privileged information must plead and prove waiver of the privilege.
(e) A member, employee, or agent of a podiatric peer review committee who provides access to otherwise privileged communications or records in cooperation with a law enforcement authority in a criminal investigation does not waive a privilege established under this subchapter.
(f) The disclosure of documents or information under a subpoena issued by the board does not constitute a waiver of the confidentiality privilege associated with a podiatric peer review committee proceeding. (V.A.C.S. Art. 4573f, Secs. 6, 7(b).)
Sec. 202.456. IMMUNITY. (a) Except for an action involving fraud, conspiracy, or malice, a podiatric peer review committee is immune from liability and may not be subject to a suit for damages for any act arising from the performance of the committee's duties in:
(1) investigating a disagreement or complaint;
(2) holding a hearing to determine facts; or
(3) making an evaluation, recommendation, decision, or award involving:
(A) a podiatrist who is a member of the podiatric medical society or association; or
(B) another podiatrist, podiatric patient, or third party who requests the services of the committee.
(b) A person, including a health care entity or podiatric peer review committee, that participates in podiatric peer review activity or furnishes records, information, or assistance to a podiatric peer review committee or to the board is immune from civil liability arising from those acts if the person acted in good faith and without malice. (V.A.C.S. Art. 4573f, Secs. 2, 8.)
Sec. 202.457. CLAIMS FOR DEFENSE COSTS. A podiatric peer review committee, a person participating in peer review, or another entity named as a defendant in a civil action filed as a result of the defendant's participation in peer review may file a counterclaim in the pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined to be frivolous or to have been brought in bad faith. (V.A.C.S. Art. 4573f, Sec. 9.)
[Sections 202.458-202.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 202.501. BOARD DISCIPLINARY POWERS; ADMINISTRATIVE PROCEDURE. (a) The board shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for violating the law regulating the practice of podiatry or a rule adopted by the board.
(b) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit the license holder's practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.
(c) Proceedings for the suspension or revocation of a license under this section are subject to Chapter 2001, Government Code.
(d) A person whose license to practice podiatry has been revoked or suspended by order of the board may appeal the action to a district court in Travis County. The board's decision may not be enjoined or stayed except on application to the district court after notice to the board. (V.A.C.S. Art. 4573, Subsecs. (b), (c), (d), (e) (part).)
Sec. 202.502. REVOCATION AND SUSPENSION OF LICENSE FOR DRUG-RELATED FELONY CONVICTION. (a) The board shall suspend a person's license after an administrative hearing conducted in accordance with Chapter 2001, Government Code, in which the board determines that the license holder has been convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code.
(b) On the person's final conviction, the board shall revoke the person's license.
(c) The board may not reinstate or reissue a license to a person whose license is suspended or revoked under this section except on an express determination based on substantial evidence contained in an investigative report indicating that the reinstatement or reissuance of the license is in the best interests of the public and of the person whose license has been suspended or revoked. (V.A.C.S. Art. 4573a.)
Sec. 202.503. PROBATION; HEARING. (a) The board, on majority vote, may probate an order revoking or suspending a podiatrist's license conditioned on the podiatrist conforming to any order or rule the board adopts as the condition of probation. The board, at the time of probation, shall set the term of the probationary period.
(b) At any time while the podiatrist remains on probation, the board may hold a hearing to determine whether the podiatrist has violated the conditions of the probation. On a board determination that the conditions of the probation have been violated, the board may rescind the probation and enforce the board's original action in revoking or suspending the podiatrist's license.
(c) The president of the board shall call the hearing under Subsection (b) to rescind the probation. The president shall order the issuance of notice setting the time and place for the hearing and containing the charges or complaints against the podiatrist. The notice shall be served on the podiatrist or the podiatrist's counsel and on any person complaining about the podiatrist or that person's counsel at least 10 days before the date set for the hearing. If personal service is impossible or cannot be effected, the provisions for service instead of personal service under Chapter 2001, Government Code, apply.
(d) The podiatrist and any person complaining about the podiatrist may appear at the hearing either personally or by counsel, or both, to produce witnesses or evidence, to cross-examine witnesses, and to have subpoenas issued by the board. The board may also issue subpoenas on its own motion. The subpoenas of the board may be enforced through any district court with jurisdiction and venue in the county where the hearing is held.
(e) The board shall determine the charges on their merits. The order revoking or rescinding the probation is not subject to review or appeal. (V.A.C.S. Art. 4573, Subsecs. (f), (g).)
Sec. 202.504. REISSUANCE OF LICENSE. (a) On application, the board may reissue a license to practice podiatry to a person whose license has been revoked or suspended.
(b) A person whose license has been revoked may not apply for a reissued license before the first anniversary of the date of the revocation. The person shall apply for the license in the manner and form required by the board. (V.A.C.S. Art. 4573, Subsec. (i).)
Sec. 202.505. REEXAMINATION IF LICENSE SUSPENDED OR REVOKED. The board may refuse to reinstate a license or to issue a new license until a podiatrist has passed the regular license examination if the board suspended or revoked the license for:
(1) failure to satisfy continuing education requirements under Section 202.305; or
(2) nonpayment of the annual license renewal fee. (V.A.C.S. Art. 4571, Sec. 3.)
Sec. 202.506. APPLICATION TO CERTAIN DRUG OFFENSES. A person convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code, is not eligible for:
(1) probation of a license suspension or revocation under Section 202.503; or
(2) reissuance of a license under Section 202.504. (V.A.C.S. Art. 4573, Subsec. (h).)
Sec. 202.507. SUBPOENA AUTHORITY. (a) The board may request and, if necessary, compel by subpoena:
(1) the attendance or examination under oath of witnesses; and
(2) the production of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of an alleged violation of this chapter.
(b) If a person fails to comply with a subpoena issued under this section, the board, through the attorney general, may file suit to enforce the subpoena in a district court in Travis County or in a county in which a hearing conducted by the board may be held. If the court finds that good cause existed for the issuance of the subpoena, the court shall order compliance with the subpoena. Failure to obey the court order is punishable by the court as contempt.
(c) Failure to comply with a subpoena constitutes grounds for disciplinary action against the person, including a facility, by the board. (V.A.C.S. Arts. 4568, Subsec. (j) (part); 4573f, Secs. 7(a), (c).)
Sec. 202.508. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the office of the attorney general or the board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4573d.)
Sec. 202.509. DISCLOSURE OF INVESTIGATIVE INFORMATION. (a) A complaint, report, investigation file, or other investigative information in the possession of or received or gathered by the board or an employee or agent of the board that relates to a license holder, a license application, or a criminal investigation or proceeding is privileged, confidential, and not subject to discovery, subpoena, or any other legal method of compelling release.
(b) Subject to any other privilege or restriction established by law, not later than the 30th day after the date the board receives a written request from a license holder, or the license holder's attorney, who is the subject of a formal complaint, the board shall provide the license holder with access to all information in the board's possession that the board intends to offer into evidence at the contested case hearing on the complaint. The board may provide access to the information to the license holder after the 30th day after the date the board receives a request only on a showing of good cause.
(c) The board is not required under Subsection (b) to provide access to the board's investigative reports or memoranda, release the identity of a complainant who will not testify at the hearing, or release information that is an attorney's work product or protected by the attorney-client privilege or another privilege recognized by the Texas Rules of Civil Procedure or Texas Rules of Evidence. The furnishing of information under Subsection (b) does not constitute a waiver of any privilege or confidentiality provision under law.
(d) Investigative information in the board's possession that relates to a disciplinary action regarding a license holder may be disclosed to:
(1) a licensing agency regulating the practice of podiatry in another state or country in which the license holder is also licensed or has applied for a license; or
(2) a peer review committee reviewing a license holder's application for privileges or the license holder's qualifications with regard to retaining the privileges.
(e) The board shall report to the appropriate law enforcement agency information obtained by the board in the course of an investigation that indicates that a crime may have been committed. The board shall cooperate and assist a law enforcement agency conducting a criminal investigation of a license holder by providing relevant information to the agency. Information provided to a law enforcement agency by the board is confidential and may not be disclosed except as necessary to conduct the investigation.
(f) The board shall provide information to a health care entity on the written request of the entity concerning:
(1) a complaint filed against a license holder that was resolved after an investigation by the board or resolved by an agreed settlement; and
(2) the basis for and status of an active investigation concerning a license holder. (V.A.C.S. Art. 4573, Subsecs. (j), (k), (l), (m), (n).)
[Sections 202.510-202.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 202.551. IMPOSITION OF PENALTY. The board may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4567e, Subsec. (a).)
Sec. 202.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $2,500. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited acts; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4567e, Subsecs. (b), (c).)
Sec. 202.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) The executive director, on determining that a violation has occurred, may issue to the board a report that states the facts on which the determination is based and the executive director's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4567e, Subsecs. (d), (e).)
Sec. 202.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 202.553, the person may:
(1) accept in writing the executive director's determination and recommended administrative penalty; or
(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the executive director's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4567e, Subsecs. (f), (g).)
Sec. 202.555. HEARING. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall:
(1) set a hearing; and
(2) give notice of the hearing to the person.
(b) A hearing set under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings.
(c) The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed administrative penalty. (V.A.C.S. Art. 4567e, Subsec. (h) (part).)
Sec. 202.556. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that:
(1) a violation has occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4567e, Subsecs. (h) (part), (i).)
Sec. 202.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order is final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the amount of the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Not later than the 30th day after the date the order is final, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4567e, Subsecs. (j), (k), (l).)
Sec. 202.558. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4567e, Subsec. (m).)
Sec. 202.559. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S. Art. 4567e, Subsec. (o).)
Sec. 202.560. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4567e, Subsec. (p).)
Sec. 202.561. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4567e, Subsec. (r).)
[Sections 202.562-202.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND
ENFORCEMENT PROVISIONS
Sec. 202.601. INJUNCTION. (a) In addition to any other action, proceeding, or remedy authorized by law, the board may institute an action in its own name to enjoin the violation of a law regulating the practice of podiatry or a rule adopted under this chapter. The court may grant a temporary injunction in the action.
(b) The attorney general or a district or county attorney shall represent the board in an action under this section. (V.A.C.S. Art. 4568, Subsec. (j) (part); Art. 4575a.)
Sec. 202.602. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system to monitor a podiatrist's compliance with this chapter. The system must include:
(1) procedures for determining whether a podiatrist is in compliance with an order issued by the board; and
(2) a method of identifying and monitoring each podiatrist who represents a risk to the public. (V.A.C.S. Art. 4573e.)
Sec. 202.603. PROSECUTION OF VIOLATION. The board shall take action to ensure the prosecution of each person who violates this chapter and may incur reasonably necessary related expenses. (V.A.C.S. Art. 4568, Subsec. (j) (part).)
Sec. 202.604. CIVIL PENALTY: USE OF TRADE NAME; INJUNCTION. (a) A person who violates Section 202.352 or a rule adopted or a determination made by the board under that section is subject to a civil penalty of not less than $50 or more than $500 for each day of violation.
(b) If it appears that a person has violated or is violating Section 202.352 or a rule adopted or determination made by the board under that section, the board may institute a civil action in district court for:
(1) injunctive relief to restrain the person from continuing the violation;
(2) the assessment and recovery of a civil penalty under Subsection (a); or
(3) both injunctive relief and the civil penalty.
(c) At the request of the board, the attorney general shall institute and conduct the action in the name of the state. (V.A.C.S. Art. 4568a, Subsecs. (d), (e).)
Sec. 202.605. GENERAL CRIMINAL PENALTY: PRACTICING WITHOUT LICENSE. (a) A person commits an offense if the person professes to be a podiatrist or practices or assumes the duties incident to the practice of podiatry without holding a license to practice podiatry.
(b) An offense under this section is punishable by:
(1) a fine of not less than $50 or more than $500;
(2) confinement in the county jail for not less than 30 days or more than six months; or
(3) both the fine and confinement. (V.A.C.S. Art. 4567b (part).)
Sec. 202.606. CRIMINAL PENALTY: AMPUTATION OF FOOT. (a) A podiatrist commits an offense if the podiatrist amputates a human foot.
(b) An offense under this section is punishable by:
(1) a fine of not less than $100 or more than $500;
(2) confinement in the county jail for not less than 30 days or more than six months; or
(3) both the fine and confinement. (V.A.C.S. Art. 4567c.)
CHAPTER 203. MIDWIVES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 203.001. SHORT TITLE
Sec. 203.002. DEFINITIONS
Sec. 203.003. FINDINGS
Sec. 203.004. APPLICABILITY
Sec. 203.005. EFFECT ON LOCAL ORDINANCES
Sec. 203.006. APPLICATION OF SUNSET ACT
[Sections 203.007-203.050 reserved for expansion]
SUBCHAPTER B. MIDWIFERY BOARD
Sec. 203.051. MIDWIFERY BOARD
Sec. 203.052. APPOINTMENT OF MIDWIFERY BOARD
Sec. 203.053. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 203.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 203.055. TERMS
Sec. 203.056. OFFICERS
Sec. 203.057. GROUNDS FOR REMOVAL
Sec. 203.058. COMPENSATION; REIMBURSEMENT
Sec. 203.059. MEETINGS
[Sections 203.060-203.100 reserved for expansion]
SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL
Sec. 203.101. PROGRAM COORDINATOR
Sec. 203.102. DUTIES OF PROGRAM COORDINATOR
Sec. 203.103. DIVISION OF RESPONSIBILITIES
Sec. 203.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 203.105-203.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF MIDWIFERY BOARD,
BOARD, AND DEPARTMENT
Sec. 203.151. RULEMAKING AUTHORITY OF MIDWIFERY BOARD
Sec. 203.152. FEES
Sec. 203.153. MANUALS
Sec. 203.154. ANNUAL REPORT; REPORTS ON MIDWIFERY
Sec. 203.155. COMPLAINT PROCEDURE AND INVESTIGATION
Sec. 203.156. DUTIES OF BOARD AND DEPARTMENT
Sec. 203.157. ROSTER; NOTICE TO COUNTY OFFICIALS
[Sections 203.158-203.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 203.201. PUBLIC INTEREST INFORMATION
Sec. 203.202. COMPLAINTS
Sec. 203.203. PUBLIC PARTICIPATION
[Sections 203.204-203.250 reserved for expansion]
SUBCHAPTER F. DOCUMENTATION REQUIREMENTS
Sec. 203.251. DOCUMENTATION REQUIRED
Sec. 203.252. INITIAL DOCUMENTATION
Sec. 203.253. DOCUMENTATION APPLICATION
Sec. 203.254. BASIC MIDWIFERY EDUCATION
Sec. 203.255. EXAMINATION
Sec. 203.256. TRAINING IN NEWBORN SCREENING AND BASIC LIFE
SUPPORT CARDIOPULMONARY RESUSCITATION
[Sections 203.257-203.300 reserved for expansion]
SUBCHAPTER G. DOCUMENTATION RENEWAL
Sec. 203.301. APPLICATION FOR DOCUMENTATION RENEWAL
Sec. 203.302. LATE APPLICATION FOR RENEWAL
Sec. 203.303. STAGGERED RENEWAL DATES
Sec. 203.304. CONTINUING MIDWIFERY EDUCATION
Sec. 203.305. REQUIRED ATTENDANCE AT SPECIFIC MIDWIFERY
EDUCATION COURSES
[Sections 203.306-203.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY MIDWIFE
Sec. 203.351. INFORMED CHOICE AND DISCLOSURE REQUIREMENTS
Sec. 203.352. PRENATAL AND CERTAIN MEDICAL CARE ENCOURAGED
Sec. 203.353. PREVENTION OF OPHTHALMIA NEONATORUM
Sec. 203.354. NEWBORN SCREENING
Sec. 203.355. SUPPORT SERVICES
Sec. 203.356. IMMUNITY
Sec. 203.357. ADDITIONAL INFORMATION REQUIRED
[Sections 203.358-203.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES AND GROUNDS FOR
DISCIPLINARY ACTION
Sec. 203.401. PROHIBITED PRACTICES
Sec. 203.402. PROHIBITED REPRESENTATION
Sec. 203.403. PROHIBITED USE OF TITLE
Sec. 203.404. GROUNDS FOR DISCIPLINARY ACTION
[Sections 203.405-203.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 203.451. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 203.452. AMOUNT OF ADMINISTRATIVE PENALTY
Sec. 203.453. NOTICE OF VIOLATION AND PENALTY
Sec. 203.454. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 203.455. HEARING
Sec. 203.456. DECISION BY MIDWIFERY BOARD
Sec. 203.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 203.458. COLLECTION OF PENALTY
Sec. 203.459. DETERMINATION BY COURT
Sec. 203.460. REMITTANCE OF PENALTY AND INTEREST
Sec. 203.461. ADMINISTRATIVE PROCEDURE
[Sections 203.462-203.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 203.501. CIVIL PENALTY
Sec. 203.502. INJUNCTIONS
Sec. 203.503. VENUE
Sec. 203.504. CRIMINAL PENALTY
CHAPTER 203. MIDWIVES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 203.001. SHORT TITLE. This chapter may be cited as the Texas Midwifery Act. (V.A.C.S. Art. 4512i, Sec. 1(a).)
Sec. 203.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Certified nurse-midwife" means a person who is:
(A) a registered nurse under Chapter 301;
(B) recognized as an advanced nurse practitioner by the Board of Nurse Examiners; and
(C) certified by the American College of Nurse-Midwives.
(3) "Commissioner" means the commissioner of public health.
(4) "Department" means the Texas Department of Health.
(5) "Local health department" means a department of health created by the governing body of a municipality or a county under Section 121.031, Health and Safety Code.
(6) "Midwife" means a person who practices midwifery and has met the documentation requirements established by this chapter and midwifery board rules.
(7) "Midwifery" means the practice of:
(A) providing the necessary supervision, care, and advice to a woman during normal pregnancy, labor, and the postpartum period;
(B) conducting a normal delivery of a child; and
(C) providing normal newborn care.
(8) "Newborn" means an infant from birth through the first six weeks of life.
(9) "Normal" means, as applied to pregnancy, labor, delivery, the postpartum period, and the newborn period, and as defined by midwifery board rule, circumstances under which a midwife has determined that a client is at a low risk of developing complications.
(10) "Postpartum period" means the first six weeks after a woman has given birth. (V.A.C.S. Art. 4512i, Secs. 1(c)(1), (2), (4), (5), (6), (7), (9), (11), (12), (13).)
Sec. 203.003. FINDINGS. The legislature finds:
(1) a parent has the responsibility and right to give birth where and with whom the parent chooses;
(2) childbirth is a natural process of the human body and not a disease; and
(3) midwifery has been practiced in this state since the days of the Republic. (V.A.C.S. Art. 4512i, Sec. 1(b).) Sec. 203.004. APPLICABILITY. This chapter does not apply to:
(1) a certified nurse-midwife, a physician, or another health care professional licensed by the state and operating within the scope of the person's license;
(2) a natural childbirth trainer; or
(3) a person other than a midwife who assists childbirth in an emergency. (V.A.C.S. Art. 4512i, Sec. 2.)
Sec. 203.005. EFFECT ON LOCAL ORDINANCES. This chapter does not prohibit a municipality from adopting a local ordinance or rule to regulate the practice of midwifery in the municipality if the ordinance or rule is compatible with and at least as strict as this chapter and board rules. (V.A.C.S. Art. 4512i, Sec. 19.)
Sec. 203.006. APPLICATION OF SUNSET ACT. The midwifery board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the midwifery board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512i, Sec. 3A.)
[Sections 203.007-203.050 reserved for expansion]
SUBCHAPTER B. MIDWIFERY BOARD
Sec. 203.051. MIDWIFERY BOARD. The board shall appoint a midwifery board that reports directly to the board. (V.A.C.S. Art. 4512i, Sec. 3(a).)
Sec. 203.052. APPOINTMENT OF MIDWIFERY BOARD. (a) The midwifery board consists of nine members appointed as follows:
(1) three midwife members each of whom has at least three years' experience in the practice of midwifery and not more than one of whom is a licensed health care professional;
(2) one certified nurse-midwife member;
(3) one physician member who is certified by a national professional organization of physicians that certifies obstetricians and gynecologists;
(4) one physician member who is certified by a national professional organization of physicians that certifies family practitioners or pediatricians; and
(5) three members who represent the public and who are not practicing or trained in a health care profession, one of whom is a parent with at least one child born with the assistance of a midwife.
(b) Appointments to the midwifery board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512i, Secs. 3(b), (d).)
Sec. 203.053. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the midwifery board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of midwifery;
(2) is employed by or participates in the management of a business entity or other organization regulated by the midwifery board or receiving funds from the midwifery 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 funds from the midwifery board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the midwifery board, other than compensation or reimbursement authorized by law for midwifery board membership, attendance, or expenses. (V.A.C.S. Art. 4512i, Sec. 3(c).)
Sec. 203.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of midwifery may not be a midwifery board member or an employee of the midwifery board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of midwifery may not be a midwifery board member and may not be an employee of the midwifery board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a midwifery board member or act as the general counsel to the midwifery 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 midwifery board. (V.A.C.S. Art. 4512i, Secs. 3B, 3C.)
Sec. 203.055. TERMS. Members of the midwifery board serve for staggered terms of six years. The terms of three members expire on January 31 of each odd-numbered year. (V.A.C.S. Art. 4512i, Sec. 4.)
Sec. 203.056. OFFICERS. The midwifery board shall elect one of the public members of the midwifery board as presiding officer and one of the other members of the midwifery board as vice presiding officer. (V.A.C.S. Art. 4512i, Sec. 5(a).)
Sec. 203.057. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the midwifery board that a member:
(1) does not have at the time of appointment the qualifications required by Section 203.052;
(2) does not maintain during service on the midwifery board the qualifications required by Section 203.052;
(3) violates a prohibition established by Section 203.053 or 203.054;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled midwifery board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the midwifery board.
(b) The validity of an action of the midwifery board is not affected by the fact that it is taken when a ground for removal of a midwifery board member exists.
(c) If the program coordinator has knowledge that a potential ground for removal exists, the program coordinator shall notify the presiding officer of the midwifery board of the ground. The program coordinator and presiding officer of the midwifery board shall then notify the board that a potential ground for removal exists. (V.A.C.S. Art. 4512i, Sec. 3D.)
Sec. 203.058. COMPENSATION; REIMBURSEMENT. A member may not receive compensation for service on the midwifery board. Each member is entitled to receive $50 for each meeting the member attends and the per diem and travel allowance authorized for state employees. (V.A.C.S. Art. 4512i, Sec. 6.)
Sec. 203.059. MEETINGS. (a) The midwifery board shall meet at least semiannually.
(b) The midwifery board shall meet at other times at the call of the midwifery board or the board. (V.A.C.S. Art. 4512i, Sec. 5(c).)
[Sections 203.060-203.100 reserved for expansion]
SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL
Sec. 203.101. PROGRAM COORDINATOR. The department shall, with the approval of the board and after consultation with the midwifery board, employ a coordinator for the midwifery program and the staff necessary to administer the program. (V.A.C.S. Art. 4512i, Sec. 7(a) (part).)
Sec. 203.102. DUTIES OF PROGRAM COORDINATOR. The program coordinator shall supervise the staff in the performance of administrative duties, including:
(1) keeping the minutes of midwifery board meetings; and
(2) maintaining:
(A) records about basic midwifery education courses and continuing midwifery education courses;
(B) a roster of midwives documented under Section 203.251; and
(C) a record of each person who receives documentation under this chapter. (V.A.C.S. Art. 4512i, Sec. 7(a) (part).)
Sec. 203.103. DIVISION OF RESPONSIBILITIES. The midwifery board shall develop and implement policies that clearly define the respective responsibilities of the midwifery board and the staff of the midwifery board. (V.A.C.S. Art. 4512i, Sec. 8G.)
Sec. 203.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The program coordinator or the program coordinator's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the midwifery board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the midwifery board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of another biennial report made to the legislature. (V.A.C.S. Art. 4512i, Sec. 8E.)
[Sections 203.105-203.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF MIDWIFERY BOARD,
BOARD, AND DEPARTMENT
Sec. 203.151. RULEMAKING AUTHORITY OF MIDWIFERY BOARD. (a) Subject to the approval of the board, the midwifery board shall:
(1) adopt substantive and procedural rules necessary for the documentation of midwives;
(2) adopt rules prescribing the standards for the practice of midwifery in this state, including standards for:
(A) the delineation of findings that preclude a woman or newborn from being classified as having a normal pregnancy, labor, delivery, postpartum period, or newborn period; and
(B) administration of oxygen by a midwife to a mother or newborn;
(3) adopt rules prescribing:
(A) the type of courses and number of hours required to meet the basic midwifery education course and continuing midwifery education course requirements; and
(B) minimum standards for the approval and revocation of approval of:
(i) basic midwifery education courses and continuing midwifery education courses; and
(ii) instructors or facilities used in basic midwifery education courses and continuing midwifery education courses;
(4) adopt rules prescribing a procedure for reporting and processing complaints relating to the practice of midwifery in this state;
(5) adopt and implement substantive and procedural rules as necessary to discipline midwives determined to be in violation of this chapter or otherwise a threat to the public health and safety;
(6) adopt rules as necessary to establish eligibility for reciprocity for initial documentation under this chapter; and
(7) adopt other rules necessary to implement a duty imposed on the board or the department under this chapter.
(b) The rules adopted under Subsection (a)(5) must include rules relating to:
(1) warnings provided to midwives for a violation of this chapter or rules adopted under this chapter;
(2) agreed orders for additional education by midwives;
(3) recommendations or requirements for medical or psychological treatment, including treatment related to substance abuse by a midwife; and
(4) restrictions on the practice of a midwife, including practice limitations and the suspension and revocation of documentation, and placement of a midwife on probation. (V.A.C.S. Art. 4512i, Secs. 8A(b) (part), (e).)
Sec. 203.152. FEES. (a) Subject to the approval of the board, the midwifery board by rule shall establish reasonable and necessary fees that, in the aggregate, produce sufficient revenue to cover the costs of administering this chapter.
(b) The midwifery board may not set a fee for an amount less than the amount of that fee on September 1, 1993. (V.A.C.S. Art. 4512i, Sec. 8A(d) (part).)
Sec. 203.153. MANUALS. (a) Subject to the approval of the board, the midwifery board shall issue basic information manuals for the practice of midwifery. The midwifery board shall approve the basic information manuals and instructor manuals that may be used in basic midwifery education courses.
(b) The department shall provide the manuals to each documented midwife and to any other person on request.
(c) A basic information manual must include information about:
(1) the knowledge necessary to practice as a midwife;
(2) the basic education and continuing education requirements for a midwife;
(3) the legal requirements and procedures relating to midwifery;
(4) the standards of practice as a midwife; and
(5) other information or procedures required by the midwifery board or the board.
(d) The department may charge a fee for each manual not to exceed $10. The department shall make the manual available in English and Spanish. (V.A.C.S. Art. 4512i, Secs. 8 (part), 9.)
Sec. 203.154. ANNUAL REPORT; REPORTS ON MIDWIFERY. (a) The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and distributed by the midwifery board during the preceding fiscal year.
(b) The report under Subsection (a) must be in the form and reported in the time provided by the General Appropriations Act.
(c) Subject to the approval of the board, the midwifery board shall prepare and publish reports on the practice of midwifery in this state, including statistical reporting of infant fetal morbidity and mortality. (V.A.C.S. Art. 4512i, Secs. 8A(b) (part), 8C.)
Sec. 203.155. COMPLAINT PROCEDURE AND INVESTIGATION. (a) The midwifery board shall adopt rules concerning the investigation of a complaint filed with the midwifery board.
(b) The rules adopted under Subsection (a) must:
(1) distinguish among categories of complaints;
(2) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and
(3) provide for the release of any relevant midwifery or medical record to the midwifery board, without the necessity of consent by the midwife's client, as necessary to conduct an investigation of a complaint.
(c) The midwifery board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the midwifery board; and
(2) prescribe information to be provided to a person when the person files a complaint with the midwifery board.
(d) The midwifery board shall provide reasonable assistance to a person who wishes to file a complaint with the midwifery board. (V.A.C.S. Art. 4512i, Secs. 18C(b), (c); 18D.)
Sec. 203.156. DUTIES OF BOARD AND DEPARTMENT. (a) The board shall review and act on materials submitted by the midwifery board for approval not later than the 60th day after the date the materials are submitted.
(b) The department, with the recommendation of the midwifery board, shall:
(1) implement rules governing:
(A) basic midwifery education courses and continuing midwifery education courses; and
(B) approval of instructors or facilities used in offering basic midwifery education courses and continuing midwifery education courses;
(2) prepare and distribute basic midwifery information and instructor manuals; and
(3) enter into agreements necessary to carry out this chapter.
(c) The department shall:
(1) establish a program for documentation as a midwife as prescribed by board rules;
(2) pay the salaries of the program coordinator and any additional staff the department determines to be necessary; and
(3) provide office space and supplies for the program coordinator and other staff. (V.A.C.S. Art. 4512i, Secs. 7(b); 8A(a), (c); 13(a).)
Sec. 203.157. ROSTER; NOTICE TO COUNTY OFFICIALS. (a) The department shall maintain a roster of each person documented as a midwife in this state.
(b) The roster shall contain for each person the information required on the documentation form under this chapter and other information the department determines necessary to accurately identify each documented midwife. The information is public information as defined by Chapter 552, Government Code.
(c) The department shall provide each county clerk and each local registrar of births in a county with the name of each midwife practicing in the county. (V.A.C.S. Art. 4512i, Secs. 13(c), 15.)
[Sections 203.158-203.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 203.201. PUBLIC INTEREST INFORMATION. (a) The midwifery board shall prepare information of public interest describing the functions of the midwifery board and the procedures by which complaints are filed with and resolved by the midwifery board.
(b) The midwifery board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512i, Sec. 8D(a).)
Sec. 203.202. COMPLAINTS. (a) The midwifery board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the midwifery board for the purpose of directing complaints to the midwifery board. The midwifery board may provide for that notice:
(1) on each registration form, application, or disclosure and informed consent form of a person regulated by the midwifery board;
(2) on a sign prominently displayed in the place of business of each person regulated by the midwifery board; or
(3) in a bill for service provided by a person regulated by the midwifery board.
(b) The midwifery board shall list with its regular telephone number the toll-free telephone number established under other state law that may be called to present a complaint about a health professional.
(c) The midwifery board shall keep an information file about each complaint filed with the midwifery board.
(d) The midwifery board's information file shall be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process; and
(3) other relevant information. (V.A.C.S. Art. 4512i, Secs. 8D(b), (c); 18C(a).)
Sec. 203.203. PUBLIC PARTICIPATION. (a) The midwifery board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the midwifery board and to speak on any issue under the midwifery board's jurisdiction.
(b) The midwifery board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the midwifery board's programs. (V.A.C.S. Art. 4512i, Secs. 8F, 8H (part).)
[Sections 203.204-203.250 reserved for expansion]
SUBCHAPTER F. DOCUMENTATION REQUIREMENTS
Sec. 203.251. DOCUMENTATION REQUIRED. (a) A person may not practice midwifery unless the person holds a documentation letter issued under this chapter.
(b) The department shall provide a documentation letter to each person who fulfills documentation requirements. (V.A.C.S. Art. 4512i, Sec. 12; New.)
Sec. 203.252. INITIAL DOCUMENTATION. (a) At the time of initial documentation, an applicant for documentation must provide the program coordinator with documentary evidence that the person has:
(1) satisfied each requirement for basic midwifery education; and
(2) passed the comprehensive midwifery examination.
(b) The initial documentation must be issued before the midwife begins to practice midwifery and may be issued at any time during the year.
(c) The term of the initial documentation begins on the date the requirements are met and extends through December 31 of the year in which initial documentation is issued. (V.A.C.S. Art. 4512i, Secs. 10(b), 13(d) (part).)
Sec. 203.253. DOCUMENTATION APPLICATION. A person who practices midwifery must apply to the department to be documented as a midwife. The application must:
(1) be accompanied by a nonrefundable application fee; and
(2) include information required by board rules. (V.A.C.S. Art. 4512i, Sec. 13(b) (part).)
Sec. 203.254. BASIC MIDWIFERY EDUCATION. Subject to the approval of the board, the midwifery board shall establish requirements for basic midwifery education. (V.A.C.S. Art. 4512i, Sec. 8 (part).)
Sec. 203.255. EXAMINATION. (a) The midwifery board, with the approval of the board, shall:
(1) adopt a comprehensive midwifery examination for persons regulated under this chapter that must be passed before initial documentation; and
(2) establish eligibility requirements for persons taking a comprehensive midwifery examination.
(b) The midwifery board shall have an independent testing professional validate any written portion of the examination. (V.A.C.S. Art. 4512i, Secs. 8 (part), 11.)
Sec. 203.256. TRAINING IN NEWBORN SCREENING AND BASIC LIFE SUPPORT CARDIOPULMONARY RESUSCITATION. A person who practices midwifery in this state must provide the program coordinator with satisfactory evidence that the person:
(1) is trained to perform the newborn screening tests under Section 203.354 or has made arrangements for the performance of those tests; and
(2) holds:
(A) a current certificate issued by the American Heart Association in basic life support cardiopulmonary resuscitation; or
(B) another form of certification acceptable to the department that demonstrates proficiency in basic life support cardiopulmonary resuscitation for adults and children. (V.A.C.S. Art. 4512i, Sec. 10(a).)
[Sections 203.257-203.300 reserved for expansion]
SUBCHAPTER G. DOCUMENTATION RENEWAL
Sec. 203.301. APPLICATION FOR DOCUMENTATION RENEWAL. An applicant for renewal of documentation must apply annually as provided in Section 203.253. (V.A.C.S. Art. 4512i, Sec. 13(b) (part).)
Sec. 203.302. LATE APPLICATION FOR RENEWAL. (a) The department may accept an application for documentation renewal that is filed not later than the expiration date of a grace period established by board rule. The grace period may not exceed the 60th day after the expiration date of a person's documentation.
(b) The department may charge a late filing fee that must be paid in addition to the application fee. (V.A.C.S. Art. 4512i, Sec. 13(e).)
Sec. 203.303. STAGGERED RENEWAL DATES. (a) The midwifery board by rule may adopt a system under which documentations expire on various dates during the year.
(b) For the year in which the documentation expiration date is changed, documentation fees payable on the original expiration date shall be prorated on a monthly basis so that each documented midwife pays only that portion of the documentation fee that is allocable to the number of months during which the documentation is valid.
(c) On renewal of the documentation on the new expiration date, the total documentation renewal fee is payable. (V.A.C.S. Art. 4512i, Sec. 13(d) (part).)
Sec. 203.304. CONTINUING MIDWIFERY EDUCATION. (a) Subject to the approval of the board, the midwifery board shall establish requirements for continuing midwifery education, including a minimum number of hours of continuing education required to renew a documentation under this chapter.
(b) On renewal of the documentation, a midwife must provide the program coordinator with evidence, acceptable under board rules, of completion of continuing midwifery education as prescribed by the midwifery board.
(c) The midwifery board by rule shall develop a process to evaluate and approve continuing education courses. (V.A.C.S. Art. 4512i, Secs. 8 (part), 10(c) (part).)
Sec. 203.305. REQUIRED ATTENDANCE AT SPECIFIC MIDWIFERY EDUCATION COURSES. The midwifery board may assess the continuing education needs of documented midwives and may require documented midwives to attend continuing midwifery education courses specified by the midwifery board. (V.A.C.S. Art. 4512i, Sec. 10(c) (part).)
[Sections 203.306-203.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY MIDWIFE
Sec. 203.351. INFORMED CHOICE AND DISCLOSURE REQUIREMENTS. (a) A midwife shall disclose in oral and written form to a prospective client the limitations of the skills and practices of a midwife.
(b) The midwifery board shall prescribe the form of the informed choice and disclosure statement required to be used by a midwife under this chapter. The form must include:
(1) statistics of the midwife's experience as a midwife;
(2) the date the midwife's documentation expires;
(3) the date the midwife's cardiopulmonary resuscitation certification expires;
(4) the midwife's compliance with continuing education requirements;
(5) a description of medical backup arrangements; and
(6) the legal responsibilities of a midwife, including statements concerning newborn blood screening, ophthalmia neonatorum prevention, and prohibited acts under Sections 203.401-203.403.
(c) The informed choice statement must include a statement that state law requires a newborn child to be tested for certain heritable diseases and hypothyroidism. The midwife shall disclose to a client whether the midwife is approved to collect blood specimens to be used to perform the tests. If the midwife is not approved to collect the blood specimens, the disclosure must inform the client of the midwife's duty to refer the client to an appropriate health care facility or physician for the collection of the specimens.
(d) The disclosure of legal requirements required by this section may not exceed 500 words and must be in English and Spanish.
(e) A midwife shall disclose to a prospective or actual client the procedure for reporting complaints to the department. (V.A.C.S. Art. 4512i, Secs. 16(a), (b), (c), (d), (g).)
Sec. 203.352. PRENATAL AND CERTAIN MEDICAL CARE ENCOURAGED. A midwife shall encourage a client to seek:
(1) prenatal care; and
(2) medical care through consultation or referral, as specified by midwifery board rules, if the midwife determines that the pregnancy, labor, delivery, postpartum period, or newborn period of a woman or newborn may not be classified as normal for purposes of this chapter. (V.A.C.S. Art. 4512i, Secs. 16(e), (f).)
Sec. 203.353. PREVENTION OF OPHTHALMIA NEONATORUM. Unless the newborn child is immediately transferred to a hospital because of an emergency, a midwife who attends the birth of the child shall comply with Section 81.091, Health and Safety Code. (V.A.C.S. Art. 4512i, Sec. 16A.)
Sec. 203.354. NEWBORN SCREENING. (a) Each midwife who attends the birth of a child shall cause the newborn screening tests to be performed on blood specimens taken from the child as required by Chapter 33, Health and Safety Code.
(b) A midwife may collect blood specimens for the newborn screening tests if the midwife has been approved by the department to collect the specimen. The board shall adopt rules establishing the standards for approval. The standards must recognize completion of a course of instruction that includes the blood specimen collection procedure or verification by appropriately trained health care providers that the midwife has been instructed in the blood collection procedures.
(c) A midwife who is not approved to collect blood specimens for newborn screening tests shall refer a client and her newborn to an appropriate health care facility or physician for the collection of the blood specimen and submission of the specimen to the department.
(d) If the midwife has been approved by the department to collect blood specimens under this section, the collection by the midwife of blood specimens for the required newborn screening tests does not constitute the practice of medicine as defined by Subtitle B. (V.A.C.S. Art. 4512i, Sec. 8B.)
Sec. 203.355. SUPPORT SERVICES. (a) In this section:
(1) "Clinical services" include prenatal, postpartum, child health, and family planning services.
(2) "Local health unit" means a division of a municipal or county government that provides limited public health services under Section 121.004, Health and Safety Code.
(3) "Public health district" means a district created under Subchapter E, Chapter 121, Health and Safety Code.
(b) The department and a local health department, a public health district, or a local health unit shall provide clinical and laboratory support services to a pregnant woman or a newborn who is a client of a midwife if the midwife is required to provide the services under this chapter.
(c) The laboratory services must include the performance of the standard serological tests for syphilis and the collection of blood specimens for newborn screening tests for phenylketonuria, hypothyroidism, and other heritable diseases as required by law.
(d) The provider may charge a reasonable fee for the services. A person may not be denied the services because of inability to pay.
(e) If available, appropriately trained personnel from local health departments, public health districts, and local health units shall instruct documented midwives in the approved techniques for collecting blood specimens to be used to perform newborn screening tests. (V.A.C.S. Art. 4512i, Secs. 1(c)(10), (14); 19A(a), (b).)
Sec. 203.356. IMMUNITY. (a) A physician, a registered nurse, or other person who, on the order of a physician, instructs a midwife in the approved techniques for collecting blood specimens to be used for newborn screening tests is immune from liability arising out of the failure or refusal of the midwife to:
(1) collect the specimens in the approved manner; or
(2) submit the specimens to the department in a timely manner.
(b) A physician who issues an order directing or instructing a midwife is immune from liability arising out of the failure or refusal of the midwife to comply with the order if, before the issuance of the order, the midwife provided the physician with evidence satisfactory to the board of compliance with this chapter. (V.A.C.S. Art. 4512i, Secs. 19A(c), (d).)
Sec. 203.357. ADDITIONAL INFORMATION REQUIRED. (a) The midwifery board may require information in addition to that required by Section 203.253 if it determines the additional information is necessary and appropriate to ascertain the nature and extent of midwifery in this state. The midwifery board may not require information regarding any act that is prohibited under this chapter.
(b) With the approval of the midwifery board, the department shall prescribe forms for the additional information and shall distribute those forms directly to each midwife. Each midwife must complete and return the forms to the department as requested.
(c) Information received under this section may not be made public in a manner that discloses the identity of any person to whom the information relates. The information is not public information as defined by Chapter 552, Government Code. (V.A.C.S. Art. 4512i, Sec. 14.)
[Sections 203.358-203.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES AND GROUNDS FOR
DISCIPLINARY ACTION
Sec. 203.401. PROHIBITED PRACTICES. A midwife may not:
(1) provide midwifery care in violation of midwifery board rule, except in an emergency that poses an immediate threat to the life of a woman or newborn;
(2) administer a prescription drug to a client other than:
(A) a drug administered under the supervision of a licensed physician in accordance with state law;
(B) prophylaxis approved by the board to prevent ophthalmia neonatorum; or
(C) oxygen administered in accordance with midwifery board rule;
(3) use forceps or a surgical instrument for a procedure other than cutting the umbilical cord or providing emergency first aid during delivery;
(4) remove placenta by invasive techniques;
(5) use a mechanical device or medicine to advance or retard labor or delivery; or
(6) make on a birth certificate a false statement or false record in violation of Section 195.003, Health and Safety Code. (V.A.C.S. Art. 4512i, Sec. 17(a) (part).)
Sec. 203.402. PROHIBITED REPRESENTATION. A midwife may not:
(1) except as provided by Section 203.403, use in connection with the midwife's name a title, abbreviation, or designation tending to imply that the midwife is a "registered" or "certified" midwife as opposed to one who is documented under this chapter;
(2) advertise or represent that the midwife is a physician or a graduate of a medical school unless the midwife is licensed to practice medicine by the Texas State Board of Medical Examiners;
(3) use advertising or an identification statement that is false, misleading, or deceptive; or
(4) except as authorized by rules adopted by the Board of Nurse Examiners and the Board of Vocational Nurse Examiners, use in combination with the term "midwife" the term "nurse" or another title, initial, or designation that implies that the midwife is licensed as a registered nurse or licensed vocational nurse. (V.A.C.S. Art. 4512i, Sec. 17(a) (part).)
Sec. 203.403. PROHIBITED USE OF TITLE. (a) A midwife certified by the North American Registry of Midwives who uses "certified" as part of the midwife's title in an identification statement or advertisement must include in the statement or advertisement a statement that the midwife is certified by the North American Registry of Midwives.
(b) A midwife may not use an identification statement or advertisement that would lead a reasonable person to believe that the midwife is certified by a governmental entity. (V.A.C.S. Art. 4512i, Sec. 17(b).)
Sec. 203.404. GROUNDS FOR DISCIPLINARY ACTION. (a) The midwifery board may discipline a documented midwife and may refuse to issue a letter of documentation to an applicant who:
(1) violates this chapter or a rule adopted under this chapter;
(2) submits false or misleading information to the midwifery board, the board, or the department;
(3) is convicted of a misdemeanor involving moral turpitude or a felony;
(4) uses alcohol or drugs intemperately;
(5) engages in unprofessional or dishonorable conduct that may reasonably be determined to deceive or defraud the public;
(6) is unable to practice midwifery with reasonable skill and safety because of illness, disability, or psychological impairment;
(7) is determined by a court judgment to be mentally impaired;
(8) submits a birth or death certificate known by the person to be false or fraudulent or engages in another act that violates Title 3, Health and Safety Code, or a rule adopted under that title;
(9) violates Chapter 244, Health and Safety Code, or a rule adopted under that chapter; or
(10) fails to practice midwifery in a manner consistent with the public health and safety.
(b) The midwifery board may discipline a documented midwife and may refuse to issue a letter of documentation to an applicant for a disciplinary action taken by another jurisdiction that affects the person's authority to practice midwifery, including a suspension, a revocation, or another action. (V.A.C.S. Art. 4512i, Sec. 17A.)
[Sections 203.405-203.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 203.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The midwifery board may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512i, Sec. 18E(a).)
Sec. 203.452. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day a violation continues is a separate violation.
(b) The amount shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 4512i, Secs. 18E(b), (c).)
Sec. 203.453. NOTICE OF VIOLATION AND PENALTY. (a) If, after investigation of a possible violation and the facts surrounding that possible violation, the midwifery board or its designee determines that a violation has occurred, the midwifery board or its designee shall give written notice of the violation to the person alleged to have committed the violation.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512i, Sec. 18E(e).)
Sec. 203.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 203.453, the person may:
(1) accept the midwifery board or its designee's determination and the proposed administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the midwifery board or its designee's determination, the midwifery board by order shall approve the determination and require the person to pay the proposed penalty. (V.A.C.S. Art. 4512i, Secs. 18E(f), (g).)
Sec. 203.455. HEARING. (a) If the person timely requests a hearing, the midwifery board or its designee shall set a hearing and give written notice of the hearing to the person. The midwifery board or its designee may employ a hearings examiner for this purpose.
(b) The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the midwifery board a proposal for decision as to the occurrence of the violation and the amount of the proposed administrative penalty. (V.A.C.S. Art. 4512i, Secs. 18E(h), (i).)
Sec. 203.456. DECISION BY MIDWIFERY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the midwifery board by order may determine that:
(1) a violation has occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The midwifery board shall give notice of the midwifery board's order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial review of the midwifery board's order. (V.A.C.S. Art. 4512i, Secs. 18E(j), (k).)
Sec. 203.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the midwifery board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the midwifery board by certified mail.
(c) If the midwifery board receives a copy of an affidavit under Subsection (b)(2), the midwifery board may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512i, Secs. 18E(l), (m), (n).)
Sec. 203.458. COLLECTION OF PENALTY. (a) If the person on whom the administrative penalty is imposed does not comply with Section 203.457, the penalty may be collected.
(b) The midwifery board may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the midwifery board requiring the payment of expenses and costs is final. The midwifery board may refer the matter to the attorney general for collection of the expenses and costs.
(c) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general, the midwifery board, and the department, reasonable expenses and costs.
(d) In this section, reasonable expenses and costs includes expenses incurred by the department, the midwifery board, and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(e) Costs and expenses collected under this section shall be deposited in the state treasury to the credit of a special account that may be appropriated only to the department. Section 403.095, Government Code, does not apply to the account. (V.A.C.S. Art. 4512i, Secs. 18E(o), (t), (u), (v), (w).)
Sec. 203.459. DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512i, Sec. 18E(q).)
Sec. 203.460. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall:
(1) order the midwifery board to remit to the person the appropriate amount, plus accrued interest, if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512i, Sec. 18E(r).)
Sec. 203.461. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter to impose an administrative penalty is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512i, Sec. 18E(d).)
[Sections 203.462-203.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 203.501. CIVIL PENALTY. (a) A person is liable for a civil penalty if the person is required to be documented under this chapter and the person knowingly or intentionally practices midwifery:
(1) without documentation or while the documentation is suspended or revoked; or
(2) in violation of a midwifery board order.
(b) A civil penalty under this section may not exceed $250 for each violation. Each day of violation may constitute a separate violation for purposes of penalty assessment. In determining the amount of the penalty, the court shall consider:
(1) the person's history of previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public; and
(4) the demonstrated good faith of the person charged. (V.A.C.S. Art. 4512i, Secs. 18B(a) (part), (b), (c).)
Sec. 203.502. INJUNCTIONS. (a) In this section, "health authority" means a physician who administers state and local laws regulating public health under Chapter 121, Health and Safety Code.
(b) If the commissioner or a health authority determines that a person has violated this chapter and that the violation creates an immediate threat to the health and safety of the public, the commissioner or the health authority, with the concurrence of the commissioner, may request the attorney general or a district, county, or city attorney to bring an action in a district court for a restraining order to restrain the violation.
(c) If a person has violated this chapter, the commissioner or a health authority, with the concurrence of the commissioner, may bring an action in a district court for an injunction to prohibit the person from continuing the violation. (V.A.C.S. Art. 4512i, Secs. 1(c)(8), 18A(a), (b).)
Sec. 203.503. VENUE. (a) Venue for a civil action brought under Section 203.451 or 203.452 is in the county in which the defendant resides or in the county in which the violation occurred.
(b) Venue for the civil action may be changed only after a good faith effort has been made to address the violation in the county in which venue is proper. (V.A.C.S. Art. 4512i, Secs. 18A(d), 18B(d).)
Sec. 203.504. CRIMINAL PENALTY. (a) A person commits an offense if the person is required to be documented under this chapter and the person knowingly practices midwifery without documentation.
(b) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 4512i, Secs. 18(a), (b).)
CHAPTER 204. PHYSICIAN ASSISTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 204.001. SHORT TITLE
Sec. 204.002. DEFINITIONS
Sec. 204.003. APPLICABILITY
Sec. 204.004. APPLICATION OF SUNSET ACT
[Sections 204.005-204.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF PHYSICIAN
ASSISTANT EXAMINERS
Sec. 204.051. TEXAS STATE BOARD OF PHYSICIAN ASSISTANT
EXAMINERS
Sec. 204.052. APPOINTMENT OF BOARD
Sec. 204.053. MEMBERSHIP ELIGIBILITY AND RESTRICTIONS
Sec. 204.054. TERMS; VACANCIES
Sec. 204.055. OFFICERS
Sec. 204.056. GROUNDS FOR REMOVAL
Sec. 204.057. PER DIEM
Sec. 204.058. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW
[Sections 204.059-204.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF PHYSICIAN ASSISTANT BOARD
AND MEDICAL BOARD
Sec. 204.101. GENERAL POWERS AND DUTIES OF BOARD
Sec. 204.102. POWERS AND DUTIES OF MEDICAL BOARD RELATING TO
PHYSICIAN ASSISTANTS
Sec. 204.103. FEES
Sec. 204.104. RURAL PHYSICIAN ASSISTANT LOAN REIMBURSEMENT
PROGRAM
[Sections 204.105-204.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS, EXEMPTIONS, AND RENEWAL
Sec. 204.151. LICENSE REQUIRED
Sec. 204.152. ISSUANCE OF LICENSE
Sec. 204.153. ELIGIBILITY REQUIREMENTS
Sec. 204.154. EXEMPTIONS FROM LICENSING REQUIREMENT FOR
CERTAIN PHYSICIAN ASSISTANTS
Sec. 204.155. TEMPORARY LICENSE
Sec. 204.156. LICENSE RENEWAL
Sec. 204.157. INACTIVE STATUS
[Sections 204.158-204.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY LICENSE HOLDER
Sec. 204.201. NOTICE OF INTENT TO PRACTICE
Sec. 204.202. SCOPE OF PRACTICE
Sec. 204.203. IDENTIFICATION REQUIREMENTS
Sec. 204.204. SUPERVISION REQUIREMENTS
Sec. 204.205. REQUIREMENTS FOR SUPERVISING PHYSICIAN
Sec. 204.206. ESTABLISHMENT OF CERTAIN FUNCTIONS AND
STANDARDS
Sec. 204.207. ASSUMPTION OF PROFESSIONAL LIABILITY
Sec. 204.208. DUTY TO REPORT; MEDICAL PEER REVIEW
[Sections 204.209-204.250 reserved for expansion]
SUBCHAPTER F. COMPLAINTS AND INVESTIGATIVE INFORMATION
Sec. 204.251. COMPLAINT INFORMATION AND STATUS
Sec. 204.252. LICENSE HOLDER ACCESS TO COMPLAINT
INFORMATION
Sec. 204.253. HEALTH CARE ENTITY REQUEST FOR INFORMATION
Sec. 204.254. CONFIDENTIALITY OF INVESTIGATIVE INFORMATION
Sec. 204.255. PERMITTED DISCLOSURE OF INVESTIGATIVE
INFORMATION
[Sections 204.256-204.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY PROCEEDINGS
Sec. 204.301. DISCIPLINARY AUTHORITY OF BOARD
Sec. 204.302. CONDUCT RELATED TO FRAUD OR MISREPRESENTATION
Sec. 204.303. CONDUCT RELATED TO VIOLATION OF LAW
Sec. 204.304. CONDUCT INDICATING LACK OF FITNESS
Sec. 204.305. REHABILITATION ORDER
Sec. 204.306. EFFECT OF REHABILITATION ORDER
Sec. 204.307. AUDIT OF REHABILITATION ORDER
Sec. 204.308. SUBPOENA
Sec. 204.309. PROTECTION OF PATIENT IDENTITY
[Sections 204.310-204.350 reserved for expansion]
SUBCHAPTER H. PENALTIES
Sec. 204.351. ADMINISTRATIVE PENALTY
Sec. 204.352. CRIMINAL PENALTY
CHAPTER 204. PHYSICIAN ASSISTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 204.001. SHORT TITLE. This chapter may be cited as the Physician Assistant Licensing Act. (V.A.C.S. Art. 4495b-1, Sec. 1(a).)
Sec. 204.002. DEFINITIONS. In this chapter:
(1) "Medical board" means the Texas State Board of Medical Examiners.
(2) "Physician assistant board" means the Texas State Board of Physician Assistant Examiners. (V.A.C.S. Art. 4495b-1, Secs. 2(1), (2).)
Sec. 204.003. APPLICABILITY. (a) A person is not required to hold a license issued under this chapter to practice as:
(1) a technician, assistant, or employee of a physician who performs delegated tasks but does not act as a physician assistant or represent that the person is a physician assistant; or
(2) any other licensed health care worker acting within the scope of that person's license if the person:
(A) does not use the title "physician assistant" or the initials "P.A."; or
(B) is not represented or designated as a physician assistant.
(b) This chapter does not limit the employment arrangement of a physician assistant licensed under this chapter. (V.A.C.S. Art. 4495b-1, Secs. 11 (part), 16.)
Sec. 204.004. APPLICATION OF SUNSET ACT. The Texas State Board of Physician Assistant Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4495b-1, Sec. 4(k).)
[Sections 204.005-204.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF
PHYSICIAN ASSISTANT EXAMINERS
Sec. 204.051. TEXAS STATE BOARD OF PHYSICIAN ASSISTANT EXAMINERS. The Texas State Board of Physician Assistant Examiners is an advisory board to the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4495b-1, Sec. 4(a).)
Sec. 204.052. APPOINTMENT OF BOARD. The physician assistant board consists of nine members appointed by the governor as follows:
(1) three practicing physician assistant members who each have at least five years of clinical experience as a physician assistant;
(2) three physician members who are licensed in this state and who supervise physician assistants; and
(3) three public members who are not licensed as a physician or physician assistant. (V.A.C.S. Art. 4495b-1, Sec. 4(b).)
Sec. 204.053. MEMBERSHIP ELIGIBILITY AND RESTRICTIONS. (a) A person is not eligible for appointment as a public member of the physician assistant board if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of health care; or
(2) is employed by or participates in the management of a business entity or other organization that provides health care services or that sells, manufactures, or distributes health care supplies or equipment.
(b) A person may not serve as a member of the physician assistant board if the person is required to register as a lobbyist under Chapter 305, Government Code. (V.A.C.S. Art. 4495b-1, Secs. 4(c), (f).)
Sec. 204.054. TERMS; VACANCIES. (a) Members of the physician assistant board are appointed for staggered six-year terms. The terms of three members expire on February 1 of each odd-numbered year.
(b) A member may not serve more than:
(1) two consecutive full terms; or
(2) a total of three full terms.
(c) If a vacancy occurs during a member's term, the governor shall appoint a new member to fill the unexpired term. (V.A.C.S. Art. 4495b-1, Secs. 4(i), (j).)
Sec. 204.055. OFFICERS. The physician assistant board shall select from its membership a presiding officer and a secretary to serve one-year terms. (V.A.C.S. Art. 4495b-1, Sec. 4(l).)
Sec. 204.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the physician assistant board that a member:
(1) does not have at the time of appointment the qualifications required by this subchapter for appointment to the board;
(2) does not maintain during the service on the board the qualifications required by this subchapter for appointment to the board; or
(3) fails to attend at least one-half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the physician assistant board is not affected by the fact that it is taken when a ground for removal of a board member exists. (V.A.C.S. Art. 4495b-1, Secs. 4(e), (g).)
Sec. 204.057. PER DIEM. A member of the physician assistant board is entitled to receive a per diem as set by legislative appropriation for each day that the member engages in the business of the board. If the General Appropriations Act does not prescribe the amount of the per diem, the per diem is equal to a member's actual expenses for meals, lodging, and transportation plus $100. (V.A.C.S. Art. 4495b-1, Sec. 4(d).)
Sec. 204.058. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW. Except as otherwise provided by this chapter, the physician assistant board is subject to Chapters 551 and 2001, Government Code. (V.A.C.S. Art. 4495b-1, Sec. 4(h).)
[Sections 204.059-204.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF PHYSICIAN ASSISTANT BOARD
AND MEDICAL BOARD
Sec. 204.101. GENERAL POWERS AND DUTIES OF BOARD. The physician assistant board shall:
(1) adopt rules that are reasonable and necessary for the performance of the physician assistant board's duties under this chapter, as provided by Chapter 2001, Government Code, including rules to establish:
(A) licensing and other fees;
(B) license renewal dates; and
(C) procedures for disciplinary actions;
(2) review and approve or reject each application for the issuance or renewal of a license;
(3) issue each license;
(4) deny, suspend, or revoke a license or otherwise discipline a license holder; and
(5) take any action necessary to carry out the functions and duties of the physician assistant board under this chapter. (V.A.C.S. Art. 4495b-1, Secs. 5 (part), 23(a).)
Sec. 204.102. POWERS AND DUTIES OF MEDICAL BOARD RELATING TO PHYSICIAN ASSISTANTS. (a) The medical board shall adopt rules consistent with this chapter to regulate physician assistants and physicians who supervise physician assistants.
(b) The medical board, by a majority vote, shall approve or reject each rule adopted by the physician assistant board. If approved, the rule may take effect. If the rule is rejected, the medical board shall return the rule to the physician assistant board for revision. (V.A.C.S. Art. 4495b, Sec. 5.02; Art. 4495b-1, Sec. 23(b).)
Sec. 204.103. FEES. The physician assistant board shall establish and collect fees in amounts that are reasonable and necessary to cover the cost of administering this chapter. (V.A.C.S. Art. 4495b-1, Secs. 5 (part), 6.)
Sec. 204.104. RURAL PHYSICIAN ASSISTANT LOAN REIMBURSEMENT PROGRAM. (a) A program shall be established to provide student loan reimbursement for graduates of physician assistant training programs from any state who practice in rural health professional shortage areas and medically underserved areas identified by the Texas Department of Health. The physician assistant board shall fund the program by designating annually a portion of the revenue generated under this chapter from physician assistant licensing fees.
(b) The Center for Rural Health Initiatives shall establish policies for and adopt rules to administer the loan program.
(c) The physician assistant board shall authorize and the medical board shall transfer annually the funds designated under Subsection (a) to the Center for Rural Health Initiatives to administer the loan program. (V.A.C.S. Art. 4495b-1, Sec. 24.)
[Sections 204.105-204.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS, EXEMPTIONS,
AND RENEWAL
Sec. 204.151. LICENSE REQUIRED. A person may not practice as a physician assistant in this state unless the person holds a physician assistant license issued under this chapter. (V.A.C.S. Art. 4495b-1, Sec. 3.)
Sec. 204.152. ISSUANCE OF LICENSE. The physician assistant board shall issue a license to an applicant who:
(1) meets the eligibility requirements of Section 204.153;
(2) submits an application on a form prescribed by the board;
(3) pays the required application fee;
(4) certifies that the applicant is mentally and physically able to function safely as a physician assistant; and
(5) submits to the board any other information the board considers necessary to evaluate the applicant's qualifications. (V.A.C.S. Art. 4495b-1, Sec. 7 (part).)
Sec. 204.153. ELIGIBILITY REQUIREMENTS. (a) To be eligible for a license under this chapter, an applicant must:
(1) successfully complete an educational program for physician assistants or surgeon assistants accredited by the Committee on Allied Health Education and Accreditation or by that committee's predecessor or successor entities;
(2) pass the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;
(3) hold a certificate issued by the National Commission on Certification of Physician Assistants;
(4) be of good moral character; and
(5) meet any other requirement established by board rule.
(b) In addition to the requirements of Subsection (a), an applicant is not eligible for a license, unless the physician assistant board takes the fact into consideration in determining whether to issue the license, if the applicant:
(1) has been issued a license, certificate, or registration as a physician assistant in this state or from a licensing authority in another state that is revoked or suspended; or
(2) is subject to probation or other disciplinary action for cause resulting from the applicant's acts as a physician assistant. (V.A.C.S. Art. 4495b-1, Secs. 2(3), 7 (part).)
Sec. 204.154. EXEMPTIONS FROM LICENSING REQUIREMENT FOR CERTAIN PHYSICIAN ASSISTANTS. A person is not required to hold a license issued under this chapter to practice as:
(1) a physician assistant student enrolled in a physician assistant or surgeon assistant educational program accredited by the Committee on Allied Health Education and Accreditation of the American Medical Association or by successor entities as approved and designated by physician assistant board rule; or
(2) a physician assistant employed in the service of the federal government while performing duties related to that employment. (V.A.C.S. Art. 4495b-1, Sec. 11 (part).)
Sec. 204.155. TEMPORARY LICENSE. (a) The physician assistant board may issue a temporary license to an applicant who:
(1) meets all the qualifications for a license under this chapter but is waiting for the license to be issued at the next scheduled meeting of the board;
(2) seeks to temporarily substitute for a licensed physician assistant during the license holder's absence, if the applicant:
(A) is licensed or registered in good standing in another state;
(B) submits an application on a form prescribed by the board; and
(C) pays the appropriate fee prescribed by the board; or
(3) has graduated from an educational program for physician assistants or surgeon assistants described by Section 204.153(a)(1) not later than six months before applying for a temporary license and is waiting for examination results from the National Commission on Certification of Physician Assistants.
(b) A temporary license is valid for 100 days after the date issued and may be extended for not more than an additional 30 days after the expiration date of the initial temporary license. (V.A.C.S. Art. 4495b-1, Sec. 8.)
Sec. 204.156. LICENSE RENEWAL. On notification from the physician assistant board, a person who holds a license under this chapter may renew the license by:
(1) paying the required renewal fee;
(2) submitting the appropriate form; and
(3) meeting any other requirement established by board rule. (V.A.C.S. Art. 4495b-1, Sec. 10.)
Sec. 204.157. INACTIVE STATUS. (a) A person licensed under this chapter may place the person's license on inactive status by applying to the physician assistant board. A person whose license is on inactive status is excused from paying renewal fees for the license.
(b) The holder of a license on inactive status may not practice as a physician assistant. A violation of this subsection is considered to be practicing without a license.
(c) A person whose license is on inactive status under this section may return the person's license to active status by:
(1) applying to the physician assistant board; and
(2) satisfying the requirements of Section 204.156. (V.A.C.S. Art. 4495b-1, Sec. 9.)
[Sections 204.158-204.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY LICENSE HOLDER
Sec. 204.201. NOTICE OF INTENT TO PRACTICE. (a) Before beginning practice, each physician assistant licensed under this chapter shall submit on a form prescribed by the physician assistant board notice of the license holder's intent to practice. The notice must include:
(1) the name, business address, license number, and telephone number of the physician assistant; and
(2) the name, business address, Texas license number, and telephone number of the physician assistant's supervising physician.
(b) A physician assistant shall notify the physician assistant board of any change in, or addition to, the person acting as a supervising physician for the physician assistant not later than the 30th day after the date the change or addition occurs. (V.A.C.S. Art. 4495b-1, Sec. 15.)
Sec. 204.202. SCOPE OF PRACTICE. (a) The practice of a physician assistant includes providing medical services delegated by a supervising physician that are within the education, training, and experience of the physician assistant.
(b) Medical services provided by a physician assistant may include:
(1) obtaining patient histories and performing physical examinations;
(2) ordering or performing diagnostic and therapeutic procedures;
(3) formulating a working diagnosis;
(4) developing and implementing a treatment plan;
(5) monitoring the effectiveness of therapeutic interventions;
(6) assisting at surgery;
(7) offering counseling and education to meet patient needs;
(8) requesting, receiving, and signing for the receipt of pharmaceutical sample prescription medications and distributing the samples to patients in a specific practice setting in which the physician assistant is authorized to prescribe pharmaceutical medications and sign prescription drug orders as provided by Section 157.052, 157.053, or 157.054, or as otherwise authorized by physician assistant board rule;
(9) signing or completing a prescription as provided by Subchapter B, Chapter 157; and
(10) making appropriate referrals.
(c) The activities listed by Subsection (b) may be performed in any place authorized by a supervising physician, including a clinic, hospital, ambulatory surgical center, patient home, nursing home, or other institutional setting. (V.A.C.S. Art. 4495b-1, Sec. 12.)
Sec. 204.203. IDENTIFICATION REQUIREMENTS. A physician assistant shall:
(1) keep the physician assistant's license available for inspection at the physician assistant's primary place of business; and
(2) when engaged in the physician assistant's professional activities, wear a name tag identifying the license holder as a physician assistant. (V.A.C.S. Art. 4495b-1, Sec. 22.)
Sec. 204.204. SUPERVISION REQUIREMENTS. (a) A physician assistant shall be supervised by a supervising physician. A physician assistant may have more than one supervising physician. The supervising physician oversees the activities of, and accepts responsibility for, medical services provided by the physician assistant.
(b) Supervision of a physician assistant by a supervising physician must be continuous. The supervision does not require the constant physical presence of the supervising physician where physician assistant services are being performed, but, if a supervising physician is not present, the supervising physician and the physician assistant must be, or must be able to easily be, in contact with one another by radio, telephone, or another telecommunication device. (V.A.C.S. Art. 4495b-1, Secs. 2(6), 13(a), (c).)
Sec. 204.205. REQUIREMENTS FOR SUPERVISING PHYSICIAN. A supervising physician must:
(1) hold an unrestricted and active license as a physician in this state;
(2) notify the medical board of the physician's intent to supervise a physician assistant;
(3) submit to the medical board a statement that the physician will:
(A) supervise the physician assistant according to medical board rule; and
(B) retain professional and legal responsibility for the care provided by the physician assistant; and
(4) receive approval from the medical board to supervise the physician assistant. (V.A.C.S. Art. 4495b-1, Secs. 2(4), 14.)
Sec. 204.206. ESTABLISHMENT OF CERTAIN FUNCTIONS AND STANDARDS. Each physician assistant and the physician assistant's supervising physician shall ensure that:
(1) the physician assistant's scope of function is identified;
(2) delegation of medical tasks is appropriate to the physician assistant's level of competence;
(3) the relationship between the physician assistant and the supervising physician and the access of the physician assistant to the supervising physician are defined; and
(4) a process is established for evaluating the physician assistant's performance. (V.A.C.S. Art. 4495b-1, Sec. 13(b).)
Sec. 204.207. ASSUMPTION OF PROFESSIONAL LIABILITY. (a) Each supervising physician retains legal responsibility for a physician assistant's patient care activities, including the provision of care and treatment to a patient in a health care facility.
(b) If a physician assistant is employed by an entity, including a health care facility, the entity shares the legal responsibility for the physician assistant's acts or omissions with the physician assistant's supervising physician. (V.A.C.S. Art. 4495b-1, Sec. 17.)
Sec. 204.208. DUTY TO REPORT; MEDICAL PEER REVIEW. (a) A medical peer review committee in this state, physician assistant, physician assistant student, or physician lawfully practicing medicine in this state shall report relevant information to the physician assistant board related to the acts of a physician assistant in this state if, in the person's opinion, a physician assistant poses a continuing threat to the public welfare through practice as a physician assistant. The duty to report under this section may not be nullified through contract.
(b) Sections 160.002, 160.003, 160.006, 160.007(d), 160.009, 160.013, and 160.014 apply to medical peer review relating to the practice of a physician assistant.
(c) A person, including a health care entity or medical peer review committee, that without malice furnishes records, information, or assistance to the physician assistant board is immune from any civil liability arising from that act. (V.A.C.S. Art. 4495b, Secs. 5.06(b) (part), (d) (part), (f) (part), (i) (part), (k) (part), (r) (part), (s) (part); Art. 4495b-1, Sec. 28.)
[Sections 204.209-204.250 reserved for expansion]
SUBCHAPTER F. COMPLAINTS AND INVESTIGATIVE INFORMATION
Sec. 204.251. COMPLAINT INFORMATION AND STATUS. (a) The physician assistant board shall keep information on file about each complaint filed with the board.
(b) If a written complaint is filed with the physician assistant board relating to a person licensed by the board, the board, as often as quarterly and until final determination of the action to be taken on the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an active investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(e).)
Sec. 204.252. LICENSE HOLDER ACCESS TO COMPLAINT INFORMATION. (a) The physician assistant board shall provide a license holder who is the subject of a formal complaint filed under this chapter with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint, subject to any other privilege or restriction established by rule, statute, or legal precedent. The board shall provide the information not later than the 30th day after receipt of a written request from the license holder or the license holder's counsel, unless good cause is shown for delay.
(b) Notwithstanding Subsection (a), the board is not required to provide:
(1) board investigative reports;
(2) investigative memoranda;
(3) the identity of a nontestifying complainant;
(4) attorney-client communications;
(5) attorney work product; or
(6) other material covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
(c) The provision of information does not constitute a waiver of privilege or confidentiality under this chapter or other law. (V.A.C.S. Art. 4495b-1, Sec. 25(b).)
Sec. 204.253. HEALTH CARE ENTITY REQUEST FOR INFORMATION. On the written request of a health care entity, the physician assistant board shall provide to the entity:
(1) information about a complaint filed against a license holder that was resolved after investigation by:
(A) a disciplinary order of the board; or
(B) an agreed settlement; and
(2) the basis of and current status of any complaint under active investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(d).)
Sec. 204.254. CONFIDENTIALITY OF INVESTIGATIVE INFORMATION. A complaint, adverse report, investigation file, other report, or other investigative information in the possession of or received or gathered by the physician assistant board or a board employee or agent relating to a license holder, a license application, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to any person other than the board or a board employee or agent involved in license holder discipline. (V.A.C.S. Art. 4495b-1, Sec. 25(a).)
Sec. 204.255. PERMITTED DISCLOSURE OF INVESTIGATIVE INFORMATION. (a) Investigative information in the possession of a physician assistant board employee or agent that relates to the discipline of a license holder may be disclosed to:
(1) a licensing authority in another state or country in which the license holder is licensed or has applied for a license; or
(2) a peer review committee reviewing:
(A) an application for privileges; or
(B) the qualifications of the license holder with respect to retaining privileges.
(b) If investigative information in the possession of the physician assistant board or a board employee or agent indicates that a crime may have been committed, the board shall report the information to the proper law enforcement agency. The board shall cooperate with and assist each law enforcement agency conducting a criminal investigation of a license holder by providing information relevant to the investigation. Confidential information disclosed by the board to a law enforcement agency under this subsection remains confidential and may not be disclosed by the law enforcement agency except as necessary to further the investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(c).)
[Sections 204.256-204.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY PROCEEDINGS
Sec. 204.301. DISCIPLINARY AUTHORITY OF BOARD. (a) Except as provided by Section 204.305, on a determination that an applicant or license holder committed an act described in Section 204.302, 204.303, or 204.304, the physician assistant board by order shall take any of the following actions:
(1) deny the person's license application or revoke the person's license or other authorization;
(2) require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the physician assistant board;
(3) stay enforcement of an order and place the person on probation;
(4) require the person to complete additional training;
(5) suspend, limit, or restrict the person's license, including:
(A) limiting the practice of the person to, or excluding from the practice, one or more specified activities of the practice as a physician assistant; or
(B) stipulating periodic physician assistant board review;
(6) assess an administrative penalty against the person under Section 204.351;
(7) order the person to perform public service; or
(8) administer a public reprimand.
(b) If the physician assistant board stays enforcement of an order and places a person on probation, the board retains the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section.
(c) The physician assistant board may restore or reissue a license or remove any disciplinary or corrective measure that the board has imposed. (V.A.C.S. Art. 4495b-1, Sec. 19.)
Sec. 204.302. CONDUCT RELATED TO FRAUD OR MISREPRESENTATION. The physician assistant board may take action under Section 204.301 against an applicant or license holder who:
(1) fraudulently or deceptively obtains or attempts to obtain a license;
(2) fraudulently or deceptively uses a license;
(3) falsely represents that the person is a physician;
(4) acts in an unprofessional or dishonorable manner that is likely to deceive, defraud, or injure the public;
(5) fraudulently alters a physician assistant license, certificate, or diploma;
(6) uses a physician assistant license, certificate, or diploma that has been fraudulently purchased, issued, or counterfeited or that has been materially altered;
(7) directly or indirectly aids or abets a person not licensed to practice as a physician assistant in practicing as a physician assistant; or
(8) unlawfully advertises in a false, misleading, or deceptive manner, as described by Section 101.201. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)
Sec. 204.303. CONDUCT RELATED TO VIOLATION OF LAW. (a) The physician assistant board may take action under Section 204.301 against an applicant or license holder who:
(1) violates this chapter or a rule adopted under this chapter;
(2) is convicted of a felony, placed on deferred adjudication, or placed in a pretrial diversion program;
(3) violates state law if the violation is connected with practice as a physician assistant;
(4) fails to keep complete and accurate records of the purchase and disposal of drugs as required by Chapter 483, Health and Safety Code, or any subsequent rules; or
(5) writes a false or fictitious prescription for a dangerous drug as defined by Chapter 483, Health and Safety Code.
(b) A complaint, indictment, or conviction of a law violation is not necessary for the physician assistant board to act under Subsection (a)(3). Proof of the commission of the act while in practice as a physician assistant or under the guise of practice as a physician assistant is sufficient for action by the physician assistant board.
(c) A failure to keep the records described under Subsection (a)(4) for a reasonable time is grounds for disciplinary action against a physician assistant. The physician assistant board or its representative may enter and inspect a physician assistant's place or places of practice during reasonable business hours to:
(1) verify the correctness of the records; and
(2) inventory the drugs on hand. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)
Sec. 204.304. CONDUCT INDICATING LACK OF FITNESS. (a) The physician assistant board may take action under Section 204.301 against an applicant or license holder who:
(1) habitually uses drugs or intoxicating liquors to the extent that, in the board's opinion, the person cannot safely perform as a physician assistant;
(2) has been adjudicated as mentally incompetent;
(3) has a mental or physical condition that renders the person unable to safely perform as a physician assistant;
(4) has committed an act of moral turpitude;
(5) has failed to practice as a physician assistant in an acceptable manner consistent with public health and welfare;
(6) has had the person's license to practice as a physician assistant suspended, revoked, or restricted;
(7) has had other disciplinary action taken by another state or by the uniformed services of the United States regarding practice as a physician assistant;
(8) prescribes, dispenses, or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is prescribed, dispensed, or administered;
(9) is removed or suspended from, or has had disciplinary action taken by the person's peers in, any professional association or society, or is being disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of privileges, or other disciplinary action, if the reason for the discipline, in the board's opinion, is unprofessional conduct or professional incompetence likely to harm the public;
(10) has repeated or recurring meritorious health care liability claims that, in the board's opinion, are evidence of professional incompetence likely to harm the public; or
(11) sexually abuses or exploits another person through the license holder's practice as a physician assistant.
(b) A certified copy of the record of the state or uniformed services of the United States taking an action described by Subsection (a)(7) is conclusive evidence of the action.
(c) An action described by Subsection (a)(9) does not constitute state action on the part of the association, society, or hospital medical staff. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)
Sec. 204.305. REHABILITATION ORDER. The physician assistant board, through an agreed order or after a contested proceeding, may impose a rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:
(1) the person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;
(2) the person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as a physician assistant, if the person:
(A) reported the use; and
(B) has not previously been the subject of a substance abuse related order of the board;
(3) a judgment by a court that the person is of unsound mind; or
(4) the results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as a physician assistant with reasonable skill and safety because of illness or any other physical or mental condition. (V.A.C.S. Art. 4495b-1, Sec. 20(a).)
Sec. 204.306. EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 204.305 is a nondisciplinary private order. If entered by agreement, the order is an agreed disposition or settlement agreement for purposes of civil litigation and is exempt from Chapter 552, Government Code.
(b) The rehabilitation order must contain findings of fact and conclusions of law. The order may impose a revocation, suspension, period of probation or restriction, or any other term authorized by this chapter or agreed to by the board and the person subject to the order.
(c) A violation of a rehabilitation order may result in disciplinary action under the provisions of this chapter relating to contested matters or under the terms of the agreed order.
(d) A violation of a rehabilitation order is grounds for disciplinary action based on:
(1) unprofessional or dishonorable conduct; or
(2) any provision of this chapter that applies to the conduct that resulted in the violation. (V.A.C.S. Art. 4495b-1, Secs. 20(b), (c), (d).)
Sec. 204.307. AUDIT OF REHABILITATION ORDER. (a) The physician assistant board shall keep a rehabilitation order imposed under Section 204.305 in a confidential file. The file is subject to an independent audit by a state auditor or private auditor with whom the physician assistant board contracts to perform the audit to ensure that only qualified license holders are subject to rehabilitation orders.
(b) An audit may be performed at any time at the direction of the physician assistant board. The board shall ensure that an audit is performed at least once in each three-year period.
(c) The audit results are a matter of public record and shall be reported in a manner that maintains the confidentiality of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b-1, Sec. 20(e).)
Sec. 204.308. SUBPOENA. (a) The executive director or the secretary-treasurer of the medical board may issue a subpoena or subpoena duces tecum for the physician assistant board to:
(1) conduct an investigation or a contested proceeding related to:
(A) alleged misconduct by a physician assistant;
(B) an alleged violation of this chapter or other law related to practice as a physician assistant; or
(C) the provision of health care under this chapter;
(2) issue, suspend, restrict, or revoke a license under this chapter; or
(3) deny or grant an application for a license under this chapter.
(b) Failure to timely comply with a subpoena issued under this section is a ground for:
(1) disciplinary action by the physician assistant board or another licensing or regulatory agency with jurisdiction over the person subject to the subpoena; and
(2) denial of a license application. (V.A.C.S. Art. 4495b-1, Sec. 27.)
Sec. 204.309. PROTECTION OF PATIENT IDENTITY. In a disciplinary investigation or proceeding conducted under this chapter, the physician assistant board shall protect the identity of each patient whose medical records are examined and used in a public proceeding unless the patient:
(1) testifies in the public proceeding; or
(2) submits a written release in regard to the patient's records or identity. (V.A.C.S. Art. 4495b-1, Sec. 26.)
[Sections 204.310-204.350 reserved for expansion]
SUBCHAPTER H. PENALTIES
Sec. 204.351. ADMINISTRATIVE PENALTY. (a) The physician assistant board by order may impose an administrative penalty against a person licensed under this chapter who violates this chapter or a rule or order adopted under this chapter.
(b) The penalty may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(c) The physician assistant board shall base the amount of the penalty on:
(1) the severity of patient harm;
(2) the severity of economic harm to any person;
(3) the severity of any environmental harm;
(4) increased potential for harm to the public;
(5) any attempted concealment of misconduct;
(6) any premeditated or intentional misconduct;
(7) the motive for the violation;
(8) prior misconduct of a similar or related nature;
(9) the license holder's disciplinary history;
(10) prior written warnings or written admonishments from any government agency or official regarding statutes or regulations relating to the misconduct;
(11) violation of a board order;
(12) failure to implement remedial measures to correct or mitigate harm from the misconduct;
(13) lack of rehabilitative potential or likelihood of future misconduct of a similar nature;
(14) relevant circumstances increasing the seriousness of the misconduct; and
(15) any other matter that justice may require.
(d) The physician assistant board by rule shall prescribe the procedure by which it may impose an administrative penalty. A proceeding under this section is subject to Chapter 2001, Government Code.
(e) If the physician assistant board by order determines that a violation has occurred and imposes an administrative penalty, the board shall give notice to the person of the board's order. The notice must include a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4495b-1, Sec. 19.125.)
Sec. 204.352. CRIMINAL PENALTY. (a) A person commits an offense if, without holding a license issued under this chapter, the person:
(1) holds the person out as a physician assistant;
(2) uses any combination or abbreviation of the term "physician assistant" to indicate or imply that the person is a physician assistant; or
(3) acts as a physician assistant.
(b) An offense under this section is a felony of the third degree. (V.A.C.S. Art. 4495b-1, Sec. 21.)
CHAPTER 205. ACUPUNCTURE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 205.001. DEFINITIONS
Sec. 205.002. APPLICATION OF SUNSET ACT
Sec. 205.003. EXEMPTION; LIMITATION
[Sections 205.004-205.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS
Sec. 205.051. BOARD; MEMBERSHIP
Sec. 205.052. PUBLIC MEMBER ELIGIBILITY
Sec. 205.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 205.054. TERMS; VACANCIES
Sec. 205.055. PRESIDING OFFICER
Sec. 205.056. GROUNDS FOR REMOVAL
Sec. 205.057. TRAINING
Sec. 205.058. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 205.059. COMPENSATION; PER DIEM
Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND
ADMINISTRATIVE PROCEDURE LAWS
[Sections 205.061-205.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND
MEDICAL BOARD
Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE
BOARD
Sec. 205.102. ASSISTANCE BY MEDICAL BOARD
Sec. 205.103. FEES
Sec. 205.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 205.105. ANNUAL REPORT
[Sections 205.106-205.150 reserved for expansion]
SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION
AND COMPLAINT PROCEDURES
Sec. 205.151. PUBLIC INTEREST INFORMATION
Sec. 205.152. COMPLAINTS
Sec. 205.153. PUBLIC PARTICIPATION
[Sections 205.154-205.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 205.201. LICENSE REQUIRED
Sec. 205.202. ISSUANCE OF LICENSE
Sec. 205.203. LICENSE EXAMINATION
Sec. 205.204. APPLICATION FOR EXAMINATION
Sec. 205.205. EXAMINATION RESULTS
Sec. 205.206. ACUPUNCTURE SCHOOLS
Sec. 205.207. RECIPROCAL LICENSE
Sec. 205.208. TEMPORARY LICENSE
[Sections 205.209-205.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 205.251. ANNUAL RENEWAL REQUIRED
Sec. 205.252. NOTICE OF LICENSE EXPIRATION
Sec. 205.253. PROCEDURE FOR RENEWAL
Sec. 205.254. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
[Sections 205.255-205.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 205.301. REFERRAL BY OTHER HEALTH CARE PRACTITIONER
REQUIRED
Sec. 205.302. AUTHORIZED PRACTICE WITHOUT REFERRAL
Sec. 205.303. ACUDETOX SPECIALIST
Sec. 205.304. PROFESSIONAL REVIEW ACTION
Sec. 205.305. LICENSE HOLDER INFORMATION
[Sections 205.306-205.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY PROCEDURES
Sec. 205.351. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY
ACTION
Sec. 205.352. DISCIPLINARY POWERS OF BOARD
Sec. 205.353. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD
Sec. 205.354. RULES FOR DISCIPLINARY PROCEEDINGS
Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO
OBTAIN REFERRAL
Sec. 205.356. REHABILITATION ORDER
Sec. 205.357. EFFECT OF REHABILITATION ORDER
Sec. 205.358. AUDIT OF REHABILITATION ORDER
Sec. 205.359. SUBPOENA
[Sections 205.360-205.400 reserved for expansion]
SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 205.401. CRIMINAL PENALTY
Sec. 205.402. INJUNCTIVE RELIEF; CIVIL PENALTY
CHAPTER 205. ACUPUNCTURE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 205.001. DEFINITIONS. In this chapter:
(1) "Acudetox specialist" means a person certified under Section 205.303.
(2) "Acupuncture" means:
(A) the nonsurgical, nonincisive insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition; and
(B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by Paragraph (A).
(3) "Acupuncture board" means the Texas State Board of Acupuncture Examiners.
(4) "Acupuncturist" means a person who practices acupuncture.
(5) "Chiropractor" means a person licensed to practice chiropractic by the Texas Board of Chiropractic Examiners.
(6) "Executive director" means the executive director of the Texas State Board of Medical Examiners.
(7) "Medical board" means the Texas State Board of Medical Examiners.
(8) "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4495b, Secs. 6.02(1) (part), (2), (3), (4), (5), (6), (7), (8).)
Sec. 205.002. APPLICATION OF SUNSET ACT. The Texas State Board of Acupuncture Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4495b, Sec. 6.04(l).)
Sec. 205.003. EXEMPTION; LIMITATION. (a) This chapter does not apply to a health care professional licensed under another statute of this state and acting within the scope of the license.
(b) This chapter does not:
(1) limit the practice of medicine by a physician;
(2) permit the unauthorized practice of medicine; or
(3) permit a person to dispense, administer, or supply a controlled substance, narcotic, or dangerous drug unless the person is authorized by other law to do so. (V.A.C.S. Art. 4495b, Sec. 6.03.)
[Sections 205.004-205.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS
Sec. 205.051. BOARD; MEMBERSHIP. (a) The Texas State Board of Acupuncture Examiners consists of nine members appointed by the governor as follows:
(1) four acupuncturist members who have at least five years of experience in the practice of acupuncture in this state and who are not physicians;
(2) two physician members experienced in the practice of acupuncture; and
(3) three members of the general public who are not licensed or trained in a health care profession.
(b) Appointments to the acupuncture board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4495b, Secs. 6.04(a), (k).)
Sec. 205.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the acupuncture board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the medical board or receiving funds from the medical board or acupuncture board;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the medical board or acupuncture board or receiving funds from the medical board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the medical board or acupuncture board, other than compensation or reimbursement authorized by law for acupuncture board membership, attendance, or expenses. (V.A.C.S. Art. 4495b, Sec. 6.04(g), as amended Acts 75th Leg., R.S., Ch. 1170.)
Sec. 205.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the acupuncture board or an employee of the medical board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the acupuncture board and may not be an employee of the medical board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve on the acupuncture 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 medical board or acupuncture board. (V.A.C.S. Art. 4495b, Secs. 6.04(b), (h), (i), (j).)
Sec. 205.054. TERMS; VACANCIES. (a) Members of the acupuncture board serve staggered six-year terms. The terms of three members expire on January 31 of each odd-numbered year.
(b) A vacancy on the acupuncture board shall be filled by appointment of the governor. (V.A.C.S. Art. 4495b, Secs. 6.04(c), (e).)
Sec. 205.055. PRESIDING OFFICER. The governor shall designate a member of the acupuncture board as presiding officer. The presiding officer serves in that capacity at the will of the governor. (V.A.C.S. Art. 4495b, Sec. 6.04(d).)
Sec. 205.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the acupuncture board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 205.051 and 205.052;
(2) does not maintain during service on the acupuncture board the qualifications required by Sections 205.051 and 205.052;
(3) violates a prohibition established by Section 205.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled acupuncture board meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the acupuncture board is not affected by the fact that it is taken when a ground for removal of an acupuncture board member exists.
(c) If the executive director has knowledge that a potential ground for removal of an acupuncture board member exists, the executive director shall notify the presiding officer of the acupuncture board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the acupuncture board, who shall notify the governor and the attorney general that a potential ground for removal exists. (V.A.C.S. Art. 4495b, Secs. 6.041(a), (b), (c).)
Sec. 205.057. TRAINING. (a) To be eligible to take office as a member of the acupuncture board, a person appointed to the acupuncture board must complete at least one course of a training program that complies with this section.
(b) The training program must provide information to the person regarding:
(1) this chapter and the acupuncture board;
(2) the programs operated by the acupuncture board;
(3) the role and functions of the acupuncture board;
(4) the rules of the acupuncture board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the acupuncture board;
(6) the results of the most recent formal audit of the acupuncture board;
(7) the requirements of the:
(A) open meetings law, Chapter 551, Government Code;
(B) open records law, Chapter 552, Government Code; and
(C) administrative procedure law, Chapter 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the medical board or the Texas Ethics Commission.
(c) A person appointed to the acupuncture board is entitled to reimbursement for travel expenses incurred in attending the training program, as provided by the General Appropriations Act and as if the person were a member of the acupuncture board. (V.A.C.S. Art. 4495b, Sec. 6.042.)
Sec. 205.058. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide, as often as necessary, to members of the acupuncture board information regarding their:
(1) qualifications for office under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers. (V.A.C.S. Art. 4495b, Sec. 6.041(d).)
Sec. 205.059. COMPENSATION; PER DIEM. An acupuncture board member may not receive compensation for service on the acupuncture board but is entitled to receive a per diem as set by legislative appropriation for transportation and related expenses incurred for each day that the member engages in the acupuncture board's business. (V.A.C.S. Art. 4495b, Sec. 6.04(f).)
Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND ADMINISTRATIVE PROCEDURE LAWS. Except as provided by this chapter, the acupuncture board is subject to Chapters 551, 552, and 2001, Government Code. (V.A.C.S. Art. 4495b, Sec. 6.04(g), as amended Acts 75th Leg., R.S., Ch. 694.)
[Sections 205.061-205.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND
MEDICAL BOARD
Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE BOARD. (a) Subject to the advice and approval of the medical board, the acupuncture board shall:
(1) establish qualifications for an acupuncturist to practice in this state;
(2) establish minimum education and training requirements necessary for the acupuncture board to recommend that the medical board issue a license to practice acupuncture;
(3) administer an examination that is validated by independent testing professionals for a license to practice acupuncture;
(4) develop requirements for licensure by endorsement of other states;
(5) prescribe the application form for a license to practice acupuncture;
(6) make recommendations on applications for licenses to practice acupuncture;
(7) establish the requirements for a tutorial program for acupuncture students who have completed at least 48 semester hours of college; and
(8) recommend additional rules as are necessary to administer and enforce this chapter.
(b) The acupuncture board does not have independent rulemaking authority. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), (c).)
Sec. 205.102. ASSISTANCE BY MEDICAL BOARD. (a) The medical board shall provide administrative and clerical employees as necessary to enable the acupuncture board to administer this chapter.
(b) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that clearly separate the policy-making responsibilities of the acupuncture board and the management responsibilities of the executive director and the staff of the medical board. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), 6.08.)
Sec. 205.103. FEES. The medical board shall set and collect fees in amounts that are reasonable and necessary to cover the costs of administering and enforcing this chapter without the use of any other funds generated by the medical board. (V.A.C.S. Art. 4495b, Sec. 6.09(a).)
Sec. 205.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The medical board may not adopt rules under this chapter restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.
(b) In its rules to prohibit false, misleading, or deceptive practices, the medical board may not include a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the use of a license holder's personal appearance or voice in an advertisement;
(3) relates to the size or duration of an advertisement by the license holder; or
(4) restricts the license holder's advertisement under a trade name. (V.A.C.S. Art. 4495b, Sec. 6.085.)
Sec. 205.105. ANNUAL REPORT. (a) The medical board shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the medical board under this chapter during the preceding fiscal year.
(b) The annual report must meet the reporting requirements applicable to financial reporting provided in the General Appropriations Act. (V.A.C.S. Art. 4495b, Sec. 6.09(d).)
[Sections 205.106-205.150 reserved for expansion]
SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION
AND COMPLAINT PROCEDURES
Sec. 205.151. PUBLIC INTEREST INFORMATION. (a) The acupuncture board shall prepare information of public interest describing the functions of the acupuncture board and the procedures by which complaints are filed with and resolved by the acupuncture board.
(b) The acupuncture board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4495b, Sec. 6.051(a).)
Sec. 205.152. COMPLAINTS. (a) The acupuncture board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the acupuncture board for the purpose of directing a complaint to the acupuncture board. The acupuncture board may provide for that notification:
(1) on each registration form, application, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for service provided by a person regulated under this chapter.
(b) The acupuncture board shall keep information about each complaint filed with the acupuncture board. The information shall include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of all persons contacted in relation to the complaint;
(5) a summary of the results of the review or investigation of the complaint; and
(6) for a complaint for which the acupuncture board took no action, an explanation of the reason the complaint was closed without action.
(c) The acupuncture board shall keep a file about each written complaint filed with the acupuncture board that the acupuncture board has authority to resolve. The acupuncture board shall provide to the person filing the complaint and each person who is the subject of the complaint the acupuncture board's policies and procedures pertaining to complaint investigation and resolution.
(d) The acupuncture board, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is the subject of the complaint of the status of the complaint unless the notice would jeopardize an investigation. (V.A.C.S. Art. 4495b, Secs. 6.051(b), (c), (d).)
Sec. 205.153. PUBLIC PARTICIPATION. (a) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the acupuncture board and to speak on any issue under the acupuncture board's jurisdiction.
(b) The executive director shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the acupuncture board's programs and services. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), (b) (part).)
[Sections 205.154-205.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 205.201. LICENSE REQUIRED. Except as provided by Section 205.303, a person may not practice acupuncture in this state unless the person holds a license to practice acupuncture issued by the medical board under this chapter. (V.A.C.S. Art. 4495b, Sec. 6.06.)
Sec. 205.202. ISSUANCE OF LICENSE. After consulting the acupuncture board, the medical board shall issue a license to practice acupuncture in this state to a person who meets the requirements of this chapter and the rules adopted under this chapter. (V.A.C.S. Art. 4495b, Sec. 6.10(a).)
Sec. 205.203. LICENSE EXAMINATION. (a) An applicant for a license to practice acupuncture must pass an examination approved by the acupuncture board.
(b) To be eligible for the examination, an applicant must:
(1) be at least 21 years of age;
(2) have completed at least 48 semester hours of college courses, including basic science courses as determined by the acupuncture board; and
(3) be a graduate of an acupuncture school with entrance requirements and a course of instruction that meet standards set under Section 205.206.
(c) The examination shall be conducted on practical and theoretical acupuncture and other subjects required by the acupuncture board.
(d) The examination may be in writing, by a practical demonstration of the applicant's skill, or both, as required by the acupuncture board.
(e) The medical board shall notify each applicant of the time and place of the examination. (V.A.C.S. Art. 4495b, Secs. 6.07(a), (b), (e), (g), (h).)
Sec. 205.204. APPLICATION FOR EXAMINATION. An application for examination must be:
(1) in writing on a form prescribed by the acupuncture board;
(2) verified by affidavit;
(3) filed with the executive director; and
(4) accompanied by a fee in an amount set by the medical board. (V.A.C.S. Art. 4495b, Sec. 6.07(f).)
Sec. 205.205. EXAMINATION RESULTS. (a) Not later than the 30th day after the date a licensing examination is administered under this chapter, the acupuncture board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the acupuncture board shall notify examinees of the results of the examination not later than the 14th day after the date the acupuncture board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the acupuncture board shall notify the examinee of the reason for the delay before the 90th day. The acupuncture board may require a testing service to notify examinees of the results of an examination.
(c) If requested in writing by a person who fails a licensing examination administered under this chapter, the acupuncture board shall furnish the person with an analysis of the person's performance on the examination if an analysis is available from the national testing service. (V.A.C.S. Art. 4495b, Sec. 6.071.)
Sec. 205.206. ACUPUNCTURE SCHOOLS. (a) A reputable acupuncture school, in addition to meeting standards set by the acupuncture board, must:
(1) maintain a resident course of instruction equivalent to not less than six terms of four months each for a total of not less than 1,800 instructional hours;
(2) provide supervised patient treatment for at least two terms of the resident course of instruction;
(3) maintain a course of instruction in anatomy-histology, bacteriology, physiology, symptomatology, pathology, meridian and point locations, hygiene, and public health; and
(4) have the necessary teaching force and facilities for proper instruction in required subjects.
(b) In establishing standards for the entrance requirements and course of instruction of an acupuncture school, the acupuncture board may consider the standards set by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine. (V.A.C.S. Art. 4495b, Secs. 6.07(c), (d).)
Sec. 205.207. RECIPROCAL LICENSE. The medical board may waive any license requirement for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license from another state that has license requirements substantially equivalent to those of this state. (V.A.C.S. Art. 4495b, Sec. 6.10(b).)
Sec. 205.208. TEMPORARY LICENSE. (a) The acupuncture board may, through the executive director, issue a temporary license to practice acupuncture to an applicant who:
(1) submits an application on a form prescribed by the acupuncture board;
(2) has passed a national or other examination recognized by the acupuncture board relating to the practice of acupuncture;
(3) pays the appropriate fee;
(4) if licensed in another state, is in good standing as an acupuncturist; and
(5) meets all the qualifications for a license under this chapter but is waiting for the next scheduled meeting of the medical board for the license to be issued.
(b) A temporary license is valid for 100 days after the date issued and may be extended only for another 30 days after the date the initial temporary license expires. (V.A.C.S. Art. 4495b, Sec. 6.075.)
[Sections 205.209-205.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 205.251. ANNUAL RENEWAL REQUIRED. (a) The medical board by rule shall provide for the annual renewal of a license to practice acupuncture.
(b) The medical board by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4495b, Secs. 6.10(c), (j).)
Sec. 205.252. NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the expiration date of a person's license, the medical board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the medical board. (V.A.C.S. Art. 4495b, Sec. 6.10(i).)
Sec. 205.253. PROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the medical board before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed under this section or Section 205.254.
(b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the medical board a fee in an amount equal to one and one-half times the required renewal fee.
(c) If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the medical board a fee in an amount equal to two times the required renewal fee.
(d) If the person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4495b, Secs. 6.10(d), (e), (f), (g).)
Sec. 205.254. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The medical board may renew without reexamination the license of a person who was licensed to practice acupuncture in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the medical board a fee in an amount equal to two times the required renewal fee for the license. (V.A.C.S. Art. 4495b, Sec. 6.10(h).)
[Sections 205.255-205.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 205.301. REFERRAL BY OTHER HEALTH CARE PRACTITIONER REQUIRED. (a) A license holder may perform acupuncture on a person only if the person was:
(1) evaluated by a physician or dentist, as appropriate, for the condition being treated within six months before the date acupuncture is performed; or
(2) referred by a chiropractor within 30 days before the date acupuncture is performed.
(b) A license holder acting under Subsection (a)(1) must obtain reasonable documentation that the required evaluation has taken place. If the license holder is unable to determine that an evaluation has taken place, the license holder must obtain a written statement signed by the person on a form prescribed by the acupuncture board that states the person has been evaluated by a physician or dentist within the prescribed time. The form must contain a clear statement that the person should be evaluated by a physician or dentist for the condition being treated by the license holder.
(c) A license holder acting under Subsection (a)(2) shall refer the person to a physician after performing acupuncture 20 times or for 30 days, whichever occurs first, if substantial improvement does not occur in the person's condition for which the referral was made.
(d) The medical board, with advice from the acupuncture board, by rule may modify:
(1) the scope of the evaluation under Subsection (a)(1);
(2) the period during which treatment must begin under Subsection (a)(1) or (2); or
(3) the number of treatments or days before referral to a physician is required under Subsection (c). (V.A.C.S. Art. 4495b, Secs. 6.115(a) (part), (b), (c), (d), (e).)
Sec. 205.302. AUTHORIZED PRACTICE WITHOUT REFERRAL. Notwithstanding Section 205.301, a license holder may, without a referral from a physician, dentist, or chiropractor, perform acupuncture on a person for:
(1) smoking addiction;
(2) weight loss; or
(3) substance abuse, to the extent permitted by medical board rule adopted with advice from the acupuncture board. (V.A.C.S. Art. 4495b, Sec. 6.115(f).)
Sec. 205.303. ACUDETOX SPECIALIST. (a) The medical board may certify a person as an acudetox specialist under this section if the person:
(1) provides to the medical board documentation that the person:
(A) is a certified social worker, licensed professional counselor, licensed psychologist, licensed chemical dependency counselor, or licensed registered nurse; and
(B) has successfully completed a training program in acupuncture detoxification that meets guidelines approved by the medical board; and
(2) pays a certification fee in an amount set by the medical board.
(b) An acudetox specialist may practice acupuncture only:
(1) to the extent allowed by rules adopted by the medical board for the treatment of alcoholism, substance abuse, or chemical dependency; and
(2) under the supervision of a licensed acupuncturist or physician.
(c) A program that includes the services of an acudetox specialist shall:
(1) notify each participant in the program of the qualifications of the acudetox specialist and of the procedure for registering a complaint regarding the acudetox specialist with the medical board; and
(2) keep a record of each client's name, the date the client received the acudetox specialist's services, and the name, signature, and certification number of the acudetox specialist.
(d) The medical board may annually renew the certification of an acudetox specialist under this section if the person:
(1) provides to the medical board documentation that:
(A) the certification or license required under Subsection (a)(1)(A) is in effect; and
(B) the person has successfully met continuing education requirements established by the medical board under Subsection (e); and
(2) pays a certification renewal fee in an amount set by the medical board.
(e) The medical board shall establish continuing education requirements for an acudetox specialist that, at a minimum, include six hours of education in the practice of acupuncture and a course in either clean needle technique or universal infection control precaution procedures. (V.A.C.S. Art. 4495b, Sec. 6.02(1) (part); Sec. 6.118, as added Acts 75th Leg., R.S., Ch. 626.)
Sec. 205.304. PROFESSIONAL REVIEW ACTION. Sections 160.002, 160.003, 160.006, 160.007(d), 160.013, and 160.014 apply to professional review actions relating to the practice of acupuncture by an acupuncturist or acupuncturist student. (V.A.C.S. Art. 4495b, Secs. 5.06(b) (part), (d) (part), (f) (part), (i) (part), (r) (part), (s) (part).)
Sec. 205.305. LICENSE HOLDER INFORMATION. (a) Each license holder shall file with the acupuncture board:
(1) the license holder's mailing address;
(2) the address of the license holder's residence;
(3) the mailing address of each office of the license holder; and
(4) the address for the location of each office of the license holder that has an address different from the office's mailing address.
(b) A license holder shall:
(1) notify the acupuncture board of a change of the license holder's residence or business address; and
(2) provide the acupuncture board with the license holder's new address not later than the 30th day after the date the address change occurs. (V.A.C.S. Art. 4495b, Sec. 6.101.)
[Sections 205.306-205.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY PROCEDURES
Sec. 205.351. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. (a) A license to practice acupuncture may be denied or, after notice and hearing, a license holder may be subject to disciplinary action under Section 205.352 if the license applicant or license holder:
(1) intemperately uses drugs or intoxicating liquors to an extent that, in the opinion of the board, could endanger the lives of patients;
(2) obtains or attempts to obtain a license by fraud or deception;
(3) has been adjudged mentally incompetent by a court;
(4) has a mental or physical condition that renders the person unable to perform safely as an acupuncturist;
(5) fails to practice acupuncture in an acceptable manner consistent with public health and welfare;
(6) violates this chapter or a rule adopted under this chapter;
(7) has been convicted of a crime involving moral turpitude or a felony or is the subject of deferred adjudication or pretrial diversion for such an offense;
(8) holds the person out as a physician or surgeon or any combination or derivative of those terms unless the person is also licensed by the medical board as a physician or surgeon;
(9) fraudulently or deceptively uses a license;
(10) engages in unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a member of the public;
(11) commits an act in violation of state law if the act is connected with the person's practice as an acupuncturist;
(12) fails to adequately supervise the activities of a person acting under the supervision of the license holder;
(13) directly or indirectly aids or abets the practice of acupuncture by any person not licensed to practice acupuncture by the acupuncture board;
(14) is unable to practice acupuncture with reasonable skill and with safety to patients because of illness, drunkenness, or excessive use of drugs, narcotics, chemicals, or any other type of material or because of any mental or physical condition;
(15) is the subject of repeated or recurring meritorious health-care liability claims that in the opinion of the acupuncture board evidence professional incompetence likely to injure the public;
(16) has had a license to practice acupuncture suspended, revoked, or restricted by another state or has been subject to other disciplinary action by another state or by the uniformed services of the United States regarding practice as an acupuncturist; or
(17) sexually abuses or exploits another person through the license holder's practice as an acupuncturist.
(b) If the medical board proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.
(c) A complaint, indictment, or conviction of a violation of law is not necessary for an action under Subsection (a)(11). Proof of the commission of the act while in the practice of acupuncture or under the guise of the practice of acupuncture is sufficient for action by the medical board.
(d) A certified copy of the record of the state or uniformed services of the United States taking an action is conclusive evidence of the action for purposes of Subsection (a)(16). (V.A.C.S. Art. 4495b, Sec. 6.11(a), as amended Acts 75th Leg., R.S., Ch. 694; Sec. 6.11(a), as amended Acts 75th Leg., R.S., Ch. 1170; Secs. 6.11(b), (c); Sec. 6.117 (part).)
Sec. 205.352. DISCIPLINARY POWERS OF BOARD. On finding that grounds exist to deny a license or take disciplinary action against a license holder, the board by order may:
(1) deny the person's application for a license or certificate to practice acupuncture or revoke the person's license or certificate to practice acupuncture;
(2) require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the board as a condition for the issuance, continuance, or renewal of a license or certificate to practice acupuncture;
(3) require the person to participate in a program of education or counseling prescribed by the board;
(4) suspend, limit, or restrict the person's license or certificate to practice acupuncture, including limiting the practice of the person to, or excluding from the practice, one or more specified activities of acupuncture or stipulating periodic review by the board;
(5) require the person to practice under the direction of an acupuncturist designated by the board for a specified period of time;
(6) assess an administrative penalty against the person as provided by Chapter 165;
(7) require the person to perform public service considered appropriate by the board; or
(8) administer a public reprimand. (V.A.C.S. Art. 4495b, Sec. 6.11(h).)
Sec. 205.353. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD. (a) On finding that a person licensed under this chapter has committed an offense described in Section 205.351, the acupuncture board may:
(1) require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the acupuncture board;
(2) stay enforcement of an order and place the person on probation with the acupuncture board retaining the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section;
(3) order the person to perform public service;
(4) limit the person's practice to the areas prescribed by the acupuncture board;
(5) require the person to report regularly to the acupuncture board on matters that are the basis of the probation; or
(6) require the person to continue or review professional education until the person attains a degree of skill satisfactory to the acupuncture board in those areas that are the basis of the probation under Subdivision (2).
(b) The acupuncture board may restore or reissue a license or remove any disciplinary or corrective measure that the acupuncture board has imposed under this section. (V.A.C.S. Art. 4495b, Sec. 6.116.)
Sec. 205.354. RULES FOR DISCIPLINARY PROCEEDINGS. Rules of practice adopted by the medical board under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (V.A.C.S. Art. 4495b, Sec. 6.117 (part).)
Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO OBTAIN REFERRAL. Except as provided by Section 205.301(a)(2), a license to practice acupuncture shall be denied or, after notice and hearing, revoked if the applicant or license holder violates Section 205.301(a)(1). (V.A.C.S. Art. 4495b, Sec. 6.115(a) (part).)
Sec. 205.356. REHABILITATION ORDER. The acupuncture board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:
(1) the person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;
(2) the person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as an acupuncturist, if the person:
(A) reported the use; and
(B) has not previously been the subject of a substance abuse related order of the acupuncture board;
(3) a judgment by a court that the person is of unsound mind; or
(4) the results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as an acupuncturist with reasonable skill and safety by reason of illness or as a result of any physical or mental condition. (V.A.C.S. Art. 4495b, Sec. 6.118(a), as added Acts 75th Leg., R.S., Ch. 1170.)
Sec. 205.357. EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 205.356 is a nondisciplinary private order. If entered by agreement, the order is an agreed disposition or settlement agreement for purposes of civil litigation and is exempt from the open records law.
(b) A rehabilitation order imposed under Section 205.356 must contain findings of fact and conclusions of law. The order may impose a revocation, cancellation, suspension, period of probation or restriction, or any other term authorized by this chapter or agreed to by the acupuncture board and the person subject to the order.
(c) A violation of a rehabilitation order may result in disciplinary action under the provisions of this chapter for contested matters or the terms of the agreed order.
(d) A violation of a rehabilitation order is grounds for disciplinary action based on:
(1) unprofessional or dishonorable conduct; or
(2) any provision of this chapter that applies to the conduct resulting in the violation. (V.A.C.S. Art. 4495b, Secs. 6.118(b), (c), (d), as added Acts 75th Leg., R.S., Ch. 1170.)
Sec. 205.358. AUDIT OF REHABILITATION ORDER. (a) The acupuncture board shall keep rehabilitation orders imposed under Section 205.356 in a confidential file. The file is subject to an independent audit to ensure that only qualified license holders are subject to rehabilitation orders. The audit shall be conducted by a state auditor or private auditor with whom the acupuncture board contracts to perform the audit.
(b) An audit may be performed at any time at the direction of the acupuncture board. The acupuncture board shall ensure that an audit is performed at least once in each three-year period.
(c) The audit results are a matter of public record and shall be reported in a manner that maintains the confidentiality of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b, Sec. 6.118(e), as added Acts 75th Leg., R.S., Ch. 1170.)
Sec. 205.359. SUBPOENA. (a) On behalf of the acupuncture board, the executive director of the medical board or the presiding officer of the acupuncture board may issue a subpoena or subpoena duces tecum:
(1) for purposes of an investigation or contested proceeding related to:
(A) alleged misconduct by an acupuncturist; or
(B) an alleged violation of this chapter or other law related to practice as an acupuncturist or to the provision of health care under the authority of this chapter; and
(2) to determine whether to:
(A) issue, suspend, restrict, revoke, or cancel a license authorized by this chapter; or
(B) deny or grant an application for a license under this chapter.
(b) Failure to timely comply with a subpoena issued under this section is a ground for:
(1) disciplinary action by the acupuncture board or any other licensing or regulatory agency with jurisdiction over the individual or entity subject to the subpoena; and
(2) denial of a license application. (V.A.C.S. Art. 4495b, Sec. 6.125.)
[Sections 205.360-205.400 reserved for expansion]
SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 205.401. CRIMINAL PENALTY. (a) Except as provided by Section 205.303, a person commits an offense if the person practices acupuncture in this state without a license issued under this chapter.
(b) Each day a person practices acupuncture in violation of Subsection (a) constitutes a separate offense.
(c) An offense under Subsection (a) is a felony of the third degree. (V.A.C.S. Art. 4495b, Sec. 6.12.)
Sec. 205.402. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The medical board, the attorney general, or a district or county attorney may bring a civil action to compel compliance with this chapter or to enforce a rule adopted under this chapter.
(b) In addition to injunctive relief or any other remedy provided by law, a person who violates this chapter or a rule adopted under this chapter is liable to the state for a civil penalty in an amount not to exceed $2,000 for each violation.
(c) Each day a violation continues or occurs is a separate violation for purposes of imposing a civil penalty.
(d) The attorney general, at the request of the medical board or on the attorney general's own initiative, may bring a civil action to collect a civil penalty. (V.A.C.S. Art. 4495b, Secs. 6.13(a), (b) (part).)
[Chapters 206-250 reserved for expansion]
SUBTITLE D. DENTISTRY
CHAPTER 251. GENERAL PROVISIONS RELATING TO
PRACTICE OF DENTISTRY
Sec. 251.001. SHORT TITLE
Sec. 251.002. DEFINITIONS
Sec. 251.003. PRACTICE OF DENTISTRY
Sec. 251.004. EXEMPTION FROM PRACTICE OF DENTISTRY
Sec. 251.005. APPLICATION OF SUNSET ACT
CHAPTER 251. GENERAL PROVISIONS RELATING TO
PRACTICE OF DENTISTRY
Sec. 251.001. SHORT TITLE. This subtitle may be cited as the Dental Practice Act. (V.A.C.S. Art. 4543, Sec. 1.)
Sec. 251.002. DEFINITIONS. In this subtitle:
(1) "Board" means the State Board of Dental Examiners.
(2) "Executive director" means the executive director of the board. (New.)
Sec. 251.003. PRACTICE OF DENTISTRY. (a) For purposes of this subtitle, a person practices dentistry if the person:
(1) represents to the public that the person is a dentist or dental surgeon or uses or permits to be used for the person or another person the title of "Doctor," "Dr.," "Doctor of Dental Surgery," "D.D.S.," "Doctor of Dental Medicine," "D.M.D.," or another description, including the use of the terms "denturist" or "denturism," that, directly or indirectly, represents that the person is able to:
(A) diagnose, treat, or remove stains or concretions from human teeth; or
(B) provide surgical and adjunctive treatment for a disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, oral cavity, alveolar process, gums, jaws, or directly related and adjacent masticatory structures;
(2) performs or offers to perform by any means the:
(A) cleaning of human teeth;
(B) removal of stains, concretions, or deposits from teeth in the human mouth; or
(C) diagnosis, treatment, operation, or prescription for a disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, oral cavity, alveolar process, gums, or jaws;
(3) prescribes, makes, or causes to be made or offers to prescribe, make, or cause to be made by any means an impression of any portion of the human mouth, teeth, gums, or jaws:
(A) to diagnose, prescribe, or treat, or aid in the diagnosis, prescription, or treatment, of a physical condition of the human mouth, teeth, gums, or jaws; or
(B) to construct or aid in the construction of a dental appliance, denture, dental bridge, false teeth, dental plate of false teeth, or another substitute for human teeth;
(4) owns, maintains, or operates an office or place of business in which the person employs or engages under any type of contract another person to practice dentistry;
(5) fits, adjusts, repairs, or substitutes or offers to fit, adjust, repair, or substitute in the human mouth or directly related and adjacent masticatory structures a dental appliance, structure, prosthesis, or denture;
(6) aids in the fitting, adjusting, repairing, or substituting or causes to be fitted, adjusted, repaired, or substituted in the human mouth or directly related and adjacent masticatory structures a dental appliance, structure, prosthesis, or denture;
(7) without a written prescription or work order signed by a dentist legally practicing dentistry in this state or in the jurisdiction in which the dentist maintains the dentist's office:
(A) makes, processes, reproduces, repairs, or relines a full or partial denture, fixed or removable dental bridge or appliance, dental plate of false teeth, artificial dental restoration, or a substitute or corrective device or appliance for the human teeth, gums, jaws, mouth, alveolar process, or any part for another; or
(B) offers, undertakes, aids, abets, or causes another person to engage in an activity described by Paragraph (A);
(8) directly or indirectly offers, undertakes, or causes another to perform for any person an act, service, or part of an act or service in the practice of dentistry, including:
(A) inducing, administering, prescribing, or dispensing anesthesia or an anesthetic drug, medicine, or an agent in any way related to the practice of dentistry;
(B) permitting or allowing another to use the person's license or certificate to practice dentistry in this state; or
(C) aiding or abetting the practice of dentistry by a person not licensed by the board to practice dentistry;
(9) controls, influences, attempts to control or influence, or otherwise interferes with the exercise of a dentist's independent professional judgment regarding the diagnosis or treatment of a dental disease, disorder, or physical condition; or
(10) represents that the person is a denturist or uses another title that is intended to convey to the public that the services offered by the person are included within the practice of dentistry.
(b) The practice of dentistry under Subsection (a)(9) does not:
(1) require an entity to pay for services that are not provided for in an agreement; or
(2) exempt a dentist who is a member of a hospital staff from following hospital bylaws, medical staff bylaws, or established policies approved by the governing board and the medical and dental staff of the hospital.
(c) In this subtitle, the practice of the dental specialty of oral and maxillofacial surgery includes the diagnosis of and the surgical and adjunctive treatment of diseases, injuries, and defects involving the functional and aesthetic aspects of the hard and soft tissues of the oral and maxillofacial region. (V.A.C.S. Arts. 4548b, 4551a (part).)
Sec. 251.004. EXEMPTION FROM PRACTICE OF DENTISTRY. A person does not practice dentistry as provided by Section 251.003 if the person is:
(1) a faculty member of a reputable dental or dental hygiene school in which the member performs services for the sole benefit of the school;
(2) a student of a reputable dental school who performs the student's operations without pay, except for actual cost of materials, in the presence of and under the direct personal supervision of a demonstrator or teacher who is a faculty member of a reputable dental school;
(3) a person:
(A) who performs laboratory work only on inert matter; and
(B) who does not solicit or obtain work by any means from a person who is not a licensed dentist engaged in the practice of dentistry and does not act as the agent or solicitor of, and does not have any interest in, a dental office or practice or the receipts of a dental office or practice;
(4) a physician licensed in this state who does not represent that the person is practicing dentistry, including a physician who extracts teeth or applies pain relief in the regular practice of the physician's profession;
(5) a dental hygienist:
(A) who is authorized to practice dental hygiene in this state; and
(B) who practices dental hygiene in strict conformity with the state law regulating the practice of dental hygiene;
(6) a person who is a member of an established church and practices healing by prayer only;
(7) an employee of a licensed dentist in this state who makes dental x-rays in the dental office under the supervision of the dentist;
(8) a Dental Health Service Corporation chartered under Section A(1), Article 2.01, Texas Non-Profit Corporation Act (Article 1396-2.01, Vernon's Texas Civil Statutes);
(9) a dental intern or dental resident as defined and regulated by board rules;
(10) a student:
(A) who is in a dental hygiene program accredited by the Commission on Dental Accreditation of the American Dental Association and operated at an accredited institution of higher education;
(B) who practices dental hygiene without pay under the general supervision of a dentist and under the supervision of a demonstrator or teacher who is a faculty member of the program:
(i) in a clinic operated for the sole benefit of the program's institution of higher education; or
(ii) in a clinic operated by a government or nonprofit organization that serves underserved populations as determined by board rule; and
(C) who practices in strict conformity with state law regulating the practice of dental hygiene;
(11) a dental assistant who performs duties permitted under Chapter 265, in strict conformity with state law; or
(12) a dentist licensed by another state or a foreign country who performs a clinical procedure only as a demonstration for professional and technical education purposes, if the dentist first obtains from the board a temporary license for that purpose. (V.A.C.S. Arts. 4548 (part), 4551b.)
Sec. 251.005. APPLICATION OF SUNSET ACT. The State Board of Dental Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4543b.)
CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS
Sec. 252.001. BOARD MEMBERSHIP
Sec. 252.002. MEMBER ELIGIBILITY
Sec. 252.003. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 252.004. TERMS OF OFFICE
Sec. 252.005. PRIVILEGES OF OFFICE
Sec. 252.006. OFFICERS
Sec. 252.007. GROUNDS FOR REMOVAL
Sec. 252.008. PER DIEM; REIMBURSEMENT
Sec. 252.009. MEETINGS
Sec. 252.010. BOARD MEMBER TRAINING
Sec. 252.011. OATH OF OFFICE
CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS
Sec. 252.001. BOARD MEMBERSHIP. (a) The State Board of Dental Examiners consists of 18 members appointed by the governor with the advice and consent of the senate as follows:
(1) 10 reputable dentist members who reside in this state and have been actively engaged in the practice of dentistry for at least the five years preceding appointment;
(2) two reputable dental hygienist members who reside in this state and have been actively engaged in the practice of dental hygiene for at least the five years preceding appointment; and
(3) six members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
(c) In making an appointment under this section, the governor shall attempt to appoint members of different minority groups, including females, African Americans, Hispanic Americans, Native Americans, and Asian Americans. (V.A.C.S. Art. 4543a, Secs. 1(a)(1) (part), (b); Sec. 2 (part).)
Sec. 252.002. MEMBER ELIGIBILITY. (a) A person is not eligible for appointment as a member if:
(1) the person's license to practice dentistry or dental hygiene has been revoked by the board for a violation of a statute of this state relating to the practice of dentistry or dental hygiene and the revocation is not overturned by final order of a court; or
(2) the person is an adverse party in civil litigation against the board.
(b) A person is not eligible for appointment as a dentist or dental hygienist member of the board if the person:
(1) is a member of the faculty of a dental or dental hygiene school or of the dental or dental hygiene department of a medical school; or
(2) has a financial interest in any dental, dental hygiene, or medical school.
(c) A person is not eligible for appointment as a dental hygienist member of the board if the person is licensed to practice dentistry in this state.
(d) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the board;
(3) owns or controls or has, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the board;
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses; or
(5) is employed by a board member. (V.A.C.S. Art. 4543a, Secs. 1(a)(1) (part), (2).)
Sec. 252.003. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member and may not be a board employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act as 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. (V.A.C.S. Art. 4543a, Sec. 3.)
Sec. 252.004. TERMS OF OFFICE. (a) Members of the board serve staggered six-year terms. The terms of one-third of the members expire February 1 of each odd-numbered year.
(b) A member may serve only one six-year term. (V.A.C.S. Art. 4543a, Sec. 2 (part).)
Sec. 252.005. PRIVILEGES OF OFFICE. Members of the board have full and identical privileges, except that only dentist members may participate in the decision to pass or fail an applicant for a license to practice dentistry during the clinical portion of the board examinations. (V.A.C.S. Art. 4543a, Sec. 1(c).)
Sec. 252.006. OFFICERS. (a) The board shall elect from its members for one-year terms a president and a secretary.
(b) The president must be a dentist. (V.A.C.S. Art. 4543a, Sec. 2 (part).)
Sec. 252.007. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 252.001 and 252.002;
(2) does not maintain during the service on the board the qualifications required by Sections 252.001 and 252.002;
(3) violates a prohibition established by Section 252.003;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings the member is eligible to attend during a calendar year.
(b) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.
(c) If the executive director or any board member has knowledge that a potential ground for removal exists, the executive director or board member shall notify the board of the ground. The board shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4543a, Sec. 4.)
Sec. 252.008. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to a per diem set by legislative appropriation for each day the member engages in board business.
(b) A board member may receive reimbursement for travel expenses, including expenses for meals and lodging, incurred in performing an official duty as prescribed by the General Appropriations Act. (V.A.C.S. Art. 4551, Subsec. (a).)
Sec. 252.009. MEETINGS. (a) The board shall hold meetings at least twice a year at times and places the board determines are most convenient for applicants for examination.
(b) Notice of the meeting shall be published in a newspaper selected by the board. (V.A.C.S. Art. 4543a, Sec. 2 (part).)
Sec. 252.010. BOARD MEMBER TRAINING. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established under this section.
(b) A training program shall provide information to a participant regarding:
(1) this subtitle;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, and 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor's office and the Texas Ethics Commission.
(d) If another state agency or entity is given authority to establish board member training requirements, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4543a, Secs. 5(a), 6.)
Sec. 252.011. OATH OF OFFICE. Before assuming the duties of office, each board member shall file with the secretary of state a copy of the constitutional oath of office taken by the member. (V.A.C.S. Art. 4543a, Sec. 2 (part).)
CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 253.001. EXECUTIVE DIRECTOR
Sec. 253.002. SURETY BOND
Sec. 253.003. PERSONNEL
Sec. 253.004. DIVISION OF RESPONSIBILITIES
Sec. 253.005. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 253.006. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 253.007. EQUAL OPPORTUNITY POLICY; REPORT
CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 253.001. EXECUTIVE DIRECTOR. (a) The board may employ an executive director to assist the board in performing its duties.
(b) The board shall set the executive director's salary. (V.A.C.S. Art. 4550a, Sec. 4(a) (part).)
Sec. 253.002. SURETY BOND. (a) The executive director shall execute and file a surety bond in an amount of not less than $5,000.
(b) The bond must be conditioned on:
(1) the faithful performance of the executive director's duties; and
(2) the safekeeping and proper disbursement of all funds received by the executive director. (V.A.C.S. Art. 4550a, Sec. 4(a) (part).)
Sec. 253.003. PERSONNEL. (a) The executive director, with the board's consent, may employ an assistant executive director to perform the executive director's duties when the executive director is absent or unable to act.
(b) The board may employ:
(1) clerks, advisors, consultants, hygienists, or examiners to assist the board in performing its duties; and
(2) other persons determined necessary:
(A) to assist the local prosecuting officers of a county in the enforcement of state laws prohibiting the unlawful practice of dentistry; and
(B) to carry out other purposes for which funds are appropriated.
(c) The board shall employ other employees as needed to assist the executive director in performing the executive director's duties and in carrying out the purposes of this subtitle.
(d) A person assisting a local prosecuting officer under this section is subject to the direction and control of the prosecuting officer. This subsection does not change the authority granted by law to the prosecuting officer. (V.A.C.S. Art. 4547a; Art. 4550a, Secs. 3(d) (part), 4(a) (part).)
Sec. 253.004. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4550a, Sec. 4(g).)
Sec. 253.005. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding:
(1) qualifications for office or employment under this subtitle; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4543a, Sec. 5(b).)
Sec. 253.006. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require the intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4550a, Secs. 4(b), (c).)
Sec. 253.007. EQUAL OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4550a, Secs. 4(d), (e), (f).)
CHAPTER 254. BOARD POWERS AND DUTIES
Sec. 254.001. GENERAL RULEMAKING AUTHORITY
Sec. 254.002. RULES REGARDING ADVERTISING AND COMPETITIVE
BIDDING
Sec. 254.003. RULES REGARDING INFECTION CONTROL
Sec. 254.004. FEES
Sec. 254.005. SIGNATURE AND SEAL ON LICENSE REQUIRED
Sec. 254.006. BOARD RECORDS AND CONFIDENTIALITY OF RECORDS
Sec. 254.007. RECORDS REGARDING PERSONS AUTHORIZED TO
PRACTICE
Sec. 254.008. CIVIL LIABILITY
Sec. 254.009. ASSISTANCE OF PROSECUTOR
Sec. 254.010. MONITORING OF LICENSE HOLDER
Sec. 254.011. IMPLEMENTATION OF FEDERAL LAW RELATING TO
RADIOLOGIC PROCEDURES
Sec. 254.012. ANNUAL REPORT
CHAPTER 254. BOARD POWERS AND DUTIES
Sec. 254.001. GENERAL RULEMAKING AUTHORITY. (a) The board may adopt and enforce rules necessary to:
(1) perform its duties; and
(2) ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.
(b) The board may adopt rules governing:
(1) the board's proceedings; and
(2) the examination of applicants for a license to practice dentistry. (V.A.C.S. Art. 4543a, Sec. 2 (part); Art. 4551d, Subsec. (a).)
Sec. 254.002. RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) Except as provided by Section 259.005, the board may not adopt rules restricting advertising or competitive bidding except to prohibit false, misleading, and deceptive practices by the license holder.
(b) The board may adopt and enforce reasonable restrictions to regulate advertising relating to the practice of dentistry by a person engaged in the practice of dentistry as provided by Section 259.005.
(c) The board may not include in the board's rules to prohibit false, misleading, or deceptive advertising under Subsection (a) a rule that:
(1) restricts the use of any advertising medium;
(2) restricts a person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of a person's advertisement; or
(4) restricts the person's advertisement under a trade name, except the board may require that a trade name advertisement include the name of each dental owner of the practice. (V.A.C.S. Art. 4548f, Secs. 1(a) (part), (b), (c) (part).)
Sec. 254.003. RULES REGARDING INFECTION CONTROL. The board shall investigate infection control in the dental profession and may adopt and enforce rules to control the spread of infection in the practice of dentistry as necessary to protect the public health and safety. (V.A.C.S. Art. 4551d, Subsec. (c).)
Sec. 254.004. FEES. (a) The board shall establish reasonable and necessary fees so that the fees, in the aggregate, produce sufficient revenue to cover the cost of administering this subtitle.
(b) The amount of the dental examination fee and dentist annual renewal fee is the amount set by the board under Subsection (a) and an additional charge of $200. Of each fee increase collected under this subsection, $50 shall be deposited to the credit of the foundation school fund and $150 shall be deposited to the credit of the general revenue fund. (V.A.C.S. Art. 4550c, Subsecs. (a), (b) (part); Art. 4551, Subsec. (b).)
Sec. 254.005. SIGNATURE AND SEAL ON LICENSE REQUIRED. A license issued to a dentist must be signed by each board member and imprinted with the board's seal. (V.A.C.S. Art. 4548a (part).)
Sec. 254.006. BOARD RECORDS AND CONFIDENTIALITY OF RECORDS. (a) Except as provided by this section, the investigation files and other records of the board are public records and open to inspection at reasonable times.
(b) Investigation files and other records are confidential and shall be divulged only to the persons investigated at the completion of the investigation. The board may share investigation files and other records with another state regulatory agency or federal law enforcement agency during a joint investigation or in determining the feasibility of conducting an investigation. (V.A.C.S. Art. 4550, Sec. 2.)
Sec. 254.007. RECORDS REGARDING PERSONS AUTHORIZED TO PRACTICE. (a) The board shall keep records of the name, residence, and place of business of each person authorized under this subtitle to practice dentistry, dental hygiene, or another profession or business under the board's jurisdiction as provided by law.
(b) The board shall collect annually from each licensed dentist the dentist's name, age, practice locations, hours worked each week, weeks worked each year, and number and type of auxiliaries employed.
(c) The information collected under Subsection (b) shall be compiled in report form by practice composition and by county reflecting the overall full-time equivalency tabulations as defined by the federal Department of Health and Human Services. (V.A.C.S. Art. 4550, Sec. 1 (part); Art. 4551l.)
Sec. 254.008. CIVIL LIABILITY. (a) In the absence of fraud, conspiracy, or malice, a member or employee of the board, a witness called to testify by the board, or a consultant or hearing officer appointed by the board is not liable or subject to suit in a civil action for any damage caused by the person for an investigation, report, recommendation, statement, evaluation, finding, order, or award made in the performance of the person's official duties.
(b) The purpose of this section is to protect the persons designated by Subsection (a) from being harassed and threatened with legal action while performing official duties. (V.A.C.S. Art. 4551j.)
Sec. 254.009. ASSISTANCE OF PROSECUTOR. (a) The board shall aid in the enforcement of state law regulating the practice of dentistry.
(b) A board member may present to a prosecuting officer a complaint relating to a violation of state law regulating the practice of dentistry.
(c) The board and its members, officers, counsel, and agents may assist the prosecuting officer in the trial of a case involving an alleged violation of state law. (V.A.C.S. Art. 4544a, Sec. 1.)
Sec. 254.010. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system to monitor a license holder's compliance with this subtitle.
(b) Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform a certain act; and
(2) identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4548h, Sec. 1(k).)
Sec. 254.011. IMPLEMENTATION OF FEDERAL LAW RELATING TO RADIOLOGIC PROCEDURES. If an employee of a dentist is required under federal law to receive minimum training and achieve minimum performance standards relating to radiologic procedures and techniques, the board shall implement the federal requirements relating to the employee. (V.A.C.S. Art. 4544a, Sec. 2.)
Sec. 254.012. ANNUAL REPORT. (a) The board shall file annually with the governor and with the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The annual report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4550a, Sec. 3(c).)
CHAPTER 255. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 255.001. PUBLIC INTEREST INFORMATION
Sec. 255.002. COMPLAINTS
Sec. 255.003. ASSISTANCE WITH COMPLAINT
Sec. 255.004. RECORDS OF COMPLAINTS
Sec. 255.005. NOTIFICATION OF COMPLAINT STATUS
Sec. 255.006. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 255.007. NOTICE TO BOARD CONCERNING COMPLAINTS
Sec. 255.008. PUBLIC PARTICIPATION
CHAPTER 255. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 255.001. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and procedures by which complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4549b, Subsec. (a).)
Sec. 255.002. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, brochure, or written contract for services of a person regulated under this subtitle;
(2) on a sign prominently displayed in the place of business of each person regulated under this subtitle; or
(3) in a bill for service provided by a person regulated under this subtitle.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4549b, Subsecs. (b), (c).)
Sec. 255.003. ASSISTANCE WITH COMPLAINT. The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4548h, Sec. 1(d).)
Sec. 255.004. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board.
(b) The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason that a complaint is dismissed;
(4) the schedule for disposing of the complaint as required by Section 255.006 and a notation of any change in the schedule; and
(5) other relevant information. (V.A.C.S. Art. 4548h, Secs. 1(a), (g) (part).)
Sec. 255.005. NOTIFICATION OF COMPLAINT STATUS. If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4548h, Sec. 1(b).)
Sec. 255.006. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) A complaint received under this chapter must be filed with and reviewed by the board to determine jurisdiction. If the board has jurisdiction, the board shall investigate the complaint to determine the facts concerning the complaint.
(b) The board may not consider a complaint that is filed with the board after the fourth anniversary of the date:
(1) the act that is the basis of the complaint occurred; or
(2) the complainant discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of the act that is the basis of the complaint.
(c) The board by rule shall:
(1) adopt a form to standardize information concerning complaints filed with the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(d) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:
(1) distinguish between categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) require that investigators used by the board be state employees.
(e) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board. (V.A.C.S. Art. 4548h, Secs. 1(c), (e), (f), (g) (part), (l).)
Sec. 255.007. NOTICE TO BOARD CONCERNING COMPLAINTS. (a) The executive director shall notify the board of a complaint that is unresolved after the second anniversary of the date the complaint is filed.
(b) The executive director shall explain to the board the reasons that the complaint has not been resolved. The executive director shall periodically provide the notice and explanation required by this section at regularly scheduled board meetings. (V.A.C.S. Art. 4548h, Sec. 1(h).)
Sec. 255.008. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4550a, Secs. 4(h) (part), (i).)
CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS
SUBCHAPTER A. ISSUANCE OF LICENSE TO PRACTICE DENTISTRY
Sec. 256.001. LICENSE REQUIRED
Sec. 256.002. MINIMUM QUALIFICATIONS OF DENTAL APPLICANT
Sec. 256.003. EXAMINATION
Sec. 256.004. LICENSING OF FOREIGN GRADUATES AND GRADUATES
OF NONACCREDITED DENTAL SCHOOLS
Sec. 256.005. EXAMINATION RESULTS
Sec. 256.006. REEXAMINATION
[Sections 256.007-256.050 reserved for expansion]
SUBCHAPTER B. ISSUANCE OF LICENSE TO DENTAL HYGIENIST
Sec. 256.051. DEFINITION
Sec. 256.052. LICENSE REQUIRED
Sec. 256.053. ELIGIBILITY FOR LICENSE
Sec. 256.054. APPLICATION FOR EXAMINATION
Sec. 256.055. LICENSE EXAMINATION
Sec. 256.056. EXAMINATION RESULTS
Sec. 256.057. REEXAMINATION
Sec. 256.058. ISSUANCE OF LICENSE
[Sections 256.059-256.100 reserved for expansion]
SUBCHAPTER C. GENERAL LICENSE PROVISIONS
Sec. 256.101. RECIPROCAL LICENSE
Sec. 256.102. RETIRED STATUS
Sec. 256.103. DISPLAY OF DENTIST'S LICENSE
Sec. 256.104. DUPLICATE LICENSE
Sec. 256.105. NOTIFICATION OF CHANGE OF INFORMATION
CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS
SUBCHAPTER A. ISSUANCE OF LICENSE TO PRACTICE DENTISTRY
Sec. 256.001. LICENSE REQUIRED. A person may not practice or offer to practice dentistry or dental surgery or represent that the person practices dentistry unless the person holds a license issued by the board. (V.A.C.S. Arts. 4548 (part), 4548a (part).)
Sec. 256.002. MINIMUM QUALIFICATIONS OF DENTAL APPLICANT. (a) An applicant for a license to practice dentistry must:
(1) be at least 21 years of age;
(2) present evidence of good moral character; and
(3) present proof of:
(A) graduation from a dental school accredited by the Commission on Dental Accreditation of the American Dental Association; or
(B) graduation from a dental school that is not accredited by the commission and successful completion of training in an American Dental Association approved specialty in an education program accredited by the commission that consists of at least two years of training as specified by the Council on Dental Education.
(b) The board shall grant a dental license to an applicant who:
(1) meets the qualifications of this section;
(2) pays an examination fee set by the board; and
(3) satisfactorily passes the examination required by the board. (V.A.C.S. Art. 4544, Sec. 1(a) (part); Art. 4545.)
Sec. 256.003. EXAMINATION. (a) The board shall provide for the examination of an applicant for a dental license.
(b) The examination must consist of subjects and operations relating to dentistry, including:
(1) anatomy;
(2) physiology;
(3) anaesthesia;
(4) biochemistry;
(5) dental materials;
(6) diagnosis;
(7) treatment planning;
(8) ethics;
(9) jurisprudence;
(10) hygiene;
(11) pharmacology;
(12) operative dentistry;
(13) oral surgery;
(14) orthodontia;
(15) periodontia;
(16) prosthetic dentistry;
(17) pathology;
(18) microbiology; and
(19) any other subject regularly taught in reputable dental schools that the board may require.
(c) The board shall contract with an independent or regional testing service for any required clinical examination. If the board uses a regional testing service, the board may contract for or otherwise use licensed dentists to provide assistance to the regional testing service.
(d) The board shall have the written portion of the examination validated by an independent testing professional. (V.A.C.S. Art. 4544, Sec. 1(a) (part).)
Sec. 256.004. LICENSING OF FOREIGN GRADUATES AND GRADUATES OF NONACCREDITED DENTAL SCHOOLS. The board by rule may provide for the procedures, fees, and requirements for graduates of foreign or nonaccredited dental schools to become licensed to practice dentistry. (V.A.C.S. Art. 4544, Sec. 2.)
Sec. 256.005. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify examinees of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination as prescribed by board rule. (V.A.C.S. Art. 4544, Secs. 3, 4.)
Sec. 256.006. REEXAMINATION. (a) The board by rule shall establish the conditions under which and the number of times an applicant may retake an examination.
(b) The board may require an applicant who fails the examination to meet additional education requirements. (V.A.C.S. Art. 4544, Sec. 1(b).)
[Sections 256.007-256.050 reserved for expansion]
SUBCHAPTER B. ISSUANCE OF LICENSE TO DENTAL HYGIENIST
Sec. 256.051. DEFINITION. In this chapter, "dental hygienist" means a person who practices dental hygiene under a license issued under this chapter. (V.A.C.S. Art. 4551e, Sec. 1 (part).)
Sec. 256.052. LICENSE REQUIRED. A person may not practice or offer to practice dental hygiene in this state unless the person is licensed under this chapter. (V.A.C.S. Art. 4551e, Sec. 13 (part).)
Sec. 256.053. ELIGIBILITY FOR LICENSE. To qualify for a license, an applicant must be:
(1) at least 18 years of age;
(2) a graduate of an accredited high school or hold a certificate of high school equivalency; and
(3) a graduate of a recognized school of dentistry or dental hygiene accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the board. (V.A.C.S. Art. 4551e, Sec. 2.)
Sec. 256.054. APPLICATION FOR EXAMINATION. To take the examination under Section 256.055, an applicant must:
(1) submit an application on a form prescribed by the board;
(2) pay the fee set by the board;
(3) attach to the application:
(A) proof of current certification in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; or
(B) if the applicant is not physically able to comply with the certification requirements of Paragraph (A), a written statement describing the person's physical incapacity executed by a licensed physician or an instructor in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; and
(4) provide any other information the board requires to determine the applicant's qualifications. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)
Sec. 256.055. LICENSE EXAMINATION. (a) The board shall provide for the examination of an applicant for a dental hygienist license.
(b) The examination must include subjects and operations relating to dentistry and dental hygiene, including:
(1) anatomy;
(2) pharmacology;
(3) x-ray;
(4) ethics;
(5) jurisprudence;
(6) hygiene; and
(7) any other subject regularly taught in reputable schools of dentistry and dental hygiene that the board may require.
(c) The board shall contract with an independent or regional testing service for any required clinical examination. If the board uses a regional testing service, the board may contract for or otherwise use licensed dental hygienists to provide assistance to the regional testing service.
(d) The board shall have the written portion of the examination validated by an independent testing professional. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)
Sec. 256.056. EXAMINATION RESULTS. The board shall notify each examinee of the results of the examination within a reasonable time after the date of the examination. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)
Sec. 256.057. REEXAMINATION. (a) The board by rule shall establish the conditions under which and the number of times an applicant may retake an examination.
(b) The board may require an applicant who fails the examination to meet additional education requirements set by the board. (V.A.C.S. Art. 4551e, Sec. 5(b).)
Sec. 256.058. ISSUANCE OF LICENSE. The board shall issue a license to practice dental hygiene to an applicant who has passed all phases of the examination. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)
[Sections 256.059-256.100 reserved for expansion]
SUBCHAPTER C. GENERAL LICENSE PROVISIONS
Sec. 256.101. RECIPROCAL LICENSE. (a) The board shall issue a license to practice dentistry or dental hygiene to a reputable dentist or dental hygienist who:
(1) pays the fee set by the board;
(2) is licensed in good standing as a dentist or dental hygienist in another state that has licensing requirements substantially equivalent to the requirements of this subtitle;
(3) has not been the subject of a final disciplinary action and is not the subject of a pending disciplinary action in any jurisdiction in which the dentist or dental hygienist is or has been licensed;
(4) has graduated from a dental or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the board under board rule;
(5) has passed a national or other examination relating to dentistry or dental hygiene and recognized by the board;
(6) has passed the board's jurisprudence examination;
(7) has submitted documentation of current cardiopulmonary resuscitation certification;
(8) has practiced dentistry or dental hygiene:
(A) for at least the five years preceding the date of application for a license under this section; or
(B) as a dental educator at a dental school or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association for at least the five years preceding the date of application for a license under this section;
(9) has been endorsed by the board of dentistry in the jurisdiction in which the applicant practices at the time of application; and
(10) meets any additional criteria established by board rule.
(b) If the board does not complete the processing of an application under this section before the 181st day after the date all documentation and examination results required by this section have been received, the board shall issue a license to the applicant. (V.A.C.S. Art. 4545a, Sec. 1.)
Sec. 256.102. RETIRED STATUS. (a) The board by rule may allow a license holder to place the person's license on retired status. A license holder must apply to the board for retired status, on a form prescribed by the board, before the expiration date of the person's license.
(b) In determining whether to grant retired status, the board shall consider the age, years of practice, and the status of the license holder at the time of the application.
(c) A license holder on retired status:
(1) is not required to pay license renewal fees; and
(2) may not perform any activity regulated under this subtitle.
(d) To reinstate a license placed on retired status, the license holder must submit a written request for reinstatement to the board. The board may return the license to active status and issue a renewal license if the license holder complies with any education or other requirement established by board rule and pays the renewal fee in effect at the time of the requested reinstatement.
(e) The board may charge a reasonable administrative fee to cover the cost of research and the preparation of documentation for the board's consideration of a request for reinstatement of a license on retired status. (V.A.C.S. Art. 4550a, Sec. 2A.)
Sec. 256.103. DISPLAY OF DENTIST'S LICENSE. (a) A licensed dentist shall display the dentist's license issued by the board in the dentist's office in the patient's plain view.
(b) A licensed dentist may not operate on a patient's mouth or treat lesions of the mouth or teeth unless the dentist displays the dentist's license. (V.A.C.S. Art. 4548d.)
Sec. 256.104. DUPLICATE LICENSE. (a) The board may issue a duplicate license to a person whose license is lost or destroyed if the person:
(1) pays a reasonable fee; and
(2) presents to the board an application for a duplicate license, including an affidavit explaining the loss or destruction and stating that the person is the same person originally granted the license.
(b) If board records do not show that the person was previously licensed, the board may refuse to issue a duplicate license. (V.A.C.S. Art. 4547.)
Sec. 256.105. NOTIFICATION OF CHANGE OF INFORMATION. (a) Each dentist, dental hygienist, dental laboratory, and dental technician licensed or registered with the board shall timely notify the board of:
(1) any change of address of the person's place of business; and
(2) any change of employers for the dentist, dental hygienist, dental laboratory, or dental technician, and any change of owners for the dental laboratory.
(b) Notification under Subsection (a) is timely if the board receives the notice not later than the 60th day after the date the change occurs. (V.A.C.S. Art. 4550, Sec. 1 (part).)
CHAPTER 257. LICENSE RENEWAL
Sec. 257.001. LICENSE EXPIRATION
Sec. 257.002. LICENSE RENEWAL
Sec. 257.003. RENEWAL OF EXPIRED LICENSE BY
OUT-OF-STATE PRACTITIONER
Sec. 257.004. CARDIOPULMONARY RESUSCITATION CERTIFICATION
REQUIREMENTS FOR DENTAL HYGIENISTS
Sec. 257.005. CONTINUING EDUCATION FOR DENTIST AND DENTAL
HYGIENIST
CHAPTER 257. LICENSE RENEWAL
Sec. 257.001. LICENSE EXPIRATION. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.
(b) Dates of license suspension and reinstatement after failure to pay the license fee shall be adjusted accordingly.
(c) For the year in which the expiration date is changed, license fees payable on or before March 1 shall be prorated on a monthly basis so that each license holder pays only that portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license fee is payable. (V.A.C.S. Art. 4550a, Sec. 2(h); Art. 4550b.)
Sec. 257.002. LICENSE RENEWAL. (a) A person required to hold a license as a practitioner under this subtitle who fails or refuses to apply for renewal of a license and pay the required fee on or before the specified date of each calendar year is:
(1) suspended from practice; and
(2) subject to the penalties imposed by law on any person unlawfully engaging in a practice regulated under this subtitle.
(b) A person may renew an unexpired license by paying to the board the required renewal fee before the expiration of the license.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the license examination fee. A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee.
(d) Except as provided by Section 256.102 or Section 257.003, a person whose license has been expired for one year or longer may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(e) Not later than the 30th day before the expiration date of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.
(f) The requirements prescribed by this section relating to the payment of annual license fees and penalties for the failure to timely renew a license do not apply to license holders who are on active duty with the armed forces of the United States and are not engaged in private or civilian practice. (V.A.C.S. Art. 4550a, Secs. 2(a), (b), (c), (d), (e) (part), (f), (g).)
Sec. 257.003. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. The board by rule may provide for renewal of an expired license without reexamination for a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal. The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4550a, Sec. 2(e) (part).)
Sec. 257.004. CARDIOPULMONARY RESUSCITATION CERTIFICATION REQUIREMENTS FOR DENTAL HYGIENISTS. (a) A person holding a dental hygienist license must attach to the person's renewal application:
(1) proof of current certification in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; or
(2) if the person is not physically able to comply with the certification requirements of Subdivision (1), a written statement describing the person's physical incapacity executed by a licensed physician or an instructor in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross.
(b) A dental hygienist licensed by the board who resides in a country other than the United States on the renewal date of the person's license is exempt from the requirements of Subsection (a) if the person submits proof of foreign residence with the person's renewal application. (V.A.C.S. Art. 4550a, Sec. 1 (part).)
Sec. 257.005. CONTINUING EDUCATION FOR DENTIST AND DENTAL HYGIENIST. (a) The board shall develop a mandatory continuing education program for licensed dentists and dental hygienists. The board by rule shall require a license holder to complete at least 36 hours of continuing education in each three-year period to maintain the person's license.
(b) The board may:
(1) assess the continuing education needs of license holders; and
(2) require license holders to attend continuing education courses specified by the board.
(c) The board by rule shall:
(1) identify the key factors required for competent performance of professional duties under this subtitle;
(2) develop a process to evaluate and approve continuing education courses; and
(3) develop a process to assess a license holder's participation and performance in continuing education courses to evaluate the overall effectiveness of the program. (V.A.C.S. Art. 4544, Sec. 5; Art. 4551e, Sec. 5A.)
CHAPTER 258. PRACTICE BY DENTIST
SUBCHAPTER A. DELEGATION BY DENTIST
Sec. 258.001. IMPERMISSIBLE DELEGATIONS
Sec. 258.002. DELEGATION TO DENTAL ASSISTANT
Sec. 258.003. RESPONSIBILITY OF DELEGATING DENTIST
[Sections 258.004-258.050 reserved for expansion]
SUBCHAPTER B. GENERAL PRACTICE PROVISIONS
Sec. 258.051. DENTIST RECORDS
Sec. 258.052. CASE HISTORIES AND PHYSICAL EVALUATIONS
Sec. 258.053. USE OF CERTAIN DRUGS
Sec. 258.054. USE OF X-RAY EQUIPMENT
CHAPTER 258. PRACTICE BY DENTIST
SUBCHAPTER A. DELEGATION BY DENTIST
Sec. 258.001. IMPERMISSIBLE DELEGATIONS. A dentist may not delegate:
(1) an act to an individual who, by board order, is prohibited from performing the act;
(2) any of the following acts to a person not licensed as a dentist or dental hygienist:
(A) the removal of calculus, deposits, or accretions from the natural and restored surfaces of exposed human teeth and restorations in the human mouth;
(B) root planing or the smoothing and polishing of roughened root surfaces or exposed human teeth; or
(C) any other act the delegation of which is prohibited by board rule;
(3) any of the following acts to a person not licensed as a dentist:
(A) comprehensive examination or diagnosis and treatment planning;
(B) a surgical or cutting procedure on hard or soft tissue;
(C) the prescription of a drug, medication, or work authorization;
(D) the taking of an impression for a final restoration, appliance, or prosthesis;
(E) the making of an intraoral occlusal adjustment;
(F) direct pulp capping, pulpotomy, or any other endodontic procedure;
(G) the final placement and intraoral adjustment of a fixed or removable appliance; or
(H) the placement of any final restoration; or
(4) the authority to an individual to administer a local anesthetic agent, inhalation sedative agent, parenteral sedative agent, or general anesthetic agent if the individual is not licensed as:
(A) a dentist with a permit issued by the board for the procedure being performed, if a permit is required;
(B) a certified registered nurse anesthetist licensed by the Board of Nurse Examiners, only if the delegating dentist holds a permit issued by the board for the procedure being performed, if a permit is required; or
(C) a physician anesthesiologist licensed by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4551e-1, Subsec. (b) (part).)
Sec. 258.002. DELEGATION TO DENTAL ASSISTANT. (a) A licensed dentist may delegate to a qualified and trained dental assistant acting under the dentist's direct supervision any dental act that a reasonable and prudent dentist would find is within the scope of sound dental judgment to delegate if:
(1) in the opinion of the delegating dentist, the act:
(A) can be properly and safely performed by the person to whom the dental act is delegated; and
(B) is performed in a customary manner and is not in violation of this subtitle or any other statute; and
(2) the person to whom the dental act is delegated does not represent to the public that the person is authorized to practice dentistry.
(b) The board by rule shall establish guidelines regarding the types of dental acts that may be properly or safely delegated by a dentist, including a determination of which delegated dental acts, if any, require competency testing before a person may perform the act. (V.A.C.S. Art. 4551e-1, Subsecs. (b) (part), (d).)
Sec. 258.003. RESPONSIBILITY OF DELEGATING DENTIST. A delegating dentist is responsible for a dental act performed by the person to whom the dentist delegates the act. (V.A.C.S. Art. 4551e-1, Subsec. (c).)
[Sections 258.004-258.050 reserved for expansion]
SUBCHAPTER B. GENERAL PRACTICE PROVISIONS
Sec. 258.051. DENTIST RECORDS. (a) The records of a diagnosis made and treatment performed for and on a dental patient are the property of the dentist performing the dental service.
(b) A dentist's records may not be sold, pledged as collateral, or transferred to any person other than the patient unless:
(1) the other person is a dentist licensed by the board; and
(2) the transfer is made in compliance with board rules.
(c) This section does not prevent the voluntary submission of records to an insurance company to determine benefits. (V.A.C.S. Art. 4549-2.)
Sec. 258.052. CASE HISTORIES AND PHYSICAL EVALUATIONS. (a) A dentist may take a complete case history and perform a complete physical evaluation that may be used to admit a patient to a hospital for the practice of dentistry if the activity is necessary in the exercise of due care in the practice of dentistry.
(b) A dentist is not automatically entitled to membership on a hospital's medical staff or to exercise clinical privileges at a hospital solely because the dentist is licensed in this state or because the dentist is authorized to take a case history and perform a physical evaluation.
(c) A dentist may not be denied membership on a hospital's medical staff or the right to the exercise of clinical privileges at a hospital solely because the person is a dentist rather than a physician. (V.A.C.S. Art. 4551k.)
Sec. 258.053. USE OF CERTAIN DRUGS. (a) In this section, "narcotic drugs," "dangerous drugs," and "controlled substances" have the meanings defined or recognized by federal law or the law of this state.
(b) A dentist may not:
(1) prescribe, provide, obtain, order, administer, possess, dispense, give, or deliver to or for any person a narcotic drug, dangerous drug, or controlled substance:
(A) that is not necessary or required; or
(B) the use or possession of which would promote addiction to the drug or substance; or
(2) aid, abet, or cause another person to engage in an action described by Subdivision (1). (V.A.C.S. Art. 4551h.)
Sec. 258.054. USE OF X-RAY EQUIPMENT. (a) A dentist may authorize a qualified person to perform beam calibration and characterization, quality assurance, instrument specification, acceptance testing, shielding design, or protection analysis on radiation-emitting equipment or radiopharmaceuticals for a procedure that involves the diagnosis or treatment of disease or another dental condition in humans.
(b) A dentist's authorization and the performance of authorized activities by a qualified person does not constitute the practice of medical physics under Chapter 602. (V.A.C.S. Art. 4551o.)
CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR
PROFESSIONAL ACTIVITIES
Sec. 259.001. FALSE STATEMENTS TO PATIENTS
Sec. 259.002. NOTIFICATION OF QUALIFICATIONS
Sec. 259.003. USE OF TRADE NAME
Sec. 259.004. DUTIES OF DENTIST IN CERTAIN EMPLOYMENT OR
CONTRACTUAL ARRANGEMENTS
Sec. 259.005. AUTHORIZED ADVERTISING RESTRICTIONS
Sec. 259.006. UNLAWFUL ADVERTISING IN GENERAL
Sec. 259.007. UNLAWFUL ADVERTISING: OUT-OF-STATE
PROVIDER
Sec. 259.008. UNPROFESSIONAL CONDUCT
CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR
PROFESSIONAL ACTIVITIES
Sec. 259.001. FALSE STATEMENTS TO PATIENTS. A dentist may not, in the practice of dentistry, make a misrepresentation or a false or misleading statement to a patient or prospective patient. (V.A.C.S. Art. 4549a (part).)
Sec. 259.002. NOTIFICATION OF QUALIFICATIONS. Each dental office shall post at or near the entrance of the office the name of, each degree received by, and each school attended by each dentist practicing in the office. (V.A.C.S. Art. 4549a (part).)
Sec. 259.003. USE OF TRADE NAME. (a) A person may use a corporation, company, association, or trade name.
(b) An advertisement under a corporation, company, association, or trade name must include prominently the name of at least one dentist practicing under the name.
(c) A person using a business or trade name described by Subsection (b) shall file with the board a list of each dentist who practices under that name and a list of each trade name used if that name is different from the name described by Subsection (b).
(d) If information provided under Subsection (c) changes, the person must file updated information with the board not later than the 30th day after the date of the change. (V.A.C.S. Art. 4548e (part).)
Sec. 259.004. DUTIES OF DENTIST IN CERTAIN EMPLOYMENT OR CONTRACTUAL ARRANGEMENTS. (a) A person providing dental services under an agreement that allows another person to control or influence any aspect of the delivery of dental services, including a business or professional aspect, shall report to the board on request and in accordance with board rules:
(1) information concerning the agreement;
(2) the manner in which patients are billed;
(3) the manner in which the dental service provider is paid and any information provided to patients concerning payment agreements; and
(4) information concerning the service provider agreement provided to shareholders of organizations contracting with a dental service provider.
(b) A person who practices dentistry and has another dentist practicing with or under the person is responsible for all professional acts performed under the name of the person, regardless of whether the dentist has an ownership interest or an employment or contractual relationship. This section does not affect an individual license holder's responsibilities and rights under this subtitle.
(c) A statute relating to the practice of dentistry in this state may not be construed to prohibit a licensed dentist from maintaining more than one office in this state if the dentist:
(1) assumes full legal responsibility and liability for the dental services provided in each office; and
(2) complies with the requirements prescribed by board rules. (V.A.C.S. Art. 4548k.)
Sec. 259.005. AUTHORIZED ADVERTISING RESTRICTIONS. Board rules adopted under Section 254.002 to regulate advertising may include restrictions that prohibit communications to the public that:
(1) are false, misleading, or deceptive;
(2) state an opinion regarding the quality of dental services;
(3) appeal to an individual's anxiety in an excessive or unfair way;
(4) intimidate or exert undue pressure or undue influence over a prospective patient;
(5) create unjustified expectations concerning the potential result of a dental treatment;
(6) refer to benefits or other attributes of dental procedures or products that involve significant risks without including realistic assessments of the safety and efficacy of those procedures or products;
(7) contain statistical data, representations, or other information that is not susceptible to reasonable verification by the public;
(8) refer to a fee for dental services without disclosing that additional fees may be involved in individual cases, if the possibility of additional fees may be reasonably predicted;
(9) offer a discount for dental services without disclosing the total fee to which the discount will apply; or
(10) fail to make truthful disclosure of the source and authorship of any message published under a dentist's byline. (V.A.C.S. Art. 4548f, Sec. 1(c) (part).)
Sec. 259.006. UNLAWFUL ADVERTISING IN GENERAL. (a) A person may not engage in false, misleading, or deceptive advertising in connection with the practice of dentistry.
(b) A person regulated by the board may not engage in advertising that does not comply with the reasonable restrictions adopted by the board under Section 259.005.
(c) For the first violation of the board's advertising restrictions, a person may not be prosecuted under this subtitle before the 31st day after the date the person has been given notice by certified or registered mail, return receipt requested, of the alleged violation. The notice must:
(1) include a copy of the applicable portions of this subtitle and all board rules relating to advertising;
(2) describe the alleged unlawful advertising;
(3) identify the board restriction violated; and
(4) include a statement informing the person that the person has 30 days from the date of the notice to cure the violation.
(d) A person may be prosecuted if the violation is not cured within the prescribed time.
(e) Subsection (c) does not apply to a subsequent violation of the board's advertising restrictions.
(f) This section does not authorize the board to discipline a dentist for an act of an advertising agent that results in a communication to the public that violates the restrictions adopted by the board under Section 259.005 if the advertisement does not specify the name of the dentist or the name under which the dentist practices unless:
(1) the advertising agent is owned or controlled by the dentist;
(2) the dentist provided to the advertising agent for distribution to the public any information that does not comply with the board's restrictions; or
(3) the content of the advertising is determined by the dentist.
(g) The board may bring an action in district court to enjoin an advertising agent from using any advertisement, marketing scheme, or practice that violates the restrictions adopted by the board under Section 259.005. Notwithstanding any other provision of this subtitle, an injunction under this section is the board's sole remedy against an advertising or marketing agent for a violation of this section.
(h) The remedies provided in this section are in addition to the procedures and remedies provided for in Subchapter E, Chapter 17, Business & Commerce Code. (V.A.C.S. Art. 4548f, Secs. 1(a) (part), (d), (e), (f), (g).)
Sec. 259.007. UNLAWFUL ADVERTISING: OUT-OF-STATE PROVIDER. A person who is not domiciled and located in this state and subject to the laws of this state may not advertise or cause or permit to be advertised, published, directly or indirectly, printed, or circulated in this state a notice, statement, or offer of any service, drug, or fee relating to the practice of dentistry, unless the advertising conspicuously discloses that the person is not licensed to practice dentistry in this state. (V.A.C.S. Art. 4548f, Sec. 2.)
Sec. 259.008. UNPROFESSIONAL CONDUCT. A person may not directly or indirectly engage in unprofessional conduct relating to dentistry, including:
(1) obtaining a fee by fraud or misrepresentation;
(2) verbally soliciting dental business if the solicitation is:
(A) directed to an individual or a group of less than five individuals; and
(B) made for the primary purpose of attracting the individual or the group to a particular dental practice;
(3) employing, directly or indirectly, or permitting an unlicensed person to perform dental services on a person, except as authorized by law;
(4) claiming or circulating a statement of:
(A) professional superiority; or
(B) performance of professional services in a superior manner;
(5) forging, altering, or changing a legal document relating to the practice of dentistry, including a diploma, license, registration certificate, or transcript;
(6) being a party to or benefiting from the forgery, alteration, or changing of a legal document relating to the practice of dentistry;
(7) making a false statement or misusing a legal document relating to the practice of dentistry;
(8) accepting employment as a dentist under a false, misleading, or deceptive referral scheme;
(9) advertising the performance of dental work without pain or discomfort to the patient; or
(10) advertising a prediction of future satisfaction or success of a dental service. (V.A.C.S. Art. 4548g.)
CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES
Sec. 260.001. EMPLOYMENT BY ESTATE OF DENTIST OR PERSON ACTING
FOR MENTALLY INCOMPETENT DENTIST
Sec. 260.002. EMPLOYMENT BY CERTAIN NONPROFIT HEALTH
ORGANIZATIONS
Sec. 260.003. EMPLOYMENT BY ORGANIZATIONS SERVING UNDERSERVED
POPULATIONS
Sec. 260.004. EMPLOYMENT BY GOVERNMENTAL ENTITY
CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES
Sec. 260.001. EMPLOYMENT BY ESTATE OF DENTIST OR PERSON ACTING FOR MENTALLY INCOMPETENT DENTIST. (a) This subtitle does not prevent a person who is the administrator or executor of the estate of a dentist or a person who is legally authorized to act for a dentist adjudicated to be mentally incompetent from employing a licensed dentist to:
(1) carry on the deceased or mentally incompetent dentist's practice for a reasonable period, as determined by the board; or
(2) conclude the affairs of the practice, including the sale of any assets.
(b) This subtitle does not prevent a licensed dentist from working for a person described by Subsection (a) during the administration of the estate or the period of incompetency. (V.A.C.S. Art. 4551m.)
Sec. 260.002. EMPLOYMENT BY CERTAIN NONPROFIT HEALTH ORGANIZATIONS. (a) The board shall, on a form and under rules adopted by the board, approve and certify a health organization to contract with or employ dentists licensed by the board if the organization, in its application to the board, presents satisfactory proof to the board that the organization:
(1) is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section 501); and
(2) is organized and operated as:
(A) a migrant, community, or homeless health center under 42 U.S.C. Section 254b or 254c; or
(B) a federally qualified health center under 42 U.S.C. Section 1396d(l)(2)(B).
(b) A dentist providing dental services under Subsection (a) shall provide those services free of charge or at a reduced fee equal to the patient's ability to pay in strict compliance with 42 U.S.C. Section 254b or 254c.
(c) The board may refuse to approve or certify a health organization that applies to the board under this section if the board determines that the nonprofit corporation is established, organized, or operated in violation of or with the intent to circumvent this section. (V.A.C.S. Art. 4551n, Sec. 1.)
Sec. 260.003. EMPLOYMENT BY ORGANIZATIONS SERVING UNDERSERVED POPULATIONS. A dentist licensed by the board may be employed by or contract with an organization if:
(1) the organization is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section 501); and
(2) the organization is:
(A) approved by the board as an organization that provides services to underserved populations for no fee or a reduced fee; or
(B) a clinic that provides dental services primarily to individuals who have acquired immune deficiency syndrome or the human immunodeficiency virus. (V.A.C.S. Art. 4551n, Sec. 3.)
Sec. 260.004. EMPLOYMENT BY GOVERNMENTAL ENTITY. A dentist licensed by the board may be employed by or contract with a governmental entity that provides dental services under federal or state law. (V.A.C.S. Art. 4551n, Sec. 2.)
CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER
REVIEW COMMITTEE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 261.001. DEFINITIONS
[Sections 261.002-261.050 reserved for expansion]
SUBCHAPTER B. CONFIDENTIALITY AND DISCLOSURE
OF INFORMATION
Sec. 261.051. CONFIDENTIALITY OF PROCEEDINGS
Sec. 261.052. DISCLOSURE OF INFORMATION
Sec. 261.053. DISCLOSURE TO AFFECTED DENTIST
Sec. 261.054. COMMITTEE'S EVIDENTIARY PRIVILEGE
Sec. 261.055. COMPLIANCE WITH BOARD SUBPOENAS
[Sections 261.056-261.100 reserved for expansion]
SUBCHAPTER C. CIVIL LIABILITY
Sec. 261.101. COMMITTEE IMMUNITY FROM SUIT
Sec. 261.102. COMMITTEE PARTICIPANTS' IMMUNITY FROM SUIT
Sec. 261.103. IMMUNITY FROM SUIT
Sec. 261.104. COUNTERCLAIM FOR FRIVOLOUS SUIT
CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER
REVIEW COMMITTEE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 261.001. DEFINITIONS. In this chapter:
(1) "Dental association" means an organization that is composed of members who are dentists and incorporated under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) or exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 as an organization described by Section 501(c) of the Internal Revenue Code of 1986.
(2) "Dental peer review committee" means a peer review, judicial, or grievance committee of a dental association authorized to evaluate the quality of dental services or the competence of dentists. The term includes a member, employee, assistant, investigator, attorney, or other agent serving the committee. (V.A.C.S. Art. 4551i, Secs. 1, 2.)
[Sections 261.002-261.050 reserved for expansion]
SUBCHAPTER B. CONFIDENTIALITY AND
DISCLOSURE OF INFORMATION
Sec. 261.051. CONFIDENTIALITY OF PROCEEDINGS. (a) Except as otherwise provided by this chapter:
(1) a dental peer review committee's proceedings and records are confidential; and
(2) communications made to a dental peer review committee are privileged.
(b) If a court makes a preliminary finding that the proceedings or records of or the communications made to a dental peer review committee are relevant to an anticompetitive action or an action brought under federal civil rights provisions (42 U.S.C. Section 1983), the proceedings, records, or communications are not confidential to the extent they are relevant to the action. (V.A.C.S. Art. 4551i, Sec. 4.)
Sec. 261.052. DISCLOSURE OF INFORMATION. Communications made to a dental peer review committee and the records and proceedings of the committee may be disclosed to:
(1) another dental peer review committee;
(2) an appropriate state or federal agency;
(3) a national accreditation body; or
(4) the registration or licensing entity in any state. (V.A.C.S. Art. 4551i, Sec. 5.)
Sec. 261.053. DISCLOSURE TO AFFECTED DENTIST. (a) Disclosure to the affected dentist of confidential peer review committee information pertinent to the matter under review does not waive the confidentiality provisions of this chapter.
(b) If a dental peer review committee takes action that may result in censure or a license suspension, restriction, limitation, or revocation by the board or in the denial of membership or privileges in a health care entity, the committee shall give the affected dentist:
(1) a written copy of the recommendation of the committee; and
(2) a copy of the final decision, including a statement of the basis for the decision. (V.A.C.S. Art. 4551i, Sec. 6.)
Sec. 261.054. COMMITTEE'S EVIDENTIARY PRIVILEGE. (a) Unless disclosure is required or authorized by law, records or determinations of or communications to a dental peer review committee are not subject to subpoena or discovery and are not admissible as evidence in a civil judicial or administrative proceeding unless the committee executes in writing a waiver of the confidentiality privilege.
(b) The evidentiary privilege created by this chapter may be invoked by any person in any civil judicial or administrative proceeding unless the person has secured a waiver of the privilege executed in writing by the presiding officer, assistant presiding officer, or secretary of the affected dental peer review committee.
(c) If a dental peer review committee or a person participating in peer review named as a defendant in a civil action filed as a result of participation in peer review may use otherwise confidential information in the person's defense or in a claim or suit under Section 261.104, the plaintiff in the proceeding may disclose the records or determinations of a peer review committee or communications made to a peer review committee in rebuttal to information supplied by the defendant.
(d) A person seeking access to privileged information must plead and prove waiver of the privilege.
(e) A member, employee, or agent of a dental peer review committee who provides access to privileged communications or records in cooperation with a law enforcement authority in a criminal investigation is not considered to have waived a privilege established under this chapter. (V.A.C.S. Art. 4551i, Sec. 7.)
Sec. 261.055. COMPLIANCE WITH BOARD SUBPOENAS. (a) A person, including the governing body and medical staff of a health care entity, shall comply with a subpoena for a document or information issued by the board as authorized by law.
(b) The disclosure of a document or information under a board subpoena does not constitute a waiver of the privilege established under this chapter.
(c) Failure to comply with a board subpoena constitutes grounds for disciplinary action against the facility or individual by the appropriate licensing board. (V.A.C.S. Art. 4551i, Sec. 8.)
[Sections 261.056-261.100 reserved for expansion]
SUBCHAPTER C. CIVIL LIABILITY
Sec. 261.101. COMMITTEE IMMUNITY FROM SUIT. (a) In the absence of fraud, conspiracy, or malice, a dental peer review committee is not subject to a suit for damages arising from investigating a disagreement or complaint, holding a hearing to determine facts, or making an evaluation, recommendation, decision, or award involving a dentist who is a member of a dental association or another dentist, a dental patient, or a third party requesting the committee's services.
(b) The purpose of this section is to protect a dental peer review committee from being harassed and threatened with legal action in performing official duties. (V.A.C.S. Art. 4551i, Sec. 3.)
Sec. 261.102. COMMITTEE PARTICIPANTS' IMMUNITY FROM SUIT. A cause of action does not accrue against a member, agent, or employee of a dental peer review committee for an act, statement, determination, or recommendation made or an act reported, without malice, in the course of peer review under this chapter. (V.A.C.S. Art. 4551i, Sec. 9.)
Sec. 261.103. IMMUNITY FROM SUIT. A person is immune from civil liability if:
(1) the person reports or furnishes information to a dental peer review committee or the board in good faith;
(2) the person:
(A) is a member, employee, or agent of the board, of a dental peer review committee, or of a dental organization committee or a dental organization who takes an action or makes a recommendation within the scope of the functions of a peer review program; and
(B) acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to the person; or
(3) the person, including a health care entity or dental peer review committee, without malice participates in a dental peer review activity or furnishes a record, information, or assistance to a dental peer review committee or the board. (V.A.C.S. Art. 4551i, Secs. 10, 12.)
Sec. 261.104. COUNTERCLAIM FOR FRIVOLOUS SUIT. A dental peer review committee, a person participating in peer review, or any other person named as a defendant in a civil action filed as a result of participation in peer review may file a counterclaim in a pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined:
(1) to be frivolous; or
(2) to have been brought in bad faith. (V.A.C.S. Art. 4551i, Sec. 11.)
CHAPTER 262. REGULATION OF DENTAL HYGIENISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 262.001. DEFINITIONS
Sec. 262.002. PRACTICE OF DENTAL HYGIENE
Sec. 262.003. EXEMPTIONS
[Sections 262.004-262.050 reserved for expansion]
SUBCHAPTER B. DENTAL HYGIENE ADVISORY COMMITTEE
Sec. 262.051. DENTAL HYGIENE ADVISORY COMMITTEE
Sec. 262.052. ADVISORY COMMITTEE MEMBERSHIP
Sec. 262.053. MEMBERSHIP RESTRICTION
Sec. 262.054. TERMS
Sec. 262.055. PRESIDING OFFICER
Sec. 262.056. PER DIEM; REIMBURSEMENT
[Sections 262.057-262.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF BOARD RELATING TO
DENTAL HYGIENISTS
Sec. 262.101. BOARD POWERS AND DUTIES
Sec. 262.102. RULEMAKING AUTHORITY OF BOARD
Sec. 262.103. NOTICE OF MEETINGS
[Sections 262.104-262.150 reserved for expansion]
SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
Sec. 262.151. DELEGATION OF DUTIES BY DENTIST
Sec. 262.152. PERFORMANCE OF DELEGATED DUTIES
[Sections 262.153-262.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES; CIVIL LIABILITY;
PENALTIES
Sec. 262.201. PROHIBITED PRACTICE
Sec. 262.202. CIVIL LIABILITY
Sec. 262.203. CRIMINAL PENALTY
CHAPTER 262. REGULATION OF DENTAL HYGIENISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 262.001. DEFINITIONS. In this chapter:
(1) "Advisory committee" means the Dental Hygiene Advisory Committee.
(2) "Dental hygienist" means a person who practices dental hygiene under a license issued by the board under Chapter 256. (V.A.C.S. Art. 4551e, Sec. 1 (part); New.)
Sec. 262.002. PRACTICE OF DENTAL HYGIENE. (a) A person practices dental hygiene if the person:
(1) removes accumulated matter, tartar, deposits, accretions, or stains, other than mottled enamel stains, from the natural and restored surface of exposed human teeth and restorations in the human mouth;
(2) smoothes roughened root surfaces;
(3) polishes exposed human teeth, restorations in the human mouth, or roughened root surfaces;
(4) topically applies drugs to the surface tissues of the human mouth or the exposed surface of human teeth;
(5) makes dental x-rays; and
(6) performs any other service, task, or procedure prescribed by board rule.
(b) A person legally practicing dental hygiene does not violate state law regulating the practice of dentistry. (V.A.C.S. Art. 4551e, Secs. 1 (part), 16.)
Sec. 262.003. EXEMPTIONS. This chapter does not apply to:
(1) a licensed dentist practicing dentistry in this state, except as provided by Subchapter D;
(2) a physician authorized to practice medicine in this state; or
(3) an employee of a licensed dentist who makes dental x-rays in the office of and under the supervision of a dentist practicing dentistry in this state. (V.A.C.S. Art. 4551e, Sec. 15.)
[Sections 262.004-262.050 reserved for expansion]
SUBCHAPTER B. DENTAL HYGIENE ADVISORY COMMITTEE
Sec. 262.051. DENTAL HYGIENE ADVISORY COMMITTEE. The advisory committee shall advise the board on matters relating to dental hygiene. (V.A.C.S. Art. 4551e, Sec. 4A(c) (part).)
Sec. 262.052. ADVISORY COMMITTEE MEMBERSHIP. The advisory committee consists of six members as follows:
(1) three dental hygienist members appointed by the governor;
(2) one dentist member appointed by the board; and
(3) two members who represent the public appointed by the governor. (V.A.C.S. Art. 4551e, Sec. 4A(b)(1).)
Sec. 262.053. MEMBERSHIP RESTRICTION. A person is not eligible for appointment as a member of the advisory committee if the person is a member of the board. (V.A.C.S. Art. 4551e, Sec. 4A(b)(4).)
Sec. 262.054. TERMS. Members of the advisory committee serve staggered six-year terms with the terms of one-third of the members expiring on February 1 of each odd-numbered year. (V.A.C.S. Art. 4551e, Sec. 4A(b)(2).)
Sec. 262.055. PRESIDING OFFICER. The advisory committee shall elect a presiding officer from its members to serve a one-year term. (V.A.C.S. Art. 4551e, Sec. 4A(b)(3).)
Sec. 262.056. PER DIEM; REIMBURSEMENT. (a) An advisory committee member is entitled to:
(1) the per diem set by the General Appropriations Act for each day the member engages in committee business; and
(2) transportation expenses as provided by the General Appropriations Act.
(b) An advisory committee member is not entitled to reimbursement for travel expenses except as provided by Subsection (a)(2). (V.A.C.S. Art. 4551e, Sec. 4A(d).)
[Sections 262.057-262.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF BOARD RELATING TO
DENTAL HYGIENISTS
Sec. 262.101. BOARD POWERS AND DUTIES. The board shall:
(1) administer this chapter; and
(2) regulate all matters concerning dental hygienists and the practice of dental hygiene. (V.A.C.S. Art. 4551e, Sec. 4 (part).)
Sec. 262.102. RULEMAKING AUTHORITY OF BOARD. (a) The board shall adopt and enforce rules that are necessary and advisable to carry out the purposes of and to enforce this chapter, including rules relating to professional conduct for dental hygienists.
(b) As necessary to protect public health and safety, the board may adopt and enforce a rule to establish the number of dental hygienists a dentist may employ.
(c) The board may not adopt a rule relating to the practice of dental hygiene before the 31st day after the date the proposed rule is submitted to the advisory committee for review and comment. (V.A.C.S. Art. 4551e, Secs. 4 (part), 4A(c) (part); Art. 4551e-1, Subsec. (g).)
Sec. 262.103. NOTICE OF MEETINGS. To ensure that the advisory committee properly exercises its advisory powers, the board shall provide the advisory committee with timely notice of each board meeting and a copy of the minutes of each meeting. (V.A.C.S. Art. 4551e, Sec. 4A(c) (part).)
[Sections 262.104-262.150 reserved for expansion]
SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
Sec. 262.151. DELEGATION OF DUTIES BY DENTIST. (a) A licensed dentist may delegate orally or in writing a service, task, or procedure to a dental hygienist who is under the supervision and responsibility of the dentist, if:
(1) the dental hygienist is licensed to perform the service, task, or procedure;
(2) the supervising dentist examines the patient:
(A) at the time the service, task, or procedure is performed by the dental hygienist; or
(B) during the 12 calendar months preceding the date of performance of the service, task, or procedure by the dental hygienist; and
(3) the dental hygienist does not:
(A) diagnose a dental disease or ailment;
(B) prescribe a treatment or a regimen;
(C) prescribe, order, or dispense medication; or
(D) perform any procedure that is irreversible or involves the intentional cutting of soft or hard tissue by any means.
(b) A licensed dentist may delegate to a dental hygienist any act that a dentist may delegate to a dental assistant.
(c) A dentist is not required to be on the premises when the dental hygienist performs a delegated act.
(d) This chapter does not prevent a dentist from authorizing a dental hygienist employed by the dentist to:
(1) instruct and educate a patient in proper oral hygiene; or
(2) provide to a patient a medication ordered by the dentist.
(e) This chapter does not prevent a dental hygienist from incidentally removing cementum during root planing. (V.A.C.S. Art. 4551e, Sec. 3(a); Art. 4551e-1, Subsec. (f).)
Sec. 262.152. PERFORMANCE OF DELEGATED DUTIES. (a) A dental hygienist shall practice dental hygiene:
(1) in a supervising dentist's dental office; or
(2) in an alternate setting, including a nursing home or the patient's home, under the supervision of a supervising dentist.
(b) A dental hygienist who practices dental hygiene under Subsection (a)(1) must be employed by a supervising dentist who is licensed by the board.
(c) This section does not apply if the dental hygienist is employed by a school, hospital, state institution, public health clinic, or other institution that has been approved by the board as a proper location for the performance of a dental procedure. (V.A.C.S. Art. 4551e, Sec. 3(b) (part).)
[Sections 262.153-262.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES; CIVIL LIABILITY;
PENALTIES
Sec. 262.201. PROHIBITED PRACTICE. A dental hygienist may not practice or offer to practice dental hygiene under a name other than the name appearing on the person's license. (V.A.C.S. Art. 4551e, Sec. 13 (part).)
Sec. 262.202. CIVIL LIABILITY. A dental hygienist who administers to a person cardiopulmonary resuscitation or other emergency care in an emergency situation is not liable to the person for damages unless the emergency care is performed in a wilfully or wantonly negligent manner. (V.A.C.S. Art. 4551e, Sec. 6.)
Sec. 262.203. CRIMINAL PENALTY. (a) A person commits an offense if the person violates a provision of this chapter or Chapter 256 relating to the regulation of dental hygienists.
(b) An offense under Subsection (a) is punishable by:
(1) a fine of not less than $100 or more than $1,000;
(2) confinement in jail for not less than one month or more than one year; or
(3) both the fine and confinement.
(c) Each day of a violation under this section is a separate offense. (V.A.C.S. Art. 4551e, Sec. 18.)
CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS
Sec. 263.001. GROUNDS FOR REFUSAL TO EXAMINE OR
ISSUE LICENSE
Sec. 263.002. GROUNDS FOR DISCIPLINARY ACTION IN GENERAL
Sec. 263.003. HEARING
Sec. 263.004. TEMPORARY SUSPENSION IN EMERGENCY
Sec. 263.005. PROBATION
Sec. 263.006. SUSPENSION OR REVOCATION REQUIRED FOR
CERTAIN DRUG OFFENSES
Sec. 263.007. INFORMAL PROCEEDING
Sec. 263.008. SUBPOENA
Sec. 263.009. APPEAL
CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS
Sec. 263.001. GROUNDS FOR REFUSAL TO EXAMINE OR ISSUE LICENSE. The board may refuse to examine a person or to issue a dental license or a dental hygienist license to a person if the person:
(1) presents to the board fraudulent or false evidence of the person's qualification for examination or license;
(2) is guilty of any illegality, fraud, or deception during the examination or the process to secure a license;
(3) is habitually intoxicated or is addicted to drugs;
(4) commits a dishonest or illegal practice in or connected to dentistry or dental hygiene;
(5) is convicted of a felony under a federal law or law of this state; or
(6) is found to have violated a law of this state relating to the practice of dentistry within the 12 months preceding the date the person filed an application for a license to practice dentistry or dental hygiene. (V.A.C.S. Art. 4549, Sec. 1.)
Sec. 263.002. GROUNDS FOR DISCIPLINARY ACTION IN GENERAL. (a) The board, after notice and hearing, may reprimand a person who holds a license issued under this subtitle, impose a fine on a person licensed under this subtitle, impose an administrative penalty under Subchapter A, Chapter 264, on a person who holds a license under this subtitle, place on probation with conditions a person whose license has been suspended, or revoke or suspend a person's license issued under this subtitle if the person:
(1) is adjudged under the law to be insane;
(2) is convicted of a misdemeanor involving fraud or a felony under federal law or the law of any state;
(3) practices dentistry or dental hygiene in a manner that constitutes dishonorable conduct, malpractice, or gross incompetency;
(4) fails to treat a patient according to the standard of care in the practice of dentistry or dental hygiene;
(5) engages in deception or misrepresentation in soliciting or obtaining patronage;
(6) obtains a license by fraud or misrepresentation;
(7) is habitually intoxicated or addicted to drugs;
(8) holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist's control or management;
(9) fails to use proper diligence in the person's practice or fails to safeguard the person's patients against avoidable infections;
(10) violates or refuses to comply with a law relating to the regulation of dentists or dental hygienists;
(11) is physically or mentally incapable of practicing in a manner that is safe for the person's dental patients;
(12) is negligent in performing dental services and that negligence causes injury or damage to a dental patient;
(13) holds a license or certificate to practice dentistry or dental hygiene in another state and that state, based on an act by the person that is the same as an act described in this section:
(A) reprimands the person;
(B) suspends or revokes the person's license or certificate or places the person on probation; or
(C) imposes another restriction on the person's practice; or
(14) knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:
(A) regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or
(B) regulates the business of insurance.
(b) If a person holds a license to practice dentistry or dental hygiene, the board may reprimand or impose a fine on the person, place the person's license on probation, or suspend or revoke the person's license under Subsection (a)(10) only if a majority of the board determines that the person has committed an act described by Subsection (a)(10). (V.A.C.S. Art. 4548h, Sec. 2(a) (part); Art. 4549, Sec. 2.)
Sec. 263.003. HEARING. A person licensed under this subtitle is entitled to a hearing under Chapter 2001, Government Code, if the board proposes to:
(1) refuse to examine the person;
(2) reprimand or impose a fine on the person;
(3) place the person on probation after the person's license has been suspended; or
(4) suspend or revoke the license of the person. (V.A.C.S. Art. 4548h, Sec. 2(a) (part); Art. 4549, Secs. 3(a), (b) (part).)
Sec. 263.004. TEMPORARY SUSPENSION IN EMERGENCY. (a) If the board or an executive committee of the board determines from the evidence or information presented that the continued practice by a person licensed under this subtitle would constitute a clear, imminent, or continuing threat to a person's physical health or well-being, the board or the executive committee shall temporarily suspend the person's license.
(b) The board may temporarily suspend a license under this section without notice or hearing if at the time of the temporary suspension the board or the executive committee requests the State Office of Administrative Hearings to set a date for a hearing on the temporary suspension.
(c) The State Office of Administrative Hearings shall hold a hearing not later than the 14th day after the date the license is suspended unless the license holder requests a continuance. The State Office of Administrative Hearings shall hold a second hearing on the suspension not later than the 60th day after:
(1) the date the license is temporarily suspended; or
(2) the date specified in the continuance requested by the license holder.
(d) If the State Office of Administrative Hearings does not hold a hearing within the time provided by Subsection (c), the suspended license is automatically reinstated. (V.A.C.S. Art. 4548h, Sec. 2(d).)
Sec. 263.005. PROBATION. If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review professional education until the license holder attains a degree of skill satisfactory to the board in the areas that are the basis of the probation. (V.A.C.S. Art. 4548h, Sec. 2(c).)
Sec. 263.006. SUSPENSION OR REVOCATION REQUIRED FOR CERTAIN DRUG OFFENSES. (a) The board shall suspend a license holder's license issued under this subtitle if it is determined at an administrative hearing that the person has been convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code.
(b) The board shall revoke the person's license on the person's final conviction.
(c) The board may not reinstate or reissue a license suspended or revoked under this section unless an express determination is made that the reinstatement or reissuance of the license is in the best interests of the public and the person whose license was suspended or revoked. The board must base that determination on substantial evidence contained in an investigative report. (V.A.C.S. Art. 4549-1 (part).)
Sec. 263.007. INFORMAL PROCEEDING. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant, if applicable and permitted by law, an opportunity to be heard;
(2) provide the license holder an opportunity to be heard; and
(3) require the presence of a member of the board's legal staff, if the board has a legal staff, or, if the board does not have a legal staff, an attorney from the attorney general's office to advise the board or the board's employees. (V.A.C.S. Art. 4548h, Secs. 1(i), (j).)
Sec. 263.008. SUBPOENA. (a) The board may request the attorney general to file suit against a person who fails to comply with a subpoena issued by the board to enforce the subpoena. The suit must be filed in a Travis County district court or in a district court in the county in which a hearing conducted by the board may be held.
(b) The court on finding that good cause exists for the issuance of the subpoena shall order the person to comply with the subpoena. (V.A.C.S. Art. 4549-1.1 (part).)
Sec. 263.009. APPEAL. A person aggrieved by a decision of the board under this chapter is entitled to appeal as provided by Chapter 2001, Government Code. (V.A.C.S. Art. 4548h, Sec. 3(a); Art. 4549, Sec. 3(b) (part).)
CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
Sec. 264.001. IMPOSITION OF PENALTY
Sec. 264.002. AMOUNT OF PENALTY
Sec. 264.003. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 264.004. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 264.005. HEARING
Sec. 264.006. DECISION BY BOARD
Sec. 264.007. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 264.008. COLLECTION OF PENALTY
Sec. 264.009. DETERMINATION BY COURT
Sec. 264.010. REMITTANCE OF PENALTY AND INTEREST
Sec. 264.011. INFORMAL ASSESSMENT OF ADMINISTRATIVE PENALTY
Sec. 264.012. ADMINISTRATIVE PROCEDURE
[Sections 264.013-264.050 reserved for expansion]
SUBCHAPTER B. INJUNCTION
Sec. 264.051. INJUNCTION
Sec. 264.052. REPRESENTATION OF STATE
Sec. 264.053. REMEDIES CUMULATIVE
[Sections 264.054-264.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTY
Sec. 264.101. CIVIL PENALTY
Sec. 264.102. COLLECTION OF CIVIL PENALTY
[Sections 264.103-264.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL PENALTY
Sec. 264.151. CRIMINAL PENALTY
CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
Sec. 264.001. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this subtitle who violates this subtitle or a rule or order adopted under this subtitle. (V.A.C.S. Art. 4548j, Subsec. (a).)
Sec. 264.002. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The executive director or a board subcommittee, of which, at least one member is a public member of the board, shall determine the amount of the penalty based on a standardized penalty schedule. The board by rule shall develop the schedule based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of the violation; and
(B) the hazard or potential hazard created to the health, safety, or welfare of the public;
(2) the economic damage to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4548j, Subsecs. (b), (c).)
Sec. 264.003. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director or a board subcommittee determines that a violation has occurred, the executive director or board subcommittee may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the recommendation of the executive director or the subcommittee on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is approved by the board, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a notice of each alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4548j, Subsecs. (d), (e).)
Sec. 264.004. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept, in writing, the executive director's or subcommittee's determination and recommended administrative penalty; or
(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4548j, Subsecs. (f), (g).)
Sec. 264.005. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4548j, Subsec. (h) (part).)
Sec. 264.006. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4548j, Subsecs. (h) (part), (i).)
Sec. 264.007. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that is:
(i) for the amount of the penalty; and
(ii) effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) On receipt of a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4548j, Subsecs. (j), (k), (l).)
Sec. 264.008. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4548j, Subsec. (m).)
Sec. 264.009. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation has occurred after the court reviews the board's order imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4548j, Subsec. (o).)
Sec. 264.010. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the penalty is reduced or not upheld by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4548j, Subsec. (p).)
Sec. 264.011. INFORMAL ASSESSMENT OF ADMINISTRATIVE PENALTY. This subchapter does not prevent the board from assessing an administrative penalty using an informal proceeding under Section 263.003. (V.A.C.S. Art. 4548j, Subsec. (s).)
Sec. 264.012. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4548j, Subsec. (r).)
[Sections 264.013-264.050 reserved for expansion]
SUBCHAPTER B. INJUNCTION
Sec. 264.051. INJUNCTION. (a) The state shall file suit for injunction against a person who practices or intends to practice dentistry in violation of state law. The suit shall be filed in the county in which the defendant practices or intends to practice dentistry.
(b) The state is not required to demonstrate that any person was injured by the alleged prohibited practice.
(c) If the defendant is found to have been unlawfully practicing dentistry or to be about to provide services in a manner that is the unlawful practice of dentistry, the court shall permanently enjoin the defendant from practicing dentistry in violation of law. (V.A.C.S. Art. 4551c (part).)
Sec. 264.052. REPRESENTATION OF STATE. The attorney general or the district attorney or county attorney of the county in which the unlawful acts occurred shall represent the state in a suit under this subchapter. (V.A.C.S. Art. 4551c (part).)
Sec. 264.053. REMEDIES CUMULATIVE. The remedy provided by this subchapter is in addition to criminal prosecution and cumulative of other remedies provided to prevent the unlawful practice of dentistry. (V.A.C.S. Art. 4551c (part).)
[Sections 264.054-264.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTY
Sec. 264.101. CIVIL PENALTY. (a) A person who violates a provision of this subtitle is liable to the state for a civil penalty in an amount not to exceed $5,000.
(b) Each day a violation continues or occurs is a separate violation for the purpose of imposing the civil penalty. (V.A.C.S. Art. 4548i, Subsec. (b) (part).)
Sec. 264.102. COLLECTION OF CIVIL PENALTY. At the board's request, the attorney general or the district attorney or county attorney of the county in which the violation is alleged to have occurred shall file suit to collect the civil penalty. (V.A.C.S. Art. 4548i, Subsec. (b) (part).)
[Sections 264.103-264.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL PENALTY
Sec. 264.151. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this subtitle.
(b) An offense under this section is a Class A misdemeanor.
(c) A violation under this section does not include a violation to which Section 262.203 applies.
(d) If it is shown at the trial of an offense under this section that the defendant was previously convicted under this section or if the offense involves practicing without an appropriate board license, the offense is a felony of the third degree.
(e) Each day of a violation is a separate offense. (V.A.C.S. Art. 4548i, Subsec. (a).)
CHAPTER 265. REGULATION OF DENTAL ASSISTANTS
Sec. 265.001. REGISTRATION
Sec. 265.002. SUPERVISION, DIRECTION, AND RESPONSIBILITY
Sec. 265.003. PERMITTED DUTIES
CHAPTER 265. REGULATION OF DENTAL ASSISTANTS
Sec. 265.001. REGISTRATION. The board may adopt and enforce rules requiring the registration of dental assistants as necessary to protect the public health and safety. (V.A.C.S. Art. 4551e-1, Subsec. (e).)
Sec. 265.002. SUPERVISION, DIRECTION, AND RESPONSIBILITY. In this subtitle, a dental assistant is under the direct supervision, direction, and responsibility of a dentist if the dentist:
(1) employs the dental assistant or is in charge of the dental assistant; and
(2) is physically present in the dental office when the dental assistant performs a delegated dental act. (V.A.C.S. Art. 4551e-1, Subsec. (a) (part).)
Sec. 265.003. PERMITTED DUTIES. A dental assistant who is not professionally licensed may:
(1) be employed by and work in the office of a licensed and practicing dentist; and
(2) perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist. (V.A.C.S. Art. 4551e-1, Subsec. (a) (part).)
CHAPTER 266. REGULATION OF DENTAL LABORATORIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 266.001. DEFINITIONS
Sec. 266.002. EXEMPTIONS
[Sections 266.003-266.050 reserved for expansion]
SUBCHAPTER B. DENTAL LABORATORY CERTIFICATION COUNCIL
Sec. 266.051. APPOINTMENT OF COUNCIL; MEMBERSHIP
Sec. 266.052. MEMBER ELIGIBILITY
Sec. 266.053. TERMS
Sec. 266.054. PRESIDENT
Sec. 266.055. PER DIEM
Sec. 266.056. MEETINGS
Sec. 266.057. CIVIL LIABILITY
[Sections 266.058-266.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF COUNCIL
AND BOARD
Sec. 266.101. COUNCIL POWERS AND DUTIES
Sec. 266.102. BOARD POWERS AND DUTIES
[Sections 266.103-266.150 reserved for expansion]
SUBCHAPTER D. CERTIFICATION, REGISTRATION, AND RENEWAL
REQUIREMENTS
Sec. 266.151. REGISTRATION REQUIRED
Sec. 266.152. CERTIFIED DENTAL TECHNICIAN
Sec. 266.153. APPLICATION FOR REGISTRATION
Sec. 266.154. REGISTRATION RENEWAL
[Sections 266.155-266.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY REGISTRATION HOLDER
Sec. 266.201. PRESCRIPTION REQUIRED
Sec. 266.202. RELIANCE ON PRESCRIPTION
Sec. 266.203. TRANSPORTATION OF DENTAL MATERIAL PERMITTED
[Sections 266.204-266.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY ACTIONS
Sec. 266.251. GROUNDS FOR DISCIPLINARY ACTION
Sec. 266.252. PROCEDURES FOR DISCIPLINARY ACTION
[Sections 266.253-266.300 reserved for expansion]
SUBCHAPTER G. PROHIBITED PRACTICES, ENFORCEMENT, AND
PENALTIES
Sec. 266.301. DENTAL PROSTHETIC APPLIANCE
Sec. 266.302. INJUNCTION
Sec. 266.303. CRIMINAL PENALTIES
CHAPTER 266. REGULATION OF DENTAL LABORATORIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 266.001. DEFINITIONS. In this chapter:
(1) "Council" means the Dental Laboratory Certification Council.
(2) "Dental laboratory" means a place in which a person performs or offers to perform a dental laboratory service.
(3) "Dental laboratory service" means:
(A) the making, assembly, processing, production, repair, relining, or adjustment of a prosthetic or orthodontic dental appliance, a full or partial denture, a fixed or removable dental bridge, a dental plate of false teeth, an artificial restoration, or a substitute or corrective device for any part of the human teeth, gums, jaws, or alveolar process; or
(B) the fitting of a dental appliance, a denture, a bridge, a plate, false teeth, an artificial restoration, or a substitute or corrective device for the human teeth, gums, or jaws to or on a dental model, impression, or cast of any part of the human teeth, gums, jaws, or alveolar process.
(4) "Dental technician" means a person who performs, offers to perform, or aids, abets, or causes another to perform or offer to perform a dental laboratory service. (V.A.C.S. Art. 4551f, Secs. (1), (2); New.)
Sec. 266.002. EXEMPTIONS. This chapter does not apply to:
(1) a student enrolled in a program of a school of dentistry; or
(2) a licensed dentist engaged in the practice of dentistry in this state who performs a dental laboratory service for compensation or an employee of the dentist or of the professional corporation or partnership in which the dentist is an officer, partner, or employee if the service is performed:
(A) for a patient of the dentist or of the professional corporation or partnership in which the dentist is an officer, partner, or employee; and
(B) on the premises in which the dentist practices dentistry. (V.A.C.S. Art. 4551f, Secs. (5)(a), (b).)
[Sections 266.003-266.050 reserved for expansion]
SUBCHAPTER B. DENTAL LABORATORY CERTIFICATION COUNCIL
Sec. 266.051. APPOINTMENT OF COUNCIL; MEMBERSHIP. The Dental Laboratory Certification Council consists of three members appointed by the board. (V.A.C.S. Art. 4551f, Sec. (9)(a) (part).)
Sec. 266.052. MEMBER ELIGIBILITY. (a) A person is eligible for appointment to the council if the person:
(1) is a dental technician who is certified as described by Section 266.152(a); and
(2) is an owner, manager, or employee of a dental laboratory registered with the board.
(b) A person is not eligible for appointment to the council if the person or the person's spouse is:
(1) licensed by the board to practice dentistry;
(2) a board employee; or
(3) an employee of a dentist licensed by the board. (V.A.C.S. Art. 4551f, Sec. (9)(a) (part).)
Sec. 266.053. TERMS. (a) Council members serve two-year terms.
(b) A member may not serve more than four terms. (V.A.C.S. Art. 4551f, Sec. (9)(b).)
Sec. 266.054. PRESIDENT. The council shall elect from its members a presiding officer to serve a one-year term. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)
Sec. 266.055. PER DIEM. A council member is entitled to the per diem set for members of state boards and commissions by the General Appropriations Act. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)
Sec. 266.056. MEETINGS. The council:
(1) shall meet at least once each year; and
(2) may meet at other times at the call of the presiding officer of the council if the presiding officer of the board approves. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)
Sec. 266.057. CIVIL LIABILITY. A member of the council is not liable in a civil action for an act performed in good faith while performing duties as a council member. (V.A.C.S. Art. 4551f, Sec. (9)(f).)
[Sections 266.058-266.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF COUNCIL
AND BOARD
Sec. 266.101. COUNCIL POWERS AND DUTIES. (a) The council shall review each application for registration or renewal of registration to determine if the applicant meets the requirements of this chapter. The council shall provide to the board a list of applicants eligible for registration.
(b) The council may:
(1) recommend to the board rules relating to dental laboratories; and
(2) perform additional duties as requested by the board.
(c) The council may not exercise rulemaking authority. (V.A.C.S. Art. 4551f, Secs. (9)(d) (part), (e).)
Sec. 266.102. BOARD POWERS AND DUTIES. (a) The board shall:
(1) not later than the 30th day after the date the board receives a recommended rule from the council, consider the rule under the process prescribed by Chapter 2001, Government Code; and
(2) provide to the council the board's reasons if the board amends or rejects the proposed rule.
(b) The board may adopt rules regarding dental laboratories in only the following areas:
(1) processing registration applications;
(2) prescribing:
(A) requirements for registration;
(B) the form and content of registration applications and other forms required to administer this chapter;
(C) procedures for renewal of certificates of registration; and
(D) fees necessary to administer this chapter;
(3) monitoring records necessary to administer this chapter;
(4) establishing continuing education requirements for dental technicians employed by dental laboratories, including prescribing the content of continuing education courses; and
(5) regulating:
(A) infection control;
(B) shade-taking procedures authorized by a prescription from a licensed dentist;
(C) computer-imaging procedures for an oral cavity authorized by a prescription from a licensed dentist;
(D) referral of dental prescriptions to out-of-state laboratories to be filled; and
(E) the transportation and manufacture of dental prosthetic devices or other dental work performed by a dental laboratory located in another state or a foreign country for use in this state.
(c) In prescribing the content of continuing education courses under Subsection (b)(4), the board shall require the course content to be at least as comprehensive as a course approved by a nationally recognized board of certification for dental technology.
(d) The board shall allow the council to review and comment on a proposed rule under Subsection (b) for 30 days following the date the rule is proposed by the board.
(e) The board shall provide annually to each dentist licensed in this state a list of dental laboratories registered under this chapter. The list must include the expiration date of each laboratory's registration certificate. (V.A.C.S. Art. 4551f, Secs. (8)(b), (c), (e), (f), (9)(d) (part).)
[Sections 266.103-266.150 reserved for expansion]
SUBCHAPTER D. CERTIFICATION, REGISTRATION,
AND RENEWAL REQUIREMENTS
Sec. 266.151. REGISTRATION REQUIRED. (a) In this section, "person" means an individual or a private legal entity, including a corporation, association, or partnership.
(b) A person may not operate or offer to operate a dental laboratory or provide or offer to provide dental laboratory services unless the person holds a registration certificate issued under this chapter. (V.A.C.S. Art. 4551f, Secs. (7)(a), (c).)
Sec. 266.152. CERTIFIED DENTAL TECHNICIAN. (a) A dental laboratory must have at least one dental technician working on the laboratory's premises who is certified by a nationally recognized board of certification for dental technology.
(b) A dental laboratory is exempt from Subsection (a) if the laboratory is:
(1) owned by a licensed dentist engaged in the practice of dentistry in this state or by a professional corporation or partnership in which that dentist is an officer, partner, or employee; and
(2) located on the premises within which the dentist practices dentistry.
(c) The exemption under Subsection (b) does not apply to a dental laboratory if the laboratory employs three or more dental technicians.
(d) The owner of a dental laboratory registered with the board on September 1, 1987, is exempt from Subsection (a) if:
(1) the laboratory has been continuously registered with the board since that date, and all registration fees have been paid;
(2) the beneficial ownership of at least 51 percent of the laboratory has not been transferred; and
(3) the owner is employed on the laboratory's premises for not less than 30 hours each week. (V.A.C.S. Art. 4551f, Secs. (6)(a) (part), (d), (e).)
Sec. 266.153. APPLICATION FOR REGISTRATION. (a) An owner or manager of a dental laboratory shall annually:
(1) apply to the board for the registration of each dental laboratory doing business in this state to which the owner or manager is connected or in which the owner or manager has an interest; and
(2) pay the application fee set by the board.
(b) The application must include:
(1) evidence satisfactory to the board that the dental laboratory meets the requirements prescribed by Section 266.152(a), if applicable;
(2) the name and address of each dental technician employed by the dental laboratory; and
(3) any other information required by the board.
(c) The board may issue a certificate of registration only to a dental laboratory that complies with the requirements of this section. (V.A.C.S. Art. 4551f, Secs. (6)(a) (part), (9)(d) (part).)
Sec. 266.154. REGISTRATION RENEWAL. (a) An applicant for renewal of a dental laboratory registration must provide evidence satisfactory to the board that at least one employee who works on the dental laboratory's premises:
(1) has completed at least 12 hours of continuing education during the previous registration period; or
(2) is certified as required by Section 266.152(a), if applicable.
(b) An owner or manager of a dental laboratory may renew an unexpired registration certificate for a dental laboratory if the owner or manager:
(1) pays the required renewal fee to the board on or before the expiration date; and
(2) complies with any other renewal requirements.
(c) If the owner or manager of a dental laboratory fails to renew the dental laboratory's registration and pay the annual renewal fee before the date the registration expires, the board shall suspend the registration certificate of the laboratory.
(d) An owner or manager of a dental laboratory whose registration certificate has been expired for 90 days or less may renew the registration certificate if the person pays to the board the required renewal fee and a fee equal to one-half of the amount of the renewal fee. If the registration certificate has been expired for more than 90 days but less than two years, the owner or manager may renew the certificate by paying to the board all unpaid renewal fees and a fee equal to the amount of the initial registration fee.
(e) An owner or manager of a dental laboratory may not renew a registration certificate that has been expired for two years or more. The owner or manager may obtain a new certificate by complying with the requirements for obtaining an original certificate. (V.A.C.S. Art. 4551f, Secs. (6)(b), (c).)
[Sections 266.155-266.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY REGISTRATION HOLDER
Sec. 266.201. PRESCRIPTION REQUIRED. (a) A dentist who orders a dental laboratory service shall prepare and deliver to the dental laboratory a prescription or work order for the service to be performed.
(b) The prescription or work order must contain:
(1) the signature and Texas dental license number of the dentist;
(2) the date the prescription or work order is signed;
(3) the patient's name and address; and
(4) a description of the dental laboratory service ordered.
(c) A dentist shall keep a copy of each prescription or work order at the dentist's office in a separate file for two years for inspection by the board's officers, agents, or employees.
(d) A dentist shall label as provided by board rule a removable dental prosthesis fabricated in this state by the dentist or by a person under a prescription or work order prepared by the dentist. (V.A.C.S. Art. 4551f, Sec. (3)(a) (part); Art. 4551g.)
Sec. 266.202. RELIANCE ON PRESCRIPTION. (a) The owner, manager, or employee of a dental laboratory or a dental technician may not perform or aid or abet another person in performing a dental laboratory service unless:
(1) the service was ordered by and any resulting item will be delivered to:
(A) a dentist engaged in the practice of dentistry in this state or in a jurisdiction in which the dentist maintains a dental office and engages in the practice of dentistry; or
(B) an employee of the dentist, if the service is performed for and on behalf of the dentist; and
(2) the dental laboratory receives a prescription or work order for the service in accordance with Section 266.201.
(b) If a dental laboratory receives a prescription or work order for dental laboratory services and refers the work to another laboratory, the referral must be accompanied by a written statement that the prescription or work order is on file with the original laboratory.
(c) A dental laboratory owner or manager shall maintain on the premises of a dental laboratory as a part of the laboratory's records a record of each prescription or work order completed at the dental laboratory until the second anniversary of the date the prescription or work order is furnished. The owner or manager shall also maintain the record in an alphabetized file in a separate place.
(d) The premises of a dental laboratory, the records of a dental laboratory or a dental technician employed by the dental laboratory pertaining to dental prescriptions or work orders, and records relating to the referral of work to a dental technician or the owner or manager of a dental laboratory shall be open and available for inspection by a member, officer, employee, investigator, or agent of the board during regular office hours. (V.A.C.S. Art. 4551f, Secs. (3)(a) (part), (b), (c).)
Sec. 266.203. TRANSPORTATION OF DENTAL MATERIAL PERMITTED. This chapter does not prohibit a person who is subject to and complies with this chapter from using the United States mail, a railway express agency, Western Union, or a messenger or common or contract carrier to handle, accept from, or transport or deliver to a dentist or dental laboratory an item in any form or state of completion on which a dental laboratory service will be or has been offered or ordered to be performed. (V.A.C.S. Art. 4551f, Sec. (4).)
[Sections 266.204-266.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY ACTIONS
Sec. 266.251. GROUNDS FOR DISCIPLINARY ACTION. (a) The board may refuse to issue a registration certificate, may impose a fine on a person who holds a registration certificate, may suspend or revoke a person's registration certificate, or may probate any portion of the suspension if, after a hearing, the board determines that the applicant or certificate holder has:
(1) violated or aided another person in violating a law regulating the practice of dentistry; or
(2) required or allowed a person under the direction or control of the person to violate a law regulating the practice of dentistry.
(b) In this section, an applicant for or holder of a registration certificate includes a person who has at least a 20 percent ownership interest in or is the general partner or managing partner in a dental laboratory that is registered under this chapter or for which an application for registration has been filed. (V.A.C.S. Art. 4551f, Secs. (8)(a) (part), (g).)
Sec. 266.252. PROCEDURES FOR DISCIPLINARY ACTION. The board shall follow the procedures under Chapter 263 in a complaint or disciplinary action under this chapter. (V.A.C.S. Art. 4551f, Sec. (8)(a) (part).)
[Sections 266.253-266.300 reserved for expansion]
SUBCHAPTER G. PROHIBITED PRACTICES, ENFORCEMENT, AND
PENALTIES
Sec. 266.301. DENTAL PROSTHETIC APPLIANCE. (a) In this section, "person" means an individual or a private legal entity, including a corporation, association, or partnership.
(b) A person may not fill a prescription to prepare or repair a dental prosthetic appliance that is to be delivered to a dental patient by a licensed dentist unless the person is a dental laboratory or dental technician.
(c) A dental laboratory that prepares or repairs a dental prosthetic appliance for a dentist shall provide to the dentist in writing at the time of the delivery the dental laboratory's assigned registration number and the expiration date of the dental laboratory's registration certificate.
(d) A dentist may not knowingly prescribe, order, or receive a dental prosthetic appliance that is to be prepared or has been prepared by an unregistered dental laboratory. (V.A.C.S. Art. 4551f, Secs. (7)(a), (b), (d), (e).)
Sec. 266.302. INJUNCTION. The board may apply for a restraining order or injunction to enforce this chapter or a board rule adopted under this chapter. (V.A.C.S. Art. 4551f, Sec. (8)(d).)
Sec. 266.303. CRIMINAL PENALTIES. (a) A person commits an offense if the person:
(1) is a dentist and provides a dental laboratory service without being exempt under Section 266.002(2); or
(2) violates Section 266.151 or 266.301.
(b) An offense for a violation of Section 266.151 or Section 266.301(b) is a felony of the third degree.
(c) An offense for a violation of Section 266.301(c) or (d) is a Class C misdemeanor. If it is shown on the trial of an offense under this section that the defendant has previously been convicted for an offense under this subsection, the offense is a Class A misdemeanor. (V.A.C.S. Art. 4551f, Secs. (7)(f), (g).)
[Chapters 267-300 reserved for expansion]
SUBTITLE E. REGULATION OF NURSING
CHAPTER 301. REGISTERED NURSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 301.001. SHORT TITLE
Sec. 301.002. DEFINITIONS
Sec. 301.003. APPLICATION OF SUNSET ACT
Sec. 301.004. APPLICATION OF CHAPTER
[Sections 301.005-301.050 reserved for expansion]
SUBCHAPTER B. BOARD OF NURSE EXAMINERS
Sec. 301.051. BOARD MEMBERSHIP
Sec. 301.052. MEMBER ELIGIBILITY
Sec. 301.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 301.054. TERMS
Sec. 301.055. GROUNDS FOR REMOVAL
Sec. 301.056. PER DIEM; REIMBURSEMENT
Sec. 301.057. OFFICERS
Sec. 301.058. MEETINGS
Sec. 301.059. TRAINING
[Sections 301.060-301.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 301.101. EXECUTIVE DIRECTOR
Sec. 301.102. SURETY BOND
Sec. 301.103. PUBLIC RECORDS; REGISTRY
Sec. 301.104. PERSONNEL; EMPLOYMENT PRACTICES
Sec. 301.105. DIVISION OF RESPONSIBILITIES
Sec. 301.106. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 301.107. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 301.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 301.109-301.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD
Sec. 301.151. GENERAL RULEMAKING AUTHORITY
Sec. 301.152. RULES REGARDING SPECIALIZED TRAINING
Sec. 301.153. RULES REGARDING ADVERTISING AND COMPETITIVE
BIDDING
Sec. 301.154. RULES REGARDING DELEGATION OF CERTAIN MEDICAL
ACTS
Sec. 301.155. FEES
Sec. 301.156. GIFTS AND GRANTS
Sec. 301.157. PROGRAMS OF STUDY AND ACCREDITATION
Sec. 301.158. DISSEMINATION OF INFORMATION
Sec. 301.159. BOARD DUTIES REGARDING COMPLAINTS
Sec. 301.160. PILOT PROGRAMS
Sec. 301.161. ENFORCEMENT
Sec. 301.162. LEGAL COUNSEL
Sec. 301.163. RECORD OF PROCEEDINGS; REPORT
Sec. 301.164. ASSISTANCE OF PROSECUTOR
Sec. 301.165. ANNUAL REPORT
[Sections 301.166-301.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 301.201. PUBLIC INTEREST INFORMATION
Sec. 301.202. COMPLAINTS
Sec. 301.203. RECORDS OF COMPLAINTS
Sec. 301.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
Sec. 301.205. PUBLIC PARTICIPATION
[Sections 301.206-301.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 301.251. LICENSE REQUIRED
Sec. 301.252. LICENSE APPLICATION
Sec. 301.253. EXAMINATION
Sec. 301.254. EXAMINATION RESULTS
Sec. 301.255. REEXAMINATION
Sec. 301.256. ISSUANCE OF LICENSE
Sec. 301.257. DECLARATORY ORDER OF LICENSE ELIGIBILITY
Sec. 301.258. TEMPORARY PERMIT
Sec. 301.259. RECIPROCAL LICENSE BY ENDORSEMENT FOR CERTAIN
FOREIGN APPLICANTS
Sec. 301.260. TEMPORARY LICENSE BY ENDORSEMENT
Sec. 301.261. INACTIVE STATUS
[Sections 301.262-301.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 301.301. LICENSE RENEWAL
Sec. 301.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 301.303. CONTINUING EDUCATION
[Sections 301.304-301.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 301.351. DESIGNATIONS
Sec. 301.352. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
CONDUCT
[Sections 301.353-301.400 reserved for expansion]
SUBCHAPTER I. DUTY TO REPORT VIOLATION
Sec. 301.401. GROUNDS FOR REPORTING REGISTERED NURSE
Sec. 301.402. DUTY OF REGISTERED NURSE TO REPORT
Sec. 301.403. DUTY OF PEER REVIEW COMMITTEE TO REPORT
Sec. 301.404. DUTY OF NURSING EDUCATIONAL PROGRAM TO
REPORT
Sec. 301.405. DUTY OF PERSON EMPLOYING REGISTERED NURSE TO
REPORT
Sec. 301.406. DUTY OF CERTAIN PROFESSIONAL ASSOCIATIONS AND
ORGANIZATIONS TO REPORT
Sec. 301.407. DUTY OF STATE AGENCY TO REPORT
Sec. 301.408. DUTY OF PROFESSIONAL LIABILITY INSURER TO
REPORT
Sec. 301.409. DUTY OF PROSECUTING ATTORNEY TO REPORT
Sec. 301.410. REPORT REGARDING IMPAIRMENT BY CHEMICAL
DEPENDENCY OR MENTAL ILLNESS
Sec. 301.411. EFFECT OF FAILURE TO REPORT
Sec. 301.412. REPORTING IMMUNITY
Sec. 301.413. RETALIATORY ACTION
Sec. 301.414. NOTICE AND REVIEW OF REPORT
Sec. 301.415. REBUTTAL STATEMENT
Sec. 301.416. INVESTIGATION
Sec. 301.417. CONFIDENTIALITY REQUIREMENTS; DISCLOSURE OF
INFORMATION
Sec. 301.418. DISCLOSURE OF CHARGES OR DISCIPLINARY ACTION
Sec. 301.419. GENERAL PROVISIONS REGARDING DUTY TO REPORT;
MINOR INCIDENTS
[Sections 301.420-301.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS
Sec. 301.451. CERTAIN PROHIBITED PRACTICES
Sec. 301.452. GROUNDS FOR DISCIPLINARY ACTION
Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
DISCIPLINE
Sec. 301.454. NOTICE AND HEARING
Sec. 301.455. TEMPORARY LICENSE SUSPENSION
Sec. 301.456. EVIDENCE
Sec. 301.457. COMPLAINT AND INVESTIGATION
Sec. 301.458. INITIATION OF FORMAL CHARGES; DISCOVERY
Sec. 301.459. FORMAL HEARING
Sec. 301.460. ACCESS TO INFORMATION
Sec. 301.461. ASSESSMENT OF COSTS
Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE
Sec. 301.463. AGREED DISPOSITION
Sec. 301.464. INFORMAL PROCEEDINGS
Sec. 301.465. SUBPOENAS; REQUEST FOR INFORMATION
Sec. 301.466. CONFIDENTIALITY
Sec. 301.467. REINSTATEMENT
Sec. 301.468. PROBATION
Sec. 301.469. NOTICE OF FINAL ACTION
[Sections 301.470-301.500 reserved for expansion]
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 301.501. IMPOSITION OF PENALTY
Sec. 301.502. AMOUNT OF PENALTY
Sec. 301.503. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 301.504. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 301.505. HEARING
Sec. 301.506. DECISION BY BOARD
Sec. 301.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 301.508. COLLECTION OF PENALTY
Sec. 301.509. DETERMINATION BY COURT
Sec. 301.510. REMITTANCE OF PENALTY AND INTEREST
Sec. 301.511. ADMINISTRATIVE PROCEDURE
[Sections 301.512-301.550 reserved for expansion]
SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 301.551. INJUNCTION
Sec. 301.552. MONITORING OF LICENSE HOLDER
Sec. 301.553. CIVIL PENALTY
Sec. 301.554. CRIMINAL PENALTY
Sec. 301.555. APPEAL
CHAPTER 301. REGISTERED NURSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 301.001. SHORT TITLE. This chapter may be cited as the Nursing Practice Act. (V.A.C.S. Art. 4514, Sec. 7.)
Sec. 301.002. DEFINITIONS. In this chapter:
(1) "Board" means the Board of Nurse Examiners.
(2) "Professional nursing" means the performance for compensation of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or prescription of therapeutic or corrective measures. Professional nursing involves:
(A) the observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes;
(B) the maintenance of health or prevention of illness;
(C) the administration of a medication or treatment as ordered by a physician, podiatrist, or dentist;
(D) the supervision or teaching of nursing;
(E) the administration, supervision, and evaluation of nursing practices, policies, and procedures;
(F) the requesting, receiving, signing for, and distribution of prescription drug samples to patients at sites in which a registered nurse is authorized to sign prescription drug orders as provided by Subchapter B, Chapter 157; and
(G) the performance of an act delegated by a physician under Section 157.052, 157.053, 157.054, 157.058, or 157.059. (V.A.C.S. Art. 4518, Sec. 5 (part); New.)
Sec. 301.003. APPLICATION OF SUNSET ACT. The Board of Nurse Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4513a.)
Sec. 301.004. APPLICATION OF CHAPTER. (a) This chapter does not apply to:
(1) gratuitous nursing care of the sick that is provided by a friend;
(2) nursing care by a licensed vocational nurse licensed under Chapter 302;
(3) nursing care provided during a disaster under the state emergency management plan adopted under Section 418.042, Government Code, if the person providing the care does not hold the person out as a registered or professional nurse unless the person is licensed in another state;
(4) nursing care in which treatment is solely by prayer or spiritual means;
(5) an act performed by a person under the control or supervision or at the instruction of a person licensed by the Texas State Board of Medical Examiners;
(6) an act performed by a person licensed by another state agency if the act is authorized by the statute under which the person is licensed;
(7) the practice of nursing that is incidental to a program of study by a student enrolled in a board-accredited nursing education program leading to an initial license as a professional nurse; or
(8) the practice of nursing by a registered nurse licensed in another state who is in this state on a nonroutine basis for a period not to exceed 72 hours to:
(A) provide care to a patient being transported into, out of, or through this state;
(B) provide professional nursing consulting services; or
(C) attend or present a continuing nursing education program.
(b) This chapter does not authorize the practice of medicine as defined by Chapter 151. (V.A.C.S. Art. 4518, Sec. 6 (part); Art. 4528.)
[Sections 301.005-301.050 reserved for expansion]
SUBCHAPTER B. BOARD OF NURSE EXAMINERS
Sec. 301.051. BOARD MEMBERSHIP. (a) The Board of Nurse Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six registered nurse members, including:
(A) a nurse faculty member of a school of nursing offering the baccalaureate degree program;
(B) a nurse faculty member of a school of nursing offering the associate degree program; and
(C) a nurse faculty member of a graduate school of nursing preparing advanced practice nurses; and
(2) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4513, Sec. 1 (part).)
Sec. 301.052. MEMBER ELIGIBILITY. (a) A person is not eligible for appointment as a registered nurse member of the board unless the person has engaged in the nursing profession for at least three of the five years preceding the date of appointment.
(b) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization that:
(A) provides health care services; or
(B) sells, manufactures, or distributes health care supplies or equipment;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization that:
(A) provides health care services; or
(B) sells, manufactures, or distributes health care supplies or equipment; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4513, Secs. 2(a) (part), (b).)
Sec. 301.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a board member or act 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 board's operation. (V.A.C.S. Art. 4513, Secs. 3, 4.)
Sec. 301.054. TERMS. Members of the board serve staggered six-year terms, with the terms of one member who is a practicing registered nurse, one member who is a registered nurse engaged in nurse education, and one member who is a representative of the public expiring on January 31 of each odd-numbered year. (V.A.C.S. Art. 4513, Sec. 2(a) (part).)
Sec. 301.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 301.051(a);
(2) does not maintain during service on the board the qualifications required by Section 301.051(a);
(3) violates a prohibition established by Section 301.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4513, Sec. 5.)
Sec. 301.056. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to receive a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A board member is not entitled to reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4515 (part).)
Sec. 301.057. OFFICERS. (a) The governor shall designate a member of the board as presiding officer to serve in that capacity at the pleasure of the governor.
(b) The board shall elect other officers from its members. (V.A.C.S. Art. 4514, Sec. 1 (part).)
Sec. 301.058. MEETINGS. The presiding officer shall call a special board meeting on the written request of at least two board members. (V.A.C.S. Art. 4514, Sec. 1 (part).)
Sec. 301.059. TRAINING. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.
(b) The training program shall provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4513, Sec. 14.)
[Sections 301.060-301.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 301.101. EXECUTIVE DIRECTOR. (a) The board shall employ an executive director. The executive director may not be a member of the board.
(b) Under the direction of the board, the executive director shall perform the duties required by this chapter or designated by the board. (V.A.C.S. Art. 4517 (part).)
Sec. 301.102. SURETY BOND. (a) The executive director shall execute on employment a $1,000 bond payable to the governor.
(b) The bond must be:
(1) conditioned on the executive director's faithful performance of the duties of the office, including the duty to account for funds that come into the executive director's possession in the capacity of executive director;
(2) signed by two or more sufficient sureties or by a surety company authorized to do business in this state; and
(3) approved by the board's presiding officer. (V.A.C.S. Art. 4517 (part).)
Sec. 301.103. PUBLIC RECORDS; REGISTRY. (a) The executive director shall keep:
(1) a record of each meeting of the board; and
(2) a registry of the name of each nurse registered under this chapter.
(b) Information maintained under this section is open to public inspection at all times. (V.A.C.S. Art. 4514, Sec. 3 (part).)
Sec. 301.104. PERSONNEL; EMPLOYMENT PRACTICES. The board shall employ persons as necessary to carry on the work of the board. (V.A.C.S. Art. 4517 (part).)
Sec. 301.105. DIVISION OF RESPONSIBILITIES. (a) The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board.
(b) The board shall determine the salaries and compensation to be paid to employees and persons retained by the board. (V.A.C.S. Art. 4513, Sec. 7; Art. 4515 (part).)
Sec. 301.106. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4513, Sec. 6.)
Sec. 301.107. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4513, Sec. 9.)
Sec. 301.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4513, Sec. 10.)
[Sections 301.109-301.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD
Sec. 301.151. GENERAL RULEMAKING AUTHORITY. The board may adopt and enforce rules consistent with this chapter and necessary to:
(1) perform its duties and conduct proceedings before the board;
(2) regulate the practice of professional nursing;
(3) establish standards of professional conduct for license holders under this chapter; and
(4) determine whether an act constitutes the practice of professional nursing. (V.A.C.S. Art. 4514, Sec. 1 (part).)
Sec. 301.152. RULES REGARDING SPECIALIZED TRAINING. (a) In this section, "advanced practice nurse" means a registered nurse approved by the board to practice as an advanced practice nurse on the basis of completion of an advanced educational program. The term includes a nurse practitioner, nurse midwife, nurse anesthetist, and clinical nurse specialist. The term is synonymous with "advanced nurse practitioner."
(b) The board shall adopt rules to:
(1) establish:
(A) any specialized education or training, including pharmacology, that a registered nurse must have to carry out a prescription drug order under Section 157.052; and
(B) a system for assigning an identification number to a registered nurse who provides the board with evidence of completing the specialized education and training requirement under Subdivision (1)(A);
(2) approve a registered nurse as an advanced practice nurse; and
(3) initially approve and biennially renew an advanced practice nurse's authority to carry out or sign a prescription drug order under Chapter 157.
(c) At a minimum, the rules adopted under Subsection (b)(3) must:
(1) require completion of pharmacology and related pathology education for initial approval;
(2) require continuing education in clinical pharmacology and related pathology in addition to any continuing education otherwise required under Section 301.303; and
(3) provide for the issuance of a prescription authorization number to an advanced practice nurse approved under this section. (V.A.C.S. Art. 4514, Secs. 6, 8; Art. 4518, Sec. 5 (part).)
Sec. 301.153. RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4514, Sec. 2.)
Sec. 301.154. RULES REGARDING DELEGATION OF CERTAIN MEDICAL ACTS. (a) The board may recommend to the Texas State Board of Medical Examiners the adoption of rules relating to the delegation by physicians of medical acts to registered nurses licensed by the board. In making a recommendation, the board may distinguish between nurses on the basis of special training and education.
(b) A recommendation under Subsection (a) shall be treated in the same manner as a petition for the adoption of a rule by an interested party under Chapter 2001, Government Code.
(c) The board in recommending a rule and the Texas State Board of Medical Examiners in acting on a recommended rule shall, to the extent allowable under state and federal statutes, rules, and regulations, act to enable the state to obtain its fair share of the federal funds available for the delivery of health care in this state. (V.A.C.S. Art. 4514, Sec. 5.)
Sec. 301.155. FEES. (a) The board by rule shall establish fees in amounts reasonable and necessary to cover the costs of administering this chapter. The board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date.
(b) The board may adopt a fee in an amount necessary for a periodic newsletter to produce and disseminate to license holders the information required under Section 301.158. (V.A.C.S. Art. 4527, Secs. 1, 3, as added Acts 73rd Leg., R.S., Ch. 840.)
Sec. 301.156. GIFTS AND GRANTS. The board may receive gifts, grants, or other funds or assets. (V.A.C.S. Art. 4527, Sec. 2.)
Sec. 301.157. PROGRAMS OF STUDY AND ACCREDITATION. (a) The board shall prescribe three programs of study to prepare registered nurses as follows:
(1) a baccalaureate degree program that is conducted by an educational unit in nursing that is a part of a senior college or university and that leads to a baccalaureate degree in nursing;
(2) an associate degree program that is conducted by an educational unit in nursing within the structure of a college or a university and that leads to an associate degree in nursing; and
(3) a diploma program that is conducted by a single-purpose school, usually under the control of a hospital, and that leads to a diploma in nursing.
(b) The board shall:
(1) prescribe and publish the minimum requirements and standards for a course of study in each program that prepares professional nurses;
(2) prescribe other rules as necessary to conduct accredited schools of nursing and educational programs for the preparation of professional nurses;
(3) accredit schools of nursing and educational programs that meet the board's requirements; and
(4) deny or withdraw accreditation from a school of nursing or educational program that fails to meet the prescribed course of study or other standard.
(c) The board may not require a program that is composed of less than two academic years or more than four calendar years.
(d) A person may not be certified as a graduate of any school of nursing or educational program unless the person has completed the requirements of the prescribed course of study, including clinical practice, of an accredited school of nursing or educational program.
(e) The board shall give each person, including an organization, affected by an order or decision of the board under this section reasonable notice of not less than 20 days and an opportunity to appear and be heard regarding the order or decision. The board shall hear each protest or complaint from a person affected by a rule or decision regarding:
(1) the inadequacy or unreasonableness of any rule or order the board adopts; or
(2) the injustice of any order or decision of the board.
(f) Not later than the 30th day after the date an order is entered and approved by the board, a person is entitled to bring an action against the board in a district court of Travis County to have the rule or order vacated or modified, if that person:
(1) is affected by the order or decision;
(2) is dissatisfied with any rule or order of the board; and
(3) sets forth in a petition the principal grounds of objection to the rule or order.
(g) An appeal under this section shall be tried de novo as if it were an appeal from a justice court to a county court. (V.A.C.S. Art. 4513, Sec. 1 (part); Art. 4518, Secs. 1, 2.)
Sec. 301.158. DISSEMINATION OF INFORMATION. The board shall disseminate, at least twice a year and at other times the board determines necessary, information that is of significant interest to professional nurses and employers of professional nurses in this state, including summaries of final disciplinary action taken against registered nurses by the board since its last dissemination of information. (V.A.C.S. Art. 4525a, Sec. 16(a).)
Sec. 301.159. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4524A, Subsecs. (c), (d).)
Sec. 301.160. PILOT PROGRAMS. (a) In this section:
(1) "Proactive nursing peer review" means peer review that is not initiated to determine culpability with respect to a particular incident.
(2) "Targeted continuing nursing education" means continuing education focusing on a skill that would likely benefit a significant proportion of registered nurses in a particular practice area.
(b) The board may develop pilot programs to evaluate the effectiveness of mechanisms, including proactive nursing peer review and targeted continuing nursing education, for maintenance of the clinical competency of a registered nurse in the nurse's area of practice and the understanding by registered nurses of the laws, including regulations, governing the practice of professional nursing.
(c) A pilot program under Subsection (b) must be designed to test the effectiveness of a variety of mechanisms in a variety of practice settings.
(d) The board may approve a pilot program under Subsection (b) that is to be conducted by a person other than the board.
(e) The board may spend funds to develop or fund a pilot program and may contract with, make grants to, or make other arrangements with an agency, professional association, institution, individual, or other person to implement this section.
(f) In developing, administering, approving, and funding a pilot program, the board shall consult with:
(1) the Competency Advisory Committee on matters relating to ensuring the maintenance of continued competency of registered nurses; and
(2) the Laws and Regulations Advisory Committee on matters relating to ensuring that registered nurses understand the laws, including regulations, governing the practice of professional nursing.
(g) The Competency Advisory Committee is appointed by the board and consists of the following members:
(1) a representative from the Texas Nurses Association;
(2) a representative from the Texas Nurses Foundation;
(3) a representative from the Texas Organization of Nurse Executives;
(4) a registered nurse representative from the Texas Hospital Association;
(5) a registered nurse representative from the Texas Health Care Association;
(6) a registered nurse representative from the Texas Association of Homes and Services for the Aging;
(7) a registered nurse representative from the Texas Association for Home Care;
(8) a professional nursing educator;
(9) a representative from the Consumers Union;
(10) a representative from the Texas Department of Mental Health and Mental Retardation; and
(11) any other person appointed by the board.
(h) The Laws and Regulations Advisory Committee is appointed by the board and consists of the following members:
(1) a representative of the Texas Nurses Association;
(2) a representative of the Texas League for Nursing;
(3) a representative of the Texas Chapter of the American Association of Nurse Attorneys;
(4) a representative of the Texas Organization of Baccalaureate and Graduate Nursing Educators;
(5) a representative of the Texas Organization for Associate Degree Nursing;
(6) a representative of the Texas Organization of Nurse Executives;
(7) a representative of the American Association of Retired Persons;
(8) a registered nurse researcher; and
(9) any other person appointed by the board.
(i) Except as provided by this subsection, in developing or approving a pilot program under this section the board may exempt the program from rules adopted under this chapter. Subchapter I and Chapter 303 apply to pilot programs, except that Sections 303.002(e), 303.003, and 303.008(b) do not apply to a pilot program using proactive peer review. The board may establish alternative criteria for nursing peer review committees conducting proactive peer review.
(j) The board shall issue an annual report regarding any pilot programs developed or approved and a status report on those programs, including preliminary or final findings concerning their effectiveness. The board shall mail the report to statewide associations of registered nurses, registered nurse educators, and employers of registered nurses that request a copy. The board shall issue a final report not later than September 1, 2000. (V.A.C.S. Art. 4518, Sec. 8.)
Sec. 301.161. ENFORCEMENT. (a) The board shall aid in the enforcement of this chapter.
(b) The board may:
(1) issue a subpoena;
(2) compel the attendance of a witness;
(3) administer an oath to a person giving testimony at hearings; and
(4) cause the prosecution of each person violating this chapter.
(c) The attorney general shall provide legal assistance necessary to enforce this chapter. This subsection does not relieve a local prosecuting officer of any duty under the law. (V.A.C.S. Art. 4525, Subsec. (e) (part).)
Sec. 301.162. LEGAL COUNSEL. The board may retain legal counsel to represent the board if first:
(1) the board requests the attorney general to represent the board; and
(2) the attorney general certifies to the board that the attorney general cannot provide those services. (V.A.C.S. Art. 4525, Subsec. (e) (part).)
Sec. 301.163. RECORD OF PROCEEDINGS; REPORT. The board shall keep a record of its proceedings under this chapter and make an annual report to the governor. (V.A.C.S. Art. 4525, Subsec. (e) (part).)
Sec. 301.164. ASSISTANCE OF PROSECUTOR. A board member may present to a prosecuting officer a complaint relating to a violation of this chapter. The board, through its members, officers, counsel, or agents, shall assist in the trial of a case involving an alleged violation of this chapter, subject to the control of the prosecuting officers. (V.A.C.S. Art. 4514, Sec. 3 (part); Art. 4525, Subsec. (e) (part).)
Sec. 301.165. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4513, Sec. 8.)
[Sections 301.166-301.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 301.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4513, Sec. 11(a).)
Sec. 301.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall enter into a memorandum of understanding with each state agency that licenses health care facilities or agencies to coordinate the notification requirement under Subsection (a) with notification requirements that may be imposed on the health care facility or agency by that state agency.
(c) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4513, Secs. 11(b), (c), (d).)
Sec. 301.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and must contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 301.204 and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4524A, Subsecs. (a), (b); Art. 4524B, Subsec. (b) (part).)
Sec. 301.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of all complaints in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The board shall notify the parties of the projected time requirements for pursuing the complaint.
(d) The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made.
(e) The executive director of the board shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4524B, Subsecs. (a), (b) (part), (c).)
Sec. 301.205. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4513, Secs. 12, 13 (part).)
[Sections 301.206-301.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 301.251. LICENSE REQUIRED. (a) A person may not practice or offer to practice professional nursing in this state unless the person is licensed as provided by this chapter.
(b) Unless the person holds a license under this chapter, a person may not use, in connection with the person's name:
(1) the title "Registered Nurse," "Professional Nurse," or "Graduate Nurse";
(2) the abbreviation "R.N."; or
(3) any other designation tending to imply that the person is a licensed registered nurse. (V.A.C.S. Art. 4518, Sec. 4; Art. 4527a, Sec. 3.)
Sec. 301.252. LICENSE APPLICATION. Each applicant for a registered nurse license must submit to the board a sworn application that demonstrates the applicant's qualifications under this chapter, accompanied by evidence that the applicant has:
(1) good professional character; and
(2) successfully completed an accredited program of professional nursing education. (V.A.C.S. Art. 4518, Sec. 3 (part).)
Sec. 301.253. EXAMINATION. (a) Except as provided by Section 301.452, an applicant is entitled to take the examination prescribed by the board if:
(1) the board determines that the applicant meets the qualifications required by Section 301.252; and
(2) the applicant pays the fees required by the board.
(b) The board shall give the examination in various cities throughout the state.
(c) The examination shall be designed to determine the fitness of the applicant to practice professional nursing.
(d) The board shall determine the criteria that determine a passing score on the examination. The criteria may not exceed those required by the majority of the states.
(e) A written examination prepared, approved, or offered by the board, including a standardized national examination, must be validated by an independent testing professional. (V.A.C.S. Art. 4518, Sec. 3 (part); Art. 4519, Subsecs. (a), (b) (part).)
Sec. 301.254. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4519, Subsec. (b) (part).)
Sec. 301.255. REEXAMINATION. The board by rule shall establish conditions under which an applicant who fails an examination may retake the examination. For an applicant who fails the examination two or more times, the board may:
(1) require the applicant to fulfill additional educational requirements; or
(2) deny the applicant the opportunity to retake the examination. (V.A.C.S. Art. 4519, Subsec. (c).)
Sec. 301.256. ISSUANCE OF LICENSE. If the results of an examination taken under Section 301.253 or 301.255 satisfy the criteria established by the board under that section, the board shall issue to the applicant a license to practice professional nursing in this state. The license must be signed by the board's presiding officer and the executive director and attested by the board's seal. (V.A.C.S. Art. 4518, Sec. 3 (part); Art. 4519, Subsec. (b) (part).)
Sec. 301.257. DECLARATORY ORDER OF LICENSE ELIGIBILITY. (a) A person may petition the board for a declaratory order as to the person's eligibility for a license under this chapter if the person:
(1) is enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse; and
(2) has reason to believe that the person is ineligible for the license.
(b) The petition must state the basis for the person's potential ineligibility.
(c) The board has the same powers to investigate the petition and the person's eligibility that it has to investigate a person applying for a license.
(d) The petitioner or the board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.
(e) If the board proposes to find that the petitioner is ineligible for a license, the petitioner is entitled to a hearing before the State Office of Administrative Hearings.
(f) The board's order must set out each basis for potential ineligibility and the board's determination as to eligibility. In the absence of new evidence known to but not disclosed by the petitioner or not reasonably available to the board at the time the order is issued, the board's ruling on the petition determines the person's eligibility with respect to the grounds for potential ineligibility set out in the order.
(g) The board may require an individual accepted for enrollment or enrolled in an educational program preparing a student for initial licensure as a registered nurse to submit information to the board to permit the board to determine whether the person is aware of the conditions that may disqualify the person from licensure as a registered nurse on graduation and of the person's right to petition the board for a declaratory order under this section. Instead of requiring the person to submit the information, the board may require the educational program to collect and submit the information on each person accepted for enrollment or enrolled in the program.
(h) The information required under Subsection (g) must be submitted in a form approved by the board.
(i) If, as a result of information provided under Subsection (g), the board determines that a person may not be eligible for a license on graduation, the board shall notify the educational program of its determination. (V.A.C.S. Art. 4519a.)
Sec. 301.258. TEMPORARY PERMIT. (a) Pending the results of a licensing examination, the board may issue to an applicant who is a graduate of an approved educational program a permit to practice professional nursing under the direct supervision of a registered nurse.
(b) The board may not issue a permit under this section to an applicant who has previously failed an examination administered by the board or another state.
(c) A permit issued under Subsection (a) expires on the date of receipt of:
(1) a permanent license; or
(2) a notice from the board that the permit holder has failed the examination.
(d) The board may issue a temporary permit to practice professional nursing for the limited purpose of allowing a nurse to satisfy a requirement imposed by the board necessary for:
(1) renewal of an expired license;
(2) reactivation of an inactive license; or
(3) reissuance of a suspended, revoked, or surrendered license.
(e) A permit issued under Subsection (d) expires on the earlier of:
(1) the date of receipt of a permanent license; or
(2) six months after the date the permit is issued.
(f) A person who holds a temporary permit issued under this section is considered to be a licensed registered nurse for all purposes except to the extent of any stipulation or limitation on practice imposed by the board as a condition of issuing the permit. (V.A.C.S. Art. 4523.)
Sec. 301.259. RECIPROCAL LICENSE BY ENDORSEMENT FOR CERTAIN FOREIGN APPLICANTS. On payment of a fee established by the board, the board may issue a license to practice as a registered nurse in this state by endorsement without examination to an applicant who holds a registration certificate as a registered nurse issued by a territory or possession of the United States or a foreign country if the board determines that the issuing agency of the territory or possession of the United States or foreign country required in its examination the same general degree of fitness required by this state. (V.A.C.S. Art. 4521, Subsec. (d).)
Sec. 301.260. TEMPORARY LICENSE BY ENDORSEMENT. (a) An applicant for a license under this chapter who is licensed as a registered nurse by another state may qualify for a temporary license by endorsement to practice as a registered nurse by submitting to the board:
(1) an endorsement fee as determined by the board and a completed sworn application in the form prescribed by the board;
(2) evidence that the person possessed, at the time of initial licensing as a registered nurse, the other qualifications necessary at that time to have been eligible for licensing in this state; and
(3) proof of initial licensing by examination and proof that the license and any other license issued to the applicant by another state have not been suspended, revoked, canceled, surrendered, or otherwise restricted.
(b) A holder of a temporary license under this section is entitled to receive a permanent license if the applicant:
(1) verifies the applicant's academic and professional credentials; and
(2) satisfies any other requirement established by statute.
(c) The board shall grant or deny an application for a permanent license not later than the 180th day after the date the board receives all required forms or information. The board may extend that deadline to allow for the receipt and tabulation of examination results. (V.A.C.S. Art. 4521, Subsecs. (a), (b), (c).)
Sec. 301.261. INACTIVE STATUS. (a) The board may place on inactive status the license of a person under this chapter who is not actively engaged in the practice of professional nursing if the person submits a written request to the board in the form and manner determined by the board. The inactive status begins on the expiration date of the person's license.
(b) The board shall maintain a list of each person whose license is on inactive status.
(c) A person whose license is on inactive status may not perform any professional nursing service or work.
(d) The board shall remove a person's license from inactive status if the person:
(1) requests that the board remove the person's license from inactive status;
(2) pays each appropriate fee; and
(3) meets the requirements determined by the board.
(e) The board by rule shall permit a person whose license is on inactive status and who is 65 years or older to use the title "Registered Nurse Retired" or "R.N. Retired." (V.A.C.S. Art. 4526b.)
[Sections 301.262-301.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 301.301. LICENSE RENEWAL. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.
(b) A person may renew an unexpired license issued under this chapter on payment of the required renewal fee and compliance with any other renewal requirements adopted by the board.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to one-half the amount charged for examination for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount charged for examination for the license.
(d) The board by rule shall set a length of time beyond which an expired license may not be renewed. The board by rule may establish additional requirements that apply to the renewal of a license that has been expired for more than one year but less than the time limit set by the board beyond which a license may not be renewed. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(e) At least 30 days before the expiration of the person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the board.
(f) A registered nurse who practices professional nursing after the expiration of the nurse's license is an illegal practitioner whose license may be revoked or suspended. (V.A.C.S. Art. 4526 (part); New.)
Sec. 301.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without examination the expired license of a person who was licensed to practice professional nursing in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee that is equal to the amount of the initial fee for the license and the renewal fee. (V.A.C.S. Art. 4526 (part).)
Sec. 301.303. CONTINUING EDUCATION. (a) The board may recognize, prepare, or implement continuing education programs for license holders under this chapter and may require participation in continuing education programs as a condition of renewal of a license.
(b) The board may not require participation in more than a total of 20 hours of continuing education in a two-year licensing period and may not require that more than 10 hours of the continuing education consist of classroom instruction in approved programs. The remaining hours of continuing education may consist of any combination of:
(1) classroom instruction;
(2) institutional-based instruction; or
(3) individualized study.
(c) If the board requires participation in continuing education programs as a condition of license renewal, the board by rule shall establish a system for the approval of programs and providers of continuing education.
(d) In adopting rules under Subsection (c), the board shall consider, but is not obligated to approve:
(1) a program or provider approved or accredited through the Board of Accreditation of the American Nurses' Association or the National Federation of Specialty Nursing Organizations; and
(2) a nurse in-service program offered by a hospital that is:
(A) accredited by the Joint Commission on Accreditation of Healthcare Organizations;
(B) certified by Medicare; or
(C) maintained or operated by the federal government or the state.
(e) The board may adopt other rules as necessary to implement this section.
(f) The board may assess each program and provider under this section a fee in an amount that is reasonable and necessary to defray the costs incurred in approving programs and providers. (V.A.C.S. Art. 4518, Secs. 7(a), (b), (c) (part), (d).)
[Sections 301.304-301.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 301.351. DESIGNATIONS. (a) A person who holds a license under this chapter:
(1) is referred to as a registered nurse; and
(2) may use the abbreviation "R.N."
(b) While on duty providing direct care to a patient, each licensed registered nurse shall wear an insignia identifying the nurse as a registered nurse. (V.A.C.S. Art. 4522.)
Sec. 301.352. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT. (a) A person may not suspend, terminate, or otherwise discipline or discriminate against a registered nurse who refuses to engage in an act or omission relating to patient care that would constitute grounds for reporting the nurse to the board under Subchapter I if the nurse notifies the person at the time of the refusal that the reason for refusing is that the act or omission:
(1) constitutes grounds for reporting the nurse to the board; or
(2) is a violation of this chapter or a rule of the board.
(b) An act by a person under Subsection (a) does not constitute a violation of this section if a nursing peer review committee under Chapter 303 determines:
(1) that the act or omission the nurse refused to engage in was not conduct reportable to the board under Section 301.403; or
(2) that:
(A) the act or omission in which the nurse refused to engage was conduct reportable to the board; and
(B) the person:
(i) rescinds any disciplinary or discriminatory action taken against the nurse;
(ii) compensates the nurse for lost wages; and
(iii) restores to the nurse any lost benefits.
(c) A registered nurse's rights under this section may not be nullified by a contract.
(d) An appropriate licensing agency may take action against a person who violates this section. (V.A.C.S. Art. 4525d, Subsecs. (a), (b), (c) (part), (d).)
[Sections 301.353-301.400 reserved for expansion]
SUBCHAPTER I. DUTY TO REPORT VIOLATION
Sec. 301.401. GROUNDS FOR REPORTING REGISTERED NURSE. The following are grounds for reporting a registered nurse under Section 301.402, 301.403, 301.405, or 301.407:
(1) unnecessary or likely exposure by the registered nurse of a patient or other person to a risk of harm;
(2) unprofessional conduct by the registered nurse;
(3) failure by the registered nurse to adequately care for a patient;
(4) failure by the registered nurse to conform to the minimum standards of acceptable professional nursing practice; or
(5) impairment or likely impairment of the registered nurse's practice by chemical dependency. (V.A.C.S. Art. 4525a, Secs. 1(a) (part), 1A (part), 2(a) (part), (b) (part), (c) (part), 4 (part).)
Sec. 301.402. DUTY OF REGISTERED NURSE TO REPORT. (a) In this section:
(1) "Professional nursing educational program" means a board-accredited educational program leading to initial licensure as a registered nurse.
(2) "Professional nursing student" means an individual who is enrolled in a professional nursing educational program.
(b) A registered nurse shall report to the board in the manner prescribed under Subsection (d) if the nurse has reasonable cause to suspect that:
(1) another registered nurse is subject to a ground for reporting under Section 301.401; or
(2) the ability of a professional nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency.
(c) In a written, signed report to the appropriate licensing board, a registered nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to the minimum standards of acceptable and prevailing professional practice.
(d) A report by a registered nurse under Subsection (b) must:
(1) be written and signed; and
(2) include the identity of the registered nurse or student and any additional information required by the board.
(e) A registered nurse may make a report required under Subsection (b)(2) to the professional nursing educational program in which the student is enrolled instead of reporting to the board. (V.A.C.S. Art. 4525a, Secs. 1(a) (part), 1B(a) (part), (b), (c), 7.)
Sec. 301.403. DUTY OF PEER REVIEW COMMITTEE TO REPORT. A professional nursing peer review committee operating under Chapter 303 that has a ground for reporting a registered nurse under Section 301.401 shall file with the board a written, signed report that includes:
(1) the identity of the nurse;
(2) a description of any corrective action taken against the nurse;
(3) a statement whether the professional nursing peer review committee recommends that the board take formal disciplinary action against the nurse; and
(4) any additional information the board requires. (V.A.C.S. Art. 4525a, Sec. 1A (part).)
Sec. 301.404. DUTY OF NURSING EDUCATIONAL PROGRAM TO REPORT. (a) In this section, "professional nursing educational program" and "professional nursing student" have the meanings assigned by Section 301.402(a).
(b) A professional nursing educational program that has reasonable cause to suspect that the ability of a professional nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency shall file with the board a written, signed report that includes the identity of the student and any additional information the board requires. (V.A.C.S. Art. 4525a, Secs. 1B(a) (part), (c).)
Sec. 301.405. DUTY OF PERSON EMPLOYING REGISTERED NURSE TO REPORT. (a) This section applies only to a person who employs, hires, or contracts for the services of a registered nurse, including:
(1) a health care facility, including a hospital, health science center, nursing home, or home health agency;
(2) a state agency;
(3) a political subdivision;
(4) a school of professional nursing; and
(5) a temporary nursing service.
(b) A person that terminates, suspends for more than seven days, or takes other substantive disciplinary action, as defined by the board, against a registered nurse because a ground under Section 301.401 exists to report the nurse shall report in writing to the board the identity of the nurse and any additional information the board requires.
(c) Each person subject to this section that regularly employs, hires, or otherwise contracts for the services of 10 or more registered nurses shall develop a written plan for identifying and reporting a registered nurse in its service against whom a ground under Section 301.401 exists. The plan must include an appropriate process for the review by a professional nursing peer review committee established and operated under Chapter 303 of any incident reportable under this section and for the affected nurse to submit rebuttal information to that committee. Review by the committee is only advisory.
(d) The review by the peer review committee must include a determination as to whether a ground under Section 301.401 exists to report the registered nurse undergoing review. The peer review committee's determination must be included in the report made to the board under Subsection (b).
(e) The requirement that a report to the board be reviewed by a professional nursing peer review committee:
(1) applies only to a required report; and
(2) does not subject a person's administrative decision to discipline a registered nurse to the peer review process or prevent a person from taking disciplinary action before review by the peer review committee is conducted.
(f) The board shall enter into memoranda of understanding with each state agency that licenses, registers, or certifies a health care facility or agency or surveys that facility or agency with respect to professional nursing care as to how that state agency can promote compliance with Subsection (c). (V.A.C.S. Art. 4525a, Secs. 2(a) (part), (b) (part), (c) (part).)
Sec. 301.406. DUTY OF CERTAIN PROFESSIONAL ASSOCIATIONS AND ORGANIZATIONS TO REPORT. A professional association of registered nurses or an organization that conducts a certification or accreditation program for registered nurses and that expels, decertifies, or takes any other substantive disciplinary action, as defined by the board, against a registered nurse as a result of the nurse's failure to conform to the minimum standards of acceptable professional nursing practice shall report in writing to the board the identity of the nurse and any additional information the board requires. (V.A.C.S. Art. 4525a, Sec. 3.)
Sec. 301.407. DUTY OF STATE AGENCY TO REPORT. (a) This section applies only to a state agency that:
(1) licenses, registers, or certifies:
(A) a hospital;
(B) a nursing home;
(C) a health science center;
(D) a home health agency; or
(E) another health care facility or agency; or
(2) surveys a facility or agency listed in Subdivision (1) regarding the quality of professional nursing care provided by the facility or agency.
(b) Unless expressly prohibited by state or federal law, a state agency that has reason to believe a ground for reporting a registered nurse exists under Section 301.401 shall report in writing to the board the identity of that registered nurse. (V.A.C.S. Art. 4525a, Sec. 4 (part).)
Sec. 301.408. DUTY OF PROFESSIONAL LIABILITY INSURER TO REPORT. (a) Each insurer that provides to a registered nurse professional liability insurance that covers claims arising from providing or failing to provide professional nursing care shall submit to the board the report or data required by this section at the time prescribed.
(b) The report or data must be provided for:
(1) a complaint filed in court against a registered nurse that seeks damages related to the nurse's conduct in providing or failing to provide professional nursing care; and
(2) a settlement of a claim or lawsuit made on behalf of a nurse.
(c) Not later than the 30th day after the date the insurer receives a complaint subject to Subsection (b), the insurer shall provide to the board:
(1) the name of the registered nurse against whom the claim is filed;
(2) the policy number;
(3) the policy limits;
(4) a copy of the petition;
(5) a copy of the answer; and
(6) other relevant information known by the insurer, as required by the board.
(d) Not later than the 30th day after the date of a judgment, dismissal, or settlement of a suit involving an insured registered nurse or settlement of a claim on behalf of the nurse without the filing of a lawsuit, the insurer shall provide to the board information regarding the date of the judgment, dismissal, or settlement and, if appropriate:
(1) whether an appeal has been taken from the judgment and by which party;
(2) the amount of the settlement or judgment against the nurse; and
(3) other relevant information known by the insurer, as required by the board.
(e) A registered nurse shall report the information required to be reported under this section if the nurse is named as a defendant in a claim arising from providing or failing to provide professional nursing care and the nurse:
(1) does not carry or is not covered by professional liability insurance; or
(2) is insured by a nonadmitted carrier. (V.A.C.S. Art. 4525a, Sec. 5.)
Sec. 301.409. DUTY OF PROSECUTING ATTORNEY TO REPORT. (a) The attorney representing the state shall cause the clerk of the court of record in which the conviction, adjudication, or finding is entered to prepare and forward to the board a certified true and correct abstract of the court record of the case not later than the 30th day after the date:
(1) a person known to be a registered nurse who is licensed, otherwise lawfully practicing in this state, or applying to be licensed to practice is convicted of:
(A) a felony;
(B) a misdemeanor involving moral turpitude;
(C) a violation of a state or federal narcotics or controlled substance law; or
(D) an offense involving fraud or abuse under the Medicare or Medicaid program; or
(2) a court finds that a registered nurse is mentally ill or mentally incompetent.
(b) A prosecuting attorney shall comply with Subsection (a) even if the conviction, adjudication, or finding is entered, withheld, or appealed under the laws of this state.
(c) The abstract required under Subsection (a) must include:
(1) the name and address of the nurse or applicant;
(2) a description of the nature of the offense committed, if any;
(3) the sentence, if any; and
(4) the judgment of the court.
(d) The board shall prepare the form of the abstract and distribute a copy to each district attorney and county attorney in this state with appropriate instructions for preparation and filing. (V.A.C.S. Art. 4525a, Sec. 6.)
Sec. 301.410. REPORT REGARDING IMPAIRMENT BY CHEMICAL DEPENDENCY OR MENTAL ILLNESS. A person who is required to report a registered nurse under this subchapter because the nurse is impaired or suspected of being impaired by chemical dependency or mental illness may report to a peer assistance program approved by the board under Chapter 467, Health and Safety Code, instead of reporting to the board or requesting review by a professional nursing peer review committee. (V.A.C.S. Art. 4525a, Sec. 8.)
Sec. 301.411. EFFECT OF FAILURE TO REPORT. (a) A person is not liable in a civil action for failure to file a report required by this subchapter.
(b) The appropriate state licensing agency may take action against a person regulated by the agency for a failure to report as required by this subchapter. (V.A.C.S. Art. 4525a, Sec. 9.)
Sec. 301.412. REPORTING IMMUNITY. A person who, without malice, makes a report required or authorized, or reasonably believed to be required or authorized, under this subchapter:
(1) is immune from civil liability; and
(2) may not be subjected to other retaliatory action as a result of making the report. (V.A.C.S. Art. 4525a, Sec. 10(a).)
Sec. 301.413. RETALIATORY ACTION. (a) A person named as a defendant in a civil action or subjected to other retaliatory action as a result of filing a report required, authorized, or reasonably believed to be required or authorized under this subchapter may file a counterclaim in the pending action or prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages, if the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith.
(b) A person may not suspend or terminate the employment of, or otherwise discipline or discriminate against, a person who reports, without malice, under this subchapter.
(c) A person who reports under this subchapter has a cause of action against a person who violates Subsection (b), and may recover:
(1) the greater of:
(A) actual damages, including damages for mental anguish even if no other injury is shown; or
(B) $1,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(d) In addition to the amount recovered under Subsection (c), a person whose employment is suspended or terminated in violation of this section is entitled to:
(1) reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most recent salary; and
(2) compensation for wages lost during the period of suspension or termination.
(e) A person who brings an action under this section has the burden of proof. It is a rebuttable presumption that the person's employment was suspended or terminated for reporting under this subchapter if:
(1) the person was suspended or terminated within 60 days after the date the report was made; and
(2) the board or a court determines that the report that is the subject of the cause of action was:
(A) authorized or required under Section 301.402, 301.403, 301.405, 301.406, 301.407, 301.408, 301.409, or 301.410; and
(B) made without malice.
(f) An action under this section may be brought in a district court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) the defendant conducts business. (V.A.C.S. Art. 4525a, Secs. 10(b), 11.)
Sec. 301.414. NOTICE AND REVIEW OF REPORT. (a) The board shall notify each registered nurse who is reported to the board under Section 301.402, 301.403, 301.405, 301.406, 301.407, 301.408, or 301.409 of the filing of the report unless the notification would jeopardize an active investigation.
(b) The registered nurse or the nurse's authorized representative is entitled on request to review any report submitted to the board under a section specified under Subsection (a) unless doing so would jeopardize an active investigation. The board may not reveal the identity of the person making or signing the report. (V.A.C.S. Art. 4525a, Secs. 12(a), (b).)
Sec. 301.415. REBUTTAL STATEMENT. (a) A registered nurse who is entitled to receive notice under Section 301.414 or the authorized representative of the nurse may file with the board a statement of reasonable length containing the nurse's rebuttal of any information in the report to the board.
(b) The statement made under Subsection (a) must accompany the part of the report being rebutted.
(c) In investigating the report, the board shall:
(1) review the statement made under Subsection (a); and
(2) evaluate each reason asserted by the nurse to justify the nurse's conduct. (V.A.C.S. Art. 4525a, Sec. 12(c).)
Sec. 301.416. INVESTIGATION. (a) Except as provided by Subsections (b) and (c), a report under this subchapter shall be treated as a complaint under Section 301.457.
(b) If the board determines that the reported conduct does not indicate that the continued practice of professional nursing by the nurse poses a risk of harm to a client or other person, the board, with the written consent of the nurse and the person making the report, may elect not to proceed with an investigation or to file formal charges. The board shall:
(1) maintain a record of the report; and
(2) investigate the report if it receives two or more reports involving separate incidents regarding the nurse in any five-year period.
(c) The board is not required to investigate a report filed by an insurer under Section 301.408, but shall:
(1) maintain a record of the report; and
(2) investigate the report if it receives two or more reports involving separate incidents regarding the nurse in any five-year period. (V.A.C.S. Art. 4525a, Sec. 12A.)
Sec. 301.417. CONFIDENTIALITY REQUIREMENTS; DISCLOSURE OF INFORMATION. (a) A report required or authorized under this subchapter and the identity of the person making the report are confidential and may not be disclosed except as provided by this section and Section 301.414.
(b) The board may use the information in connection with an investigation or disciplinary action against a license holder or in the subsequent trial or appeal of a board action or order. The board may disclose the information to:
(1) a licensing or disciplinary authority of another jurisdiction;
(2) a peer assistance program approved by the board under Chapter 467, Health and Safety Code; or
(3) a person engaged in bona fide research or another educational purpose if all information identifying any specific individual is first deleted.
(c) On the request of a person required to report under Section 301.405, the board shall provide to the person information about:
(1) each allegation contained in the report;
(2) the determination of a peer review committee; and
(3) the status of the board's investigation.
(d) In addition to the other authorizations of this section, the information may be disclosed in:
(1) a civil action in which a reporting person is named as a defendant as a result of making the report; or
(2) the prosecution of a cause of action based on a claim that the reporting person was subject to retaliatory action as a result of making the report. (V.A.C.S. Art. 4525a, Sec. 14.)
Sec. 301.418. DISCLOSURE OF CHARGES OR DISCIPLINARY ACTION. (a) This subchapter does not prevent disclosure under Section 301.466 of formal charges filed by the board or a final disciplinary action taken by the board as a result, in whole or in part, of submission of a report under this subchapter.
(b) A report or information submitted as required or authorized by this subchapter arising out of the provision or failure to provide professional nursing services may not be made available in a liability action for:
(1) discovery;
(2) court subpoena; or
(3) introduction into evidence.
(c) A person is not prevented from taking disciplinary action against a registered nurse by:
(1) the filing of a report under this subchapter with the board;
(2) an investigation by the board; or
(3) the disposition of a matter by the board. (V.A.C.S. Art. 4525a, Secs. 15(a), (b).)
Sec. 301.419. GENERAL PROVISIONS REGARDING DUTY TO REPORT; MINOR INCIDENTS. (a) In this section, "minor incident" means conduct that does not indicate that the continuing practice of professional nursing by an affected nurse poses a risk of harm to a client or other person.
(b) The board shall adopt rules governing reporting required under this subchapter to minimize:
(1) unnecessary duplicative reporting; and
(2) the reporting of a minor incident.
(c) If the board determines that a report submitted under this subchapter is without merit, the board shall expunge the report from the registered nurse's file.
(d) The board shall inform, in the manner the board determines appropriate, registered nurses, facilities, agencies, and other persons of their duty to report under this subchapter.
(e) The reporting required under this subchapter does not constitute state action on behalf of the person reporting.
(f) The duty to report or any other requirement of this subchapter may not be nullified by a contract. (V.A.C.S. Art. 4525a, Secs. 1(b), 6A, 13, 15(c), (d), 16(b).)
[Sections 301.420-301.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS
Sec. 301.451. CERTAIN PROHIBITED PRACTICES. A person may not:
(1) sell, fraudulently obtain, or fraudulently furnish a nursing diploma, license, renewal license, or record;
(2) assist another person in selling, fraudulently obtaining, or fraudulently furnishing a nursing diploma, license, renewal license, or record;
(3) practice professional nursing under a diploma, license, or record that was:
(A) obtained unlawfully or fraudulently; or
(B) signed or issued unlawfully or under false representation; or
(4) practice professional nursing in a period in which the person's license is suspended or revoked. (V.A.C.S. Art. 4527a, Secs. 1, 2, 4.)
Sec. 301.452. GROUNDS FOR DISCIPLINARY ACTION. (a) In this section, "intemperate use" includes practicing professional nursing or being on duty or on call while under the influence of alcohol or drugs.
(b) A person is subject to denial of a license or to disciplinary action under this subchapter for:
(1) a violation of this chapter or a rule or order issued under this chapter;
(2) fraud or deceit in procuring or attempting to procure a license to practice professional nursing;
(3) a conviction for a felony or for a misdemeanor involving moral turpitude;
(4) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude;
(5) use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered;
(6) impersonating or acting as a proxy for another person in the licensing examination required under Section 301.253 or 301.255;
(7) directly or indirectly aiding or abetting an unlicensed person in connection with the unauthorized practice of professional nursing;
(8) revocation, suspension, or denial of, or any other action relating to, the person's license to practice nursing in another jurisdiction;
(9) intemperate use of alcohol or drugs that the board determines endangers or could endanger a patient;
(10) unprofessional or dishonorable conduct that, in the board's opinion, is likely to deceive, defraud, or injure a patient or the public;
(11) adjudication of mental incompetency;
(12) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or
(13) failure to care adequately for a patient or to conform to the minimum standards of acceptable professional nursing practice in a manner that, in the board's opinion, exposes a patient or other person unnecessarily to risk of harm.
(c) The board may refuse to admit a person to a licensing examination for a ground described under Subsection (b). (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (a) (part), as amended Acts 73rd Leg., R.S., Ch. 840, (b), as amended Acts 73rd Leg., R.S., Ch. 840.)
Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. (a) If the board determines that a person has committed an act listed in Section 301.452(b), the board shall enter an order imposing one or more of the following:
(1) denial of the person's application for a license, license renewal, or temporary permit;
(2) issuance of a written warning;
(3) administration of a public reprimand;
(4) limitation or restriction of the person's license, including:
(A) limiting to or excluding from the person's practice one or more specified activities of professional nursing; or
(B) stipulating periodic board review;
(5) suspension of the person's license for a period not to exceed five years;
(6) revocation of the person's license; or
(7) assessment of a fine.
(b) In addition to or instead of an action under Subsection (a), the board, by order, may require the person to:
(1) submit to care, counseling, or treatment by a health provider designated by the board as a condition for the issuance or renewal of a license;
(2) participate in a program of education or counseling prescribed by the board;
(3) practice for a specified period under the direction of a registered nurse designated by the board; or
(4) perform public service the board considers appropriate.
(c) The board may probate any penalty imposed on a registered nurse and may accept the voluntary surrender of a license. The board may not reinstate a surrendered license unless it determines that the person is competent to resume practice.
(d) If the board suspends, revokes, or accepts surrender of a license, the board may impose conditions for reinstatement that the person must satisfy before the board may issue an unrestricted license. (V.A.C.S. Art. 4525, Subsec. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436; Art. 4525.1, Subsecs. (a), (b), (c), (d).)
Sec. 301.454. NOTICE AND HEARING. (a) Except in the case of a temporary suspension authorized under Section 301.455 or an action taken in accordance with an agreement between the board and a license holder, the board may not initiate a disciplinary action relating to a license unless:
(1) the board has served notice to the license holder of the facts or conduct alleged to warrant the intended action; and
(2) the license holder has been given an opportunity, in writing or through an informal meeting, to show compliance with all requirements of law for the retention of the license.
(b) If an informal meeting is held, a board member, staff member, or board representative who attends the meeting is considered to have participated in the hearing of the case for the purposes of ex parte communications under Section 2001.061, Government Code.
(c) A person is entitled to a hearing conducted by the State Office of Administrative Hearings if the board proposes to:
(1) refuse to admit the person to examination;
(2) refuse to issue a license or temporary permit;
(3) refuse to renew a license; or
(4) suspend or revoke the person's license or permit.
(d) The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board for any sanction imposed as the result of a hearing conducted by that office.
(e) Notwithstanding Subsection (a), a person is not entitled to a hearing on a refusal to renew a license if the person:
(1) fails to submit a renewal application; or
(2) submits an application that:
(A) is incomplete;
(B) shows on its face that the person does not meet the renewal requirements; or
(C) is not accompanied by the correct fee. (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 840,(a-1), (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (k); Art. 4525.1, Subsec. (e); Art. 4525.4.)
Sec. 301.455. TEMPORARY LICENSE SUSPENSION. (a) The license of a registered nurse shall be temporarily suspended on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the registered nurse would constitute a continuing and imminent threat to the public welfare.
(b) A license may be temporarily suspended under this section without notice or hearing on the complaint if:
(1) institution of proceedings for a hearing before the State Office of Administrative Hearings is initiated simultaneously with the temporary suspension; and
(2) a hearing is held as soon as possible under this chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine whether probable cause exists that a continuing and imminent threat to the public welfare exists.
(d) A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension. (V.A.C.S. Art. 4525e.)
Sec. 301.456. EVIDENCE. A certified copy of the order of the license denial, suspension, or revocation or other action under Section 301.452(b)(8) is conclusive evidence of that action. (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (b) (part), as amended Acts 73rd Leg., R.S., Ch. 840.)
Sec. 301.457. COMPLAINT AND INVESTIGATION. (a) The board or any person may initiate a proceeding under this subchapter by filing with the board a complaint against a registered nurse. The complaint must be in writing and signed by the complainant.
(b) Except as otherwise provided by this section, the board or a person authorized by the board shall conduct each investigation. Each complaint against a registered nurse that requires a determination of professional nursing competency shall be reviewed by a board member, consultant, or employee with a professional nursing background the board considers sufficient.
(c) On the filing of a complaint, the board:
(1) may conduct a preliminary investigation into the identity of the registered nurse named or described in the complaint;
(2) shall make a timely and appropriate preliminary investigation of the complaint; and
(3) may issue a warning or reprimand to the registered nurse.
(d) After any preliminary investigation to determine the identity of the subject of the complaint, unless it would jeopardize an investigation, the board shall notify the registered nurse that a complaint has been filed and the nature of the complaint. If the investigation reveals probable cause to take further disciplinary action, the board shall either attempt an informal disposition of the complaint or file a formal charge against the registered nurse stating the provision of this chapter or board rule that is alleged to have been violated and a brief description of each act or omission that constitutes the violation.
(e) The board shall conduct an investigation of the complaint to determine:
(1) whether the registered nurse's continued practice of professional nursing poses a risk of harm to clients or other persons; and
(2) whether probable cause exists that a registered nurse committed an act listed in Section 301.452(b) or that violates other law. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436; Art. 4525.2; Art. 4525.5(a) (part).)
Sec. 301.458. INITIATION OF FORMAL CHARGES; DISCOVERY. (a) Unless there is an agreed disposition of the complaint under Section 301.463, and if probable cause is found under Section 301.457(e)(2), the board or the board's authorized representative shall initiate proceedings by filing formal charges against the registered nurse.
(b) A formal charge must:
(1) be written;
(2) be specific enough to enable a person of common understanding to know what is meant by the formal charge; and
(3) contain a degree of certainty that gives the person who is the subject of the formal charge notice of each particular act alleged to violate a specific statute, board rule, or board order.
(c) A copy of the formal charge shall be served on the registered nurse or the nurse's counsel of record.
(d) The board shall adopt reasonable rules to promote discovery by each party to a contested case. (V.A.C.S. Art. 4525.5, Subsecs. (a) (part), (b), (c).)
Sec. 301.459. FORMAL HEARING. (a) The board by rule shall adopt procedures under Chapter 2001, Government Code, governing formal disposition of a contested case. The State Office of Administrative Hearings shall conduct a formal hearing.
(b) In any hearing under this section, a registered nurse is entitled to appear in person or by counsel. (V.A.C.S. Art. 4525.6, Subsecs. (a), (c).)
Sec. 301.460. ACCESS TO INFORMATION. (a) Except for good cause shown for delay and subject to any other privilege or restriction set forth by statute, rule, or legal precedent, the board shall, not later than the 30th day after the date the board receives a written request from a license holder who is the subject of a formal charge filed under Section 301.458 or from the license holder's counsel of record, provide the license holder with access to:
(1) all known exculpatory information in the board's possession; and
(2) information in the board's possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint.
(b) The board is not required to provide:
(1) board investigative reports or investigative memoranda;
(2) the identity of nontestifying complainants;
(3) attorney-client communications;
(4) attorney work product; or
(5) other materials covered by a privilege as recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
(c) The provision of information under Subsection (a) does not constitute a waiver of privilege or confidentiality under this chapter or other applicable law. (V.A.C.S. Art. 4525.6, Subsec. (b).)
Sec. 301.461. ASSESSMENT OF COSTS. The board may assess a person who is found to have violated this chapter the administrative costs of conducting a hearing to determine the violation. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436.)
Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE. The board may revoke a registered nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the board and executes a sworn statement that the nurse does not desire to be licensed. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436.)
Sec. 301.463. AGREED DISPOSITION. (a) Unless precluded by this chapter or other law, the board may dispose of a complaint by:
(1) stipulation;
(2) agreed settlement;
(3) agreed order; or
(4) dismissal.
(b) An agreed disposition of a complaint is considered to be a disciplinary order for purposes of reporting under this chapter and an administrative hearing and proceeding by a state or federal regulatory agency regarding the practice of professional nursing.
(c) An agreed order is a public record.
(d) In civil or criminal litigation an agreed disposition is a settlement agreement under Rule 408, Texas Rules of Evidence. (V.A.C.S. Art. 4525.3, Subsecs. (a), (b).)
Sec. 301.464. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the board's legal staff or of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4524C.)
Sec. 301.465. SUBPOENAS; REQUEST FOR INFORMATION. (a) The board may request issuance of a subpoena to be served in any manner authorized by law, including personal service by a board investigator and service by certified mail.
(b) Each person shall respond promptly and fully to a request for information by the board or to a subpoena issued by the board. A request or subpoena may not be refused, denied, or resisted unless the request or subpoena calls for information within the attorney-client privilege. No other privilege applies to a board proceeding.
(c) The board may pay a reasonable fee for photocopies subpoenaed at the board's request. The amount paid may not exceed the amount the board charges for copies of its records.
(d) The board shall protect, to the extent possible, the identity of each patient named in information received by the board. (V.A.C.S. Art. 4525, Subsec. (f).)
Sec. 301.466. CONFIDENTIALITY. (a) A complaint and investigation concerning a registered nurse under this subchapter and all information and material compiled by the board in connection with the complaint and investigation are:
(1) confidential and not subject to disclosure under Chapter 552, Government Code; and
(2) not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or a board employee or agent involved in license holder discipline.
(b) Notwithstanding Subsection (a), information regarding a complaint and an investigation may be disclosed to:
(1) a person involved with the board in a disciplinary action against the nurse;
(2) a professional nursing licensing or disciplinary board in another jurisdiction;
(3) a peer assistance program approved by the board under Chapter 467, Health and Safety Code;
(4) a law enforcement agency; or
(5) a person engaged in bona fide research, if all information identifying a specific individual has been deleted.
(c) The filing of formal charges against a registered nurse by the board, the nature of those charges, disciplinary proceedings of the board, and final disciplinary actions, including warnings and reprimands, by the board are not confidential and are subject to disclosure in accordance with Chapter 552, Government Code. (V.A.C.S. Art. 4525, Subsecs. (g), (h).)
Sec. 301.467. REINSTATEMENT. (a) On application, the board may reinstate a license to practice professional nursing to a person whose license has been revoked, suspended, or surrendered.
(b) An application to reinstate a revoked license:
(1) may not be made before the first anniversary of the date of the revocation; and
(2) must be made in the manner and form the board requires.
(c) If the board denies an application for reinstatement, it may set a reasonable waiting period before the applicant may reapply for reinstatement. (V.A.C.S. Art. 4525, Subsec. (c)(2).)
Sec. 301.468. PROBATION. (a) The board may determine that an order denying a license application or suspending a license be probated. A person subject to a probation order shall conform to each condition the board sets as the terms of probation, including a condition:
(1) limiting the practice of the person to, or excluding, one or more specified activities of professional nursing; or
(2) requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the board.
(b) At the time the probation is granted, the board shall establish the term of the probationary period.
(c) At any time while the person remains subject to the probation order, the board may hold a hearing and rescind the probation and enforce the board's original action in denying or suspending the license. The hearing shall be called by the presiding officer of the board, who shall issue a notice to be served on the person or the person's counsel not later than the 20th day before the date scheduled for the hearing that:
(1) sets the time and place for the hearing; and
(2) contains the charges or complaints against the probationer.
(d) Notice under Subsection (c) is sufficient if sent by registered or certified mail to the affected person at the person's most recent address as shown in the board's records. (V.A.C.S. Art. 4525, Subsec. (d).)
Sec. 301.469. NOTICE OF FINAL ACTION. If the board takes a final disciplinary action, including a warning or reprimand, against a registered nurse under this subchapter, the board shall immediately send a copy of the board's final order to the nurse and to the last known employer of the nurse. (V.A.C.S. Art. 4525, Subsec. (i).)
[Sections 301.470-301.500 reserved for expansion]
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 301.501. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4527d, Subsec. (a).)
Sec. 301.502. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $2,500 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited acts; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4527d, Subsecs. (b), (c).)
Sec. 301.503. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director determines that a violation has occurred, the executive director shall issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the director's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4527d, Subsecs. (d), (e).)
Sec. 301.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the executive director's determination and recommended administrative penalty in writing; or
(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the executive director's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4527d, Subsecs. (f), (g).)
Sec. 301.505. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4527d, Subsec. (h) (part).)
Sec. 301.506. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may:
(1) find that a violation occurred and impose an administrative penalty; or
(2) find that a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4527d, Subsecs. (h) (part), (i).)
Sec. 301.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4527d, Subsecs. (j), (k), (l).)
Sec. 301.508. COLLECTION OF PENALTY. If the person does not pay the penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4527d, Subsec. (m).)
Sec. 301.509. DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4527d, Subsec. (o).)
Sec. 301.510. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4527d, Subsec. (p).)
Sec. 301.511. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4527d, Subsec. (r).)
[Sections 301.512-301.550 reserved for expansion]
SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 301.551. INJUNCTION. (a) In addition to any other action authorized by law, the board may institute an action in its name to enjoin a violation of this chapter or a board rule.
(b) To obtain an injunction under this section, it is not necessary to allege or prove that:
(1) an adequate remedy at law does not exist; or
(2) substantial or irreparable damage would result from the continued violation.
(c) Notwithstanding Subsection (b), in a proceeding for an injunction under Subsection (a), the defendant may assert and prove as a complete defense to the action that the board's actions or proceedings were:
(1) arbitrary or capricious;
(2) contrary to legal requirements; or
(3) conducted without due process of law.
(d) Either party to an action under Subsection (a) may appeal. The board is not required to give an appeal bond in a cause arising under this section. (V.A.C.S. Art. 4527c.)
Sec. 301.552. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system for monitoring the compliance of license holders with the requirements of this chapter. Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4524D.)
Sec. 301.553. CIVIL PENALTY. (a) A person who violates Section 301.451 or Section 301.251 is liable to the state for a civil penalty not to exceed $1,000 a day.
(b) The civil penalty may be collected in a suit initiated by the board. (V.A.C.S. Art. 4527b, Subsec. (b).)
Sec. 301.554. CRIMINAL PENALTY. (a) A person commits an offense if the person violates Section 301.451 or Section 301.251.
(b) An offense under Subsection (a) is a Class A misdemeanor, except that if it is shown on the trial of the offense that the defendant has been previously convicted under Subsection (a), the offense is a felony of the third degree.
(c) Each day of violation constitutes a separate offense.
(d) On final conviction of an offense under Subsection (a), the defendant forfeits all rights and privileges conferred by a license issued under this chapter. (V.A.C.S. Art. 4527b, Subsec. (a).)
Sec. 301.555. APPEAL. (a) A person against whom the board has taken adverse action under this chapter may appeal to a district court in the county of the person's residence or in Travis County.
(b) The board's decision may not be enjoined or stayed except on application to the district court after notice to the board. (V.A.C.S. Art. 4525, Subsec. (c)(1).)
CHAPTER 302. LICENSED VOCATIONAL NURSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 302.001. DEFINITIONS
Sec. 302.002. APPLICATION OF SUNSET ACT
Sec. 302.003. APPLICATION OF CHAPTER
[Sections 302.004-302.050 reserved for expansion]
SUBCHAPTER B. BOARD OF LICENSED VOCATIONAL NURSE EXAMINERS
Sec. 302.051. BOARD MEMBERSHIP; ELIGIBILITY
Sec. 302.052. PUBLIC MEMBER ELIGIBILITY
Sec. 302.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 302.054. TERMS; VACANCY
Sec. 302.055. GROUNDS FOR REMOVAL
Sec. 302.056. PER DIEM; REIMBURSEMENT
Sec. 302.057. OFFICERS
Sec. 302.058. MEETINGS; ANNUAL MEETING
Sec. 302.059. TRAINING
[Sections 302.060-302.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 302.101. EXECUTIVE DIRECTOR
Sec. 302.102. DIRECTOR OF EDUCATION
Sec. 302.103. PERSONNEL
Sec. 302.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 302.105. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 302.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 302.107-302.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD
Sec. 302.151. GENERAL POWERS AND DUTIES OF BOARD; RULEMAKING
AUTHORITY
Sec. 302.152. RULES REGARDING ADVERTISING AND COMPETITIVE
BIDDING
Sec. 302.153. FEES
Sec. 302.154. OCCUPATIONAL TAX AND FEE EXEMPTION
Sec. 302.155. DISSEMINATION OF INFORMATION
Sec. 302.156. BOARD DUTIES REGARDING COMPLAINTS
Sec. 302.157. LEGAL COUNSEL
Sec. 302.158. ANNUAL REPORT
[Sections 302.159-302.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 302.201. PUBLIC INTEREST INFORMATION
Sec. 302.202. COMPLAINTS
Sec. 302.203. RECORDS OF COMPLAINTS
Sec. 302.204. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION
Sec. 302.205. DISPOSITION OF COMPLAINTS
Sec. 302.206. PUBLIC PARTICIPATION
[Sections 302.207-302.250 reserved for expansion]
SUBCHAPTER F. PROGRAM APPROVAL
Sec. 302.251. DEFINITION
Sec. 302.252. APPLICATION
Sec. 302.253. ADDITIONAL APPROVAL REQUIREMENTS FOR
HOSPITALS
Sec. 302.254. SURVEY; PLACEMENT ON LIST OF INSTITUTIONS
Sec. 302.255. DUTIES OF DIRECTOR OF EDUCATION; VISIT AND
SURVEY
Sec. 302.256. PERIODIC SURVEY OF PROGRAMS; FEE
[Sections 302.257-302.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 302.301. LICENSE REQUIRED
Sec. 302.302. LICENSE APPLICATION
Sec. 302.303. ALTERNATIVE EDUCATIONAL REQUIREMENTS
Sec. 302.304. TRAINING IN OTHER JURISDICTIONS
Sec. 302.305. EXAMINATION
Sec. 302.306. EXAMINATION RESULTS
Sec. 302.307. TEMPORARY PERMIT
Sec. 302.308. TEMPORARY LICENSE BY ENDORSEMENT
Sec. 302.309. RULES FOR TRANSPORTING PATIENTS
Sec. 302.310. INACTIVE STATUS
Sec. 302.311. INSIGNIA
[Sections 302.312-302.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 302.351. LICENSE RENEWAL
Sec. 302.352. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 302.353. CONTINUING EDUCATION
[Sections 302.354-302.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS
Sec. 302.401. CERTAIN PROHIBITED PRACTICES
Sec. 302.402. GROUNDS FOR DISCIPLINARY ACTION
Sec. 302.403. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
DISCIPLINE
Sec. 302.404. HEARING
Sec. 302.405. SUBPOENA AND OTHER PROCEDURAL POWERS
Sec. 302.406. REQUEST FOR INFORMATION; SUBPOENA
Sec. 302.407. TEMPORARY SUSPENSION OF LICENSE
Sec. 302.408. SCHEDULE OF SANCTIONS
Sec. 302.409. APPEAL
Sec. 302.410. VOLUNTARY SURRENDER OF LICENSE
Sec. 302.411. INFORMAL PROCEEDINGS
[Sections 302.412-302.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 302.451. IMPOSITION OF PENALTY
Sec. 302.452. AMOUNT OF PENALTY
Sec. 302.453. REPORT AND NOTICE OF VIOLATION AND
PENALTY
Sec. 302.454. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 302.455. HEARING
Sec. 302.456. DECISION BY BOARD
Sec. 302.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 302.458. DETERMINATION BY A COURT
Sec. 302.459. REMITTANCE OF PENALTY AND INTEREST
Sec. 302.460. COLLECTION OF PENALTY
Sec. 302.461. ADMINISTRATIVE PROCEDURE
Sec. 302.462. DEPOSIT OF PENALTY
[Sections 302.463-302.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 302.501. INJUNCTIONS
Sec. 302.502. MONITORING OF LICENSED VOCATIONAL NURSES
Sec. 302.503. CIVIL PENALTY
Sec. 302.504. CRIMINAL PENALTY
CHAPTER 302. LICENSED VOCATIONAL NURSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 302.001. DEFINITIONS. In this chapter:
(1) "Board" means the Board of Vocational Nurse Examiners.
(2) "Licensed practical nurse" means the title used in other states for a nurse with licensure requirements similar to those for a licensed vocational nurse. The term is synonymous with "practical nurse."
(3) "Licensed vocational nurse" means a person licensed under this chapter.
(4) "Nursing" means attending to or caring for a person's illness or health for compensation.
(5) "Vocational nursing" means nursing that generally requires experience and education in biological, physical, and social sciences sufficient to qualify as a licensed vocational nurse. (V.A.C.S. Art. 4528c, Sec. 1.)
Sec. 302.002. APPLICATION OF SUNSET ACT. The Board of Vocational Nurse Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4528c, Sec. 5(k).)
Sec. 302.003. APPLICATION OF CHAPTER. This chapter does not apply to:
(1) nursing of the sick provided without charge by a friend or family member; or
(2) a person who does not:
(A) represent to the public that the person is a licensed vocational nurse; or
(B) use the abbreviation "L.V.N." (V.A.C.S. Art. 4528c, Sec. 3.)
[Sections 302.004-302.050 reserved for expansion]
SUBCHAPTER B. BOARD OF LICENSED VOCATIONAL NURSE EXAMINERS
Sec. 302.051. BOARD MEMBERSHIP; ELIGIBILITY. (a) The Board of Vocational Nurse Examiners consists of 15 members appointed by the governor with the advice and consent of the senate as follows:
(1) seven licensed vocational nurse members who:
(A) are graduates of approved schools of vocational nursing;
(B) have actively engaged in the practice of vocational nursing for the five years preceding appointment; and
(C) are not licensed physicians, registered nurses, or hospital administrators;
(2) one registered nurse member licensed by the Board of Nurse Examiners who:
(A) is actively engaged in a teaching, administrative, or supervisory capacity in a vocational nursing educational program; and
(B) is not a licensed physician, licensed vocational nurse, or hospital administrator;
(3) one physician member licensed by the Texas State Board of Medical Examiners who:
(A) has actively engaged in the practice of medicine for the five years preceding appointment; and
(B) is not a registered nurse, licensed vocational nurse, or hospital administrator;
(4) one hospital administrator member who:
(A) has actively engaged in hospital administration for a period of five years; and
(B) is not a licensed physician, registered nurse, or licensed vocational nurse; and
(5) five members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, or national origin of the appointee.
(c) Each appointee shall qualify by taking the constitutional oath of office not later than the 15th day after the date of appointment. (V.A.C.S. Art. 4528c, Secs. 5(a) (part), (b) (part).)
Sec. 302.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment to the board as a public member if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds 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 the board or receiving funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4528c, Sec. 5(a) (part).)
Sec. 302.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a board member.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member.
(d) A person may not serve as a member of the board or act as 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 board's operation. (V.A.C.S. Art. 4528c, Secs. 5(c), (d).)
Sec. 302.054. TERMS; VACANCY. (a) Board members serve staggered six-year terms.
(b) A member may not immediately succeed the member's term in office.
(c) If a vacancy occurs on the board, the governor shall appoint a member to fill the vacant office for the remainder of the unexpired term not later than the 60th day after the date the vacancy occurs. (V.A.C.S. Art. 4528c, Sec. 5(b) (part).)
Sec. 302.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 302.051 or 302.052;
(2) does not maintain during service on the board the qualifications required by Section 302.051 or 302.052;
(3) violates a prohibition established by Section 302.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4528c, Sec. 5(e).)
Sec. 302.056. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to receive a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A board member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4528c, Sec. 5(h) (part).)
Sec. 302.057. OFFICERS. (a) The governor shall designate a board member as the president of the board to serve in that capacity at the will of the governor.
(b) The board shall elect a vice president and secretary-treasurer annually.
(c) The secretary-treasurer shall keep:
(1) minutes of each board meeting;
(2) a register of the names of all nurses licensed under this chapter; and
(3) records of fees received and disbursements.
(d) The secretary-treasurer shall be bonded by the board in an amount recommended by the state auditor. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)
Sec. 302.058. MEETINGS; ANNUAL MEETING. (a) The board shall hold a regular meeting at least twice each year. One regular meeting must be designated as an annual meeting. At the annual meeting, officers shall be elected and auditors' reports shall be read.
(b) The board shall hold a special meeting at the request of five board members or the call of the president.
(c) If a quorum does not exist on the day appointed for a board meeting, the members present may adjourn from day to day for a period not to exceed three days until a quorum exists. (V.A.C.S. Art. 4528c, Sec. 5(h) (part).)
Sec. 302.059. TRAINING. (a) Before a board member may assume the member's duties, the member must complete at least one course of a training program established by the board under this section.
(b) The training program shall provide information to the member regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4528c, Sec. 5(r).)
[Sections 302.060-302.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 302.101. EXECUTIVE DIRECTOR. The board shall employ an executive director who is not a board member to perform the board's administrative functions. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)
Sec. 302.102. DIRECTOR OF EDUCATION. The board shall employ a full-time director of education who:
(1) is a licensed vocational nurse or a registered nurse; and
(2) has taught nursing for at least five years in:
(A) an accredited school of nursing; or
(B) an approved vocational nursing program. (V.A.C.S. Art. 4528c, Sec. 5(g) (part).)
Sec. 302.103. PERSONNEL. The board shall employ other persons that the board considers necessary to carry out this chapter. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)
Sec. 302.104. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4528c, Sec. 5(s).)
Sec. 302.105. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations that are based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4528c, Sec. 5(m).)
Sec. 302.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Texas Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4528c, Sec. 5(n).)
[Sections 302.107-302.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD
Sec. 302.151. GENERAL POWERS AND DUTIES OF BOARD; RULEMAKING AUTHORITY. (a) The board shall enforce this chapter.
(b) The board may adopt rules as necessary to govern its proceedings and to implement the purposes of this chapter. (V.A.C.S. Art. 4528c, Secs. 5(f) (part), (j) (part).)
Sec. 302.152. RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder under this chapter except to prohibit false, misleading, or deceptive practices by the license holder.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:
(1) restricts the license holder's use of any medium for advertising;
(2) restricts the license holder's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement used by the license holder; or
(4) restricts the use of a trade name in advertising by the license holder. (V.A.C.S. Art. 4528c, Sec. 5(i).)
Sec. 302.153. FEES. (a) The board by rule shall establish reasonable and necessary fees that in the aggregate produce revenue sufficient to cover the cost of administering this chapter. The board may not establish a fee that was assessed on September 1, 1993, in an amount less than the amount of that fee on that date.
(b) The board may not maintain unnecessary fund balances, and fee amounts shall be established in accordance with this requirement.
(c) All expenses under this chapter shall be paid from fees collected by the board under this chapter. (V.A.C.S. Art. 4528c, Secs. 9(a) (part), (b).)
Sec. 302.154. OCCUPATIONAL TAX AND FEE EXEMPTION. A licensed vocational nurse organization that operates a nonprofit registry to enroll members to provide nursing to the public is not liable for the payment of an occupation tax or license fee imposed under any law unless the licensed vocational nurse registry is specifically named in the law. (V.A.C.S. Art. 4528c, Sec. 4.)
Sec. 302.155. DISSEMINATION OF INFORMATION. The board shall disseminate, at least twice a year and at other times the board determines necessary, information that is of significant interest to licensed vocational nurses and employers of licensed vocational nurses in this state, including summaries of final disciplinary action taken by the board against licensed vocational nurses since the previous dissemination of information. (V.A.C.S. Art. 4528c, Sec. 5(u).)
Sec. 302.156. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4528c, Secs. 10A(c), (d).)
Sec. 302.157. LEGAL COUNSEL. The board may retain outside legal counsel to represent the board if first:
(1) the board requests the attorney general to represent the board; and
(2) the attorney general certifies to the board that the attorney general cannot provide those services. (V.A.C.S. Art. 4528c, Sec. 5(j) (part).)
Sec. 302.158. ANNUAL REPORT. (a) The board shall file with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4528c, Sec. 9(c).)
[Sections 302.159-302.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 302.201. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4528c, Sec. 5(o)(1).)
Sec. 302.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall enter into memoranda of understanding with each state agency that licenses health care facilities or agencies to coordinate the notification requirements under Subsection (a) with notification requirements that may be imposed on the health care facility or agency by any other state agency.
(c) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4528c, Secs. 5(o)(2), (3), (4).)
Sec. 302.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board relating to a license holder. The information file must be kept current and must contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 302.205(a) and a notation about any change in that schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4528c, Secs. 10(f); 10A(a), (b); 10B(b) (part).)
Sec. 302.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board.
(b) The rules adopted under this section must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator. (V.A.C.S. Art. 4528c, Sec. 10B(a).)
Sec. 302.205. DISPOSITION OF COMPLAINTS. (a) The board shall:
(1) dispose of all complaints in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(b) Each party shall be notified of the projected schedule for the complaint. Each party to the complaint must be notified of any change in the schedule not later than the seventh day after the date the change is made.
(c) The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4528c, Secs. 10B(b) (part), (c).)
Sec. 302.206. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4528c, Secs. 5(p), (q) (part).)
[Sections 302.207-302.250 reserved for expansion]
SUBCHAPTER F. PROGRAM APPROVAL
Sec. 302.251. DEFINITION. In this subchapter, "institution" includes a school or hospital in which a vocational nurse education program is located. (New.)
Sec. 302.252. APPLICATION. (a) To operate an approved vocational nurse education program under board rules, an institution must apply to the board.
(b) The application must be accompanied by:
(1) evidence that the institution is prepared to give a vocational nurse education program of not less than 12 months; and
(2) the required fee. (V.A.C.S. Art. 4528c, Sec. 12(b) (part).)
Sec. 302.253. ADDITIONAL APPROVAL REQUIREMENTS FOR HOSPITALS. A hospital may operate an approved vocational nurse education program if the hospital:
(1) is in regular use for patients;
(2) has a registered nurse in charge of nursing;
(3) has a staff that consists of at least one physician licensed by the Texas State Board of Medical Examiners; and
(4) meets board requirements for vocational nurse education. (V.A.C.S. Art. 4528c, Sec. 12(a).)
Sec. 302.254. SURVEY; PLACEMENT ON LIST OF INSTITUTIONS. (a) On receipt of an application under Section 302.252, a qualified representative of the board shall survey the applicant.
(b) If in the opinion of the board, an institution meets the requirements for an approved vocational nurse education program, the institution shall be placed on a list of institutions offering approved programs for educating vocational nurses. (V.A.C.S. Art. 4528c, Sec. 12(b) (part).)
Sec. 302.255. DUTIES OF DIRECTOR OF EDUCATION; VISIT AND SURVEY. (a) The director of education shall visit and survey each vocational nursing institution to determine whether the board's minimum requirements for vocational nurse education programs are being met.
(b) The board shall prescribe the methods and rules for conducting the survey and methods of reporting. (V.A.C.S. Art. 4528c, Sec. 5(g) (part).)
Sec. 302.256. PERIODIC SURVEY OF PROGRAMS; FEE. (a) The board periodically shall survey each vocational nurse education program offered in this state. A written report of the survey must be submitted to the board.
(b) If the board determines as a result of the survey that a vocational nursing institution does not maintain the standards required by law and board rules, the board shall:
(1) immediately notify the institution operating the program; and
(2) require the institution to comply with the standards within a reasonable time established by the board and stated in the notice.
(c) If the institution does not comply with the standards as required in the notice under Subsection (b), the board shall remove the institution from the list of institutions offering approved vocational nursing programs.
(d) The board by rule may establish a separate fee for the survey of approved programs. (V.A.C.S. Art. 4528c, Secs. 5(g) (part), 12(b) (part).)
[Sections 302.257-302.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 302.301. LICENSE REQUIRED. A person may not use the designation "Licensed Vocational Nurse" or the abbreviation "L.V.N." unless the person holds a license under this chapter. (V.A.C.S. Art. 4528c, Sec. 2(a).)
Sec. 302.302. LICENSE APPLICATION. Each applicant for a vocational nurse license must submit to the board an application on a form furnished by the board that contains satisfactory sworn evidence that the applicant:
(1) holds a high school diploma issued by an accredited secondary school or equivalent educational credentials; and
(2) has completed a vocational nurse education program in an institution that is approved by the board or another state. (V.A.C.S. Art. 4528c, Sec. 6(a) (part).)
Sec. 302.303. ALTERNATIVE EDUCATIONAL REQUIREMENTS. (a) The board may waive the requirement of Section 302.302(2) if the applicant provides satisfactory sworn evidence that the applicant has completed an acceptable level of education in:
(1) a nursing school approved by the Board of Nurse Examiners; or
(2) a school of professional nurse education located in another state or a foreign country.
(b) The board by rule shall determine acceptable levels of education. (V.A.C.S. Art. 4528c, Sec. 6(b) (part).)
Sec. 302.304. TRAINING IN OTHER JURISDICTIONS. An applicant who received training in another state or a foreign country must provide evidence satisfactory to the board that the education received is equivalent to that required for licensure as a vocational nurse in this state. (V.A.C.S. Art. 4528c, Sec. 6(b) (part).)
Sec. 302.305. EXAMINATION. (a) Except as provided by Section 302.308, an applicant must pass an examination to be licensed as a licensed vocational nurse.
(b) At least twice each year, the board shall hold examinations in various cities in this state for qualified applicants under this chapter.
(c) An examination may be held under the supervision of a board member or another person the board specifies.
(d) The board shall have the written portion of the examination, if any, validated by an independent testing professional. (V.A.C.S. Art. 4528c, Secs. 5(h) (part), 6(a) (part), (b) (part).)
Sec. 302.306. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date a licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person:
(1) an analysis of the person's performance on the examination; or
(2) other information the board has available to it after the tests are graded. (V.A.C.S. Art. 4528c, Sec. 6(c).)
Sec. 302.307. TEMPORARY PERMIT. (a) Pending the results of a licensing examination, the board may issue to an applicant a temporary permit to practice vocational nursing under the direct supervision of a licensed vocational nurse, licensed registered nurse, or licensed physician if the applicant has:
(1) graduated from an approved education program in vocational nursing in this state or another state; or
(2) completed successfully an acceptable level of education in a professional nursing program in this state or another state.
(b) A temporary permit expires on the date:
(1) the applicant receives a permanent license from the board; or
(2) a failing examination result for the applicant is reported to the board.
(c) The board may not issue a temporary permit to an applicant who has previously failed an examination administered by the board or by another state. (V.A.C.S. Art. 4528c, Sec. 6(d).)
Sec. 302.308. TEMPORARY LICENSE BY ENDORSEMENT. (a) An applicant for a license under this chapter may qualify for a temporary license by endorsement to practice as a licensed vocational nurse by submitting to the board:
(1) an application fee and a completed sworn application in the form prescribed by the board;
(2) evidence that the person possessed, at the time of initial licensing as a licensed vocational nurse, the qualifications necessary to have been eligible for licensing at that time in this state; and
(3) proof of initial licensing by examination and proof that the license and any other license issued to the applicant by another state have not been suspended, revoked, canceled, surrendered, or otherwise restricted.
(b) A holder of a temporary license under this section is entitled to receive a permanent license if the applicant:
(1) verifies the applicant's academic and professional credentials; and
(2) satisfies any other requirement established by statute.
(c) The board shall grant or deny an application for a permanent license not later than the 180th day after the date the board receives all required forms or information. The board may extend the deadline to allow for the receipt and tabulation of examination results.
(d) The board shall specify training, education, or examination requirements that an applicant may complete instead of the requirements of Subsection (a)(2). (V.A.C.S. Art. 4528c, Secs. 7(a), (b), (c), (d).)
Sec. 302.309. RULES FOR TRANSPORTING PATIENTS. The board shall adopt rules to address the practice of vocational nursing in this state by a vocational nurse who:
(1) holds a license issued by another state; and
(2) is in this state on a nonroutine basis for a period not to exceed five days or 120 hours to provide care to a patient who is being transported into, out of, or through this state. (V.A.C.S. Art. 4528c, Sec. 7(e).)
Sec. 302.310. INACTIVE STATUS. (a) The board may place on inactive status the license of a person who is not actively engaged in the practice of vocational nursing if the person submits a written request to the board in the manner determined by the board. The inactive status begins on the expiration date of the person's license.
(b) The board shall maintain a list of each person whose license is on inactive status.
(c) A person whose license is on inactive status may not practice vocational nursing or violate this chapter or a board rule.
(d) The board shall remove a person's license from inactive status if the person:
(1) requests that the board remove the person's license from inactive status;
(2) pays each appropriate fee; and
(3) meets the requirements set forth in substantive board rules. (V.A.C.S. Art. 4528c, Sec. 8(e).)
Sec. 302.311. INSIGNIA. A licensed vocational nurse who is on duty in a licensed health care facility, including a public or private hospital or nursing home, shall wear insignia identifying the nurse as a licensed vocational nurse. (V.A.C.S. Art. 4528c, Sec. 6(e).)
[Sections 302.312-302.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 302.351. LICENSE RENEWAL. (a) The board by rule shall adopt a system under which licenses expire on various dates during the year.
(b) A person may renew an unexpired license on payment of the required renewal fee and compliance with any other renewal requirements adopted by the board.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to one-half the amount of the license examination fee. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee.
(d) The board by rule shall set a length of time beyond which an expired license may not be renewed. The board by rule may establish additional requirements that apply to the renewal of a license that has been expired for more than one year but less than the time limit set by the board beyond which a license may not be renewed. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(e) At least 30 days before the expiration of the person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the board.
(f) A person who practices vocational nursing after the expiration of the person's license under this chapter is an illegal practitioner whose license may be revoked or suspended. (V.A.C.S. Art. 4528c, Secs. 8(a), (b), (c) (part), (d).)
Sec. 302.352. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without examination an expired license of a person who was licensed to practice vocational nursing in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee that is equal to the license examination fee. (V.A.C.S. Art. 4528c, Sec. 8(c) (part).)
Sec. 302.353. CONTINUING EDUCATION. (a) To renew a license, a license holder must demonstrate to the satisfaction of the board completion of the requirement for continuing professional education.
(b) The board shall adopt rules relating to the operation of mandatory continuing education programs. In establishing the requirement for continuing education, the board shall consider:
(1) factors that lead to the competent performance of professional duties; and
(2) the continuing education needs of license holders.
(c) The board shall adopt rules:
(1) for the adoption or approval of mandatory continuing education programs and providers; and
(2) to evaluate the effectiveness of the programs and a license holder's participation and performance in the programs. (V.A.C.S. Art. 4528c, Sec. 8A.)
[Sections 302.354-302.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS
Sec. 302.401. CERTAIN PROHIBITED PRACTICES. A person may not:
(1) sell, fraudulently obtain, or fraudulently furnish to the board a vocational nursing diploma, license, or other document;
(2) assist another person in selling, fraudulently obtaining, or fraudulently furnishing to the board a vocational nursing diploma, license, or other document;
(3) practice vocational nursing under a vocational nursing diploma, license, or other document that is:
(A) obtained unlawfully; or
(B) signed or issued unlawfully or under a false representation;
(4) practice vocational nursing in a period in which the person's license is suspended or revoked; or
(5) use the designation "Licensed Practical Nurse," "L.P.N.," "Practical Nurse," "P.N.," "Licensed Technical Nurse," "L.T.N.," "Technical Nurse," or "T.N." (V.A.C.S. Art. 4528c, Sec. 2(b).)
Sec. 302.402. GROUNDS FOR DISCIPLINARY ACTION. (a) A person is subject to disciplinary action under Section 302.403 for:
(1) a violation of this chapter or a rule or order issued under this chapter;
(2) fraud or deceit in obtaining or attempting to obtain a license to practice vocational nursing;
(3) a conviction for:
(A) a felony; or
(B) a misdemeanor that involves moral turpitude;
(4) use of a nursing license, certificate, diploma, or permit or a transcript of such a document that has been fraudulently purchased, issued, counterfeited, or materially altered;
(5) impersonating or acting as a proxy for another person in an examination required by law to obtain a license to practice vocational nursing;
(6) knowingly aiding or abetting an unlicensed person in connection with the unauthorized practice of vocational nursing;
(7) revocation, suspension, or denial of the person's license to practice vocational or practical nursing in another jurisdiction;
(8) revocation, suspension, or denial of a license to practice professional nursing in this state or in another jurisdiction;
(9) intemperate use of alcohol or drugs;
(10) unprofessional or dishonorable conduct that, in the board's opinion, is likely to deceive, defraud, or injure the public;
(11) adjudication of mental incompetency; or
(12) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public.
(b) For purposes of Subsections (a)(7) and (a)(8), a certified copy of an order of denial, suspension, or revocation of a license is conclusive evidence of that fact. (V.A.C.S. Art. 4528c, Sec. 10(a) (part).)
Sec. 302.403. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. After a hearing is held on specific sworn written charges filed by the secretary-treasurer, if the board determines that a person has committed an act listed in Section 302.402, the board may:
(1) refuse to admit the person to a board examination;
(2) deny the person's application for a license, license renewal, or temporary permit;
(3) issue a warning or reprimand;
(4) suspend or revoke the person's license as a vocational nurse; or
(5) place on probation a person whose license has been suspended. (V.A.C.S. Art. 4528c, Secs. 10(a) (part), (d).)
Sec. 302.404. HEARING. (a) A person is entitled to a hearing if:
(1) the board proposes to deny the person's application for a license; or
(2) the person is a licensed vocational nurse and the board proposes to:
(A) reprimand the person;
(B) place on probation the person if the person's license has been suspended; or
(C) suspend or revoke the license.
(b) A proceeding based on a board action under Subsection (a) is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4528c, Sec. 10(g).)
Sec. 302.405. SUBPOENA AND OTHER PROCEDURAL POWERS. (a) The board may:
(1) issue a subpoena;
(2) compel the attendance of a witness;
(3) administer an oath to a person giving testimony at a board hearing; and
(4) initiate the prosecution of a person who violates this chapter.
(b) The board shall keep a record of the board's proceedings. (V.A.C.S. Art. 4528c, Sec. 10(b).)
Sec. 302.406. REQUEST FOR INFORMATION; SUBPOENA. (a) A person shall respond promptly and fully to a request for information from the board or to a subpoena issued by the board. The person may not refuse, deny, or resist the request or subpoena unless the information requested or subpoenaed is subject to the attorney-client privilege. A privilege other than the attorney-client privilege does not apply to a board proceeding.
(b) A subpoena issued by the board may be served personally by a board investigator, by certified mail, or in any other manner authorized by law.
(c) The board may pay a reasonable fee for a photocopy subpoenaed by the board. The fee may not exceed the amount the board charges for a copy of a board record.
(d) To the extent possible, the board shall protect the identity of each patient named in information received by the board. (V.A.C.S. Art. 4528c, Sec. 10H.)
Sec. 302.407. TEMPORARY SUSPENSION OF LICENSE. (a) The board or a three-member committee of board members designated by the board shall temporarily suspend the license of a licensed vocational nurse if a majority of the board or committee determines from information presented to the board or committee that continued practice of vocational nursing by the nurse constitutes a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without notice or hearing on the complaint if:
(1) proceedings for a hearing before the State Office of Administrative Hearings are initiated simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall conduct a preliminary hearing not later than the 21st day after the date the temporary suspension order is issued to determine whether probable cause exists that a continuing and imminent threat to the public welfare is still occurring. The office shall conduct a final hearing on the matter not later than the 91st day after the date the temporary suspension order is issued. (V.A.C.S. Art. 4528c, Sec. 10G.)
Sec. 302.408. SCHEDULE OF SANCTIONS. The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board by rule for a sanction imposed as a result of a hearing conducted by that office. (V.A.C.S. Art. 4528c, Sec. 10F.)
Sec. 302.409. APPEAL. A person may appeal a board order disciplining the person in a district court of the county of the person's residence. (V.A.C.S. Art. 4528c, Sec. 10(e) (part).)
Sec. 302.410. VOLUNTARY SURRENDER OF LICENSE. The board may revoke a vocational nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the board and executes a sworn statement that the nurse does not desire to be licensed. (V.A.C.S. Art. 4528c, Sec. 10(c).)
Sec. 302.411. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the licensed vocational nurse an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the board's legal staff to advise the board or the board's employees. (V.A.C.S. Art. 4528c, Sec. 10C.)
[Sections 302.412-302.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 302.451. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4528c, Sec. 10E(a).)
Sec. 302.452. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of a prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4528c, Secs. 10E(b), (c).)
Sec. 302.453. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director determines that a violation has occurred, the executive director may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the director's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4528c, Secs. 10E(d), (e).)
Sec. 302.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 302.453, the person may:
(1) accept in writing the executive director's determination and recommended administrative penalty; or
(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the executive director's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4528c, Secs. 10E(f), (g).)
Sec. 302.455. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4528c, Sec. 10E(h) (part).)
Sec. 302.456. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4528c, Secs. 10E(h) (part), (i).)
Sec. 302.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) On receipt of a copy of an affidavit under Subsection (b)(2), the executive director may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4528c, Secs. 10E(j), (k), (l).)
Sec. 302.458. DETERMINATION BY COURT. (a) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the occurrence of the violation, the court shall order that an administrative penalty is not owed. (V.A.C.S. Art. 4528c, Sec. 10E(o).)
Sec. 302.459. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond if the penalty is not imposed or order the release of the bond after the person pays the penalty if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4528c, Sec. 10E(p).)
Sec. 302.460. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4528c, Sec. 10E(m).)
Sec. 302.461. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4528c, Sec. 10E(r).)
Sec. 302.462. DEPOSIT OF PENALTY. A penalty collected under this subchapter shall be sent to the comptroller for deposit in the general revenue fund. (V.A.C.S. Art. 4528c, Sec. 10E(q).)
[Sections 302.463-302.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 302.501. INJUNCTIONS. On petition of the board, a district court may enjoin a person who is violating this chapter from continuing the violation. (V.A.C.S. Art. 4528c, Sec. 11(a).)
Sec. 302.502. MONITORING OF LICENSED VOCATIONAL NURSES. The board by rule shall develop a system for monitoring the compliance of license holders with the requirements of this chapter. Rules adopted under this section must include procedures to:
(1) monitor for compliance a licensed vocational nurse who is ordered by the board to perform certain acts; and
(2) identify and monitor each licensed vocational nurse who represents a risk to the public. (V.A.C.S. Art. 4528c, Sec. 10D.)
Sec. 302.503. CIVIL PENALTY. (a) A person who violates this chapter is liable to the state for a civil penalty not to exceed $1,000 a day.
(b) The civil penalty may be collected in a suit initiated by the board. (V.A.C.S. Art. 4528c, Sec. 11(c).)
Sec. 302.504. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4528c, Sec. 11(b).)
CHAPTER 303. NURSING PEER REVIEW
Sec. 303.001. DEFINITIONS
Sec. 303.002. GENERAL PROVISIONS REGARDING PEER REVIEW
Sec. 303.003. COMMITTEE MEMBERSHIP
Sec. 303.004. PEER REVIEW BY TWO ENTITIES
Sec. 303.005. REQUEST FOR PEER REVIEW COMMITTEE
DETERMINATION
Sec. 303.006. CONFIDENTIALITY OF PEER REVIEW PROCEEDINGS
Sec. 303.007. DISCLOSURE OF INFORMATION
Sec. 303.008. REBUTTAL STATEMENT
Sec. 303.009. RETALIATORY ACTIONS
Sec. 303.010. CIVIL LIABILITY
CHAPTER 303. NURSING PEER REVIEW
Sec. 303.001. DEFINITIONS. In this chapter:
(1) "Board" means the Board of Nurse Examiners.
(2) "Nurse" means a registered nurse licensed under Chapter 301 or a licensed vocational nurse licensed under Chapter 302.
(3) "Nursing" means professional nursing as defined by Chapter 301 or vocational nursing as defined by Chapter 302.
(4) "Nursing peer review committee" means a committee established under the authority of the governing body of a national, state, or local nursing association, a school of nursing, the nursing staff of a hospital, health science center, nursing home, home health agency, temporary nursing service, or other health care facility, or state agency or political subdivision for the purpose of conducting peer review. The committee includes an employee or agent of the committee, including an assistant, an investigator, an intervenor, an attorney, and any other person who serves the committee in any capacity.
(5) "Peer review" means the evaluation of nursing services, the qualifications of a nurse, the quality of patient care rendered by a nurse, the merits of a complaint concerning a nurse or nursing care, and a determination or recommendation regarding a complaint. The term includes:
(A) the evaluation of the accuracy of a nursing assessment and observation and the appropriateness and quality of the care rendered by a nurse;
(B) a report made to a nursing peer review committee concerning an activity under the committee's review authority;
(C) a report made by a nursing peer review committee to another committee or to the board as permitted or required by law; and
(D) implementation of a duty of a nursing peer review committee by a member, an agent, or an employee of the committee. (V.A.C.S. Art. 4525b, Sec. 1; New.)
Sec. 303.002. GENERAL PROVISIONS REGARDING PEER REVIEW. (a) In adopting rules under this chapter, the board shall consult with the Board of Vocational Nurse Examiners.
(b) The board shall enter into a memorandum of understanding with each state agency that licenses, registers, or certifies a facility required by law to have a registered nurse peer review committee. The memorandum of understanding must:
(1) state the actions the board and agency are to take to encourage compliance with the requirement to have a registered nurse peer review committee; and
(2) be adopted as a rule of the board and the agency.
(c) A court may not enjoin the activities of a nursing peer review committee under this chapter.
(d) This chapter may not be nullified by a contract.
(e) The committee shall give the nurse being reviewed at least minimum due process, including notice and opportunity for a hearing. (V.A.C.S. Art. 4525b, Secs. 1A (part), 7, 8; Art. 4525c.)
Sec. 303.003. COMMITTEE MEMBERSHIP. (a) A nursing peer review committee that conducts a peer review that involves only the practice of professional nursing must have registered nurses as three-fourths of its members and may have only registered nurses as voting members.
(b) A nursing peer review committee that conducts a peer review that involves only the practice of vocational nursing must have registered nurses and licensed vocational nurses as three-fourths of its members, to the extent feasible must include licensed vocational nurses as members, and may have only registered nurses and licensed vocational nurses as voting members.
(c) A nursing peer review committee that conducts a peer review that involves the practice of both professional nursing and licensed vocational nursing:
(1) must have registered nurses and licensed vocational nurses as four-fifths of its members, with registered nurses as three-fifths of its members;
(2) to the extent feasible must include licensed vocational nurses as members; and
(3) may have only:
(A) registered nurses and licensed vocational nurses as voting members when a licensed vocational nurse is being reviewed; and
(B) registered nurses as voting members when a registered nurse is being reviewed.
(d) The committee shall include to the extent feasible at least one nurse who has a working familiarity with the area of nursing practice in which the nurse being reviewed practices. (V.A.C.S. Art. 4525b, Sec. 1A (part).)
Sec. 303.004. PEER REVIEW BY TWO ENTITIES. (a) A nurse who, as a temporary agency nurse, faculty member, or similar staff member, practices nursing for an educational institution, health care facility, agency, or entity, or a person other than the person who employs or directly compensates the nurse is subject to peer review by both the employer and the other person.
(b) For the purposes of exchanging information, the peer review committee reviewing the nurse's conduct is considered to be established under the authority of both entities.
(c) The two entities may contract as to which entity will conduct peer review of the nurse. (V.A.C.S. Art. 4525b, Sec. 1B.)
Sec. 303.005. REQUEST FOR PEER REVIEW COMMITTEE DETERMINATION. (a) In this section, "duty to a patient" means conduct required by standards of practice or professional conduct adopted by the board. The term includes administrative decisions directly affecting a registered nurse's ability to comply with that duty.
(b) If a person who regularly employs, hires, or otherwise contracts for the services of at least 10 registered nurses requests one of those nurses to engage in conduct that the nurse believes violates a registered nurse's duty to a patient, the nurse may request, on a form produced by the board, a determination by a nursing peer review committee under this chapter of whether the conduct violates a registered nurse's duty to a patient.
(c) A registered nurse who in good faith requests a peer review determination under Subsection (b):
(1) may not be disciplined or discriminated against for making the request;
(2) may engage in the requested conduct pending the peer review;
(3) is not subject to the reporting requirement under Subchapter I, Chapter 301; and
(4) may not be disciplined by the board for engaging in that conduct while the peer review is pending.
(d) The determinations of the peer review committee shall be considered in a decision to discipline the nurse, but the determinations are not binding if a registered nurse administrator believes in good faith that the peer review committee has incorrectly determined a registered nurse's duty.
(e) If the conduct for which the peer review is requested under Subsection (b) involves the medical reasonableness of a physician's order, the medical staff or medical director shall be requested to make a determination as to the medical reasonableness of the physician's order, and that determination is determinative of that issue.
(f) A registered nurse's rights under this section may not be nullified by a contract.
(g) An appropriate licensing agency may take action against a person who violates this section. (V.A.C.S. Art. 4525d, Subsecs. (c), (d), (e)(1).)
Sec. 303.006. CONFIDENTIALITY OF PEER REVIEW PROCEEDINGS. (a) Except as otherwise provided by this chapter, a nursing peer review committee proceeding is confidential and any communication made to a nursing peer review committee is privileged.
(b) A member, agent, or employee of a nursing peer review committee or a participant in a proceeding before the committee may not disclose or be required to disclose a communication made to the committee or a record or proceeding of the committee.
(c) A person who attends a nursing peer review committee proceeding may not disclose or be required to disclose:
(1) information acquired in connection with the proceeding; or
(2) an opinion, recommendation, or evaluation of the committee or a committee member.
(d) A nursing peer review committee member and a person who provides information to the committee may not be questioned about:
(1) the person's testimony before the committee; or
(2) an opinion formed as a result of the committee proceedings.
(e) Except as permitted by this chapter, information that is confidential under this section:
(1) is not subject to subpoena or discovery in any civil matter;
(2) is not admissible as evidence in a judicial or administrative proceeding; and
(3) may not be introduced into evidence in a nursing liability suit arising out of the provision of or a failure to provide nursing services. (V.A.C.S. Art. 4525b, Sec. 2.)
Sec. 303.007. DISCLOSURE OF INFORMATION. (a) A nursing peer review committee on request shall disclose written or oral communications made to the committee and the records and proceedings of the committee to:
(1) a licensing authority of any state; or
(2) a law enforcement agency investigating a criminal matter.
(b) A nursing peer review committee may disclose written or oral communications made to the committee and the records and proceedings of the committee to:
(1) a licensing agency of any state;
(2) a law enforcement agency investigating a criminal matter;
(3) the association, school, agency, facility, or other organization under whose authority the committee is established;
(4) another nursing peer review committee;
(5) a peer assistance program approved by the board under Chapter 467, Health and Safety Code;
(6) an appropriate state or federal agency or accrediting organization that accredits a health care facility or school of nursing or surveys a facility for quality of care; or
(7) a person engaged in bona fide research, if all information that identifies a specific individual is deleted.
(c) If a committee discloses information under this section, the committee does not by that action waive the privilege of nondisclosure of committee information and proceedings.
(d) A peer review committee that discloses information under this section and each person who receives the information shall protect, to the extent possible, the identity of each patient. (V.A.C.S. Art. 4525b, Secs. 3(a), (b), (d), (e).)
Sec. 303.008. REBUTTAL STATEMENT. (a) If a nursing peer review committee discloses information under Section 303.007(a) that could result in the reprimand, suspension, or termination of, or other disciplinary action against, a nurse, or itself recommends or takes such an action, the committee shall provide the nurse with a detailed summary of information disclosed or the basis of its action or recommendation.
(b) The peer review committee shall give the nurse the opportunity to offer rebuttal information and to submit a rebuttal statement of reasonable length. Any rebuttal statement must be included with the information disclosed by the committee. (V.A.C.S. Art. 4525b, Secs. 1A (part), 3(c).)
Sec. 303.009. RETALIATORY ACTIONS. (a) A nursing peer review committee, a person participating in peer review, or an organization named as a defendant in a civil action or subjected to other retaliatory action as a result of participation in peer review may file a counterclaim in a pending action or prove a cause of action in a subsequent suit to recover defense costs, including court costs, reasonable attorney's fees, and actual and punitive damages if the suit or retaliatory action is determined to be frivolous, unreasonable, without foundation, or taken in bad faith.
(b) A nursing peer review committee member or a person participating in peer review under this chapter named as a defendant in a civil action or subjected to other retaliatory action as a result of participation in peer review may use information that is otherwise confidential under this chapter to defend the civil action or a civil action that alleges retaliation for the person's participation in peer review.
(c) A person who discloses information under Subsection (b) does not by that action waive the privilege of nondisclosure of all other information privileged under this chapter. (V.A.C.S. Art. 4525b, Secs. 4, 6.)
Sec. 303.010. CIVIL LIABILITY. (a) A cause of action does not accrue for an act, statement, determination, or recommendation made, or act reported, without malice, in the course of peer review against:
(1) a member, agent, or employee of a nursing peer review committee; or
(2) a school of nursing, hospital, nursing home, home health agency, health science center, or other health care facility, the nursing staff of such a facility, or a nursing association or other organization.
(b) A person who, without malice, provides records, information, or assistance to a nursing peer review committee:
(1) is not liable in a civil action based on the person's participation or assistance in peer review; and
(2) may not be subjected to retaliatory action as a result of that act. (V.A.C.S. Art. 4525b, Sec. 5.)
[Chapters 304-350 reserved for expansion]
SUBTITLE F. PROFESSIONS RELATED TO EYES AND VISION
CHAPTER 351. OPTOMETRISTS AND THERAPEUTIC OPTOMETRISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 351.001. SHORT TITLE
Sec. 351.002. DEFINITIONS
Sec. 351.003. REFERENCE IN OTHER LAW
Sec. 351.004. SUNSET PROVISION
Sec. 351.005. APPLICATION OF CHAPTER; EXEMPTIONS
[Sections 351.006-351.050 reserved for expansion]
SUBCHAPTER B. TEXAS OPTOMETRY BOARD
Sec. 351.051. TEXAS OPTOMETRY BOARD; MEMBERSHIP
Sec. 351.052. MEMBERSHIP ELIGIBILITY
Sec. 351.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 351.054. TERMS
Sec. 351.055. OFFICERS
Sec. 351.056. GROUNDS FOR REMOVAL
Sec. 351.057. PER DIEM; REIMBURSEMENT
Sec. 351.058. MEETINGS
Sec. 351.059. TRAINING
[Sections 351.060-351.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER AGENCY PERSONNEL
Sec. 351.101. EXECUTIVE DIRECTOR
Sec. 351.102. BOND OF EXECUTIVE DIRECTOR
Sec. 351.103. STAFF ATTORNEY
Sec. 351.104. OTHER PERSONNEL
Sec. 351.105. DIVISION OF RESPONSIBILITIES
Sec. 351.106. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 351.107. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 351.108. EQUAL OPPORTUNITY POLICY; REPORT
[Sections 351.109-351.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 351.151. RULES
Sec. 351.152. FEES
Sec. 351.153. ADDITIONAL FEE
Sec. 351.154. APPLICATION OF FEES
Sec. 351.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 351.156. BOARD DUTIES REGARDING COMPLAINTS
Sec. 351.157. ENFORCEMENT
Sec. 351.158. LEGAL REPRESENTATION
Sec. 351.159. COMMITTEE APPOINTMENTS AND RECOMMENDATIONS
Sec. 351.160. PHARMACEUTICAL AGENTS
Sec. 351.161. SEAL; DESIGN OF LICENSE
Sec. 351.162. OFFICE
Sec. 351.163. BOARD RECORDS
Sec. 351.164. ANNUAL REPORT
[Sections 351.165-351.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 351.201. PUBLIC INTEREST INFORMATION
Sec. 351.202. PUBLIC PARTICIPATION
Sec. 351.203. COMPLAINTS
Sec. 351.204. RECORDS OF COMPLAINTS
Sec. 351.205. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
[Sections 351.206-351.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 351.251. LICENSE REQUIRED
Sec. 351.252. EDUCATION REQUIREMENTS FOR THERAPEUTIC
OPTOMETRIST
Sec. 351.253. EXAMINATION REQUIREMENT FOR THERAPEUTIC
OPTOMETRIST
Sec. 351.254. EXAMINATION APPLICATION
Sec. 351.255. CONDUCT OF EXAMINATION
Sec. 351.256. EXAMINATION SUBJECTS
Sec. 351.257. EXAMINATION RESULTS
Sec. 351.258. ISSUANCE OF LICENSE TO THERAPEUTIC
OPTOMETRIST; FEE
Sec. 351.259. PROVISIONAL LICENSE
Sec. 351.260. LIMITED LICENSE FOR CLINICAL FACULTY
Sec. 351.261. DISPLAY OF LICENSE OR CERTIFICATE
Sec. 351.262. INFORMATION PRESENTED TO PATIENT
Sec. 351.263. LOST OR DESTROYED LICENSE
Sec. 351.264. INACTIVE STATUS
[Sections 351.265-351.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 351.301. ANNUAL RENEWAL CERTIFICATE
Sec. 351.302. LICENSE RENEWAL
Sec. 351.303. NOTICE OF LICENSE EXPIRATION
Sec. 351.304. PROCEDURE FOR RENEWAL
Sec. 351.305. ISSUANCE OF CERTIFICATE
Sec. 351.306. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 351.307. GOVERNMENTAL SERVICE, TRAINING, OR EDUCATION
Sec. 351.308. CONTINUING EDUCATION
Sec. 351.309. CONTINUING EDUCATION EXEMPTIONS
[Sections 351.310-351.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 351.351. LICENSE HOLDER INFORMATION
Sec. 351.352. OPTOMETRIC FILES AND RECORDS
Sec. 351.353. INITIAL EXAMINATION OF PATIENT
Sec. 351.354. CERTAIN OPTOMETRIC SERVICES AUTHORIZED
Sec. 351.355. DETERMINING OR MEASURING VISION
Sec. 351.356. FITTING LENSES OR PRISMS
Sec. 351.357. FITTING AND DISPENSING CONTACT LENSES
Sec. 351.358. OPHTHALMIC DEVICES, ORAL MEDICATIONS, AND
PHARMACEUTICAL AGENTS
Sec. 351.359. PRESCRIPTION
Sec. 351.360. PROFESSIONAL STANDARD OF THERAPEUTIC
OPTOMETRIST
Sec. 351.361. LEASE; PAYMENT BASIS; ACCOUNTS RECEIVABLE
Sec. 351.362. PROFESSIONAL RESPONSIBILITY; NAME OF
PRACTICE
Sec. 351.363. MERCANTILE ESTABLISHMENT
Sec. 351.364. RELATIONSHIPS WITH DISPENSING OPTICIANS
Sec. 351.365. PATIENT RIGHTS REGARDING SPECTACLE
PRESCRIPTION
[Sections 351.366-351.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES IN GENERAL
Sec. 351.401. PROHIBITED OFFER, REPRESENTATION, OR
DESIGNATION
Sec. 351.402. IMPERSONATION PROHIBITED
Sec. 351.403. FALSE, DECEPTIVE, OR MISLEADING ADVERTISING
Sec. 351.404. EYEGLASSES AS PRIZE OR INDUCEMENT
Sec. 351.405. ALTERATION OF PRESCRIPTION
Sec. 351.406. EXPIRED CONTACT LENS PRESCRIPTION
Sec. 351.407. GOVERNMENTAL DISCRIMINATION PROHIBITED
Sec. 351.408. CONTROL OF OPTOMETRY
Sec. 351.409. PROHIBITED ACTIVITY BY UNLICENSED PERSON
[Sections 351.410-351.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES BY LICENSE HOLDER
Sec. 351.451. PROHIBITED TREATMENT BY LICENSE HOLDER
Sec. 351.452. PROHIBITED USE OF PHARMACEUTICAL AGENT
Sec. 351.453. EXAMINATION REQUIRED FOR PRESCRIPTION
Sec. 351.454. CONTAGIOUS OR INFECTIOUS DISEASE
Sec. 351.455. PRACTICE PROHIBITED FROM HOUSE TO HOUSE
Sec. 351.456. PRACTICE PROHIBITED DURING LICENSE
SUSPENSION OR REVOCATION
Sec. 351.457. PROFESSIONAL RESPONSIBILITY; FEES
Sec. 351.458. PROFESSIONAL RESPONSIBILITY; USE OF NAME OR
PROFESSIONAL IDENTIFICATION
Sec. 351.459. MERCANTILE ESTABLISHMENT; PROHIBITED ACTS
Sec. 351.460. RELATIONSHIPS WITH DISPENSING OPTICIANS;
PROHIBITED ACTS
[Sections 351.461-351.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 351.501. DENIAL OF LICENSE AND DISCIPLINARY ACTION
BY BOARD
Sec. 351.502. WILFUL OR REPEATED NONCOMPLIANCE
Sec. 351.503. DISCIPLINARY PROCEEDINGS
Sec. 351.504. JUDICIAL REVIEW
Sec. 351.505. REISSUANCE OF LICENSE AFTER REVOCATION
Sec. 351.506. PROBATION
Sec. 351.507. INFORMAL PROCEEDINGS
[Sections 351.508-351.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 351.551. IMPOSITION OF PENALTY
Sec. 351.552. AMOUNT OF PENALTY
Sec. 351.553. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 351.554. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 351.555. HEARING ON RECOMMENDATIONS
Sec. 351.556. DECISION BY BOARD
Sec. 351.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 351.558. COLLECTION OF PENALTY
Sec. 351.559. DETERMINATION BY COURT
Sec. 351.560. REMITTANCE OF PENALTY AND INTEREST
Sec. 351.561. ADMINISTRATIVE PROCEDURE
[Sections 351.562-351.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 351.601. MONITORING LICENSE HOLDER
Sec. 351.602. INJUNCTION; DAMAGES
Sec. 351.603. ENFORCEMENT BY ATTORNEY GENERAL OR BOARD;
CIVIL PENALTY
Sec. 351.604. DECEPTIVE TRADE PRACTICES
Sec. 351.605. LESSEE ENTITLED TO REMEDIES
Sec. 351.606. GENERAL CRIMINAL PENALTY
Sec. 351.607. DISPENSING CONTACT LENSES; PENALTY
CHAPTER 351. OPTOMETRISTS AND THERAPEUTIC OPTOMETRISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 351.001. SHORT TITLE. This chapter may be cited as the Texas Optometry Act. (V.A.C.S. Art. 4552-1.01.)
Sec. 351.002. DEFINITIONS. In this chapter:
(1) "Adnexa" means the lids and drainage system of the eye.
(2) "Board" means the Texas Optometry Board.
(3) "Dispensing optician" or "ophthalmic dispenser" means a person who:
(A) is not an optometrist, therapeutic optometrist, or licensed physician; and
(B) sells or delivers to the consumer ophthalmic devices, including fabricated and finished spectacle lenses, frames, and contact lenses, prescribed by an optometrist, therapeutic optometrist, or licensed physician.
(4) "Optometrist" means a person licensed under this chapter and authorized to practice optometry.
(5) "Person" means an individual, association of individuals, trustee, receiver, partnership, corporation, or organization or the manager, agent, servant, or employee of any of those entities.
(6) "Practice of optometry" means using objective or subjective means, with or without the use of topical ocular pharmaceutical agents, to:
(A) determine or measure the powers of vision of the human eye as provided by Section 351.355;
(B) examine or diagnose visual defects, abnormal conditions, or diseases of the human eye or adnexa; or
(C) prescribe or fit lenses or prisms to correct or remedy a defect or abnormal condition of vision as provided by Section 351.356.
(7) "Practice of therapeutic optometry" means using objective or subjective means to:
(A) determine or measure the powers of vision of the human eye as provided by Section 351.355;
(B) examine or diagnose visual defects, abnormal conditions, or diseases of the human eye or adnexa;
(C) prescribe or fit lenses or prisms to correct or remedy a defect or abnormal condition of vision as provided by Section 351.356;
(D) administer or prescribe a drug or physical treatment in the manner authorized by this chapter; or
(E) treat the eye or adnexa as authorized by this chapter without the use of surgery or laser surgery.
(8) "Therapeutic optometrist" means a person licensed under this chapter and authorized to practice therapeutic optometry. (V.A.C.S. Arts. 4552-1.02(1) (part), (4), (5), (7), (8), (9), (10); New.)
Sec. 351.003. REFERENCE IN OTHER LAW. A reference in another law of this state or in a law of a subdivision of this state to "optometrist" means an optometrist or therapeutic optometrist, unless the context clearly indicates otherwise. (V.A.C.S. Art. 4552-5.20.)
Sec. 351.004. SUNSET PROVISION. The Texas Optometry Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4552-2.01a.)
Sec. 351.005. APPLICATION OF CHAPTER; EXEMPTIONS. (a) This chapter does not:
(1) apply to an officer or agent of the United States or this state in performing official duties;
(2) prevent or interfere with the right of a physician licensed by the Texas State Board of Medical Examiners to:
(A) treat or prescribe for a patient; or
(B) direct or instruct a person under the physician's control, supervision, or direction to aid or attend to the needs of a patient according to the physician's specific direction, instruction, or prescription;
(3) prevent a person from selling ready-to-wear eyeglasses as merchandise at retail;
(4) prevent an unlicensed person from making simple repairs to eyeglasses;
(5) prevent or interfere with the right of a dispensing optician registered under Chapter 352 to engage in spectacle or contact lens dispensing under that chapter;
(6) prevent an ophthalmic dispenser who does not practice optometry or therapeutic optometry from measuring interpupillary distances or making facial measurements to dispense or adapt an ophthalmic prescription, lens, product, or accessory in accordance with the specific directions of a written prescription signed by an optometrist, therapeutic optometrist, or licensed physician;
(7) prevent the administrator or executor of the estate of a deceased optometrist or therapeutic optometrist from employing an optometrist or therapeutic optometrist to continue the practice of the deceased during estate administration; or
(8) prevent an optometrist or therapeutic optometrist from working for the administrator or executor of the estate of a deceased optometrist or therapeutic optometrist to continue the practice of the deceased during estate administration.
(b) A direction, instruction, or prescription described by Subsection (a)(2)(B) must be in writing if it is to be followed, performed, or filled outside the physician's office.
(c) Subsection (a)(5) does not prohibit the board from acting under this chapter to restrict the unauthorized practice of optometry.
(d) Continuation of the practice of a deceased optometrist or therapeutic optometrist by an estate under Subsections (a)(7) and (8) must:
(1) be authorized by the county judge; and
(2) terminate before the first anniversary of the date of death of the optometrist or therapeutic optometrist. (V.A.C.S. Arts. 4552-1.02(3) (part); 4552-4.04(e); 4552-5.17.)
[Sections 351.006-351.050 reserved for expansion]
SUBCHAPTER B. TEXAS OPTOMETRY BOARD
Sec. 351.051. TEXAS OPTOMETRY BOARD; MEMBERSHIP. (a) The Texas Optometry Board consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) three optometrists or therapeutic optometrists who are affiliated with the Texas Optometric Association, Inc.;
(2) three optometrists or therapeutic optometrists who are affiliated with the Texas Association of Optometrists, Inc.; and
(3) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, age, religion, or national origin of the appointee. (V.A.C.S. Arts. 4552-2.01, 4552-2.02(a) (part), (b) (part).)
Sec. 351.052. MEMBERSHIP ELIGIBILITY. (a) An optometrist or therapeutic optometrist member of the board must have been a resident of this state engaged in the practice of optometry or therapeutic optometry in this state for the five years preceding the date of the member's appointment.
(b) An optometrist or therapeutic optometrist member of the board may not simultaneously be a member of both the Texas Optometric Association, Inc., and the Texas Association of Optometrists, Inc.
(c) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of or is an officer or paid consultant of a business entity or other organization that provides health care services or that sells, manufactures, or distributes health care supplies or equipment;
(3) owns, controls, or has, directly or indirectly, a financial interest in a business entity or other organization that provides health care services or that sells, manufactures, or distributes health care supplies or equipment; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Arts. 4552-2.02(a) (part), (b) (part).)
Sec. 351.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) A member or employee of the board may not:
(1) be a member of the faculty of a college of optometry or an agent, paid consultant, officer, or employee of a wholesale optical company;
(2) have a financial interest in a college of optometry or wholesale optical company;
(3) be an officer, employee, or paid consultant of a trade association in the field of health care; or
(4) be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the field of health care.
(b) A person may not serve as a member of the board or act 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. (V.A.C.S. Arts. 4552-2.02(c), (d).)
Sec. 351.054. TERMS. (a) Members of the board serve staggered six-year terms. The terms of one member affiliated with the Texas Optometric Association, Inc., one member affiliated with the Texas Association of Optometrists, Inc., and one public member expire on January 31 of each odd-numbered year.
(b) A member may not serve more than two complete terms. Service on the board before September 1, 1981, does not count toward that limitation. (V.A.C.S. Arts. 4552-2.02(i), 4552-2.03.)
Sec. 351.055. OFFICERS. (a) The board shall elect a presiding officer, an assistant presiding officer, and a secretary-treasurer every two years.
(b) The presiding officer and the assistant presiding officer may not be from the same group of the three groups represented on the board. (V.A.C.S. Art. 4552-2.04.)
Sec. 351.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 351.051 and 351.052;
(2) does not maintain during service on the board the qualifications required by Sections 351.051, 351.052, and 351.053; or
(3) fails to attend at least half of the regularly scheduled board meetings held in a calendar year, excluding meetings held while the person was not a member.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) A board member who no longer has the qualifications required by Sections 351.051, 351.052, and 351.053 shall immediately inform the governor and the attorney general of that fact and shall resign from the board.
(d) The attorney general shall investigate a complaint to the attorney general that a board member no longer has the qualifications required by Sections 351.051, 351.052, and 351.053. If the attorney general determines that there is reason to believe the complaint is valid, the attorney general shall institute suit in a Travis County district court to have the member removed from office. (V.A.C.S. Arts. 4552-2.02(e), (f), (g), (h).)
Sec. 351.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by legislative appropriation for each day that the member engages in the business of the board.
(b) A board member may be reimbursed for actual travel expenses, including expenses for meals, lodging, and transportation. A board member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act.
(c) At the time a board member applies for reimbursement under this section, the member shall make a sworn statement of the number of days the member engaged in the business of the board and the amount of the member's expenses. (V.A.C.S. Art. 4552-2.15(a) (part).)
Sec. 351.058. MEETINGS. (a) At least twice a year the board shall hold regular meetings.
(b) The board shall hold special meetings on the request of five members of the board or on the call of the presiding officer.
(c) If a quorum is not present on the day set for a meeting, the members present may adjourn from day to day until a quorum is present, but that period may not exceed three successive days. (V.A.C.S. Arts. 4552-2.05(a) (part), (b), (c).)
Sec. 351.059. TRAINING. (a) The board shall establish a training program for the members of the board in consultation with the governor, the attorney general, and the Texas Ethics Commission.
(b) Before a member may assume the member's duties and be confirmed by the senate, the member must complete at least one course of the training program established under Subsection (a).
(c) The training program established under Subsection (a) must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(d) If another state agency or entity is authorized to establish training requirements, the board shall allow that training instead of developing its own program, and each member shall comply with those training requirements. (V.A.C.S. Arts. 4552-2.02(j), (k).)
[Sections 351.060-351.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER AGENCY PERSONNEL
Sec. 351.101. EXECUTIVE DIRECTOR. The board may employ an executive director as the executive head of the agency. (V.A.C.S. Art. 4552-2.08(a) (part).)
Sec. 351.102. BOND OF EXECUTIVE DIRECTOR. (a) Before beginning to perform the duties of office, the executive director shall give a bond as required by the board for the performance of those duties.
(b) The premium of the bond shall be paid from board funds. (V.A.C.S. Art. 4552-2.11.)
Sec. 351.103. STAFF ATTORNEY. The board is authorized to employ a staff attorney. (V.A.C.S. Art. 4552-2.08(a) (part).)
Sec. 351.104. OTHER PERSONNEL. The board may employ personnel necessary to administer this chapter, including stenographers, secretaries, inspectors, and legal assistants. (V.A.C.S. Art. 4552-2.08(a) (part).)
Sec. 351.105. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4552-2.08(g).)
Sec. 351.106. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable law relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4552-2.16.)
Sec. 351.107. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Arts. 4552-2.08(b), (c).)
Sec. 351.108. EQUAL OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that are in compliance with the requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on information received under Subsection (b). The report may be made separately or as part of other biennial reports made to the legislature. (V.A.C.S. Arts. 4552-2.08(d), (e), (f).)
[Sections 351.109-351.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 351.151. RULES. (a) The board by a majority vote of a quorum may adopt a procedural rule.
(b) The board may adopt a substantive rule only if a majority of each of the three groups represented on the board votes to adopt the rule.
(c) The board may not adopt a substantive rule before submitting the proposed rule to the attorney general for a ruling on the proposed rule's validity. (V.A.C.S. Art. 4552-2.14(a) (part).)
Sec. 351.152. FEES. (a) The board by majority vote of each of the three groups represented on the board shall set fees in amounts reasonable and necessary so that in the aggregate the fees produce sufficient revenue to cover the cost of administering this chapter. The board shall set fee amounts so as not to maintain an unnecessary fund balance.
(b) The board shall set fees under this section only for acts or services performed or provided by the board, including:
(1) an examination;
(2) a re-examination;
(3) an issuance of a license;
(4) a renewal of a license; and
(5) an issuance of a duplicate license.
(c) The board may not set a fee that existed on September 1, 1993, for an amount less than the amount of the fee on that date. (V.A.C.S. Arts. 4552-2.14(a) (part), 4552-3.03(a) (part).)
Sec. 351.153. ADDITIONAL FEE. (a) The fee for the issuance of a license under this chapter and the fee for the renewal of a license under this chapter are the amounts of those fees set by the board under Section 351.152 and an additional fee of $200.
(b) Of each additional fee collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
(c) The additional fee imposed by this section does not apply to a person who is not practicing optometry or therapeutic optometry in this state at the time the charge is imposed.
(d) The additional fee imposed by this section may not be used to compute the amount to be deposited in the University of Houston development fund under Section 351.154. (V.A.C.S. Arts. 4552-3.03B(a), (b) (part), (c), (d).)
Sec. 351.154. APPLICATION OF FEES. (a) Except as otherwise provided by this section, the board shall apply the funds realized from all fees payable under this chapter first to pay all necessary expenses of the board and then, by order of the board, to compensate members of the board.
(b) The board shall deposit in the University of Houston development fund 15 percent of each annual renewal fee collected by the board under Section 351.152. The money paid to that fund under this subsection may be used solely for scholarships or improvements in the physical facilities, including library facilities, of the College of Optometry. (V.A.C.S. Arts. 4552-2.15(a) (part), (b) (part).)
Sec. 351.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt a rule restricting advertising or competitive bidding by a person regulated by the board except to prohibit a false, misleading, or deceptive practice.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person;
(4) restricts the person's advertisement under a trade name;
(5) restricts a truthful statement regarding:
(A) the address or telephone number of an office maintained by the person;
(B) office hours regularly maintained by the person;
(C) languages, other than English, fluently spoken in the person's office;
(D) whether the person provides services under a specified private or public insurance plan or health care plan;
(E) publications authored by the person;
(F) a teaching position held or formerly held by the person and the dates the position was held;
(G) an affiliation with a hospital or clinic;
(H) the fact that the person regularly accepts installment payment of fees;
(I) the manufacturer, designer, style, make, trade name, brand name, color, size, or type of commodities advertised; or
(J) other factual information that is not false, fraudulent, misleading, or likely to deceive; or
(6) restricts a truthful statement that relates to public health or that encourages preventive or corrective care.
(c) Subsection (b) does not prevent the board from restricting advertising that is false, fraudulent, misleading, or likely to deceive. (V.A.C.S. Art. 4552-5.10.)
Sec. 351.156. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Arts. 4552-4.06(c), (d).)
Sec. 351.157. ENFORCEMENT. (a) The board, a committee of the board, or a member of the board or a committee may:
(1) issue a subpoena or subpoena duces tecum to compel the attendance of a witness or the production of books, records, or documents;
(2) administer an oath; or
(3) take testimony on all matters in the jurisdiction of the board, committee, or member.
(b) The board is not bound by strict rules of procedure or by the laws of evidence in conducting board proceedings but shall base a determination on sufficient legal evidence to sustain the determination. (V.A.C.S. Art. 4552-2.10.)
Sec. 351.158. LEGAL REPRESENTATION. (a) In a hearing before the board or in a suit in which the board is a party, the board may appoint the board's staff attorney as an attorney of record for the board, except that the staff attorney is subordinate to a county attorney, district attorney, or attorney general if one of those attorneys is also an attorney of record in the proceeding.
(b) In a suit in which the board is a party, the board may appoint the staff attorney as special assistant to the county attorney, district attorney, or attorney general. The board must pay the staff attorney.
(c) This section does not limit or exclude the right of the county attorney, district attorney, or attorney general to appear as the board's attorney in the court to which that attorney is entitled or required under the constitution to represent the state. (V.A.C.S. Art. 4552-2.08(a) (part).)
Sec. 351.159. COMMITTEE APPOINTMENTS AND RECOMMENDATIONS. (a) The board may appoint committees from its own membership.
(b) A committee shall consider any matter referred to the committee relating to the enforcement of this chapter and rules adopted under this chapter. The committee shall make a recommendation on the matter to the board. (V.A.C.S. Art. 4552-2.07.)
Sec. 351.160. PHARMACEUTICAL AGENTS. The board by rule shall designate specific pharmaceutical agents that therapeutic optometrists may use in the practice of therapeutic optometry. (V.A.C.S. Art. 4552-1.03(d) (part).)
Sec. 351.161. SEAL; DESIGN OF LICENSE. The board shall adopt an official seal and a license of suitable design. (V.A.C.S. Art. 4552-2.12.)
Sec. 351.162. OFFICE. The board shall maintain an office in which it keeps all permanent records. (V.A.C.S. Art. 4552-2.13.)
Sec. 351.163. BOARD RECORDS. (a) The board shall keep a record of its proceedings.
(b) The board may keep a record of any information the board wants to record. The board shall keep a record of:
(1) the name, age, and present legal and mailing address of each applicant for examination;
(2) the name and location of the school of optometry from which the applicant holds credentials;
(3) the time devoted by the applicant to the study and practice of optometry; and
(4) whether the board rejects or licenses the applicant.
(c) Not later than September 1 of each year, the executive director shall send a certified copy of the record described by Subsection (b) to the secretary of state for permanent record. A certified copy of the record, marked with the hand and seal of the executive director, sent to the secretary of state, is:
(1) admissible evidence in all courts; and
(2) prima facie evidence of all matters contained in the record.
(d) The executive director shall number and record each license or annual renewal certificate issued by the board. (V.A.C.S. Arts. 4552-2.06(a), (b), (c).)
Sec. 351.164. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4552-2.15(d).)
[Sections 351.165-351.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 351.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Arts. 4552-2.06(d), 4552-2.17(a).)
Sec. 351.202. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Arts. 4552-2.18, 4552-2.19 (part).)
Sec. 351.203. COMPLAINTS. (a) The board by rule shall establish methods by which a consumer or service recipient is notified of the name, mailing address, and telephone number of the board for the purpose of directing a complaint to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for service provided by a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of a person regulated under this chapter; or
(3) in a bill for service provided by a person regulated under this chapter.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Arts. 4552-2.17(b), (c).)
Sec. 351.204. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for any dismissal of the complaint;
(4) the schedule required under Section 351.205 and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Arts. 4552-2.06(f); 4552-4.06(a), (b); 4552-4.07(b) (part).)
Sec. 351.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this section must:
(1) distinguish between categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and prescribe the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of a complaint in a timely manner; and
(2) establish a schedule for conducting each phase of the disposition of the complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The board shall notify the parties to the complaint of the projected time requirements for pursuing the complaint.
(d) The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made.
(e) The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Arts. 4552-4.07(a), (b) (part), (c).)
[Sections 351.206-351.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 351.251. LICENSE REQUIRED. A person may not practice optometry or therapeutic optometry unless the person holds a license issued under this chapter. (V.A.C.S. Arts. 4552-1.02(2) (part), (3) (part); 4552-1.03(a); 4552-5.04 (part); 4552-5.18(a) (part).)
Sec. 351.252. EDUCATION REQUIREMENTS FOR THERAPEUTIC OPTOMETRIST. (a) A person must satisfactorily complete the education requirements established by board rule to be licensed as a therapeutic optometrist.
(b) The education necessary to meet the requirements must:
(1) be provided by an entity approved by the board; and
(2) include an emphasis on the examination, diagnosis, and treatment of conditions of the human eye and adnexa.
(c) The board by rule shall require successful completion of accredited academic and clinical courses in pharmacology and related pathology that are:
(1) approved by the board; and
(2) determined by the board to be equivalent in the total number of classroom hours to the requirements for other health care professionals in this state who are licensed to use pharmaceutical agents, including dentists, podiatrists, and physicians. (V.A.C.S. Art. 4552-1.03(c).)
Sec. 351.253. EXAMINATION REQUIREMENT FOR THERAPEUTIC OPTOMETRIST. A person must pass the examination given by the board to be licensed to practice therapeutic optometry in this state. (V.A.C.S. Art. 4552-3.01 (part).)
Sec. 351.254. EXAMINATION APPLICATION. (a) An applicant is eligible to take the licensing examination if the applicant provides to the executive director, on a form provided by the board, information the board considers necessary to enforce this chapter, including satisfactory sworn evidence that the applicant:
(1) has attained the age of majority;
(2) is of good moral character;
(3) has a preliminary education equivalent to one that would permit the applicant to enroll in The University of Texas; and
(4) has attended and graduated from a reputable college of optometry that meets board requirements.
(b) For purposes of Subsection (a)(4), a college of optometry is reputable if the college has:
(1) entrance requirements that are as high as those adopted by the better class of universities and schools of optometry; and
(2) a course of instruction that is:
(A) as demanding as that adopted by the better class of universities and schools of optometry;
(B) equivalent to not less than six terms of eight months each; and
(C) approved by the board. (V.A.C.S. Arts. 4552-3.02(a), (b), (c) (part).)
Sec. 351.255. CONDUCT OF EXAMINATION. (a) The board shall give an applicant notice of the date and place of the examination. The examination shall be given at least twice a year at the board's regular meetings.
(b) The board shall conduct the examination:
(1) in writing and by other means that the board considers adequate to determine applicant qualifications; and
(2) in a manner that is fair and impartial to each applicant and recognized school of optometry.
(c) If a national testing organization does not prepare the written portion of the examination, the board shall have an independent testing professional validate that portion.
(d) The board shall give the same written examination to each applicant examined at the same time. (V.A.C.S. Arts. 4552-2.05(a) (part), 4552-3.04, 4552-3.06 (part).)
Sec. 351.256. EXAMINATION SUBJECTS. (a) The examination must consist of written, oral, or practical tests in subjects regularly taught in recognized accredited colleges of optometry, including:
(1) practical, theoretical, and physiological optics;
(2) theoretical and practical optometry; and
(3) the anatomy, physiology, and pathology of the eye as applied to optometry.
(b) The examination must also include examination in pharmacology and related pathology. (V.A.C.S. Arts. 4552-3.01 (part), 4552-3.05.)
Sec. 351.257. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the examination results not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results will be delayed for more than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4552-3.06 (part).)
Sec. 351.258. ISSUANCE OF LICENSE TO THERAPEUTIC OPTOMETRIST; FEE. (a) The board shall:
(1) register as qualified under this chapter an applicant who passes the examination and meets all board requirements; and
(2) issue to the applicant a license to practice therapeutic optometry in this state.
(b) A person who passes the examination and meets board requirements must pay a fee for issuance of a license not later than the 90th day after the date the person receives notice, by registered mail at the address given on the examination papers or given at the time of the examination, that the person is eligible for a license.
(c) A person described by Subsection (a) who fails to pay the fee in a timely manner waives the right to obtain a license. The board may refuse to issue a license to the person until the person passes another examination. (V.A.C.S. Arts. 4552-3.03(b), 4552-3.07.)
Sec. 351.259. PROVISIONAL LICENSE. (a) The board shall issue a provisional license to practice optometry or therapeutic optometry to an applicant who:
(1) is licensed in good standing as an optometrist or therapeutic optometrist in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;
(2) has passed a national or other examination recognized by the board relating to the practice of optometry or therapeutic optometry; and
(3) is sponsored by a person licensed by the board under this chapter with whom the provisional license holder may practice.
(b) The board may waive the requirement of Subsection (a)(3) for an applicant if the board determines that compliance is a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to the holder of a provisional license under this section if:
(1) the provisional license holder passes the examination required by Section 351.253 and satisfies other license requirements under this chapter; and
(2) the board verifies that the provisional license holder meets the academic and experience requirements for a license under this chapter.
(d) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the board issues the provisional license. The board may extend the 180-day limit if the results of an examination administered or graded by a testing organization have not been received by the board. (V.A.C.S. Art. 4552-3.08.)
Sec. 351.260. LIMITED LICENSE FOR CLINICAL FACULTY. (a) The board by rule may issue a limited license to a full-time clinical faculty member of an institution of higher education of this state who provides instruction in optometry or therapeutic optometry.
(b) A license issued under this section may authorize the faculty member to practice optometry or therapeutic optometry only on the premises of the institution of higher education and its affiliated teaching clinics and only as part of the institution's teaching program.
(c) The board by rule may adopt criteria and fees for issuance and renewal of a license under this section. (V.A.C.S. Art. 4552-3.09.)
Sec. 351.261. DISPLAY OF LICENSE OR CERTIFICATE. A person practicing optometry or therapeutic optometry in this state shall:
(1) display the person's license or certificate in a conspicuous place in the principal office in which the person practices optometry or therapeutic optometry; and
(2) whenever required, exhibit the license or certificate to the board or the board's authorized representative. (V.A.C.S. Art. 4552-5.01 (part).)
Sec. 351.262. INFORMATION PRESENTED TO PATIENT. (a) An optometrist or therapeutic optometrist shall, within a reasonable time after completing an examination of a patient, present to the patient a prescription, bill, or receipt containing the license number and name of the optometrist or therapeutic optometrist. This subsection does not affect the individual professional liability of the optometrist or therapeutic optometrist.
(b) Notwithstanding Subsection (a), a person practicing optometry or therapeutic optometry outside of the principal office in which the person practices optometry or therapeutic optometry shall deliver to a patient fitted with eyeglasses a specification of and the prices charged for the lenses and material provided to the patient, with a bill containing:
(1) the person's signature;
(2) the person's mailing address; and
(3) the number of the person's license or certificate. (V.A.C.S. Arts. 4552-2.06(e), 4552-5.01 (part).)
Sec. 351.263. LOST OR DESTROYED LICENSE. The board shall issue a license under this chapter to a license holder whose license has been lost or destroyed on:
(1) submission of an affidavit stating:
(A) that the license has been lost or destroyed;
(B) that the person making the affidavit is the person to whom the license was issued; and
(C) any other information required by the board; and
(2) payment of a fee for issuance of a duplicate license. (V.A.C.S. Art. 4552-4.03.)
Sec. 351.264. INACTIVE STATUS. The board by rule may provide for a license holder's license to be placed on inactive status. (V.A.C.S. Art. 4552-3.10.)
[Sections 351.265-351.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 351.301. ANNUAL RENEWAL CERTIFICATE. (a) A person required by this subchapter to hold an annual renewal certificate may not practice optometry or therapeutic optometry without the certificate.
(b) A violation of this section has the same effect as, and is subject to the penalties for, practicing optometry or therapeutic optometry without holding a license as required by Subchapter F. (V.A.C.S. Art. 4552-4.01(g).)
Sec. 351.302. LICENSE RENEWAL. (a) The board by rule may adopt a system under which licenses expire on various dates during the year. The board shall adjust the final dates for payment, the dates for notice of nonpayment, and the dates for license cancellation accordingly.
(b) For the year in which the license expiration date is changed, license renewal fees payable not later than January 1 shall be prorated on a monthly basis so that each license holder pays only that portion of the license renewal fee allocable to the number of months during which the license is valid.
(c) On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4552-4.01A.)
Sec. 351.303. NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the date a person's license is to expire, the board shall send written notice of the impending license expiration to the person at the person's last known address according to board records. (V.A.C.S. Art. 4552-4.01(e).)
Sec. 351.304. PROCEDURE FOR RENEWAL. (a) Not later than January 1 of each year or as otherwise provided under Section 351.302, an optometrist or therapeutic optometrist shall pay to the board an annual renewal fee for the renewal of a license to practice optometry or therapeutic optometry for the year. A person may renew an unexpired license by paying the required renewal fee to the board before the license expiration date.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the license examination fee. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the license examination fee.
(c) Except as otherwise provided by this subchapter, a person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Arts. 4552-4.01(a) (part), (b), (c), (d) (part).)
Sec. 351.305. ISSUANCE OF CERTIFICATE. On receipt of the required fees, the board shall issue an annual renewal certificate containing information from board records that the board considers necessary for the proper enforcement of this chapter, including the license number and the year for which the license is renewed. (V.A.C.S. Art. 4552-4.01(f).)
Sec. 351.306. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without examination the expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4552-4.01(d) (part).)
Sec. 351.307. GOVERNMENTAL SERVICE, TRAINING, OR EDUCATION. An optometrist or therapeutic optometrist may obtain reinstatement of an expired license without paying a lapsed renewal fee or other fee and without passing an examination if:
(1) the license holder's license expired while the license holder was engaged in:
(A) active duty with a United States military service or with the United States Public Health Service;
(B) full-time federal service; or
(C) training or education under the supervision of the United States, before induction into a United States military service;
(2) termination of the license holder's service, training, or education occurred other than by dishonorable discharge; and
(3) not later than the first anniversary of the date of termination of the service, training, or education, the license holder provides the board with an affidavit stating that:
(A) the license holder was engaged in the service, training, or education; and
(B) termination of the service, training, or education occurred other than by dishonorable discharge. (V.A.C.S. Art. 4552-4.02.)
Sec. 351.308. CONTINUING EDUCATION. (a) An optometrist or therapeutic optometrist must take annual courses in subjects relating to the use and application of scientific, technical, and clinical advances in subjects relating to the practice of optometry or therapeutic optometry regularly taught in recognized optometric universities and schools, including:
(1) vision care;
(2) vision therapy; and
(3) visual training.
(b) An optometrist or therapeutic optometrist must complete 16 hours of study each calendar year, of which at least six hours must be in the diagnosis or treatment of ocular disease.
(c) An optometrist or therapeutic optometrist shall fulfill the continuing education requirements by attending continuing education courses sponsored by an accredited college of optometry or a course approved by the board. Course attendance must be certified to the board on a form approved by the board. The license holder shall submit the certification with the license renewal application and fee.
(d) The board may take action necessary to qualify for federal funds or grants made available to establish or maintain continuing education programs.
(e) The board may not issue a renewal certificate to a license holder who has not complied with the requirements of this section unless the license holder:
(1) provides the board with evidence acceptable to the board that the license holder has, since the license expiration, completed sufficient hours of approved continuing education courses to satisfy any deficiency for the previous year; and
(2) pays to the board in addition to the license renewal fee a penalty that is equal to the amount of the license renewal fee.
(f) Continuing education hours used by a license holder to satisfy a deficiency for the previous year under Subsection (e)(1) may not be used to satisfy the requirements for the year in which the hours are earned. (V.A.C.S. Arts. 4552-4.01B(a), (b), (c), (d), (f), (g).)
Sec. 351.309. CONTINUING EDUCATION EXEMPTIONS. A person is exempt from the continuing education requirements of Section 351.308 if the person:
(1) holds a license but does not practice optometry or therapeutic optometry in this state;
(2) served in the regular armed forces of the United States during part of the 12 months preceding the annual license renewal date;
(3) submits proof to the board that the person suffered a serious or disabling illness or physical disability preventing the person from complying with the requirements during the 12 months preceding the annual license renewal date; or
(4) was first licensed during the 12 months preceding the annual license renewal date. (V.A.C.S. Art. 4552-4.01B(e).)
[Sections 351.310-351.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 351.351. LICENSE HOLDER INFORMATION. (a) A license holder shall file with the board:
(1) the license holder's mailing address;
(2) the address of the license holder's residence;
(3) the mailing address of each office of the license holder; and
(4) the address for the location of each office of the license holder that has an address different from the office's mailing address.
(b) Not later than the 10th day after the date of a change in the information required to be filed with the board under Subsection (a), the license holder shall file with the board a written notice of the change. (V.A.C.S. Arts. 4552-5.02, 4552-5.03.)
Sec. 351.352. OPTOMETRIC FILES AND RECORDS. (a) All prescription files, patient records, and business records of an optometric practice are the sole property of the optometrist or therapeutic optometrist.
(b) A patient may obtain a copy of the patient's optometric records, or may have the records forwarded to another doctor, by making a signed, written request to the optometrist or therapeutic optometrist for the records.
(c) An optometrist or therapeutic optometrist may charge a reasonable processing fee for providing optometric records to a patient. The optometrist or therapeutic optometrist may provide the records in summary form unless the patient specifically requests otherwise.
(d) This section does not affect a patient's right of access to the patient's contact lens prescription under Chapter 353. (V.A.C.S. Art. 4552-5.21.)
Sec. 351.353. INITIAL EXAMINATION OF PATIENT. To ensure adequate examination of a patient for whom an optometrist or therapeutic optometrist signs or causes to be signed an ophthalmic lens prescription, in the initial examination of the patient the optometrist or therapeutic optometrist shall make and record, if possible, the following findings concerning the patient's condition:
(1) case history, consisting of ocular, physical, occupational, and other pertinent information;
(2) visual acuity;
(3) the results of a biomicroscopy examination, including an examination of lids, cornea, and sclera;
(4) the results of an internal ophthalmoscopic examination, including an examination of media and fundus;
(5) the results of a static retinoscopy, O.D., O.S., or autorefractor;
(6) subjective findings, far point and near point;
(7) assessment of binocular function;
(8) amplitude or range of accommodation;
(9) tonometry; and
(10) angle of vision, to right and to left. (V.A.C.S. Art. 4552-5.12(a).)
Sec. 351.354. CERTAIN OPTOMETRIC SERVICES AUTHORIZED. An optometrist or therapeutic optometrist may:
(1) perform:
(A) vision therapy;
(B) hand-eye coordination exercises;
(C) visual training; and
(D) developmental vision therapy; and
(2) evaluate and remedy a learning or behavioral disability associated with or caused by a defective or abnormal condition of vision. (V.A.C.S. Art. 4552-1.02(6).)
Sec. 351.355. DETERMINING OR MEASURING VISION. In determining or measuring the powers of vision of the human eye, an optometrist or therapeutic optometrist may:
(1) examine the eye to diagnose the presence of a defect or abnormal condition, the presence or effect of which may be corrected, remedied, or relieved by the use of lenses or prisms;
(2) determine the accommodative or refractive condition or the range or powers of vision or muscular equilibrium of the eye; or
(3) examine the human vision system to determine a departure from the normal, measure the system's powers of vision, or adapt lenses or prisms for the system's aid or relief. (V.A.C.S. Art. 4552-1.02(2) (part).)
Sec. 351.356. FITTING LENSES OR PRISMS. In fitting lenses or prisms, an optometrist or therapeutic optometrist may:
(1) directly or indirectly prescribe or supply lenses or prisms;
(2) make measurements involving the eyes or the optical requirements of the eyes; or
(3) adapt or supply lenses or prisms to:
(A) correct, remedy, or relieve a defect or abnormal condition of the human eye; or
(B) correct, remedy, or relieve or attempt to correct, remedy, or relieve the effect of a defect or abnormal condition of the human eye. (V.A.C.S. Art. 4552-1.02(3) (part).)
Sec. 351.357. FITTING AND DISPENSING CONTACT LENSES. (a) Contact lenses may be fitted only by an optometrist, therapeutic optometrist, or licensed physician.
(b) An ophthalmic dispenser may dispense contact lenses on a fully written contact lens prescription issued by an optometrist, therapeutic optometrist, or licensed physician. The ophthalmic dispenser may:
(1) fabricate or order the contact lenses and dispense them to the patient with appropriate instructions for the care and handling of the lenses; and
(2) mechanically adjust the lenses.
(c) The ophthalmic dispenser may not measure the eye or cornea or evaluate the physical fit of the contact lenses in any way.
(d) Notwithstanding Subsection (b), an optometrist, therapeutic optometrist, or licensed physician who issues a contact lens prescription remains professionally responsible to the patient. (V.A.C.S. Art. 4552-1.02(3) (part).)
Sec. 351.358. OPHTHALMIC DEVICES, ORAL MEDICATIONS, AND PHARMACEUTICAL AGENTS. (a) An optometrist may not treat the eye for a defect or administer or prescribe a drug or physical treatment unless the optometrist is a therapeutic optometrist or licensed physician.
(b) A therapeutic optometrist may:
(1) administer or prescribe ophthalmic devices, over-the-counter oral medications, or topical ocular pharmaceutical agents, other than antiviral or antiglaucoma agents, to diagnose or treat visual defects, abnormal conditions, or diseases of the human eye or adnexa; or
(2) remove superficial foreign matter or eyelashes from the external eye or adnexa.
(c) If a therapeutic optometrist uses a topical steroid of a strength of one percent concentration to treat a condition and the condition does not substantially improve before the eighth day after the date of initial application, the therapeutic optometrist shall consult with an ophthalmologist.
(d) If a therapeutic optometrist uses a topical steroid of a strength of less than one percent concentration to treat a condition and the condition does not substantially improve before the 15th day after the date of initial application, the therapeutic optometrist shall consult with an ophthalmologist.
(e) On consultation under Subsection (c) or (d), the ophthalmologist shall establish a treatment regimen.
(f) This section does not authorize an optometrist to treat glaucoma in a manner that was not permitted by law as the law existed on August 31, 1991. (V.A.C.S. Arts. 4552-1.02(1) (part), (2) (part); 4552-1.03(b).)
Sec. 351.359. PRESCRIPTION. (a) An ophthalmic lens prescription must include:
(1) the signature of the optometrist or therapeutic optometrist; and
(2) the information and parameters the optometrist or therapeutic optometrist considers relevant or necessary.
(b) The prescription may not contain a restriction that limits the parameters to a private label not available to the optical industry as a whole. (V.A.C.S. Art. 4552-5.12(b) (part).)
Sec. 351.360. PROFESSIONAL STANDARD OF THERAPEUTIC OPTOMETRIST. A therapeutic optometrist is subject to the same standard of professional care and judgment as a person practicing as an ophthalmologist under Subtitle B. (V.A.C.S. Art. 4552-1.03(g).)
Sec. 351.361. LEASE; PAYMENT BASIS; ACCOUNTS RECEIVABLE. (a) An optometrist or therapeutic optometrist may:
(1) lease space from an establishment;
(2) pay for franchise fees or other services on a percentage or gross receipts basis; or
(3) sell, transfer, or assign accounts receivable.
(b) Subsection (a)(2) does not authorize activity prohibited by Section 351.408.
(c) The purpose of this section is to protect the public in the practice of optometry or therapeutic optometry, better enable the public to assign professional responsibility, and further safeguard the doctor-patient relationship. (V.A.C.S. Arts. 4552-5.13(a), (b) (part), 4552-5.16.)
Sec. 351.362. PROFESSIONAL RESPONSIBILITY; NAME OF PRACTICE. (a) An optometrist or therapeutic optometrist may practice under a trade name, an assumed name, or the name of a professional corporation or association.
(b) An optometrist or therapeutic optometrist practicing in this state shall display the actual name under which the optometrist or therapeutic optometrist is licensed by the board, so that the name is visible to the public before entry into the optometrist's or therapeutic optometrist's office reception area.
(c) Section 351.361(c) applies to this section. (V.A.C.S. Art. 4552-5.13(d); New.)
Sec. 351.363. MERCANTILE ESTABLISHMENT. (a) To safeguard the visual welfare of the public and the doctor-patient relationship, assign professional responsibility, establish standards of professional surroundings, more nearly secure to the patient the optometrist's or therapeutic optometrist's undivided loyalty and service, and carry out the prohibitions of this chapter against placing an optometric or therapeutic optometric license in the service or at the disposal of an unlicensed person, this section applies to an optometrist or therapeutic optometrist who leases space from and practices optometry or therapeutic optometry on the premises of a mercantile establishment.
(b) The optometric practice must be owned by an optometrist or therapeutic optometrist. Every phase of the practice and the leased space of the optometric practice must be controlled exclusively by an optometrist or therapeutic optometrist.
(c) The prescription files and business records of the optometric practice are the sole property of the optometrist or therapeutic optometrist and may not be involved with a mercantile establishment or unlicensed person.
(d) The lessor of the optometric practice space may inspect business records that are essential to the successful initiation or continuation of a lease of space based on a percentage of gross receipts.
(e) The leased space of the optometric practice must be definite and apart from space used by other occupants of the premises. Solid, opaque partitions or walls from floor to ceiling must separate the optometric practice space from space used by other occupants. Railings, curtains, or other similar arrangements do not satisfy the requirements of this subsection.
(f) The leased space must have a patient's entrance opening on a public thoroughfare, such as a public street, hall, lobby, or corridor. An aisle of a mercantile establishment does not satisfy the requirement of this subsection. An entrance is not considered a patient's entrance unless actually used as an entrance by the optometrist's or therapeutic optometrist's patients. (V.A.C.S. Arts. 4552-5.14(a), (b), (c), (d), (e).)
Sec. 351.364. RELATIONSHIPS WITH DISPENSING OPTICIANS. (a) If an optometrist or therapeutic optometrist occupies space for the practice of optometry or therapeutic optometry on premises on which a person engages in the business of a dispensing optician, solid partitions or walls from floor to ceiling must separate the space occupied by the optometrist or therapeutic optometrist from the space occupied by the dispensing optician.
(b) The space occupied by the optometrist or therapeutic optometrist must have a patient's entrance opening on a public thoroughfare, such as a public street, hall, lobby, or corridor. An entrance is not considered a patient's entrance unless actually used as an entrance by the optometrist's or therapeutic optometrist's patients.
(c) An optometrist or therapeutic optometrist may engage in the business of a dispensing optician, own stock in a corporation engaged in the business of a dispensing optician, or be a partner in a firm engaged in the business of a dispensing optician, but the records and accounts of the business of a dispensing optician must be kept separate from those of the optometric practice.
(d) The purpose of this section is to ensure that the practices of optometry and therapeutic optometry are carried out in a manner completely separate from the business of a dispensing optician, with no control of one by the other and no solicitation for one by the other, except as described by this section. (V.A.C.S. Arts. 4552-5.15(a), (b), (c).)
Sec. 351.365. PATIENT RIGHTS REGARDING SPECTACLE PRESCRIPTION. (a) If, after examining a patient, an optometrist or therapeutic optometrist believes that lenses are required to correct or remedy a defect or abnormal condition of vision, the optometrist or therapeutic optometrist shall:
(1) inform the patient; and
(2) provide the patient with a copy of the patient's spectacle prescription.
(b) The optometrist or therapeutic optometrist shall expressly indicate verbally or by other means that the patient has the following alternatives for the preparation of the lenses according to the prescription:
(1) the optometrist or therapeutic optometrist will prepare or have the lenses prepared; or
(2) the patient may have the prescription filled by a dispensing optician but should return for an optometrical examination of the lenses.
(c) This section does not require an optometrist or therapeutic optometrist to provide a prescription to a patient before the patient has paid the examination fee.
(d) Section 351.364(d) applies to this section. (V.A.C.S. Art. 4552-5.15(e); New.)
[Sections 351.366-351.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES IN GENERAL
Sec. 351.401. PROHIBITED OFFER, REPRESENTATION, OR DESIGNATION. Unless a person is licensed to practice under this chapter, the person may not:
(1) offer to practice optometry or therapeutic optometry;
(2) represent to others that the person is authorized to practice optometry or therapeutic optometry; or
(3) use in connection with the person's name a designation implying that the person practices optometry or therapeutic optometry. (V.A.C.S. Art. 4552-5.04 (part).)
Sec. 351.402. IMPERSONATION PROHIBITED. A person may not:
(1) impersonate an optometrist or therapeutic optometrist or falsely assume another name; or
(2) buy, sell, or fraudulently obtain an optometry diploma, an optometry or therapeutic optometry license, or a record of registration, or aid or abet in that purchase, sale, or acquisition. (V.A.C.S. Art. 4552-5.04 (part).)
Sec. 351.403. FALSE, DECEPTIVE, OR MISLEADING ADVERTISING. (a) A person may not publish or display, or cause or permit to be published or displayed, by any means, including by newspaper, radio, television, billboard, or window display, a false, deceptive, or misleading statement or advertisement concerning ophthalmic services or materials. In this subsection, "ophthalmic materials" include lenses, frames, eyeglasses, or contact lenses, or parts of lenses, frames, eyeglasses, or contact lenses.
(b) An advertisement of prescription eyeglasses or contact lenses must contain language to the effect that an eye doctor's prescription is required to purchase prescription eyeglasses or contact lenses.
(c) An advertisement of the price of prescription eyeglasses or contact lenses must contain the following information:
(1) a statement of whether the cost of an examination, prescription services, and follow-up care by an eye doctor is included in the price;
(2) if the advertised goods are to be available to the public at the advertised price for less than 30 days after the date of publication of the advertisement, a statement of the time limitation on the offer;
(3) if the advertised goods are to be available to the public in limited quantities and if no rainchecks are to be given on total depletion of the inventory of the advertised goods, a statement of the total quantity available to all customers;
(4) if the advertised goods are to be available to the public at a limited number for each customer, a statement of the limit for each customer; and
(5) for contact lenses, a statement of the number of lenses included for the price specified.
(d) A person who fails to satisfy the requirements of Subsection (b) or (c) is considered to have published a false, deceptive, or misleading statement within the meaning of this section.
(e) A statement required by Subsection (b) or (c) must be readily audible or readable by a person of average comprehension or reading speed. (V.A.C.S. Arts. 4552-5.09(a), (b), (c), (d), (h).)
Sec. 351.404. EYEGLASSES AS PRIZE OR INDUCEMENT. A person in this state may not give or deliver, or cause to be given or delivered, in any manner, eyeglasses as:
(1) a prize or premium; or
(2) an inducement to sell an item of merchandise, including a book, paper, magazine, or work of literature or art. (V.A.C.S. Art. 4552-5.06.)
Sec. 351.405. ALTERATION OF PRESCRIPTION. A person may not alter the specifications of an ophthalmic lens prescription without the prescribing doctor's consent. (V.A.C.S. Art. 4552-5.12(b) (part).)
Sec. 351.406. EXPIRED CONTACT LENS PRESCRIPTION. A person may not fill an expired contact lens prescription. (V.A.C.S. Art. 4552-5.04 (part).)
Sec. 351.407. GOVERNMENTAL DISCRIMINATION PROHIBITED. (a) A program supported by the state or by a political subdivision of the state may not discriminate against a health care practitioner because the practitioner is an optometrist or therapeutic optometrist.
(b) A law or policy of the state or of a political subdivision of the state that requires or encourages a person to obtain vision care or medical eye care that is within the scope of practice of an optometrist or therapeutic optometrist may not discriminate against a health care practitioner because the practitioner is an optometrist or therapeutic optometrist. (V.A.C.S. Arts. 4552-6.01(a) (part), (b) (part).)
Sec. 351.408. CONTROL OF OPTOMETRY. (a) This section and Sections 351.602(c)(2), 351.603(b), 351.604(3), and 351.605 shall be liberally construed to prevent manufacturers, wholesalers, and retailers of ophthalmic goods from controlling or attempting to control the professional judgment, manner of practice, or practice of an optometrist or therapeutic optometrist.
(b) In this section, "control or attempt to control the professional judgment, manner of practice, or practice of an optometrist or therapeutic optometrist" includes:
(1) setting or attempting to influence the professional fees or office hours of an optometrist or therapeutic optometrist;
(2) restricting or attempting to restrict an optometrist's or therapeutic optometrist's freedom to see a patient by appointment;
(3) terminating or threatening to terminate an agreement, including a lease, or other relationship in an attempt to control the professional judgment, manner of practice, or practice of an optometrist or therapeutic optometrist;
(4) providing, hiring, or sharing employees, business services, or similar items to or with an optometrist or therapeutic optometrist; and
(5) making or guaranteeing a loan to an optometrist or therapeutic optometrist in excess of the value of the collateral securing the loan.
(c) A manufacturer, wholesaler, or retailer of ophthalmic goods may not directly or indirectly:
(1) control or attempt to control the professional judgment, manner of practice, or practice of an optometrist or therapeutic optometrist;
(2) employ or contract for the services of an optometrist or therapeutic optometrist if part of the optometrist's or therapeutic optometrist's duties involves the practice of optometry or therapeutic optometry; or
(3) pay an optometrist or therapeutic optometrist for a service not provided.
(d) This section does not apply to a manufacturer, wholesaler, or retailer of ophthalmic goods who is an optometrist, therapeutic optometrist, or licensed physician or a legal entity wholly owned and controlled by at least one optometrist, therapeutic optometrist, or licensed physician, unless the optometrist, therapeutic optometrist, or legal entity has offices at more than three locations. (V.A.C.S. Arts. 4552-5.11(a), (b), (c) (part), (g).)
Sec. 351.409. PROHIBITED ACTIVITY BY UNLICENSED PERSON. An unlicensed person may not engage in any activity prohibited by this chapter. (V.A.C.S. Art. 4552-5.18(a) (part).)
[Sections 351.410-351.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES BY LICENSE HOLDER
Sec. 351.451. PROHIBITED TREATMENT BY LICENSE HOLDER. (a) An optometrist or therapeutic optometrist may not provide a person with treatment except as authorized by law.
(b) An optometrist or therapeutic optometrist who violates Subsection (a) is considered to be practicing medicine without a license and, in addition to the penalties prescribed for a violation of this chapter, is subject to the penalty for the practice of medicine without a license. (V.A.C.S. Art. 4552-5.05.)
Sec. 351.452. PROHIBITED USE OF PHARMACEUTICAL AGENT. A therapeutic optometrist may not use a pharmaceutical agent not authorized by the board or by law. (V.A.C.S. Art. 4552-1.03(d) (part).)
Sec. 351.453. EXAMINATION REQUIRED FOR PRESCRIPTION. An optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes of the person for whom the prescription is made. (V.A.C.S. Art. 4552-5.07.)
Sec. 351.454. CONTAGIOUS OR INFECTIOUS DISEASE. (a) An optometrist or therapeutic optometrist may not practice optometry or therapeutic optometry while knowingly suffering from a contagious or infectious disease, as defined by the Texas Department of Health, if the disease is one that could reasonably be transmitted in the normal performance of optometry or therapeutic optometry.
(b) The board by rule shall adopt guidelines that define, according to guidelines issued by the Texas Department of Health and specific to the practice of optometry or therapeutic optometry, each disease or type of disease that could reasonably be transmitted in the normal performance of optometry or therapeutic optometry. (V.A.C.S. Art. 4552-5.08.)
Sec. 351.455. PRACTICE PROHIBITED FROM HOUSE TO HOUSE. (a) A person may not practice optometry or therapeutic optometry from house to house or on the streets or highways, notwithstanding any laws for the licensing of peddlers.
(b) Subsection (a) does not prohibit an optometrist, therapeutic optometrist, or licensed physician from attending, prescribing for, or providing eyeglasses or ophthalmic lenses to a person:
(1) who, because of illness or physical or mental infirmity, is confined to the place the person resides; or
(2) in response to an unsolicited request or call for those services. (V.A.C.S. Art. 4552-5.04 (part).)
Sec. 351.456. PRACTICE PROHIBITED DURING LICENSE SUSPENSION OR REVOCATION. A person may not practice optometry or therapeutic optometry while the person's license is suspended or revoked. (V.A.C.S. Art. 4552-5.04 (part).)
Sec. 351.457. PROFESSIONAL RESPONSIBILITY; FEES. (a) An optometrist or therapeutic optometrist may not directly or indirectly divide, share, split, or allocate a fee for optometric services or materials with:
(1) a layperson, firm, or corporation; or
(2) another optometrist, therapeutic optometrist, or licensed physician, except on the basis of a division of service or responsibility.
(b) Subsection (a) does not:
(1) prevent an optometrist or therapeutic optometrist from paying an employee in the regular course of employment;
(2) prevent establishment of a partnership for the practice of optometry or therapeutic optometry; or
(3) prohibit an optometrist or therapeutic optometrist from being employed on a salary, with or without a bonus arrangement, by an optometrist, therapeutic optometrist, or licensed physician, regardless of the amount of supervision exerted by the employer over the office in which the employee works.
(c) A bonus arrangement described by Subsection (b)(3) may not be based on the business or income of an optical company.
(d) Section 351.361(c) applies to this section. (V.A.C.S. Arts. 4552-5.13(b) (part), (c); New.)
Sec. 351.458. PROFESSIONAL RESPONSIBILITY; USE OF NAME OR PROFESSIONAL IDENTIFICATION. (a) An optometrist or therapeutic optometrist may not use, or cause or allow to be used, the optometrist's or therapeutic optometrist's name or professional identification, as authorized by Chapter 104, on or near the door, window, wall, directory, sign, or listing of an office or place of practice, unless the optometrist or therapeutic optometrist is actually present and practicing optometry or therapeutic optometry in that office or place during the hours it is open to the public for the practice of optometry or therapeutic optometry.
(b) An optometrist or therapeutic optometrist may not practice in an office or place where a name or professional identification on or near the door, window, wall, directory, sign, or listing of the office or place, or where a name or professional identification used in connection with the office or place, indicates that it is owned, operated, supervised, staffed, directed, or attended by a person not actually present and practicing optometry or therapeutic optometry in that office or place during the hours it is open to the public for the practice of optometry or therapeutic optometry.
(c) To be actually present for purposes of Subsections (a) and (b), the optometrist or therapeutic optometrist must be physically present in the office or place of practice:
(1) for more than half of the total number of hours the office or place is open to the public for the practice of optometry or therapeutic optometry in each calendar month for at least nine months in each calendar year; or
(2) for at least half of the time the optometrist or therapeutic optometrist conducts or supervises the practice of optometry or therapeutic optometry.
(d) To be practicing optometry or therapeutic optometry for purposes of Subsections (a) and (b), the optometrist or therapeutic optometrist must regularly and personally in the office or place of practice:
(1) examine the eyes of some of the persons for whom prescriptions have been issued in that office or place; or
(2) supervise those eye examinations.
(e) This section does not require the physical presence of a person who is ill, injured, or otherwise temporarily incapacitated.
(f) Section 351.361(c) applies to this section. (V.A.C.S. Arts. 4552-5.13(e), (f), (g), (h), (i); New.)
Sec. 351.459. MERCANTILE ESTABLISHMENT; PROHIBITED ACTS. (a) This section applies to an optometrist or therapeutic optometrist who leases space from and practices optometry or therapeutic optometry on the premises of a mercantile establishment.
(b) An optometrist or therapeutic optometrist may not:
(1) conduct a phase of practice as a department or concession of a mercantile establishment; or
(2) display a legend or sign stating "Optical Department," "Optometrical Department," or a similar message on the premises of a mercantile establishment or in advertising.
(c) An optometrist or therapeutic optometrist may not permit the optometrist's or therapeutic optometrist's name or practice to be directly or indirectly used in connection with a mercantile establishment in any manner, including in advertising, displays, or signs.
(d) The credit account of a patient of an optometrist or therapeutic optometrist must be with the optometrist or therapeutic optometrist and not with the credit department of the mercantile establishment. This subsection does not prevent the optometrist or therapeutic optometrist from subsequently selling, transferring, or assigning that account.
(e) Section 351.363(a) applies to this section. (V.A.C.S. Arts. 4552-5.14(a) (part), (f), (g), (h); New.)
Sec. 351.460. RELATIONSHIPS WITH DISPENSING OPTICIANS; PROHIBITED ACTS. (a) A person who is engaged in the business of a dispensing optician, other than an optometrist, therapeutic optometrist, or licensed physician, may not have:
(1) an interest in the practice, books, records, files, equipment, or materials of an optometrist or therapeutic optometrist; or
(2) except as provided by Subsection (c), an interest in the premises or space occupied by an optometrist or therapeutic optometrist for the practice of optometry or therapeutic optometry.
(b) An optometrist, therapeutic optometrist, or licensed physician who is engaged in the business of a dispensing optician and who owns an interest in the practice, books, records, files, equipment, or materials of another optometrist or therapeutic optometrist shall maintain a separate set of books, records, files, and accounts in connection with that interest.
(c) Subsection (a)(2) does not apply if the interest is a lease for a specific term without retention of the present right of occupancy on the part of the dispensing optician.
(d) Section 351.364(d) applies to this section. (V.A.C.S. Art. 4552-5.15(d); New.)
[Sections 351.461-351.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 351.501. DENIAL OF LICENSE AND DISCIPLINARY ACTION BY BOARD. (a) On the vote of five or more members, the board may refuse to issue a license to an applicant, revoke or suspend a license, place on probation a person whose license has been suspended, impose a fine, impose a stipulation, limitation, or condition relating to continued practice, including conditioning continued practice on counseling or additional education, or reprimand a license holder if the board determines that:
(1) the applicant or license holder is guilty of fraud, deceit, dishonesty, or misrepresentation in the practice of optometry or therapeutic optometry or in seeking admission to that practice;
(2) the applicant or license holder is unfit or incompetent by reason of negligence;
(3) the applicant or license holder has been convicted of a misdemeanor involving moral turpitude or a felony;
(4) the applicant or license holder:
(A) is a habitual drunkard;
(B) is addicted to the use of morphine, cocaine, or other drugs having similar effect;
(C) has become insane; or
(D) has been found by a court to be of unsound mind;
(5) the license holder has directly or indirectly employed, hired, procured, or induced a person to practice optometry or therapeutic optometry in this state without a license;
(6) the license holder has directly or indirectly aided or abetted an unlicensed person in the practice of optometry or therapeutic optometry;
(7) the license holder has placed the holder's license at the disposal or service of, including lending, leasing, or renting to, a person not licensed to practice optometry or therapeutic optometry in this state;
(8) the applicant or license holder has wilfully or repeatedly violated this chapter or a board rule adopted under this chapter;
(9) the license holder has wilfully or repeatedly represented to a member of the public that the license holder is authorized or competent to cure or treat an eye disease beyond the authorization granted by this chapter;
(10) the license holder has had the right to practice optometry or therapeutic optometry suspended or revoked by a federal agency for a cause that the board believes warrants that action;
(11) the applicant or license holder has acted to deceive, defraud, or harm the public;
(12) the applicant or license holder is guilty of gross incompetence in the practice of optometry or therapeutic optometry;
(13) the applicant or license holder has engaged in a pattern of practice or other behavior demonstrating a wilful provision of substandard care;
(14) the applicant or license holder has committed an act of sexual abuse, misconduct, or exploitation with a patient or has otherwise unethically or immorally abused the doctor-patient relationship;
(15) the applicant or license holder has prescribed, sold, administered, distributed, or given a drug legally classified as a controlled substance or as an addictive or dangerous drug for other than an accepted diagnostic or therapeutic purpose;
(16) the applicant or license holder has failed to report to the board the relocation of the applicant's or license holder's office not later than the 30th day after the date of relocation, whether in or out of this state; or
(17) the license holder has practiced or attempted to practice optometry while the license holder's license was suspended.
(b) A violation of this chapter is not a violation for purposes of disciplinary action under Subsections (a)(8) and (9) if the violation occurs at least four years before the date a complaint is filed that results in a disciplinary hearing before the board on that complaint. (V.A.C.S. Arts. 4552-3.02(c) (part), 4552-4.04(a), (f).)
Sec. 351.502. WILFUL OR REPEATED NONCOMPLIANCE. (a) The board shall consider the wilful or repeated failure or refusal of an optometrist or therapeutic optometrist to comply with the requirements of Sections 351.353, 351.359, and 351.405 as prima facie evidence that the optometrist or therapeutic optometrist is unfit or incompetent by reason of negligence within the meaning of Section 351.501(a)(2) and as sufficient ground for the filing of charges to revoke or suspend a license.
(b) The board shall consider the wilful or repeated failure or refusal of an optometrist or therapeutic optometrist to comply with the requirements of Sections 351.361, 351.362, 351.457, and 351.458 as prima facie evidence that the optometrist or therapeutic optometrist has violated this chapter and as sufficient ground for the filing of charges to revoke or suspend a license.
(c) Section 351.361(c) applies to Subsection (b). (V.A.C.S. Arts. 4552-5.12(c) (part), 4552-5.13(j) (part); New.)
Sec. 351.503. DISCIPLINARY PROCEEDINGS. (a) A person may initiate disciplinary proceedings under Section 351.501 by filing a charge with the board in writing and under oath.
(b) A person is entitled to a hearing conducted by the State Office of Administrative Hearings if:
(1) a charge is filed against the person; or
(2) the board proposes to:
(A) refuse the person's application for a license; or
(B) suspend or revoke the person's license.
(c) Disciplinary proceedings are governed by Chapter 2001, Government Code.
(d) A charge filed under Section 351.502(a) must state each specific instance of alleged noncompliance. At a hearing on the charge, the person charged has the burden of establishing, in each instance in which proof of noncompliance is adduced, that compliance was not necessary to a proper examination of the patient in that particular case.
(e) A charge filed under Section 351.502(b) must state each specific instance of alleged noncompliance. (V.A.C.S. Arts. 4552-4.04(b); 4552-5.12(c) (part); 4552-5.13(j) (part).)
Sec. 351.504. JUDICIAL REVIEW. A petition for judicial review of a board action may be filed in a district court in the county of residence of the person against whom the original charge was filed. (V.A.C.S. Art. 4552-4.04(c).)
Sec. 351.505. REISSUANCE OF LICENSE AFTER REVOCATION. (a) A person whose license has been revoked:
(1) may not apply for reissuance under Subsection (b) before the first anniversary of the date of revocation; and
(2) must apply in any manner required by the board.
(b) On application, the board may reissue a license to practice optometry or therapeutic optometry to a person whose license has been revoked. (V.A.C.S. Art. 4552-4.04(d).)
Sec. 351.506. PROBATION. If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4552-4.04(g).)
Sec. 351.507. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder with an opportunity to be heard; and
(2) require the presence of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4552-4.09.)
[Sections 351.508-351.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 351.551. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4552-4.05(a).)
Sec. 351.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $2,500 for each violation. Each day a violation continues or occurs is a separate violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Arts. 4552-4.05(b), (c).)
Sec. 351.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director or a subcommittee of the board appointed for that purpose determines that a violation has occurred, the executive director or subcommittee may issue a report to the board stating:
(1) the facts on which the determination is based; and
(2) the recommendation of the executive director or subcommittee on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) A subcommittee of the board appointed under Subsection (a) must include at least one public member of the board.
(c) Not later than the 14th day after the date the report is issued, the executive director or subcommittee shall give written notice of the report to the person. The notice may be given by certified mail.
(d) The notice issued under this section must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Arts. 4552-4.05(d), (e).)
Sec. 351.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 351.553, the person in writing may:
(1) accept the determination and recommended administrative penalty of the executive director or subcommittee; or
(2) request a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended penalty of the executive director or subcommittee, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Arts. 4552-4.05(f), (g).)
Sec. 351.555. HEARING ON RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing. The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4552-4.05(h) (part).)
Sec. 351.556. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the person's right to judicial review of the order. (V.A.C.S. Arts. 4552-4.05(h) (part), (i).)
Sec. 351.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Arts. 4552-4.05(j), (k), (l).)
Sec. 351.558. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4552-4.05(m).)
Sec. 351.559. DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4552-4.05(o).)
Sec. 351.560. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4552-4.05(p).)
Sec. 351.561. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4552-4.05(r).)
[Sections 351.562-351.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 351.601. MONITORING LICENSE HOLDER. The board by rule shall develop a system for monitoring a license holder's compliance with the requirements of this chapter. Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4552-4.08.)
Sec. 351.602. INJUNCTION; DAMAGES. (a) The board may sue in the board's own name to enjoin a violation of this chapter. This remedy is in addition to any other action authorized by law.
(b) A person injured by another person who violates Section 351.251, 351.409, or 351.607 may institute an action in district court in Travis County or in the county in which the violation is alleged to have occurred for injunctive relief or damages plus court costs and reasonable attorney's fees.
(c) A person may institute an action in a district court in the county in which the violation is alleged to have occurred for injunctive relief or damages plus court costs and reasonable attorney's fees if the person is injured by another person who violates:
(1) Section 351.403; or
(2) Section 351.408. (V.A.C.S. Arts. 4552-2.09, 4552-5.09(e), 4552-5.11(d) (part), 4552-5.13(j) (part), 4552-5.18(b).)
Sec. 351.603. ENFORCEMENT BY ATTORNEY GENERAL OR BOARD; CIVIL PENALTY. (a) The attorney general or board may institute an action in a district court in the county in which a violation of Section 351.251, 351.403, 351.409, or 351.607 is alleged to have occurred for injunctive relief and a civil penalty not to exceed $10,000 for each violation plus court costs and reasonable attorney's fees.
(b) The attorney general or board may institute an action against a manufacturer, wholesaler, or retailer of ophthalmic goods in a district court in the county in which a violation of Section 351.408 is alleged to have occurred for injunctive relief and a civil penalty not to exceed $1,000 for each day of a violation plus court costs and reasonable attorney's fees. (V.A.C.S. Arts. 4552-5.09(f), 4552-5.11(e), 4552-5.18(c).)
Sec. 351.604. DECEPTIVE TRADE PRACTICES. A violation of any of the following sections is actionable under Subchapter E, Chapter 17, Business & Commerce Code:
(1) Section 351.251;
(2) Section 351.403;
(3) Section 351.408;
(4) Section 351.409; or
(5) Section 351.607. (V.A.C.S. Arts. 4552-5.09(g), 4552-5.11(f), 4552-5.18(d).)
Sec. 351.605. LESSEE ENTITLED TO REMEDIES. A person injured as a result of a violation of Section 351.408, including an optometrist who is a lessee of a manufacturer, wholesaler, or retailer, is entitled to the remedies in Sections 351.602(c)(2), 351.603(b), and 351.604(3). (V.A.C.S. Art. 4552-5.11(d) (part).)
Sec. 351.606. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under Subsection (a) is a misdemeanor punishable by:
(1) a fine of not less than $100 or more than $1,000;
(2) confinement in county jail for a term of not less than two months or more than six months; or
(3) both the fine and confinement.
(c) A separate offense is committed each day a violation of this chapter occurs or continues. (V.A.C.S. Art. 4552-5.19.)
Sec. 351.607. DISPENSING CONTACT LENSES; PENALTY. (a) A person commits an offense if the person dispenses a contact lens by mail or otherwise to a patient in this state without having a valid prescription signed by an optometrist, therapeutic optometrist, or licensed physician.
(b) An offense under Subsection (a) is a misdemeanor punishable by a fine of $1,000 for each lens dispensed. The fine is in addition to any other penalty imposed under this chapter. (V.A.C.S. Art. 4552-5.18(e).)
CHAPTER 352. OPTICIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 352.001. SHORT TITLE
Sec. 352.002. DEFINITIONS
Sec. 352.003. EFFECT OF CHAPTER
[Sections 352.004-352.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT AND BOARD
Sec. 352.051. ADMINISTRATION OF CHAPTER
Sec. 352.052. DEPARTMENT STAFF
Sec. 352.053. RULEMAKING
Sec. 352.054. FEES
[Sections 352.055-352.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 352.101. REPRESENTATION TO PUBLIC
Sec. 352.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS
Sec. 352.103. EXAMINATIONS
Sec. 352.104. CERTIFICATE DISPLAY; SURRENDER
[Sections 352.105-352.150 reserved for expansion]
SUBCHAPTER D. RENEWAL OF CERTIFICATE OF REGISTRATION
Sec. 352.151. TERM OF CERTIFICATE
Sec. 352.152. RENEWAL OF CERTIFICATE
[Sections 352.153-352.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY CERTIFICATE HOLDER
Sec. 352.201. DIRECTIONS FOR DISPENSING OPTICIAN
Sec. 352.202. CONTACT LENS DISPENSING
Sec. 352.203. DELEGATION BY PHYSICIAN
[Sections 352.204-352.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEDURES
Sec. 352.251. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION
Sec. 352.252. INVESTIGATION
Sec. 352.253. HEARING
[Sections 352.254-352.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 352.301. IMPOSITION OF PENALTY
Sec. 352.302. AMOUNT OF PENALTY
Sec. 352.303. NOTICE OF VIOLATION AND PENALTY
Sec. 352.304. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 352.305. HEARING
Sec. 352.306. DECISION BY BOARD
Sec. 352.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 352.308. DETERMINATION BY COURT
Sec. 352.309. REMITTANCE OF PENALTY AND INTEREST
Sec. 352.310. COLLECTION OF PENALTY
Sec. 352.311. ADMINISTRATIVE PROCEDURE
[Sections 352.312-352.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 352.351. ENFORCEMENT PROCEEDINGS; INJUNCTION
Sec. 352.352. CIVIL PENALTY
Sec. 352.353. CRIMINAL PENALTY
CHAPTER 352. OPTICIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 352.001. SHORT TITLE. This chapter may be cited as the Opticians' Registry Act. (V.A.C.S. Art. 4551-1, Sec. 1.)
Sec. 352.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Contact lens dispensing" means fabricating, ordering, mechanically adjusting, dispensing, selling, and delivering to a consumer contact lenses in accordance with a prescription from a physician, optometrist, or therapeutic optometrist, along with appropriate instructions for the care and handling of the lenses. The term does not include, unless directed or approved by a physician:
(A) taking any measurements of the eye or the cornea; or
(B) evaluating the physical fit of contact lenses.
(3) "Contact lens prescription" means a written specification from a physician, optometrist, or therapeutic optometrist for therapeutic, corrective, or cosmetic contact lenses that states the refractive power of the product and other information required to be in the specification by the physician, optometrist, therapeutic optometrist, Texas State Board of Medical Examiners, or Texas Optometry Board.
(4) "Department" means the Texas Department of Health.
(5) "Dispensing optician" or "ophthalmic dispenser" means a person who provides or offers to provide spectacle or contact lens dispensing services or products to the public.
(6) "Spectacle dispensing" means designing, verifying, fitting, adjusting, selling, or delivering to a consumer fabricated and finished ophthalmic devices, including spectacle lenses and frames but excluding contact lenses, in accordance with a prescription from a physician, therapeutic optometrist, or optometrist. The term includes:
(A) prescription analysis and interpretation;
(B) the measurement of the face, including interpupillary distances, to determine the size, shape, and specifications of the spectacle lenses or frames best suited to the wearer's needs;
(C) the preparation and delivery of a work order to a laboratory technician engaged in grinding lenses and fabricating spectacles;
(D) the verification of the quality of finished spectacle lenses;
(E) the adjustment of spectacle lenses or frames to the wearer's face; and
(F) the adjustment, repair, replacement, or reproduction of a previously prepared, specially fabricated ophthalmic device.
(7) "Spectacle prescription" means a written specification by a physician, therapeutic optometrist, or optometrist for therapeutic or corrective lenses that states the refractive power of the lenses and other information included in the specification by the physician, therapeutic optometrist, or optometrist. (V.A.C.S. Art. 4551-1, Sec. 3.)
Sec. 352.003. EFFECT OF CHAPTER. (a) This chapter does not:
(1) authorize a dispensing optician to perform an act on the optician's own authority that the optician is not otherwise authorized to perform, including an act that constitutes the practice of medicine, therapeutic optometry, or optometry;
(2) prevent or restrict a person licensed in this state under another law from engaging in the profession or occupation for which the person is licensed without being registered under this chapter;
(3) prevent or restrict an employee of a person licensed in this state from performing an employment duty required by the licensed person without being registered under this chapter;
(4) prevent or restrict an individual, firm, or corporation from employing a person registered under this chapter or from engaging in spectacle or contact lens dispensing through a person registered under this chapter who is employed at the location at which the dispensing occurs;
(5) prevent or restrict an individual, firm, or corporation from employing a person as an assistant, trainee, or apprentice to:
(A) engage in spectacle or contact lens dispensing; or
(B) provide instruction in the care and handling of contact lenses;
(6) prohibit the Texas State Board of Medical Examiners, the Texas Optometry Board, the attorney general, or another person authorized by law from bringing an appropriate action to enforce a state statute relating to the practice of medicine, therapeutic optometry, or optometry without a license; or
(7) require that a person be registered:
(A) under this chapter to sell or dispense contact lenses; or
(B) as a contact lens dispenser to work in a contact lens manufacturing facility that does not sell its finished product directly to the public.
(b) This chapter or another state law relating to a dispensing optician does not prevent or restrict a physician from:
(1) treating or prescribing for a patient; or
(2) directing or instructing a person under the physician's control or supervision to aid or minister to the needs of a patient according to a specific direction, order, instruction, or prescription. (V.A.C.S. Art. 4551-1, Secs. 2(b), 13, 14(a).)
[Sections 352.004-352.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT AND BOARD
Sec. 352.051. ADMINISTRATION OF CHAPTER. The department shall administer this chapter. (V.A.C.S. Art. 4551-1, Sec. 6(a).)
Sec. 352.052. DEPARTMENT STAFF. The department may employ administrative and clerical staff as necessary to carry out this chapter. (V.A.C.S. Art. 4551-1, Sec. 6(c).)
Sec. 352.053. RULEMAKING. (a) The board shall adopt procedural rules to implement the registration procedures under this chapter.
(b) The board may adopt substantive and procedural rules relating to:
(1) establishing minimum requirements for the registration of a dispensing optician;
(2) suspending, denying, or revoking a certificate of registration or placing a certificate holder on probation;
(3) prescribing fees under this chapter; and
(4) adopting forms required by this chapter.
(c) The board may not adopt substantive rules relating to this chapter other than substantive rules described by Subsection (b). (V.A.C.S. Art. 4551-1, Sec. 5.)
Sec. 352.054. FEES. The board by rule shall prescribe fees necessary to administer this chapter in amounts not to exceed:
(1) $50 for an initial application for a certificate of registration;
(2) $20 for issuance of a certificate of registration;
(3) $30 for issuance of a renewal certificate of registration; and
(4) $20 for issuance of a duplicate certificate of registration or duplicate renewal certificate of registration. (V.A.C.S. Art. 4551-1, Sec. 11(a).)
[Sections 352.055-352.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 352.101. REPRESENTATION TO PUBLIC. (a) A person may not represent to the public that the person is a "Registered Dispensing Optician" or "Registered Spectacle Dispenser" unless the person is registered as a spectacle dispensing optician and complies with this chapter.
(b) A person may not represent to the public that the person is a "Registered Contact Lens Dispenser" or "Registered Contact Lens Technician" unless the person is registered as a contact lens dispenser and complies with this chapter.
(c) A person may not use abbreviations or other letters to represent that the person is registered.
(d) A person properly registered under this chapter may represent to the public that the person is a "Registered Dispensing Optician," "Registered Spectacle Dispenser," "Registered Contact Lens Technician," or "Registered Contact Lens Dispenser." (V.A.C.S. Art. 4551-1, Secs. 4(a), (b), (d).)
Sec. 352.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a) The department shall issue a certificate of registration to an applicant who:
(1) applies and pays a registration fee;
(2) presents evidence satisfactory to the department that the applicant has successfully completed the number of classroom hours of training required by the board; and
(3) passes the appropriate examination required under Section 352.103.
(b) The board may not require more than 30 classroom hours of training as a prerequisite to registration.
(c) A person may qualify and be registered as a spectacle dispenser, contact lens dispenser, or both. (V.A.C.S. Art. 4551-1, Secs. 8(a), (b), (c).)
Sec. 352.103. EXAMINATIONS. (a) At least once a year, the department shall administer to applicants for certificates of registration a written qualifying spectacle dispensing examination and a written qualifying contact lens dispensing examination.
(b) The examinations shall be professionally constructed and validated and objectively administered and scored.
(c) A person who fails an examination may apply to take a subsequent examination. A person who fails two successive examinations may not apply to take a subsequent examination until the person completes remedial work required by the department. (V.A.C.S. Art. 4551-1, Sec. 7.)
Sec. 352.104. CERTIFICATE DISPLAY; SURRENDER. (a) A person issued a certificate of registration shall publicly display the certificate in an appropriate manner specified by board rule.
(b) The certificate is the property of the department and shall be surrendered on demand. (V.A.C.S. Art. 4551-1, Secs. 8(d), (e).)
[Sections 352.105-352.150 reserved for expansion]
SUBCHAPTER D. RENEWAL OF CERTIFICATE OF REGISTRATION
Sec. 352.151. TERM OF CERTIFICATE. (a) A certificate of registration is valid for one year after the date of issuance.
(b) The department shall adopt a system under which certificates of registration expire and are renewed on various dates. (V.A.C.S. Art. 4551-1, Secs. 9(a) (part), (b).)
Sec. 352.152. RENEWAL OF CERTIFICATE. (a) To renew a certificate of registration, a person must submit an application for renewal in the manner prescribed by the board.
(b) The application must be accompanied by the renewal fee and evidence that the applicant has successfully completed the continuing education courses required by board rule.
(c) The board may not require more than 10 classroom hours of continuing education courses each year.
(d) A person registered under this chapter who does not renew a certificate of registration by the expiration date may renew the certificate not later than the 180th day after the expiration date by paying the late renewal fee prescribed by the board.
(e) The certificate of registration of a person who fails to meet the renewal requirements under this section is void until the person submits a new application, pays the appropriate fees, and meets the registration requirements provided by Subchapter C. (V.A.C.S. Art. 4551-1, Secs. 9(a) (part), (c), (d).)
[Sections 352.153-352.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY CERTIFICATE HOLDER
Sec. 352.201. DIRECTIONS FOR DISPENSING OPTICIAN. A physician's directions, instructions, or orders may be performed or a physician's prescription may be filled by a registered dispensing optician who is separate from and independent of the physician's office only if the directions, instructions, orders, or prescription is:
(1) in writing;
(2) of a scope and content and communicated to the dispensing optician in a form and manner that, in the physician's professional judgment, best serves the health, safety, and welfare of the physician's patient; and
(3) in a form and detail consistent with the particular dispensing optician's skill and knowledge. (V.A.C.S. Art. 4551-1, Sec. 14(b).)
Sec. 352.202. CONTACT LENS DISPENSING. (a) A person registered under this chapter may not dispense contact lenses other than from a contact lens prescription that specifies that the prescription is for contact lenses.
(b) Except as provided by Section 351.005 or 352.203, a registered contact lens dispenser may not:
(1) dispense contact lenses from the prescription of a physician, optometrist, or therapeutic optometrist in a manner that adjusts or alters the specific, written instructions of the prescribing practitioner; or
(2) unless directed or approved by a physician:
(A) take any measurements of the eye or the cornea; or
(B) evaluate the physical fit of contact lenses.
(c) A person who violates this section is considered to be practicing medicine or optometry or therapeutic optometry without a license. (V.A.C.S. Art. 4551-1, Sec. 4(c).)
Sec. 352.203. DELEGATION BY PHYSICIAN. A registered contact lens dispenser may take measurements of the eye or cornea and evaluate the physical fit of lenses for a patient of a physician if the physician has delegated in writing to the dispenser those responsibilities for that specific patient in accordance with Sections 351.005 and 352.201. (V.A.C.S. Art. 4551-1, Sec. 14(c).)
[Sections 352.204-352.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEDURES
Sec. 352.251. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. The department may deny an application for a certificate of registration, suspend or revoke a certificate of registration, or place on probation a person who is registered under this chapter if the person:
(1) obtains a certificate of registration by means of fraud, misrepresentation, or concealment of a material fact;
(2) sells, barters, or offers to sell or barter a certificate of registration;
(3) violates a rule adopted by the board;
(4) violates Section 352.101; or
(5) practices medicine, therapeutic optometry, or optometry without a license. (V.A.C.S. Art. 4551-1, Sec. 12(a).)
Sec. 352.252. INVESTIGATION. The department shall investigate:
(1) a person who engages in a practice that violates this chapter; and
(2) each complaint filed with the department against a person registered under this chapter. (V.A.C.S. Art. 4551-1, Sec. 6(b).)
Sec. 352.253. HEARING. (a) A person whose application for a certificate of registration is denied or whose certificate of registration is suspended or revoked is entitled to a hearing before the department if the person submits to the department a written request for the hearing.
(b) A hearing is governed by department rules for a contested hearing and by Chapter 2001, Government Code. (V.A.C.S. Art. 4551-1, Sec. 12(b).)
[Sections 352.254-352.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 352.301. IMPOSITION OF PENALTY. The department may assess an administrative penalty against a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4551-1, Sec. 10A(a).)
Sec. 352.302. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day of a continuing violation is a separate violation.
(b) The amount shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice requires. (V.A.C.S. Art. 4551-1, Secs. 10A(b), (c).)
Sec. 352.303. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative penalty based on the factors set forth in Section 352.302(b); and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4551-1, Sec. 10A(e).)
Sec. 352.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the department's determination and proposed administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the department's determination, the commissioner of public health or the commissioner's designee by order shall approve the determination and assess the proposed penalty. (V.A.C.S. Art. 4551-1, Secs. 10A(f), (g).)
Sec. 352.305. HEARING. (a) If the person requests a hearing in a timely manner, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commissioner of public health or the commissioner's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4551-1, Secs. 10A(h), (i).)
Sec. 352.306. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commissioner of public health or the commissioner's designee by order may determine that:
(1) a violation occurred and assess an administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty assessed; and
(3) a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4551-1, Secs. 10A(j), (k).)
Sec. 352.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Not later than the 30th day after the date the order is final, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail.
(c) If the department receives a copy of an affidavit under Subsection (b)(2), the department may file with the court, not later than the fifth day after the date the department receives the copy, a contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4551-1, Secs. 10A(l), (m), (n).)
Sec. 352.308. DETERMINATION BY COURT. (a) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the occurrence of the violation, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4551-1, Sec. 10A(q).)
Sec. 352.309. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the amount of the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4551-1, Sec. 10A(r).)
Sec. 352.310. COLLECTION OF PENALTY. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(b) If the person does not pay the amount of the administrative penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.
(c) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the commissioner of public health or the commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of expenses and costs.
(d) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs. (V.A.C.S. Art. 4551-1, Secs. 10A(o), (t), (u), (v).)
Sec. 352.311. ADMINISTRATIVE PROCEDURE. A proceeding for the assessment of an administrative penalty under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4551-1, Sec. 10A(d).)
[Sections 352.312-352.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 352.351. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a) The board, the attorney general, or the district or county attorney for the county in which an alleged violation of this chapter occurs shall, on receipt of a verified complaint, bring an appropriate administrative or judicial proceeding to enforce this chapter or a rule adopted under this chapter.
(b) The attorney general or an attorney representing the state may initiate an action for an injunction to prohibit a person from violating this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4551-1, Secs. 10(a), (c).)
Sec. 352.352. CIVIL PENALTY. In addition to any other remedy provided by law, including injunctive relief, a court may impose a civil penalty for a violation of this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4551-1, Sec. 10(d).)
Sec. 352.353. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4551-1, Sec. 10(b).)
CHAPTER 353. CONTACT LENS PRESCRIPTION ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 353.001. SHORT TITLE
Sec. 353.002. DEFINITIONS
Sec. 353.003. EFFECT OF CHAPTER
Sec. 353.004. PUBLIC INFORMATION ON PRESCRIPTION RELEASE
[Sections 353.005-353.050 reserved for expansion]
SUBCHAPTER B. DISPENSING CONTACT LENSES; PERMIT
Sec. 353.051. CONTACT LENS DISPENSER
Sec. 353.052. CONTACT LENS DISPENSING BY BUSINESS ENTITY
Sec. 353.053. REQUIREMENTS FOR PERMIT ISSUANCE
Sec. 353.054. TERM OF PERMIT
Sec. 353.055. PERMIT RENEWAL
Sec. 353.056. ANNUAL PERMIT FEE
[Sections 353.057-353.100 reserved for expansion]
SUBCHAPTER C. SALE OR DELIVERY OF CONTACT LENSES
Sec. 353.101. PROHIBITED SELLING OR DISPENSING
Sec. 353.102. ACCURACY REQUIRED
Sec. 353.103. AUTHORIZED MODIFICATION OF PRESCRIPTION
Sec. 353.104. EMERGENCY REFILL
[Sections 353.105-353.150 reserved for expansion]
SUBCHAPTER D. CONTACT LENS PRESCRIPTIONS
Sec. 353.151. DIRECTIONS FOR INDEPENDENT OPTICIAN;
DELEGATION
Sec. 353.152. REQUIREMENTS FOR CONTACT LENS PRESCRIPTION
Sec. 353.153. TERM OF PRESCRIPTION
Sec. 353.154. SHORT-TERM PRESCRIPTION
Sec. 353.155. EXTENSION OF PRESCRIPTION
Sec. 353.156. PATIENT ACCESS TO PRESCRIPTION; TIMING
Sec. 353.157. LIMITATIONS ON OR REFUSAL TO GIVE PRESCRIPTION
Sec. 353.158. PROHIBITED ACTION BY PHYSICIAN, OPTOMETRIST,
OR THERAPEUTIC OPTOMETRIST
Sec. 353.159. WAIVER OR DISCLAIMER OF LIABILITY
PROHIBITED
[Sections 353.160-353.200 reserved for expansion]
SUBCHAPTER E. LIABILITY AND ENFORCEMENT
Sec. 353.201. LIABILITY FOR USE OF PRESCRIPTION
Sec. 353.202. DISCIPLINARY ACTION
Sec. 353.203. SEPARATE VIOLATIONS
Sec. 353.204. ENFORCEMENT PROCEEDINGS
Sec. 353.205. ADMINISTRATIVE PENALTY
Sec. 353.206. CIVIL PENALTY
Sec. 353.207. CRIMINAL PENALTY
CHAPTER 353. CONTACT LENS PRESCRIPTION ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 353.001. SHORT TITLE. This chapter may be cited as the Contact Lens Prescription Act. (V.A.C.S. Art. 4552-A, Sec. 1.)
Sec. 353.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Department" means the Texas Department of Health.
(3) "Disposable contact lenses" means soft contact lenses that:
(A) are dispensed in sealed packages;
(B) are sterilized and sealed by the manufacturer; and
(C) according to the physician's, optometrist's, or therapeutic optometrist's instructions concerning wear, have a recommended lens replacement interval of less than three months.
(4) "Optician" means a person, other than a physician, optometrist, therapeutic optometrist, or pharmacist, who is in the business of dispensing contact lenses.
(5) "Optometrist" means a person licensed to practice optometry or therapeutic optometry by the Texas Optometry Board.
(6) "Pharmacist" means a person licensed to practice pharmacy by the Texas State Board of Pharmacy.
(7) "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners.
(8) "Therapeutic optometrist" means a person licensed to practice therapeutic optometry by the Texas Optometry Board. (V.A.C.S. Art. 4552-A, Secs. 2(1), (3), (4), (5), (6), (7), (8), (9).)
Sec. 353.003. EFFECT OF CHAPTER. This chapter does not prevent or restrict a physician from:
(1) treating or prescribing for a patient; or
(2) directing or instructing a person under the physician's control or supervision who assists a patient according to a specific direction, order, instruction, or prescription. (V.A.C.S. Art. 4552-A, Sec. 9(a).)
Sec. 353.004. PUBLIC INFORMATION ON PRESCRIPTION RELEASE. (a) The board shall prepare and provide to the public and appropriate state agencies information regarding the release of contact lens prescriptions.
(b) The board may adopt rules necessary to implement this section. (V.A.C.S. Art. 4552-A, Sec. 10.)
[Sections 353.005-353.050 reserved for expansion]
SUBCHAPTER B. DISPENSING CONTACT LENSES; PERMIT
Sec. 353.051. CONTACT LENS DISPENSER. Contact lenses may be dispensed only by:
(1) a physician, optometrist, therapeutic optometrist, or pharmacist;
(2) an employee of a physician, optometrist, therapeutic optometrist, or pharmacist who performs contact lens dispensing services only under the direct supervision and control of the physician, optometrist, therapeutic optometrist, or pharmacist; or
(3) an optician who holds a contact lens dispensing permit issued under this subchapter. (V.A.C.S. Art. 4552-A, Secs. 4(c), 5(a), 8.)
Sec. 353.052. CONTACT LENS DISPENSING BY BUSINESS ENTITY. (a) A business entity that dispenses contact lenses to a person in this state:
(1) must obtain a contact lens dispensing permit in the entity's name; and
(2) may not dispense the lenses to a person in this state through an employee or other person who holds a contact lens dispensing permit.
(b) A business entity that has at least 10 locations may obtain a single permit for the entity and its employees. An employee of an entity with a permit under this subsection is not required to obtain a separate permit. (V.A.C.S. Art. 4552-A, Secs. 5(c), (d).)
Sec. 353.053. REQUIREMENTS FOR PERMIT ISSUANCE. The board shall issue a contact lens dispensing permit to an applicant who:
(1) agrees in writing to comply with state and federal laws and regulations regarding selling, delivering, or dispensing contact lenses;
(2) has not had a contact lens dispensing permit revoked or canceled for cause during the two-year period preceding the application date;
(3) provides the board with the trade name and address of each location where the applicant intends to conduct business;
(4) provides the board with other information the board reasonably requires; and
(5) pays the required permit fee. (V.A.C.S. Art. 4552-A, Sec. 5(b).)
Sec. 353.054. TERM OF PERMIT. (a) A contact lens dispensing permit issued under this subchapter is valid for one year.
(b) The board may temporarily extend or shorten the term of a permit to provide for the staggered renewal of permits or for the annual renewal of all permits on the same date. The board shall prorate the permit fee to accomplish that purpose. (V.A.C.S. Art. 4552-A, Sec. 7(d).)
Sec. 353.055. PERMIT RENEWAL. (a) To renew a contact lens dispensing permit, a permit holder must apply in the manner prescribed by board rule and pay the permit fee.
(b) The board may not require an applicant for renewal of a permit to provide more information than is required for issuance of an original permit. (V.A.C.S. Art. 4552-A, Secs. 5(e), 7(e).)
Sec. 353.056. ANNUAL PERMIT FEE. (a) The board may adopt annual permit fees in amounts reflecting the cost of administering the provisions of this chapter relating to regulating permit holders.
(b) Until changed by the board, the annual permit fee for a contact lens dispensing permit is:
(1) $10 for an optician who has registered with the department;
(2) $25 for an optician who has not registered with the department; and
(3) $100 for a business entity. (V.A.C.S. Art. 4552-A, Secs. 7(a), (b).)
[Sections 353.057-353.100 reserved for expansion]
SUBCHAPTER C. SALE OR DELIVERY OF CONTACT LENSES
Sec. 353.101. PROHIBITED SELLING OR DISPENSING. A person, other than the prescribing physician, optometrist, or therapeutic optometrist, may not fill a contact lens prescription or sell or dispense contact lenses to a consumer in this state unless the person receives an original contact lens prescription that has not expired and that conforms to the requirements of this chapter. (V.A.C.S. Art. 4552-A, Secs. 4(a), (b), (f) (part).)
Sec. 353.102. ACCURACY REQUIRED. A person who dispenses contact lenses under this chapter from a contact lens prescription shall fill the prescription accurately subject to Section 353.103. (V.A.C.S. Art. 4552-A, Sec. 4(f) (part).)
Sec. 353.103. AUTHORIZED MODIFICATION OF PRESCRIPTION. (a) If a patient presents a contact lens prescription to be filled, but requests that fewer than the total number of lenses authorized by the prescription be dispensed, the person dispensing the lenses shall note on the prescription:
(1) the number of lenses dispensed;
(2) the number of lenses that remain eligible to be dispensed under the prescription; and
(3) the name, address, telephone number, and license or permit number of the person dispensing the lenses.
(b) A notation under Subsection (a) is a permanent modification of the prescription. Except as provided by this subsection, a contact lens prescription may not be modified.
(c) Subject to Subsection (d), the person dispensing the lenses shall:
(1) maintain a photocopy of the original signed prescription, as modified, in the person's records as if the copy were the original prescription; and
(2) return the original prescription to the patient so that the patient may have the additional lenses dispensed elsewhere.
(d) When a prescription has been completely filled, the person dispensing the lenses shall retain the original prescription in the person's records until the fifth anniversary of the date the prescription is completely filled.
(e) The board by rule may permit a contact lens prescription required to be maintained under this chapter to be scanned into a computer and the original paper prescription destroyed. (V.A.C.S. Art. 4552-A, Secs. 4(d), (g), (j).)
Sec. 353.104. EMERGENCY REFILL. (a) If a patient needs an emergency refill of the patient's contact lens prescription, a physician, optometrist, or therapeutic optometrist may telephone or fax the prescription to a person authorized to dispense contact lenses under Section 353.051.
(b) The person filling the prescription shall maintain a copy of the fax or telephone record as if the record were an original signed prescription.
(c) The fax or telephone record must include the name, address, telephone number, and license number of the physician, optometrist, or therapeutic optometrist. (V.A.C.S. Art. 4552-A, Sec. 4(h).)
[Sections 353.105-353.150 reserved for expansion]
SUBCHAPTER D. CONTACT LENS PRESCRIPTIONS
Sec. 353.151. DIRECTIONS FOR INDEPENDENT OPTICIAN; DELEGATION. (a) If a physician's directions, instructions, or orders are to be performed or a physician's prescription is to be filled by an optician who is independent of the physician's office, the directions, instructions, orders, or prescription must be:
(1) in writing;
(2) of a scope and content and communicated to the optician in a form and manner that, in the professional judgment of the physician, best serves the health, safety, and welfare of the physician's patient; and
(3) in a form and detail consistent with the optician's skill and knowledge.
(b) A person who holds a contact lens dispensing permit issued under Subchapter B may measure the eye or cornea and may evaluate the physical fit of lenses for a particular patient of a physician if the physician has delegated in writing those responsibilities regarding that patient to the person in accordance with Subsection (a) and Section 351.005.
(c) If a physician notes on a spectacle prescription "fit for contacts" or similar language and has, as required by Subsections (a) and (b), specifically delegated to a specific optician the authority to make the additional measurements and evaluations necessary for a fully written contact lens prescription, the optician may dispense contact lenses to the patient even though the prescription is less than a fully written contact lens prescription. (V.A.C.S. Art. 4552-A, Secs. 4(e), 9(b), (c).)
Sec. 353.152. REQUIREMENTS FOR CONTACT LENS PRESCRIPTION. A contact lens prescription must be written and must contain:
(1) the patient's name;
(2) the date the prescription was issued;
(3) the manufacturer of the contact lens to be dispensed, if needed;
(4) the expiration date of the prescription;
(5) the original signature of the physician, optometrist, or therapeutic optometrist;
(6) if the prescription is for disposable contact lenses, the total number of lenses authorized to be issued under the prescription and the recommended lens replacement interval;
(7) if the prescription is issued by an optometrist, specification information required by Texas Optometry Board rule; and
(8) if the prescription is issued by a physician, specification information required by Texas State Board of Medical Examiners rule. (V.A.C.S. Art. 4552-A, Sec. 2(2).)
Sec. 353.153. TERM OF PRESCRIPTION. A physician, optometrist, or therapeutic optometrist may not issue a contact lens prescription that expires before the first anniversary of the date the patient's prescription parameters are determined, unless a shorter prescription period is warranted by the patient's ocular health or by potential harm to the patient's ocular health. (V.A.C.S. Art. 4552-A, Sec. 3(g) (part).)
Sec. 353.154. SHORT-TERM PRESCRIPTION. If a physician, optometrist, or therapeutic optometrist writes a contact lens prescription for a period of less than one year, the physician, optometrist, or therapeutic optometrist shall:
(1) give the patient a verbal explanation of the reason for the action at the time of the action; and
(2) maintain in the patient's records a written explanation of the reason. (V.A.C.S. Art. 4552-A, Sec. 3(h) (part).)
Sec. 353.155. EXTENSION OF PRESCRIPTION. (a) A physician, optometrist, or therapeutic optometrist may extend the expiration date for a contact lens prescription without completing another eye examination.
(b) On request by a patient, a prescribing physician, optometrist, or therapeutic optometrist shall authorize at least once a two-month extension of the patient's contact lens prescription. The physician, optometrist, or therapeutic optometrist may extend the prescription in accordance with Section 353.104. (V.A.C.S. Art. 4552-A, Secs. 3(g) (part), 4(i).)
Sec. 353.156. PATIENT ACCESS TO PRESCRIPTION; TIMING. (a) A physician, optometrist, or therapeutic optometrist who performs an eye examination and fits a patient for contact lenses shall, on request, prepare and give a contact lens prescription to the patient.
(b) If the patient requests the contact lens prescription during an initial or annual eye examination, the physician, optometrist, or therapeutic optometrist shall prepare and give the prescription to the patient at the time the physician, optometrist, or therapeutic optometrist determines the parameters of the prescription.
(c) On receipt of a prescription request from a patient who did not request or receive an original contact lens prescription during an initial or annual eye examination, the physician, optometrist, or therapeutic optometrist shall provide the patient with the prescription at any time during which the prescription is valid. If the patient requests the physician, optometrist, or therapeutic optometrist to deliver the prescription to the patient or to another person, the physician, optometrist, or therapeutic optometrist may charge to the patient the cost of delivery. (V.A.C.S. Art. 4552-A, Secs. 3(a) (part), (b), (c).)
Sec. 353.157. LIMITATIONS ON OR REFUSAL TO GIVE PRESCRIPTION. (a) A physician, optometrist, or therapeutic optometrist may exclude categories of contact lenses from a contact lens prescription if the exclusion is clinically indicated.
(b) Notwithstanding Section 353.156, a physician, optometrist, or therapeutic optometrist may refuse to give a contact lens prescription to a patient if:
(1) the patient's ocular health presents a contraindication for contact lenses;
(2) refusal is warranted due to potential harm to the patient's ocular health;
(3) the patient has a medical condition indicating that:
(A) the patient's ocular health would be damaged if the prescription were released to the patient; or
(B) further monitoring of the patient is needed;
(4) the patient has not paid for the examination and fitting or has not paid other financial obligations to the physician, optometrist, or therapeutic optometrist if the patient would have been required to make an immediate or similar payment if the examination revealed that ophthalmic goods were not required; or
(5) the request is made after the first anniversary of the date of the patient's last eye examination.
(c) If a physician, optometrist, or therapeutic optometrist refuses to give a patient the patient's contact lens prescription for a reason permitted under Subsection (b), the physician, optometrist, or therapeutic optometrist must:
(1) give the patient a verbal explanation of the reason for the action at the time of the action; and
(2) maintain in the patient's records a written explanation of the reason.
(d) Subsection (b) does not prohibit a physician, optometrist, or therapeutic optometrist from giving a patient the patient's contact lens prescription. (V.A.C.S. Art. 4552-A, Secs. 3(a) (part), (d), (e), (h) (part).)
Sec. 353.158. PROHIBITED ACTION BY PHYSICIAN, OPTOMETRIST, OR THERAPEUTIC OPTOMETRIST. A physician, optometrist, or therapeutic optometrist may not:
(1) charge a patient a fee in addition to the examination fee and fitting fee as a condition for giving a contact lens prescription to the patient; or
(2) condition the availability to a patient of an eye examination, a fitting for contact lenses, the issuance of a contact lens prescription, or a combination of those services on a requirement that the patient agree to purchase contact lenses or other ophthalmic goods from the physician, optometrist, or therapeutic optometrist or from a specific ophthalmic dispenser. (V.A.C.S. Art. 4552-A, Secs. 3(a) (part), (f).)
Sec. 353.159. WAIVER OR DISCLAIMER OF LIABILITY PROHIBITED. A contact lens prescription may not contain, and a physician, optometrist, or therapeutic optometrist may not require a patient to sign, a form or notice that waives or disclaims the liability of the physician, optometrist, or therapeutic optometrist for the accuracy of:
(1) the eye examination on which a contact lens prescription provided to the patient is based; or
(2) a contact lens prescription provided to the patient. (V.A.C.S. Art. 4552-A, Sec. 11(a).)
[Sections 353.160-353.200 reserved for expansion]
SUBCHAPTER E. LIABILITY AND ENFORCEMENT
Sec. 353.201. LIABILITY FOR USE OF PRESCRIPTION. A physician, optometrist, or therapeutic optometrist is not liable for a patient's subsequent use of a contact lens prescription if:
(1) the physician, optometrist, or therapeutic optometrist does not reexamine the patient; and
(2) the patient's condition, age, general health, and susceptibility to an adverse reaction caused by or related to the use of contact lenses or other factors result in the patient no longer being a proper candidate for the contact lens prescribed. (V.A.C.S. Art. 4552-A, Sec. 11(b).)
Sec. 353.202. DISCIPLINARY ACTION. The board may suspend or revoke a person's contact lens dispensing permit or place the permit holder on probation for a violation of this chapter. (V.A.C.S. Art. 4552-A, Sec. 6(a) (part).)
Sec. 353.203. SEPARATE VIOLATIONS. A course of conduct that involves more than one prescription is a separate violation for each prescription dispensed in violation of this chapter. (V.A.C.S. Art. 4552-A, Sec. 6(a) (part).)
Sec. 353.204. ENFORCEMENT PROCEEDINGS. (a) The appropriate regulatory agency, the attorney general, or the district or county attorney for the county in which an alleged violation of this chapter occurs shall, on receipt of a verified complaint, initiate an appropriate administrative or judicial proceeding to enforce this chapter and the rules adopted under this chapter.
(b) Except as otherwise provided by this section, the board is responsible for enforcing this chapter.
(c) The Texas State Board of Medical Examiners is responsible for enforcing this chapter with regard to a violation of this chapter by a physician. A violation of this chapter by a physician is considered to be a violation of Subtitle B.
(d) The Texas Optometry Board is responsible for enforcing this chapter with regard to a violation of this chapter by an optometrist or a therapeutic optometrist. A violation of this chapter by an optometrist or a therapeutic optometrist is considered to be a violation of Chapter 351.
(e) The Texas State Board of Pharmacy is responsible for enforcing this chapter with regard to a violation of this chapter by a pharmacist. A violation of this chapter by a pharmacist is considered to be a violation of Subtitle J, other than Chapter 567.
(f) The attorney general or an attorney representing the state may bring an action for an injunction to prohibit a person from violating this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4552-A, Secs. 6(b), (d), (f), (g), (h).)
Sec. 353.205. ADMINISTRATIVE PENALTY. The board may impose an administrative penalty of not more than $1,000 for a violation of this chapter. (V.A.C.S. Art. 4552-A, Sec. 6(a) (part).)
Sec. 353.206. CIVIL PENALTY. In addition to granting injunctive or other relief provided by law, a court may impose a civil penalty for a violation of this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4552-A, Sec. 6(e).)
Sec. 353.207. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4552-A, Sec. 6(c).)
[Chapters 354-400 reserved for expansion]
SUBTITLE G. PROFESSIONS RELATED TO HEARING AND SPEECH
CHAPTER 401. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 401.001. DEFINITIONS
Sec. 401.002. APPLICATION OF SUNSET ACT
[Sections 401.003-401.050 reserved for expansion]
SUBCHAPTER B. APPLICATION OF CHAPTER
Sec. 401.051. PHYSICIANS
Sec. 401.052. NURSES
Sec. 401.053. PERSONS TRAINED BY DEPARTMENT
Sec. 401.054. PERSONS CERTIFIED BY TEXAS EDUCATION AGENCY
Sec. 401.055. UNIVERSITY OR COLLEGE TEACHERS
Sec. 401.056. STUDENTS
Sec. 401.057. HEARING CONSERVATION PROGRAM
Sec. 401.058. APPLICATION TO HEARING INSTRUMENT FITTERS
AND DISPENSERS
Sec. 401.059. APPLICATION TO OTHER LICENSED PROFESSIONALS
Sec. 401.060. MEDICAL PRACTICE
[Sections 401.061-401.100 reserved for expansion]
SUBCHAPTER C. STATE BOARD OF EXAMINERS FOR SPEECH-LANGUAGE
PATHOLOGY AND AUDIOLOGY
Sec. 401.101. BOARD WITHIN HEALTH DEPARTMENT
Sec. 401.102. BOARD MEMBERSHIP
Sec. 401.103. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 401.104. MEMBERSHIP RESTRICTIONS
Sec. 401.105. TERMS
Sec. 401.106. COMPENSATION; PER DIEM
Sec. 401.107. BOARD OFFICERS
Sec. 401.108. MEETINGS
[Sections 401.109-401.150 reserved for expansion]
SUBCHAPTER D. BOARD PERSONNEL
Sec. 401.151. EMPLOYEES
Sec. 401.152. DIVISION OF RESPONSIBILITIES
[Sections 401.153-401.200 reserved for expansion]
SUBCHAPTER E. BOARD AND DEPARTMENT POWERS AND DUTIES
Sec. 401.201. GENERAL POWERS AND DUTIES
Sec. 401.202. RULEMAKING AUTHORITY
Sec. 401.203. BOARD DUTIES REGARDING COMPLAINTS
Sec. 401.204. FEES
Sec. 401.205. SEAL
Sec. 401.206. LEGAL REPRESENTATION
Sec. 401.207. TRAINING
[Sections 401.208-401.250 reserved for expansion]
SUBCHAPTER F. PUBLIC ACCESS AND INFORMATION
Sec. 401.251. COMPLAINTS
Sec. 401.252. RECORDS OF COMPLAINTS
Sec. 401.253. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 401.254. PUBLIC PARTICIPATION
[Sections 401.255-401.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 401.301. LICENSE REQUIRED
Sec. 401.302. ISSUANCE OF LICENSE
Sec. 401.303. LICENSE APPLICATION
Sec. 401.304. APPLICANT ELIGIBILITY
Sec. 401.305. EXAMINATION
Sec. 401.306. EXAMINATION RESULTS
Sec. 401.307. REEXAMINATION
Sec. 401.308. PROVISIONAL LICENSE; CERTIFICATE OF CLINICAL
COMPETENCE WAIVER
Sec. 401.309. TEMPORARY LICENSE
Sec. 401.310. TEMPORARY CERTIFICATE OF REGISTRATION
Sec. 401.311. INTERN LICENSE
Sec. 401.312. LICENSED ASSISTANTS
Sec. 401.313. INACTIVE STATUS
Sec. 401.314. LIMITED LICENSE TO PRACTICE IN PUBLIC
SCHOOLS
[Sections 401.315-401.350 reserved for expansion]
SUBCHAPTER H. LICENSE EXPIRATION AND RENEWAL
Sec. 401.351. EXPIRATION
Sec. 401.352. LICENSE RENEWAL
Sec. 401.353. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 401.354. MEDICAL HARDSHIP
Sec. 401.355. CONTINUING EDUCATION
[Sections 401.356-401.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 401.401. AUDIOMETRIC TESTING
Sec. 401.402. PRACTICE BY SPEECH-LANGUAGE PATHOLOGISTS
Sec. 401.403. PRACTICE BY AUDIOLOGISTS
Sec. 401.404. HEARING INSTRUMENT SALES TO MINORS
[Sections 401.405-401.450 reserved for expansion]
SUBCHAPTER J. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 401.451. GROUNDS FOR LICENSE DENIAL AND
DISCIPLINARY ACTION
Sec. 401.452. MONITORING OF LICENSE HOLDER
Sec. 401.453. LICENSE DENIAL, REVOCATION, OR SUSPENSION
FOR CRIMINAL CONVICTION
Sec. 401.454. ADMINISTRATIVE PROCEDURE
Sec. 401.455. INFORMAL PROCEDURES
Sec. 401.456. SCHEDULE OF SANCTIONS
Sec. 401.457. REINSTATEMENT
Sec. 401.458. PROBATION
Sec. 401.459. REPRIMAND; CONTINUING EDUCATION
[Sections 401.460-401.500 reserved for expansion]
SUBCHAPTER K. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
Sec. 401.501. DECEPTIVE TRADE PRACTICE
Sec. 401.502. INJUNCTION
Sec. 401.503. CRIMINAL OFFENSE
CHAPTER 401. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 401.001. DEFINITIONS. In this chapter:
(1) "Audiologist" means a person who meets the qualifications of this chapter to practice audiology.
(2) "Audiology" means the application of nonmedical principles, methods, and procedures for measurement, testing, appraisal, prediction, consultation, counseling, habilitation, rehabilitation, or instruction related to disorders of the auditory or vestibular systems for the purpose of providing or offering to provide services modifying communicative disorders involving speech, language, or auditory or vestibular function or other aberrant behavior relating to hearing loss.
(3) "Board" means the State Board of Examiners for Speech-Language Pathology and Audiology.
(4) "Department" means the Texas Department of Health.
(5) "Speech-language pathologist" means a person who meets the qualifications of this chapter to practice speech-language pathology.
(6) "Speech-language pathology" means the application of nonmedical principles, methods, and procedures for measurement, testing, evaluation, prediction, counseling, habilitation, rehabilitation, or instruction related to the development and disorders of communication, including speech, voice, language, oral pharyngeal function, or cognitive processes, for the purpose of evaluating, preventing, or modifying or offering to evaluate, prevent, or modify those disorders and conditions in an individual or a group. (V.A.C.S. Art. 4512j, Secs. 2(1), (2), (4), (5) (part), (6), (7) (part).)
Sec. 401.002. APPLICATION OF SUNSET ACT. The State Board of Examiners for Speech-Language Pathology and Audiology is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512j, Sec. 22.)
[Sections 401.003-401.050 reserved for expansion]
SUBCHAPTER B. APPLICATION OF CHAPTER
Sec. 401.051. PHYSICIANS. (a) This chapter does not prevent or restrict a physician from engaging in the practice of medicine in this state.
(b) This chapter does not restrict a licensed physician from personally conducting a speech or hearing test or evaluation. (V.A.C.S. Art. 4512j, Sec. 9(g).)
Sec. 401.052. NURSES. This chapter does not prevent or restrict a communication, speech, language, or hearing screening, as defined by board rule, from being conducted by a registered nurse:
(1) licensed in this state; and
(2) practicing in accordance with the standards of professional conduct and ethics established by rules adopted by the Board of Nurse Examiners. (V.A.C.S. Art. 4512j, Sec. 9(k).)
Sec. 401.053. PERSONS TRAINED BY DEPARTMENT. (a) This chapter does not apply to a person who shows evidence of having received training by the department in a communication, speech, language, or hearing screening training program approved by the department if the person's activity is limited to screening as defined by board rule.
(b) A person who has received training by the department in a program under Subsection (a) may not:
(1) practice speech-language pathology or audiology; or
(2) represent that the person is a speech-language pathologist or audiologist. (V.A.C.S. Art. 4512j, Sec. 9(h).)
Sec. 401.054. PERSONS CERTIFIED BY TEXAS EDUCATION AGENCY. (a) This chapter does not prevent or restrict the activities and services or the use of an official title by a person who is certified in speech-language pathology by the Texas Education Agency if the person only performs speech-language pathology or audiology services as part of the person's duties within an agency, institution, or organization under the jurisdiction of the Texas Education Agency.
(b) The Texas Education Agency certificate in speech-language pathology must require an applicant to:
(1) hold a master's degree in communicative disorders or the equivalent from a university program accredited by the American Speech-Language-Hearing Association; and
(2) pass a national examination in speech-language pathology or audiology approved by the board.
(c) A person affected by this section who performs work as a speech-language pathologist or audiologist in addition to performing the person's duties within an agency, institution, or organization under the jurisdiction of the Texas Education Agency is required to hold a license issued by the board unless that work is limited to speech and hearing screening procedures performed without compensation.
(d) For the purposes of Subsection (b)(1), an applicant's educational credentials are equivalent to a master's degree in communicative disorders if the credentials:
(1) consist of graduate-level course work and practicum from a program accredited by the American Speech-Language-Hearing Association; and
(2) meet requirements that are the same as those established by the board for a license in speech-language pathology or audiology.
(e) The clinical fellowship year experience or internship may not be a requirement for the Texas Education Agency certificate in speech-language pathology. (V.A.C.S. Art. 4512j, Sec. 9(b).)
Sec. 401.055. UNIVERSITY OR COLLEGE TEACHERS. This chapter does not restrict the use of an official title by a person teaching in a university or college training program, if the person:
(1) is not engaged in the practice of speech-language pathology or audiology; and
(2) does not supervise a person engaged in the practice of speech-language pathology or audiology. (V.A.C.S. Art. 4512j, Sec. 9(e).)
Sec. 401.056. STUDENTS. This chapter does not restrict the activities and services of a student pursuing a course of study leading to a degree in speech-language pathology or audiology at a college or university accredited by the Southern Association of Colleges and Universities or its equivalent if:
(1) the activities and services are part of the student's supervised course of study;
(2) the student is supervised by a person licensed under this chapter; and
(3) the student is designated as a "Speech-Language Pathology Trainee," an "Audiology Trainee," or by another title that clearly indicates the student's professional preparation status. (V.A.C.S. Art. 4512j, Secs. 9(c), (d) (part).)
Sec. 401.057. HEARING CONSERVATION PROGRAM. This chapter does not prevent a person in an industrial setting from engaging in hearing testing as a part of a hearing conservation program in compliance with federal Occupational Safety and Health Administration regulations if the person is certified by an agency acceptable to the Occupational Safety and Health Administration. (V.A.C.S. Art. 4512j, Sec. 9(j).)
Sec. 401.058. APPLICATION TO HEARING INSTRUMENT FITTERS AND DISPENSERS. (a) This chapter does not prevent or restrict a person licensed under Chapter 402 from engaging in the practice of fitting and dispensing hearing instruments.
(b) This chapter does not prohibit a fitter and dispenser of hearing instruments licensed under Chapter 402 from measuring human hearing by any means, including an audiometer, to make a selection, adaptation, or sale of a hearing instrument, including:
(1) making impressions for earmolds to be used as part of a hearing instrument; and
(2) providing post-fitting counseling to fit and dispense hearing instruments.
(c) A person who is not an audiologist who is licensed to fit and dispense hearing instruments under Chapter 402 may not:
(1) practice speech-language pathology or audiology; or
(2) represent that the person is a speech-language pathologist or audiologist by the use of any term restricted by this chapter. (V.A.C.S. Art. 4512j, Sec. 9(i).)
Sec. 401.059. APPLICATION TO OTHER LICENSED PROFESSIONALS. This chapter does not prevent a person licensed in this state under another law from engaging in the profession for which the person is licensed. (V.A.C.S. Art. 4512j, Sec. 9(a).)
Sec. 401.060. MEDICAL PRACTICE. This chapter does not permit a person to perform an act that violates Subtitle B. (V.A.C.S. Art. 4512j, Sec. 9(f).)
[Sections 401.061-401.100 reserved for expansion]
SUBCHAPTER C. STATE BOARD OF EXAMINERS FOR SPEECH-LANGUAGE
PATHOLOGY AND AUDIOLOGY
Sec. 401.101. BOARD WITHIN HEALTH DEPARTMENT. The State Board of Examiners for Speech-Language Pathology and Audiology is within the Texas Department of Health. (V.A.C.S. Art. 4512j, Sec. 3(a) (part).)
Sec. 401.102. BOARD MEMBERSHIP. (a) The board consists of nine members appointed by the governor as follows:
(1) three audiologist members;
(2) three speech-language pathologist members; and
(3) three members who represent the public.
(b) Board members must:
(1) have been a resident of this state for the two years preceding the date of appointment;
(2) be from the various geographic regions of the state; and
(3) be from varying employment settings.
(c) The board members appointed under Subsections (a)(1) and (2) must:
(1) have been engaged in teaching, research, or providing services in speech-language pathology or audiology for at least five years; and
(2) be licensed under this chapter.
(d) One of the public board members must be a physician licensed in this state and certified in otolaryngology or pediatrics.
(e) Appointments to the board shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. (V.A.C.S. Art. 4512j, Secs. 3(a) (part), (b).)
Sec. 401.103. ELIGIBILITY OF PUBLIC MEMBERS. The two public members of the board who are not physicians may not:
(1) be licensed by an occupational regulatory agency in the field of health care;
(2) be employed by and participating in the management of an agency or business entity that provides health care services or that sells, manufactures, or distributes health care supplies or equipment;
(3) own, control, or have a direct or indirect interest of more than 10 percent in a business entity that provides health care services or that sells, manufactures, or distributes health care supplies or equipment; or
(4) be an officer, employee, or paid consultant of a trade association in the field of health care. (V.A.C.S. Art. 4512j, Sec. 3(a) (part).)
Sec. 401.104. MEMBERSHIP RESTRICTIONS. (a) A board member may not be related within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code, to an officer, employee, or paid consultant of a trade association in the field of health care.
(b) A person may not serve as a member of the board or act 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 in a health-related area. (V.A.C.S. Art. 4512j, Secs. 3(a) (part), (c).)
Sec. 401.105. TERMS. (a) Members are appointed for staggered six-year terms. The terms of three members expire September 1 of each odd-numbered year.
(b) A person may not be appointed to serve more than two consecutive terms. (V.A.C.S. Art. 4512j, Sec. 4(a) (part).)
Sec. 401.106. COMPENSATION; PER DIEM. (a) A board member may not receive compensation for the member's services.
(b) A member is entitled to a per diem and travel allowance for each day the member engages in board business at the rate set for state employees in the General Appropriations Act. (V.A.C.S. Art. 4512j, Sec. 4(e).)
Sec. 401.107. BOARD OFFICERS. (a) The board shall organize itself annually and select a presiding officer, assistant presiding officer, and secretary-treasurer.
(b) The presiding officer must hold a license under this chapter. (V.A.C.S. Art. 4512j, Sec. 4(b).)
Sec. 401.108. MEETINGS. (a) The board shall hold at least two regular meetings each year.
(b) Additional meetings may be held at the call of the presiding officer or on the written request of any three members of the board. (V.A.C.S. Art. 4512j, Sec. 4(d) (part).)
[Sections 401.109-401.150 reserved for expansion]
SUBCHAPTER D. BOARD PERSONNEL
Sec. 401.151. EMPLOYEES. The department shall provide administrative and clerical employees necessary to administer this chapter. (V.A.C.S. Art. 4512j, Sec. 6.)
Sec. 401.152. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512j, Sec. 5(i).)
[Sections 401.153-401.200 reserved for expansion]
SUBCHAPTER E. BOARD AND DEPARTMENT POWERS AND DUTIES
Sec. 401.201. GENERAL POWERS AND DUTIES. (a) With the assistance of the department, the board shall:
(1) administer, coordinate, and enforce this chapter;
(2) evaluate the qualifications of license applicants;
(3) provide for the examination of license applicants;
(4) issue subpoenas, examine witnesses, and administer oaths under the laws of this state;
(5) conduct hearings and keep records and minutes necessary to the orderly administration of this chapter; and
(6) investigate persons engaging in practices that violate this chapter.
(b) The board may appoint subcommittees to work under its jurisdiction. (V.A.C.S. Art. 4512j, Secs. 5(b), (c), (d), (h).)
Sec. 401.202. RULEMAKING AUTHORITY. The board shall adopt rules necessary to administer and enforce this chapter, including rules that establish standards of ethical practice. (V.A.C.S. Art. 4512j, Sec. 5(a).)
Sec. 401.203. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall adopt a form to standardize information concerning complaints made to the board.
(b) The board by rule shall prescribe information to be provided to a person when the person files a complaint with the board.
(c) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4512j, Secs. 23(c), (d).)
Sec. 401.204. FEES. (a) The board by rule shall establish fees in amounts reasonable and necessary so that the fees in the aggregate are sufficient to cover the costs of administering this chapter.
(b) All expenses for the administration of this chapter shall be paid from fees collected by the board under this chapter. (V.A.C.S. Art. 4512j, Secs. 16, 20(b).)
Sec. 401.205. SEAL. The board shall adopt a seal to authenticate its proceedings. (V.A.C.S. Art. 4512j, Sec. 7 (part).)
Sec. 401.206. LEGAL REPRESENTATION. The board shall be represented by the attorney general and the district and county attorneys of this state. (V.A.C.S. Art. 4512j, Sec. 5(g).)
Sec. 401.207. TRAINING. Each board member shall comply with the board member training requirements established by any other state agency authorized to establish the requirements for the board. (V.A.C.S. Art. 4512j, Sec. 3(d).)
[Sections 401.208-401.250 reserved for expansion]
SUBCHAPTER F. PUBLIC ACCESS AND INFORMATION
Sec. 401.251. COMPLAINTS. The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512j, Sec. 23(e).)
Sec. 401.252. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The file must be current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) for a complaint that is dismissed, an explanation of the legal basis and reason for dismissal;
(4) the schedule established for the complaint under Section 401.253(b)(2) and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512j, Secs. 23(a), (b); 24(b) (part).)
Sec. 401.253. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules must:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint investigation that is under the control of the board not later than the 30th day after the date the complaint is received by the board.
(c) Each party to a complaint shall be notified of the projected time requirements for pursuing the complaint.
(d) Each party to the complaint shall be notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.
(e) The director of the board shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512j, Secs. 24(a), (b) (part), (c).)
Sec. 401.254. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512j, Secs. 5(j) (part), (k).)
[Sections 401.255-401.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 401.301. LICENSE REQUIRED. A person may not practice speech-language pathology or audiology or represent that the person is a speech-language pathologist or audiologist in this state unless the person holds a license under this chapter. (V.A.C.S. Art. 4512j, Sec. 8(b).)
Sec. 401.302. ISSUANCE OF LICENSE. (a) The board shall issue a license to an applicant who meets the requirements of this chapter and who pays to the board the initial nonrefundable license fee.
(b) The board may issue to an applicant a license in either speech-language pathology or audiology.
(c) The board may issue a license in both speech-language pathology and audiology to an applicant.
(d) The board by rule shall establish qualifications for dual licensing in speech-language pathology and audiology and may develop a full range of licensing options and establish rules for qualifications. (V.A.C.S. Art. 4512j, Secs. 8(a), 14(a).)
Sec. 401.303. LICENSE APPLICATION. (a) A person who desires a license under this chapter must apply to the board on a form and in the manner the board prescribes.
(b) The application must be accompanied by a nonrefundable application fee. (V.A.C.S. Art. 4512j, Sec. 11.)
Sec. 401.304. APPLICANT ELIGIBILITY. (a) To be eligible for licensing as a speech-language pathologist or audiologist, an applicant must:
(1) possess at least a master's degree with a major in at least one of the areas of communicative sciences or disorders from a program accredited by the American Speech-Language-Hearing Association in an accredited or approved college or university;
(2) submit a transcript from a public or private institution of higher learning showing successful completion of course work in amounts set by the board in:
(A) normal development and use of speech, language, and hearing;
(B) evaluation, habilitation, and rehabilitation of speech, language, and hearing disorders; and
(C) related fields that augment the work of clinical practitioners of speech-language pathology and audiology;
(3) have successfully completed at least 36 semester hours in courses that are acceptable toward a graduate degree by the college or university in which the courses are taken, at least 24 of which must be in the professional area for which the license is requested and at least six of which must be:
(A) in audiology if the application is for a speech-language pathology license; or
(B) in speech-language pathology if the application is for an audiology license;
(4) have completed the minimum number of hours, established by the board, of supervised clinical experience with persons who present a variety of communication disorders; and
(5) have completed the full-time supervised professional experience, as defined by board rule, in which clinical work has been accomplished in the major professional area for which the license is being sought.
(b) Clinical experience required under Subsection (a)(4) must be obtained:
(1) in the applicant's educational institution or in one of the institution's cooperating programs; and
(2) under the supervision of a person holding a license to practice speech-language pathology or audiology.
(c) Supervised professional experience under Subsection (a)(5) must:
(1) be under the supervision of a qualified person acceptable to the board under guidelines approved by the board; and
(2) begin after completion of the academic and clinical experience required by this section. (V.A.C.S. Art. 4512j, Sec. 10(a).)
Sec. 401.305. EXAMINATION. (a) To obtain a license, an applicant must:
(1) pass a validated examination approved by the board; and
(2) pay fees in a manner prescribed by the board.
(b) The board shall:
(1) administer an examination at least twice each year;
(2) determine standards for acceptable performance on the examination; and
(3) maintain a record of all examination scores for at least two years after the date of examination.
(c) The board by rule may:
(1) establish procedures for the administration of the examination; and
(2) require a written or oral examination, or both.
(d) The board may examine an applicant in any theoretical or applied field of speech-language pathology or audiology it considers appropriate. The board may examine an applicant on professional skills and judgment in the use of speech-language pathology or audiology techniques or methods. (V.A.C.S. Art. 4512j, Secs. 12(a), (b), (c), (d).)
Sec. 401.306. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national or state testing service that does not directly notify examinees of the examination results, the board shall notify each examinee of the results not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national or state testing service will be delayed for longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day. (V.A.C.S. Art. 4512j, Sec. 12(f).)
Sec. 401.307. REEXAMINATION. (a) A person who fails the examination may take a subsequent examination on payment of a nonrefundable fee for the subsequent examination.
(b) An applicant who fails two examinations may not be reexamined until the person:
(1) submits a new application accompanied by a nonrefundable application fee; and
(2) presents evidence acceptable to the board of additional study in the area for which a license is sought.
(c) To request an analysis of the person's performance on the examination, a person who fails a licensing examination administered under this chapter must contact the testing service that administered the examination. (V.A.C.S. Art. 4512j, Sec. 12(e).)
Sec. 401.308. PROVISIONAL LICENSE; CERTIFICATE OF CLINICAL COMPETENCE WAIVER. (a) The board may grant a provisional license to an applicant who:
(1) is licensed in good standing as a speech-language pathologist or an audiologist in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;
(2) has passed a national or other examination recognized by the board relating to speech-language pathology or audiology; and
(3) is sponsored by a license holder with whom the provisional license holder may practice under this section.
(b) An applicant for a provisional license may be excused from the requirement of Subsection (a)(3) if the board determines that compliance with that requirement is a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license.
(d) The board shall issue a license under this chapter to a provisional license holder:
(1) who passes the examination required by Section 401.305;
(2) for whom the board verifies satisfaction of the academic and experience requirements for a license under this chapter; and
(3) who satisfies any other license requirements under this chapter.
(e) The board shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued.
(f) The board may waive the examination requirement and issue a license to an applicant who holds the Certificate of Clinical Competence of the American Speech-Language-Hearing Association. (V.A.C.S. Art. 4512j, Sec. 13.)
Sec. 401.309. TEMPORARY LICENSE. The board by rule may provide for the issuance of a temporary license. (V.A.C.S. Art. 4512j, Sec. 14A(a).)
Sec. 401.310. TEMPORARY CERTIFICATE OF REGISTRATION. (a) The board shall issue a temporary certificate of registration to an applicant who:
(1) satisfies the requirements of Section 401.304;
(2) has not previously applied to take the examination; and
(3) pays the nonrefundable application fee.
(b) A holder of a temporary certificate of registration may practice speech-language pathology or audiology for a period ending eight weeks after the date the examination concludes. (V.A.C.S. Art. 4512j, Secs. 14(b), (c).)
Sec. 401.311. INTERN LICENSE. (a) A license applicant who has completed only the requirements of Sections 401.304(a)(1)-(4) may be licensed as an intern under this chapter.
(b) An applicant who has successfully completed the academic and clinical requirements of Sections 401.304(a)(1)-(4) but who has not had the degree officially conferred on the applicant may be licensed as an intern under this chapter.
(c) The board by rule shall:
(1) prescribe the terms governing a person's practice as an intern under this section; and
(2) establish general guidelines and renewal procedures for the holder of an intern license. (V.A.C.S. Art. 4512j, Sec. 10(b) (part).)
Sec. 401.312. LICENSED ASSISTANTS. (a) The board may establish minimum qualifications for licensed assistants in speech-language pathology and in audiology.
(b) A licensed assistant in speech-language pathology or in audiology must meet the minimum qualifications established by the board.
(c) A licensed assistant in speech-language pathology shall work under the direction of a licensed speech-language pathologist.
(d) The qualifications for licensing as a licensed assistant in speech-language pathology must be uniform and be less stringent than the requirements under this chapter for a speech-language pathologist license.
(e) A licensed assistant in audiology shall work under the direction of a licensed audiologist.
(f) The qualifications for licensing as a licensed assistant in audiology must be uniform and be less stringent than the requirements under this chapter for an audiologist license. (V.A.C.S. Art. 4512j, Secs. 2(8), (9).)
Sec. 401.313. INACTIVE STATUS. (a) The board by rule may provide for a license holder to be placed on inactive status.
(b) Rules adopted under this section must include a time limit for a license holder to remain on inactive status. (V.A.C.S. Art. 4512j, Sec. 14A(b).)
Sec. 401.314. LIMITED LICENSE TO PRACTICE IN PUBLIC SCHOOLS. (a) The board shall waive the licensing requirements under this chapter and issue a limited license to practice in the public schools as a fully licensed speech-language pathologist to an applicant who:
(1) was eligible for a waiver of licensing requirements under Section 13(a), Chapter 381, Acts of the 68th Legislature, Regular Session, 1983, as amended by Chapter 448, Acts of the 69th Legislature, Regular Session, 1985;
(2) for the two years preceding January 1, 1996, was employed by a school district as a speech-language therapist;
(3) submits with the person's application a written statement by the superintendent of the school district employing the person, certifying that the district has not been able to employ as a speech-language pathologist a person who meets the licensing requirements imposed under this chapter;
(4) holds a baccalaureate degree in communication disorders (speech-language) from an accredited institution of higher education and is certified by the Texas Education Agency in speech and hearing therapy or, in the judgment of the board, satisfies equivalent requirements; and
(5) successfully completes the examination required under Section 401.305.
(b) The board shall waive the licensing requirements imposed under this chapter and issue a limited license to practice in the public schools as a fully licensed speech-language pathologist to a person who:
(1) meets the requirements of Subsections (a)(2)-(5); and
(2) is enrolled in a program of study toward a master's degree with a major in at least one of the areas of communicative sciences or disorders from a program accredited by the American Speech-Language-Hearing Association in a regionally accredited college or university.
(c) Beginning September 1, 1998, and biennially after that date, a person licensed under Subsection (b) must demonstrate in a manner prescribed by the board that the person has successfully completed in the preceding two-year period at least 12 hours of course work toward completing a master's degree described by Subsection (b)(2).
(d) A person who holds a limited license issued under this section may apply for a full license as provided by this chapter.
(e) An applicant for a limited license must have:
(1) applied not later than September 1, 1996; and
(2) provided proof satisfactory to the board that the person satisfies the requirements of this section.
(f) A person must complete the requirements for a license under this section not later than January 1, 2003.
(g) This section expires on the effective date of any federal requirement that a speech-language pathologist hold a master's degree as a condition for receipt of federal funding by the entity employing the person. (V.A.C.S. Art. 4512j, Secs. 13A(a), (b), (c), (d), (e), (g), (h).)
[Sections 401.315-401.350 reserved for expansion]
SUBCHAPTER H. LICENSE EXPIRATION AND RENEWAL
Sec. 401.351. EXPIRATION. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.
(b) For the year in which the license expiration date is changed, license fees payable on the original expiration date shall be prorated on a monthly basis so that each license holder pays only the portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512j, Sec. 14(d).)
Sec. 401.352. LICENSE RENEWAL. (a) Each licensed speech-language pathologist or audiologist must annually pay the nonrefundable fee for license renewal. The board shall allow a 60-day grace period. After expiration of the grace period, the board may renew a license on payment of a penalty set by board rule.
(b) An application for a license filed not later than the second anniversary of the license expiration date is considered an application for renewal. The board may not require a person who applies for renewal on or before the second anniversary of the license expiration date to take an examination as a condition of renewal.
(c) A person whose license has been expired for two years or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4512j, Secs. 15(a), (b), (d) (part).)
Sec. 401.353. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state within the three years preceding application for renewal and who is currently licensed and has been in practice in another state for the two years preceding the application date.
(b) The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4512j, Sec. 15(d) (part).)
Sec. 401.354. MEDICAL HARDSHIP. The board may adopt rules concerning the reinstatement of a license in a case of medical hardship. (V.A.C.S. Art. 4512j, Sec. 15(d) (part).)
Sec. 401.355. CONTINUING EDUCATION. (a) The board shall establish uniform mandatory continuing education requirements. A license holder may not renew the person's license unless the person meets the continuing education requirements.
(b) The board shall establish the requirements in a manner that allows a license holder to comply without an extended absence from the license holder's county of residence.
(c) The board shall:
(1) provide to a license applicant, with the application form on which the person is to apply for a license, information describing the continuing education requirements; and
(2) notify each license holder of any change in the continuing education requirements at least one year before the date the change takes effect. (V.A.C.S. Art. 4512j, Sec. 15(c).)
[Sections 401.356-401.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 401.401. AUDIOMETRIC TESTING. (a) If audiometric testing is not conducted in a stationary acoustical enclosure, sound-level measurements must be conducted at the time of the testing to ensure that ambient noise levels meet permissible standards for testing threshold to 20 dB based on the most recent American National Standards Institute "ears covered" octave band criteria for permissible ambient noise levels during audiometric testing.
(b) A dBa equivalent level may be used to determine compliance.
(c) The board shall adopt rules necessary to enforce this section. (V.A.C.S. Art. 4512j, Sec. 9A(c).)
Sec. 401.402. PRACTICE BY SPEECH-LANGUAGE PATHOLOGISTS. (a) A speech-language pathologist may perform basic audiometric screening tests and aural habilitation or rehabilitation.
(b) A person licensed as a speech-language pathologist under this chapter may not fit, dispense, or sell hearing instruments unless the person meets the specific requirements for fitting and dispensing hearing instruments under this chapter or Chapter 402. (V.A.C.S. Art. 4512j, Secs. 2(5) (part), 9A(a).)
Sec. 401.403. PRACTICE BY AUDIOLOGISTS. (a) An audiologist may:
(1) engage in any act necessary to:
(A) evaluate hearing;
(B) train in the use of amplification, including hearing instruments;
(C) make earmolds for hearing instruments;
(D) fit, dispense, and sell hearing instruments; or
(E) manage cerumen;
(2) participate in consultation regarding noise control and hearing conservation;
(3) provide evaluations of environment or equipment, including calibration of equipment used in testing auditory functioning and hearing conservation; and
(4) perform basic speech and language screening tests and procedures consistent with the audiologist's training.
(b) A person who meets the requirements of this chapter for licensing as an audiologist or audiologist intern and who fits and dispenses hearing instruments must:
(1) register with the board the person's intention to fit and dispense hearing instruments;
(2) comply with the profession's code of ethics;
(3) comply with the federal Food and Drug Administration guidelines for fitting and dispensing hearing instruments;
(4) when providing services in this state, use a written contract that contains the board's name, mailing address, and telephone number; and
(5) follow the guidelines adopted by board rule for a 30-day trial period on every hearing instrument purchased. (V.A.C.S. Art. 4512j, Secs. 2(7) (part), 9A(b).)
Sec. 401.404. HEARING INSTRUMENT SALES TO MINORS. A licensed audiologist may not sell a hearing instrument to a person under 18 years of age unless the person or the parent or guardian of the person presents to the audiologist a written statement signed by a licensed physician who specializes in diseases of the ear stating that:
(1) the person's hearing loss has been medically evaluated during the six-month period preceding the date the statement is presented; and
(2) the person may be considered a candidate for a hearing instrument. (V.A.C.S. Art. 4512j, Sec. 9A(d).)
[Sections 401.405-401.450 reserved for expansion]
SUBCHAPTER J. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 401.451. GROUNDS FOR LICENSE DENIAL AND DISCIPLINARY ACTION. (a) After a hearing, the board may deny a license to an applicant or may suspend or revoke a person's license or place on probation a license holder if the applicant or license holder:
(1) violates this chapter or an order or rule of the board;
(2) obtains a license by means of fraud, misrepresentation, or concealment of a material fact;
(3) sells, barters, or offers to sell or barter a license or certificate of registration; or
(4) engages in unprofessional conduct that:
(A) endangers or is likely to endanger the health, welfare, or safety of the public as defined by board rule; or
(B) violates the code of ethics adopted and published by the board.
(b) Any person may commence a proceeding for revocation or suspension of a license by filing written charges with the board under oath. (V.A.C.S. Art. 4512j, Secs. 17(a), (b) (part); 19(b).)
Sec. 401.452. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system for monitoring a license holder's compliance with this chapter.
(b) Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor license holders who represent a risk to the public. (V.A.C.S. Art. 4512j, Sec. 26.)
Sec. 401.453. LICENSE DENIAL, REVOCATION, OR SUSPENSION FOR CRIMINAL CONVICTION. (a) The board may deny a license or may suspend or revoke a license if the applicant or license holder has been convicted of a misdemeanor involving moral turpitude or a felony. The board may take action authorized by this section when:
(1) the time for appeal of the person's conviction has elapsed;
(2) the judgment or conviction has been affirmed on appeal; or
(3) an order granting probation is made suspending the imposition of the person's sentence, without regard to whether a subsequent order:
(A) allows a withdrawal of a plea of guilty;
(B) sets aside a verdict of guilty; or
(C) dismisses an information or indictment.
(b) A plea or verdict of guilty or a conviction following a plea of nolo contendere is a conviction for purposes of this section. (V.A.C.S. Art. 4512j, Sec. 17(c).)
Sec. 401.454. ADMINISTRATIVE PROCEDURE. (a) Except as provided by this subchapter, a proceeding to deny a license application or to take disciplinary action against a license holder is subject to Chapter 2001, Government Code.
(b) A person whose application for a license is denied is entitled to a hearing before the board if the person submits a written request to the board. (V.A.C.S. Art. 4512j, Secs. 19(a), (c).)
Sec. 401.455. INFORMAL PROCEDURES. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant, if applicable and permitted by law, an opportunity to be heard;
(2) provide the license holder an opportunity to be heard; and
(3) require the presence of a legal representative of the department who represents the board or the board's employees or a representative of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4512j, Sec. 25.)
Sec. 401.456. SCHEDULE OF SANCTIONS. The board shall use the schedule of sanctions adopted by board rule for any sanction imposed as the result of a hearing conducted by the board. (V.A.C.S. Art. 4512j, Sec. 17(f).)
Sec. 401.457. REINSTATEMENT. (a) A person may apply for reinstatement of a revoked license on or after the first anniversary of the date of revocation.
(b) The board may:
(1) accept or reject the application; and
(2) require an examination as a condition for reinstatement of the license. (V.A.C.S. Art. 4512j, Sec. 17(b) (part).)
Sec. 401.458. PROBATION. The board may require a license holder whose license suspension is probated to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4512j, Sec. 17(e).)
Sec. 401.459. REPRIMAND; CONTINUING EDUCATION. (a) In addition to other disciplinary action authorized by this subchapter, the board may:
(1) issue a written reprimand to a license holder who violates this chapter; or
(2) require that a license holder who violates this chapter attend continuing education programs.
(b) The board may specify the number of hours of continuing education that must be completed by a license holder to fulfill the requirement of Subsection (a)(2). (V.A.C.S. Art. 4512j, Sec. 17(d).)
[Sections 401.460-401.500 reserved for expansion]
SUBCHAPTER K. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
Sec. 401.501. DECEPTIVE TRADE PRACTICE. A violation of Section 401.301 is a deceptive trade practice. (V.A.C.S. Art. 4512j, Sec. 8(c).)
Sec. 401.502. INJUNCTION. The board may apply to a district court in any county for an injunction or another order to restrain the violation of this chapter by a person other than a license holder under this chapter. (V.A.C.S. Art. 4512j, Sec. 18(b).)
Sec. 401.503. CRIMINAL OFFENSE. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this section is a misdemeanor punishable by:
(1) confinement in the county jail for a period not to exceed six months;
(2) a fine not to exceed $1,000; or
(3) both the confinement and the fine. (V.A.C.S. Art. 4512j, Sec. 18(a).)
CHAPTER 402. HEARING INSTRUMENT FITTERS AND DISPENSERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 402.001. DEFINITIONS
Sec. 402.002. APPLICATION OF SUNSET ACT
Sec. 402.003. APPLICABILITY OF CHAPTER; EXEMPTIONS
[Sections 402.004-402.050 reserved for expansion]
SUBCHAPTER B. STATE COMMITTEE OF EXAMINERS IN THE FITTING
AND DISPENSING OF HEARING INSTRUMENTS
Sec. 402.051. COMMITTEE; MEMBERSHIP
Sec. 402.052. PUBLIC MEMBER ELIGIBILITY
Sec. 402.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 402.054. OFFICIAL OATH
Sec. 402.055. TERMS; VACANCIES
Sec. 402.056. GROUNDS FOR REMOVAL
Sec. 402.057. OFFICERS
Sec. 402.058. MEETINGS
Sec. 402.059. COMMITTEE EMPLOYEES
Sec. 402.060. SEAL OF COMMITTEE
Sec. 402.061. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT
[Sections 402.062-402.100 reserved for expansion]
SUBCHAPTER C. COMMITTEE POWERS AND DUTIES
Sec. 402.101. GENERAL POWERS AND DUTIES
Sec. 402.102. RULES
Sec. 402.103. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 402.104. POWERS AND DUTIES REGARDING EXAMINATION
Sec. 402.105. SUBCOMMITTEES
Sec. 402.106. FEES AND EXPENSES
[Sections 402.107-402.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 402.151. PUBLIC INTEREST INFORMATION
Sec. 402.152. COMPLAINTS
Sec. 402.153. RECORDS OF COMPLAINTS
[Sections 402.154-402.200 reserved for expansion]
SUBCHAPTER E. LICENSE AND PERMIT REQUIREMENTS
Sec. 402.201. LICENSE OR PERMIT REQUIRED
Sec. 402.202. EXAMINATION REQUIRED
Sec. 402.203. APPLICATION FOR EXAMINATION
Sec. 402.204. CONTENTS OF EXAMINATION
Sec. 402.205. EXAMINATION PROCEDURES
Sec. 402.206. NOTICE OF EXAMINATION RESULTS
Sec. 402.207. ISSUANCE OF APPRENTICE PERMIT
Sec. 402.208. ISSUANCE OF LICENSE
Sec. 402.209. LICENSING BY RECIPROCITY
[Sections 402.210-402.250 reserved for expansion]
SUBCHAPTER F. TEMPORARY TRAINING PERMIT
Sec. 402.251. TEMPORARY TRAINING PERMIT QUALIFICATIONS
Sec. 402.252. SUPERVISION AFFIDAVIT
Sec. 402.253. EXPIRATION OF TEMPORARY TRAINING PERMIT
Sec. 402.254. GUIDELINES FOR TRAINING OF TEMPORARY TRAINING
PERMIT HOLDERS
Sec. 402.255. SUPERVISOR REQUIREMENTS
Sec. 402.256. AUTHORITY OF TEMPORARY TRAINING PERMIT
HOLDER
Sec. 402.257. TRANSFER TO ANOTHER SUPERVISOR
[Sections 402.258-402.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 402.301. LICENSE RENEWAL
Sec. 402.302. CERTIFICATION OF TESTING EQUIPMENT
Sec. 402.303. CONTINUING EDUCATION
Sec. 402.304. ALTERNATIVES TO CONTINUING EDUCATION
REQUIREMENT
Sec. 402.305. CONTINUING EDUCATION EXEMPTIONS
Sec. 402.306. DUPLICATE LICENSE
[Sections 402.307-402.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 402.351. DISPLAY OF LICENSE
Sec. 402.352. INFORMATION ON PROSPECTIVE AMPLIFICATION
CANDIDATES
Sec. 402.353. SOUND-LEVEL MEASUREMENTS
[Sections 402.354-402.400 reserved for expansion]
SUBCHAPTER I. GENERAL BUSINESS REGULATIONS
Sec. 402.401. TRIAL PERIOD
Sec. 402.402. SALE TO MINOR
Sec. 402.403. BILL OF SALE
Sec. 402.404. SURETY BONDING
Sec. 402.405. RECOVERY ON SURETY BOND
Sec. 402.406. OWNERSHIP OF DISPENSING PRACTICE
[Sections 402.407-402.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES
Sec. 402.451. PROHIBITED ACTS
Sec. 402.452. INVESTIGATION BY BOARD
Sec. 402.453. TREATMENT OF EAR DEFECTS; ADMINISTRATION
OF DRUGS
[Sections 402.454-402.500 reserved for expansion]
SUBCHAPTER K. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 402.501. GROUNDS FOR LICENSE DENIAL AND
DISCIPLINARY ACTION
Sec. 402.502. ADMINISTRATIVE PROCEDURE
Sec. 402.503. REISSUANCE OF LICENSE
[Sections 402.504-402.550 reserved for expansion]
SUBCHAPTER L. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
Sec. 402.551. ADMINISTRATIVE PENALTY
Sec. 402.552. INJUNCTION
CHAPTER 402. HEARING INSTRUMENT FITTERS AND DISPENSERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 402.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Committee" means the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments.
(3) "Department" means the Texas Department of Health.
(4) "Fitting and dispensing hearing instruments" means the measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes the making of impressions for earmolds to be used as a part of the hearing instruments and any necessary postfitting counseling for the purpose of fitting and dispensing hearing instruments.
(5) "Hearing instrument" means any wearable instrument or device designed for, or represented as, aiding, improving, or correcting defective human hearing. The term includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.
(6) "License" means a license issued by the committee under this chapter to a person authorized to fit and dispense hearing instruments.
(7) "Sale" includes a transfer of title or of the right to use by lease, bailment, or other contract. The term does not include a sale at wholesale by a manufacturer to a person licensed under this chapter or to a distributor for distribution and sale to a person licensed under this chapter. (V.A.C.S. Art. 4566-1.01, Subdivs. (1), (2), (4), (5), (6), (8), (9).)
Sec. 402.002. APPLICATION OF SUNSET ACT. The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the committee is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4566-1.02, Subsec. (i).)
Sec. 402.003. APPLICABILITY OF CHAPTER; EXEMPTIONS. (a) This chapter does not apply to:
(1) a person engaged in the practice of measuring human hearing as a part of the academic curriculum of an accredited institution of higher learning if the person or the person's employees do not sell hearing instruments;
(2) a physician licensed by the Texas State Board of Medical Examiners; or
(3) a person with a master's degree or doctorate in audiology from an accredited college or university who does not sell hearing instruments, to the extent the person engages in the measurement of human hearing by the use of an audiometer or by any other means to make selections and adaptations of or recommendations for a hearing instrument and to make impressions for earmolds to be used as part of a hearing instrument.
(b) An audiologist or an audiology intern licensed under Chapter 401 is exempt from this chapter.
(c) A student of audiology in an accredited college or university program is exempt from this chapter if the student's activities and services are part of the student's supervised course of study or practicum experience. The student is subject to Chapter 401. (V.A.C.S. Arts. 4512j, Secs. 9(d) (part), 10(b) (part); 4566-1.09, Subsec. (a)(2); 4566-1.19.)
[Sections 402.004-402.050 reserved for expansion]
SUBCHAPTER B. STATE COMMITTEE OF EXAMINERS IN THE FITTING
AND DISPENSING OF HEARING INSTRUMENTS
Sec. 402.051. COMMITTEE; MEMBERSHIP. (a) The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments is part of the department and consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six members licensed under this chapter who have been residents of this state actually engaged in fitting and dispensing hearing instruments for at least five years preceding appointment, not more than one of whom may be licensed under Chapter 401;
(2) one member who is actively practicing as a physician licensed by the Texas State Board of Medical Examiners and who:
(A) has been a resident of this state for at least two years preceding appointment;
(B) is a citizen of the United States; and
(C) specializes in the practice of otolaryngology; and
(3) two members of the public.
(b) Appointments to the committee shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. (V.A.C.S. Art. 4566-1.02, Subsec. (a) (part).)
Sec. 402.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the committee if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization that:
(A) provides health care services; or
(B) sells, manufactures, or distributes health care supplies or equipment; or
(3) owns or controls, directly or indirectly, an interest in a business entity or other organization that:
(A) provides health care services; or
(B) sells, manufactures, or distributes health care supplies or equipment. (V.A.C.S. Art. 4566-1.02, Subsec. (a) (part).)
Sec. 402.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) An officer, employee, or paid consultant of a statewide or national trade association in the hearing instrument industry may not be a member or employee of the committee.
(b) A member or employee of the committee may not be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a statewide or national trade association in the hearing instrument industry.
(c) A person may not serve as a member of the committee or act as the general counsel to the committee if the person is required to register as a lobbyist under Chapter 305, Government Code.
(d) A committee member appointed under Section 402.051(a)(2) may not have a financial interest in a hearing instrument manufacturing company or in a wholesale or retail hearing instrument company. (V.A.C.S. Art. 4566-1.02, Subsecs. (a) (part), (e), (f).)
Sec. 402.054. OFFICIAL OATH. Each person appointed to the committee shall take the constitutional oath of office not later than the 15th day after the date of appointment. (V.A.C.S. Art. 4566-1.02, Subsec. (c) (part).)
Sec. 402.055. TERMS; VACANCIES. (a) Members of the committee serve staggered six-year terms.
(b) A member who has served two full consecutive terms on the committee is not eligible for reappointment to the committee for the 12 months following the expiration of the second full term.
(c) In the event of the death, resignation, or removal of a member, the governor shall fill the vacancy of the unexpired term in the same manner as other appointments. (V.A.C.S. Art. 4566-1.02, Subsecs. (b), (c) (part), (d) (part).)
Sec. 402.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the committee that a member:
(1) does not have at the time of appointment the qualifications required by Sections 402.051, 402.052, and 402.053(d) for appointment to the committee;
(2) does not maintain during service on the committee the qualifications required by Sections 402.051, 402.052, and 402.053(d) for appointment to the committee;
(3) violates a prohibition established by Section 402.053; or
(4) fails to attend at least half of the regularly scheduled committee meetings held in a calendar year, excluding meetings held while the person was not a committee member.
(b) The validity of an action of the committee is not affected by the fact that the action is taken when a ground for removal of a committee member exists. (V.A.C.S. Art. 4566-1.02, Subsecs. (g), (h).)
Sec. 402.057. OFFICERS. (a) The committee shall elect a president and vice president.
(b) The term of office as an officer of the committee is one year. (V.A.C.S. Art. 4566-1.03, Subsec. (a) (part).)
Sec. 402.058. MEETINGS. (a) The committee shall hold regular meetings at least twice a year.
(b) A special meeting of the committee shall be held at the call of the president or a majority of the members. (V.A.C.S. Art. 4566-1.03, Subsec. (b) (part).)
Sec. 402.059. COMMITTEE EMPLOYEES. The department shall provide administrative and clerical employees necessary to implement this chapter. (V.A.C.S. Art. 4566-1.04A.)
Sec. 402.060. SEAL OF COMMITTEE. The committee shall adopt a seal and use the seal to authenticate its proceedings. (V.A.C.S. Art. 4566-1.05.)
Sec. 402.061. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. The committee is subject to Chapters 2001 and 2002, Government Code. (V.A.C.S. Arts. 4566-1.02, Subsec. (j) (part); 4566-1.04, Subsec. (d) (part).)
[Sections 402.062-402.100 reserved for expansion]
SUBCHAPTER C. COMMITTEE POWERS AND DUTIES
Sec. 402.101. GENERAL POWERS AND DUTIES. With the assistance of the department, the committee shall:
(1) administer, coordinate, and enforce this chapter;
(2) evaluate the qualifications of applicants;
(3) examine applicants;
(4) issue subpoenas, examine witnesses, and administer oaths under the laws of this state; and
(5) conduct hearings and keep records and minutes necessary to the orderly administration of this chapter. (V.A.C.S. Art. 4566-1.04, Subsecs. (c), (d) (part).)
Sec. 402.102. RULES. (a) Subject to the approval of the board, the committee may adopt procedural rules as necessary for the performance of the committee's duties.
(b) A license holder under this chapter is subject to the rules adopted by the committee and approved by the board under this chapter. (V.A.C.S. Art. 4566-1.04, Subsecs. (a), (f).)
Sec. 402.103. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The committee may not adopt rules restricting advertising or competitive bidding by a person regulated by the committee except to prohibit false, misleading, or deceptive practices by that person.
(b) The committee may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the committee a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement used by the person; or
(4) restricts the use of a trade name in advertising by the person.
(c) An advertisement is false, misleading, or deceptive if the advertisement:
(1) contains a misrepresentation of fact;
(2) contains a false statement as to the license holder's professional achievements, education, skills, or qualifications in the hearing instrument dispensing profession;
(3) makes a partial disclosure of relevant fact, including the advertisement of:
(A) a discounted price of an item without identifying in the advertisement or at the location of the item:
(i) the specific product being offered at the discounted price; or
(ii) the usual price of the item; and
(B) the price of a specifically identified hearing instrument, if more than one hearing instrument appears in the same advertisement without an accompanying price;
(4) contains a representation that a product innovation is new, if the product was first offered by the manufacturer to the general public in this state not less than 12 months before the date of the advertisement;
(5) states that the license holder manufactures hearing instruments at the license holder's office location unless the next statement discloses that the instruments are manufactured by a specified manufacturer and remanufactured by the license holder; or
(6) contains any other representation, statement, or claim that is inherently misleading or deceptive. (V.A.C.S. Art. 4566-1.12A.)
Sec. 402.104. POWERS AND DUTIES REGARDING EXAMINATION. (a) The committee shall administer or arrange for the administration of a written examination.
(b) The examination shall be administered at least twice each year.
(c) The examination must be validated by an independent testing professional. (V.A.C.S. Art. 4566-1.06, Subsec. (c) (part).)
Sec. 402.105. SUBCOMMITTEES. From its members the committee may appoint subcommittees to consider matters referred by the committee pertaining to the enforcement of this chapter. The subcommittees shall make recommendations to the committee. (V.A.C.S. Art. 4566-1.04, Subsec. (b).)
Sec. 402.106. FEES AND EXPENSES. (a) The committee by rule shall adopt fees in amounts reasonable and necessary so that the fees, in the aggregate, produce sufficient revenue to cover the costs of administering this chapter.
(b) The committee may adopt:
(1) a license fee;
(2) a license renewal fee;
(3) an examination fee;
(4) a temporary training permit fee;
(5) an apprentice permit fee;
(6) a duplicate document fee; and
(7) other fees as necessary to administer this chapter. (V.A.C.S. Art. 4566-1.12, Subsec. (a).)
[Sections 402.107-402.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 402.151. PUBLIC INTEREST INFORMATION. (a) The committee shall prepare information of consumer interest describing the regulatory functions of the committee and the committee's procedures by which consumer complaints are filed with and resolved by the committee.
(b) The committee shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4566-1.12B, Subsec. (a).)
Sec. 402.152. COMPLAINTS. (a) Each license or permit holder under this chapter shall at all times prominently display in the person's place of business a sign containing:
(1) the name, mailing address, and telephone number of the committee; and
(2) a statement informing consumers that a complaint against a license or permit holder may be directed to the committee.
(b) Each written contract for services in this state of a licensed hearing instrument dispenser must contain the committee's name, mailing address, and telephone number. (V.A.C.S. Art. 4566-1.12B, Subsec. (b).)
Sec. 402.153. RECORDS OF COMPLAINTS. (a) The committee shall keep an information file about each complaint filed with the committee relating to a license or permit holder.
(b) If a written complaint is filed with the committee relating to a license or permit holder, the committee, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4566-1.12B, Subsec. (d).)
[Sections 402.154-402.200 reserved for expansion]
SUBCHAPTER E. LICENSE AND PERMIT REQUIREMENTS
Sec. 402.201. LICENSE OR PERMIT REQUIRED. A person may not represent that the person is authorized to fit and dispense hearing instruments, or use in connection with the person's name any designation tending to imply that the person is authorized to engage in the fitting and dispensing of hearing instruments, unless the person holds a license or is otherwise authorized to do so under this chapter. (V.A.C.S. Art. 4566-1.15, Subsec. (a) (part).)
Sec. 402.202. EXAMINATION REQUIRED. (a) To engage in fitting and dispensing hearing instruments in this state a person must pass an examination given by the committee.
(b) A person licensed under Chapter 401 as an audiologist or an audiology intern is exempt from the examination required under this chapter. (V.A.C.S. Art. 4566-1.06, Subsecs. (a), (h).)
Sec. 402.203. APPLICATION FOR EXAMINATION. (a) An applicant for examination must:
(1) apply to the committee on a form provided by the committee;
(2) provide on the form:
(A) sworn evidence that the applicant has attained the age of majority and has graduated from an accredited high school or equivalent; and
(B) other information determined necessary by the committee; and
(3) pay any required fees for application and examination.
(b) A permit holder may not take the examination until the satisfactory completion of the requirements of Subchapter F by the supervisor and permit holder is verified.
(c) The committee may refuse to examine an applicant who has been convicted of a misdemeanor that involves moral turpitude or a felony. (V.A.C.S. Arts. 4566-1.06, Subsecs. (b), (f); 4566-1.09, Subsec. (g).)
Sec. 402.204. CONTENTS OF EXAMINATION. (a) The examination must consist of written, oral, or practical tests that are objective in method and applied in a consistent manner.
(b) The examination must cover the following subjects as they relate to the fitting and dispensing of hearing instruments:
(1) basic physics of sound;
(2) structure and function of hearing instruments;
(3) fitting of hearing instruments;
(4) pure tone audiometry, including air conduction testing and bone conduction testing;
(5) live voice and recorded voice speech audiometry;
(6) masking when indicated for air conduction, bone conduction, and speech;
(7) recording and evaluation of audiograms and speech audiometry to determine the hearing instrument candidacy;
(8) selection and adaptation of hearing instruments, testing of hearing instruments, and verification of aided hearing instrument performance;
(9) taking of earmold impressions;
(10) verification of hearing instrument fitting and functional gain measurements using a calibrated system;
(11) anatomy and physiology of the ear;
(12) counseling and aural rehabilitation of the hearing impaired for the purpose of fitting and dispensing hearing instruments;
(13) use of an otoscope for the visual observation of the entire ear canal; and
(14) laws, rules, and regulations of this state and the United States.
(c) The examination may not test knowledge of the diagnosis or treatment of any disease of or injury to the human body. (V.A.C.S. Art. 4566-1.06, Subsecs. (c) (part), (d).)
Sec. 402.205. EXAMINATION PROCEDURES. (a) The committee shall give each applicant due notice of the date and place of the examination and the subjects, areas, and skills that will be included in the examination. A change may not be made in those subjects, areas, and skills after the date of the examination has been announced and publicized.
(b) An examination shall be conducted in writing and by other means the committee determines adequate to ascertain the qualifications of applicants.
(c) On reexamination, an applicant who previously failed an examination may be examined only on those portions of the examination that the applicant failed.
(d) If requested in writing by a person who fails the licensing examination administered under this chapter, the committee shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4566-1.06, Subsecs. (e) (part), (g) (part).)
Sec. 402.206. NOTICE OF EXAMINATION RESULTS. (a) Not later than the 30th day after the examination date, the committee shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the committee shall notify each examinee of the results of the examination not later than the 14th day after the date the committee receives the results from the testing service.
(b) If the notice of the results of an examination graded or reviewed by a national testing service will not be given before the 91st day after the examination date, the committee shall notify each examinee of the reason for the delay before the 90th day. (V.A.C.S. Art. 4566-1.06, Subsec. (g) (part).)
Sec. 402.207. ISSUANCE OF APPRENTICE PERMIT. (a) The committee shall issue an apprentice permit to fit and dispense hearing instruments to a temporary training permit holder who has:
(1) passed all parts of the examination with a score of 70 percent or greater;
(2) paid the required fees; and
(3) met all requirements of this chapter.
(b) An apprentice permit is valid for one year. The committee may extend the apprentice permit for an additional period not to exceed six months.
(c) An apprentice permit holder shall work under the supervision of a licensed hearing instrument dispenser for at least one year. During the apprentice year, the apprentice permit holder shall complete 18 hours of classroom continuing education in subjects required by the committee. (V.A.C.S. Arts. 4566-1.06, Subsec. (e) (part); 4566-1.09A, Subsecs. (a), (b).)
Sec. 402.208. ISSUANCE OF LICENSE. The committee shall issue a hearing instrument dispenser's license to an apprentice permit holder when the committee has received sufficient evidence that the apprentice permit holder has met all the licensing requirements of this chapter. (V.A.C.S. Art. 4566-1.09A, Subsec. (c).)
Sec. 402.209. LICENSING BY RECIPROCITY. (a) On application, the committee shall waive the examination requirement and issue a license under this chapter to a license holder from another state or territory whose licensing requirements are equal to or greater than the licensing requirements of this chapter.
(b) An application for a license under this section must:
(1) be in writing and on a form prescribed by the committee;
(2) be accompanied by documentation showing that the state, territory, or other authority under which the applicant was practicing has minimum requirements equal to or greater than the requirements of this chapter; and
(3) be filed with the committee.
(c) In addition to any other documentation required by the committee, the committee shall request all written records regarding the applicant from the state, territory, or other authority under which the applicant was practicing, including:
(1) a copy of the written examination;
(2) the practicum examination;
(3) the outline of the oral examination; and
(4) any other information necessary for the committee's decision. (V.A.C.S. Art. 4566-1.08.)
[Sections 402.210-402.250 reserved for expansion]
SUBCHAPTER F. TEMPORARY TRAINING PERMIT
Sec. 402.251. TEMPORARY TRAINING PERMIT QUALIFICATIONS. The committee shall issue a temporary training permit to a person who:
(1) has never taken the examination administered under this chapter;
(2) possesses the qualifications required under Section 402.203(a);
(3) submits a written application on a form provided by the committee furnishing sworn evidence that the applicant:
(A) satisfies the requirements of Subdivisions (1) and (2); and
(B) has never held a temporary training permit in this state; and
(4) pays the temporary training permit fee. (V.A.C.S. Art. 4566-1.09, Subsec. (a)(1).)
Sec. 402.252. SUPERVISION AFFIDAVIT. (a) An application for a temporary training permit must be accompanied by the affidavit of a person licensed to fit and dispense hearing instruments in this state.
(b) The affidavit must state that:
(1) the applicant, if granted a temporary training permit, will be supervised by the affiant in all work done by the applicant under the temporary training permit; and
(2) the affiant will notify the committee not later than the 10th day after the date of the applicant's termination of supervision by the affiant. (V.A.C.S. Art. 4566-1.09, Subsec. (b).)
Sec. 402.253. EXPIRATION OF TEMPORARY TRAINING PERMIT. (a) A temporary training permit authorizes the permit holder to fit and dispense hearing instruments until the earlier of:
(1) the date the permit expires; or
(2) the date the permit holder passes the examination required for a license under this chapter.
(b) A temporary training permit automatically expires on the first anniversary of the date of issuance unless the committee extends the permit for an additional period not to exceed six months.
(c) The committee may not extend a temporary training permit more than once. (V.A.C.S. Art. 4566-1.09, Subsecs. (c), (d).)
Sec. 402.254. GUIDELINES FOR TRAINING OF TEMPORARY TRAINING PERMIT HOLDERS. (a) The committee shall establish formal and practical education guidelines for the training of temporary training permit holders.
(b) The guidelines must include directions to the supervisor about:
(1) the subject matter to be taught;
(2) the length of the training;
(3) the extent of a temporary training permit holder's contact with the public; and
(4) the responsibility of the supervisor for direct and indirect supervision of all aspects of the training.
(c) The training period begins on the date of issuance of the temporary permit. A temporary training permit holder must complete at least 150 hours of directly supervised practicum that includes:
(1) 25 contact hours of pure tone air conduction, bone conduction, and speech audiometry, recorded and live voice, with 15 of the required hours being with actual clients;
(2) 25 client contact hours of hearing instrument evaluations, including sound-field measurements with recorded and live voice;
(3) 20 contact hours of instrument fittings with actual clients;
(4) 10 contact hours of earmold orientation types, uses, and terminology;
(5) five contact hours of earmold impressions and otoscopic examinations of the ear;
(6) 15 contact hours of troubleshooting of defective hearing instruments;
(7) 20 contact hours of case history with actual clients;
(8) 10 contact hours regarding the laws governing the licensing of persons fitting and dispensing hearing instruments and federal Food and Drug Administration and Federal Trade Commission regulations relating to the fitting and dispensing of hearing instruments; and
(9) 20 contact hours of supplemental work in one or more of the areas described by Subdivisions (1) through (8).
(d) A contact hour consists of 55 minutes.
(e) On completion of the directly supervised practicum required under Subsection (c), the temporary training permit holder shall complete the permit holder's training under the indirect supervision of the permit holder's supervisor. (V.A.C.S. Arts. 4566-1.01, Subdiv. (15); 4566-1.09, Subsecs. (e), (f).)
Sec. 402.255. SUPERVISOR REQUIREMENTS. (a) A supervisor of a temporary training permit holder must be a licensed hearing instrument dispenser having the qualifications established by this chapter and:
(1) have an established place of business; and
(2) be responsible for the direct supervision and education of a temporary training permit holder.
(b) A supervisor as appropriate shall directly and indirectly supervise a temporary training permit holder. A supervisor shall provide direct supervision by being located on the premises and available to the temporary training permit holder for prompt consultation. A supervisor shall provide indirect supervision by reviewing daily a temporary training permit holder's patient contact and daily work.
(c) A supervisor shall:
(1) be responsible for day-to-day supervision of the temporary training permit holder and be ultimately responsible for the service to a client treated by the permit holder;
(2) provide to the permit holder materials and equipment necessary for appropriate audiometric and hearing instrument evaluation and fitting procedures;
(3) supplement the permit holder's background information with reading lists and other references;
(4) conduct in-service training for the permit holder;
(5) act as a consultant to the permit holder by providing time for conferences for the permit holder and providing a variety of resource materials, approaches, and techniques that are based on sound theory, successful practice, or documented research;
(6) establish goals with the permit holder that are realistic, easily understandable, and directed toward the successful completion of the training requirements;
(7) observe the permit holder during the practicum, confer with the permit holder after the permit holder's contact with clients, and provide an opportunity for comment on the practicum experience in writing or through conferences, during and after the practicum experience;
(8) establish that the supervisor is solely responsible for the practicum and daily supervision of the permit holder;
(9) assist and encourage the permit holder's use of supportive professional sources;
(10) know and adhere to state and federal laws relating to hearing instrument fitting and dispensing; and
(11) assist the permit holder in fulfilling licensing requirements of this chapter.
(d) The supervisor shall maintain a log of the contact hours by practicum category on a form provided by the committee. After the temporary training permit holder has completed 150 contact hours, the supervisor and the permit holder shall sign the form, and the form shall be notarized and mailed to the committee.
(e) A supervisor may not supervise more than two temporary training permit holders at one time. (V.A.C.S. Arts. 4566-1.01, Subsecs. (12), (13), (14); 4566-1.09, Subsecs. (h), (i).)
Sec. 402.256. AUTHORITY OF TEMPORARY TRAINING PERMIT HOLDER. (a) A temporary training permit holder may provide routine fitting and dispensing of hearing instruments that has been ordered by the supervisor. The supervisor is the sole judge of whether the permit holder has the qualifications necessary to perform routine fitting and dispensing. A supervisor is accountable to the committee for the actions and misdeeds of a temporary training permit holder acting at the supervisor's discretion.
(b) A temporary training permit holder may not:
(1) own, manage, or independently operate a business that engages in the fitting or sale of hearing instruments; or
(2) advertise or otherwise represent that the permit holder holds a license as a hearing instrument dispenser. (V.A.C.S. Art. 4566-1.09, Subsecs. (j), (l).)
Sec. 402.257. TRANSFER TO ANOTHER SUPERVISOR. (a) On the request of a supervisor or temporary training permit holder, the committee may approve a transfer of a permit holder from the permit holder's supervisor to another eligible supervisor before completion of the training.
(b) The committee must act on a transfer request at the first committee meeting held after the date the request is made.
(c) The committee may approve a second transfer request before completion of the training only under exceptional circumstances. The committee may not approve more than two transfers.
(d) If a transfer is approved, credit may be transferred at the discretion of the committee. (V.A.C.S. Art. 4566-1.09, Subsec. (k).)
[Sections 402.258-402.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 402.301. LICENSE RENEWAL. (a) A license under this chapter is valid for one year. The committee shall renew the license annually on payment of the renewal fee unless the license is suspended or revoked.
(b) The committee may adopt a system under which licenses expire on various dates during the year. For a year in which the expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only the portion of the license fee that is applicable to the number of months the license is valid.
(c) A person may renew an unexpired license by paying the required renewal fee to the committee before the expiration date of the license.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the committee the required renewal fee and a fee that is equal to half of the amount of the examination fee for the license. If a person's license has been expired for more than 90 days but less than two years, the person may renew the license by paying to the committee all unpaid renewal fees and a fee that is equal to the amount of the examination fee for the license.
(e) A person whose license has been expired for two years or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4566-1.13, Subsecs. (a), (b), (c), (d), (e).)
Sec. 402.302. CERTIFICATION OF TESTING EQUIPMENT. The committee may not renew a license unless the license holder provides certification that all portable and stationary testing equipment used by the license holder has been calibrated within one year before the renewal date. (V.A.C.S. Art. 4566-1.13, Subsec. (f).)
Sec. 402.303. CONTINUING EDUCATION. (a) The committee by rule shall adopt requirements for the continuing education of a license holder, including a requirement that a license holder complete 20 hours of continuing education each year. For purposes of this requirement, each year runs concurrently with the effective date of a license issued under this chapter. The committee may not renew a license unless the license holder demonstrates compliance with the continuing education requirements established by the committee.
(b) A license holder shall provide written proof of attendance and completion of an approved course on a form prescribed by the committee.
(c) The committee may waive compliance with the continuing education requirement for license renewal for a license holder who provides evidence of hardship or inability to meet the requirement. The waiver may be granted after review by the committee on an annual basis.
(d) The committee must provide a list of approved continuing education sponsors, designated by the committee. The list must be revised and updated periodically. Any continuing education activity must be provided by an approved sponsor. The committee shall approve at least five hours of specific courses each year.
(e) A license holder may not receive more than five continuing education credit hours for attendance at a course sponsored by a manufacturer.
(f) A course summary and resume for each teacher of a course seeking approval from the committee must be submitted at least 30 days before the date the course is scheduled to take place. The committee shall establish criteria for the approval of submitted courses. (V.A.C.S. Arts. 4566-1.04, Subsec. (g); 4566-1.13, Subsec. (g) (part); 4566-1.14A, Subsecs. (a), (b), (e), (g), (h).)
Sec. 402.304. ALTERNATIVES TO CONTINUING EDUCATION REQUIREMENT. (a) On written request to the committee, a license holder may take the state examination given by the committee. A license holder who pays the examination fee and passes the examination is exempt from the continuing education requirement for the year in which the test is taken.
(b) A license holder may be credited with continuing education credit hours for a published book or article written by the license holder that contributes to the license holder's professional competence. The continuing education committee may grant credit hours based on the degree to which the published book or article advances knowledge regarding the fitting and dispensing of hearing instruments. A license holder may claim in an annual reporting period not more than five credit hours for preparation of a publication. (V.A.C.S. Arts. 4566-1.13, Subsec. (g) (part); 4566-1.14A, Subsecs. (c), (d).)
Sec. 402.305. CONTINUING EDUCATION EXEMPTIONS. The committee may renew the license of a license holder who does not comply with the continuing education requirements of Sections 402.303 or 402.304 if the license holder:
(1) was licensed for the first time during the 12 months before the annual reporting date;
(2) has served in the regular armed forces of the United States during part of the 12 months before the annual reporting date; or
(3) submits proof from an attending physician that the license holder suffered a serious or disabling illness or physical disability that prevented compliance with the continuing education requirements during the 12 months before the annual reporting date. (V.A.C.S. Art. 4566-1.14A, Subsec. (f).)
Sec. 402.306. DUPLICATE LICENSE. The committee shall issue a duplicate license to a license holder whose license has been lost or destroyed. The committee may prescribe the procedure and requirements for issuance of a duplicate license. (V.A.C.S. Art. 4566-1.13, Subsec. (i).)
[Sections 402.307-402.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 402.351. DISPLAY OF LICENSE. A person engaged in fitting and dispensing hearing instruments shall display the person's license in a conspicuous place in the person's principal office and, when required, shall exhibit the license to the committee or its authorized representative. (V.A.C.S. Art. 4566-1.14, Subsec. (a).)
Sec. 402.352. INFORMATION ON PROSPECTIVE AMPLIFICATION CANDIDATES. A license holder shall try to obtain, personally or through a proper referral, at least the following information on each prospective candidate for amplification:
(1) the candidate's pertinent case history;
(2) otoscopic inspection of the outer ear, including canal and drumhead;
(3) evaluation of hearing acuity using pure tone techniques through air and bone conduction pathways through a calibrated system;
(4) an aided and unaided speech reception threshold and ability to differentiate between the phonemic elements of language through speech audiometry, using a calibrated system or other acceptable verification techniques; and
(5) verification of satisfactory aided instrument performance by use of appropriate sound-field speech, noise, or tone testing, using a calibrated system. (V.A.C.S. Art. 4566-1.14, Subsec. (c).)
Sec. 402.353. SOUND-LEVEL MEASUREMENTS. (a) If audiometric testing is not conducted in a stationary acoustical enclosure, sound-level measurements must be conducted at the time of the testing to ensure that ambient noise levels meet permissible standards for testing threshold to 20 dB based on the most current American National Standards Institute "ears covered" octave band criteria for Permissible Ambient Noise Levels During Audiometric Testing.
(b) A dBA equivalent level may be used to determine compliance.
(c) The committee shall adopt rules necessary to enforce this section. (V.A.C.S. Art. 4566-1.14, Subsec. (e).)
[Sections 402.354-402.400 reserved for expansion]
SUBCHAPTER I. GENERAL BUSINESS REGULATIONS
Sec. 402.401. TRIAL PERIOD. The committee shall establish guidelines for a 30-day trial period during which a person may cancel the purchase of a hearing instrument. (V.A.C.S. Arts. 4566-1.01, Subdiv. (7); 4566-1.12B, Subsec. (c).)
Sec. 402.402. SALE TO MINOR. (a) A licensed hearing instrument fitter and dispenser may not sell a hearing instrument to a person under 18 years of age unless the prospective user or a parent or guardian of the prospective user has presented to the hearing instrument fitter and dispenser a written statement, signed by a licensed physician specializing in diseases of the ear, that states that the patient's hearing loss has been medically evaluated and that the patient may be considered a candidate for a hearing instrument.
(b) The physician's evaluation must have taken place within the preceding six months. (V.A.C.S. Art. 4566-1.14, Subsec. (d).)
Sec. 402.403. BILL OF SALE. (a) A license holder shall provide a bill of sale to each person supplied with a hearing instrument by the license holder or under the license holder's direction.
(b) The bill of sale must contain:
(1) the license holder's signature;
(2) the license holder's printed name;
(3) the address of the license holder's principal office;
(4) the license holder's license number;
(5) a description of the make and model of the hearing instrument;
(6) the amount charged for the hearing instrument; and
(7) a statement of whether the hearing instrument is new, used, or rebuilt. (V.A.C.S. Art. 4566-1.14, Subsec. (b).)
Sec. 402.404. SURETY BONDING. (a) A sole proprietor, partnership, corporation, or other legal entity engaged in the fitting and dispensing of hearing instruments shall file with the committee security in a form provided by Subsection (b) in the amount of $10,000 and conditioned on the promise to pay all:
(1) taxes and contributions owed to the state and political subdivisions of the state by the entity; and
(2) judgments that the entity may be required to pay for:
(A) negligently or improperly dispensing hearing instruments; or
(B) breaching a contract relating to the dispensing of hearing instruments.
(b) The security may be a bond, a cash deposit, or another negotiable security acceptable to the committee.
(c) A bond required by this section remains in effect until canceled by action of the surety, the principal, or the committee. A person must take action on the bond not later than the third anniversary of the date the bond is canceled. (V.A.C.S. Art. 4566-1.16A, Subsecs. (a), (b), (c).)
Sec. 402.405. RECOVERY ON SURETY BOND. The purchaser of a hearing instrument may rescind the purchase and recover as provided by Section 402.404 for:
(1) a material misstatement of fact or misrepresentation by a license holder employed by an entity subject to Section 402.404 regarding the instrument or services to be provided by the license holder that was relied on by the purchaser or that induced the purchaser to purchase the instrument;
(2) the failure by the entity subject to Section 402.404 to provide the purchaser with an instrument or with fitting and dispensing services that conform to the specifications of the purchase agreement;
(3) the diagnosis of a medical condition unknown to the purchaser at the time of the purchase that precludes the purchaser's use of the instrument;
(4) the failure by the entity subject to Section 402.404 to remedy a significant material defect of the instrument within a reasonable time;
(5) the provision by the entity subject to Section 402.404 of fitting and dispensing services that are not in accordance with accepted industry practices; or
(6) the failure by a license holder employed by the entity subject to Section 402.404 to meet the standards of conduct prescribed by this chapter or under rules adopted under this chapter that adversely affects the transactions between the purchaser and the license holder or the entity subject to Section 402.404. (V.A.C.S. Art. 4566-1.16A, Subsec. (d).)
Sec. 402.406. OWNERSHIP OF DISPENSING PRACTICE. (a) A person who owns, maintains, or operates an office or place of business in which the person employs or engages under contract a person who practices the fitting and dispensing of hearing instruments is considered to be practicing the fitting and dispensing of hearing instruments under this chapter and is required to be licensed under this chapter or licensed as an audiologist under Chapter 401.
(b) If the person who owns, maintains, or operates an office or place of business under this section is a partnership, each partner must be licensed as provided by this section. If the person who owns, maintains, or operates an office or place of business under this section is a corporation or other legal entity, the chief executive officer of the corporation or entity must be licensed as provided by this section. (V.A.C.S. Art. 4566-1.16B.)
[Sections 402.407-402.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES
Sec. 402.451. PROHIBITED ACTS. (a) A person may not:
(1) buy, sell, or fraudulently obtain a license or aid another person to do so;
(2) alter a license with the intent to defraud;
(3) wilfully make a false statement in an application to the committee for a license, a temporary training permit, or the renewal of a license;
(4) falsely impersonate a license holder;
(5) engage in the fitting and dispensing of hearing instruments when the person's license is suspended or revoked;
(6) dispense or fit a hearing instrument on a person who has ordered the hearing instrument or device by mail unless the person dispensing or fitting is a license holder under this chapter or under Chapter 401; or
(7) sell a hearing instrument by mail.
(b) A license or permit holder may not:
(1) solicit a potential customer by telephone unless the license or permit holder clearly discloses the holder's name and business address and the purpose of the communication;
(2) use or purchase for use a list of names of potential customers compiled by telephone by a person other than the license or permit holder, the license or permit holder's authorized agent, or another license or permit holder; or
(3) perform any act that requires a license from the Texas Optometry Board or the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4566-1.15(a) (part); (c).)
Sec. 402.452. INVESTIGATION BY BOARD. The board, with the aid of the department, shall investigate a person who violates this chapter. (V.A.C.S. Art. 4566-1.04, Subsec. (e).)
Sec. 402.453. TREATMENT OF EAR DEFECTS; ADMINISTRATION OF DRUGS. (a) A license holder may not treat the ear in any manner for any defect or administer any drug or physical treatment unless the license holder is a physician licensed to practice by the Texas State Board of Medical Examiners.
(b) This chapter does not affect a law regulating the practice of medicine as defined by Subtitle B. (V.A.C.S. Art. 4566-1.17.)
[Sections 402.454-402.500 reserved for expansion]
SUBCHAPTER K. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 402.501. GROUNDS FOR LICENSE DENIAL AND DISCIPLINARY ACTION. The committee may refuse to issue or renew a license, revoke or suspend a license or permit, place on probation a person whose license or permit has been suspended, or reprimand a license or permit holder who:
(1) makes a material misstatement in furnishing information to the committee or to another state or federal agency;
(2) violates this chapter or a rule adopted under this chapter;
(3) is convicted of a felony or misdemeanor that includes dishonesty as an essential element or of a crime directly related to the practice of fitting and dispensing hearing instruments;
(4) makes a misrepresentation for the purpose of obtaining or renewing a license, including falsifying the educational requirements under this chapter;
(5) is professionally incompetent or engages in malpractice or dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public;
(6) aids or assists another person in violating this chapter or a rule adopted under this chapter;
(7) does not provide information in response to a written request made by the board within 60 days;
(8) directly or indirectly knowingly employs, hires, procures, or induces a person not licensed under this chapter to fit and dispense hearing instruments unless the person is exempt under this chapter;
(9) aids a person not licensed under this chapter in the fitting or dispensing of hearing instruments unless the person is exempt under this chapter;
(10) is habitually intoxicated or addicted to a controlled substance;
(11) directly or indirectly gives to or receives from a person a fee, commission, rebate, or other form of compensation for a service not actually provided;
(12) violates a term of probation;
(13) wilfully makes or files a false record or report;
(14) has a physical illness that results in the inability to practice the profession with reasonable judgment, skill, or safety, including the deterioration or loss of motor skills through aging;
(15) solicits a service by advertising that is false or misleading;
(16) participates in subterfuge or misrepresentation in the fitting or dispensing of a hearing instrument;
(17) knowingly advertises for sale a model or type of hearing instrument that cannot be purchased;
(18) falsely represents that the service of a licensed physician or other health professional will be used or made available in the fitting, adjustment, maintenance, or repair of a hearing instrument;
(19) uses "doctor," "audiologist," "clinic," "clinical audiologist," "state licensed," "state certified," "licensed hearing instrument dispenser," "board certified hearing instrument specialist," "hearing instrument specialist," "certified hearing aid audiologist," or any other term, abbreviation, or symbol that falsely gives the impression that:
(A) a service is being provided by a person who is licensed or has been awarded a degree or title; or
(B) the person providing a service has been recommended by a government agency or health provider;
(20) advertises a manufacturer's product or uses a manufacturer's name or trademark in a way that implies a relationship between a license or permit holder and a manufacturer that does not exist;
(21) directly or indirectly gives or offers to give, or permits or causes to be given, money or another thing of value to a person who advises others in a professional capacity as an inducement to influence the person to influence the others to:
(A) purchase or contract to purchase products sold or offered for sale by the license or permit holder; or
(B) refrain from purchasing or contracting to purchase products sold or offered for sale by another license or permit holder under this chapter;
(22) with fraudulent intent fits and dispenses a hearing instrument under any name, including a false name or alias;
(23) does not adequately provide for the service or repair of a hearing instrument fitted and sold by the license holder; or
(24) violates a regulation of the federal Food and Drug Administration or the Federal Trade Commission relating to hearing instruments. (V.A.C.S. Art. 4566-1.10.)
Sec. 402.502. ADMINISTRATIVE PROCEDURE. (a) If the committee proposes to refuse a person's application for examination, to suspend or revoke a person's license or permit, or to place on probation or reprimand a person, the person is entitled to a hearing before the committee.
(b) A proceeding is begun by filing written charges with the committee under oath. The charges may be made by any person.
(c) Proceedings under this subchapter are subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4566-1.11, Subsecs. (a), (b), (c).)
Sec. 402.503. REISSUANCE OF LICENSE. On application, the committee may reissue a license to a person whose license has been revoked. The application may not be made before the expiration of six months after the date the order of revocation becomes final. The application shall be made in the manner and form required by the committee. (V.A.C.S. Art. 4566-1.11, Subsec. (d).)
[Sections 402.504-402.550 reserved for expansion]
SUBCHAPTER L. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
Sec. 402.551. ADMINISTRATIVE PENALTY. (a) The committee, with the board's approval, may impose an administrative penalty on a person described in this chapter for a violation of this chapter or a rule adopted under this chapter.
(b) The amount of the administrative penalty may not exceed $250 plus costs for the first violation and $1,000 plus costs for each subsequent violation.
(c) The administrative penalty may be imposed as an alternative to any other disciplinary measure, except for the placement of a license or permit holder on probation. (V.A.C.S. Art. 4566-1.16, Subsec. (a).)
Sec. 402.552. INJUNCTION. The committee may apply to a district court of any county for an injunction or other order to restrain conduct by a person, other than a license holder, who has engaged in any act that is an offense under this chapter. (V.A.C.S. Art. 4566-1.16, Subsec. (b).)
[Chapters 403-450 reserved for expansion]
SUBTITLE H. PROFESSIONS RELATED TO CERTAIN
TYPES OF THERAPY
CHAPTER 451. ATHLETIC TRAINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 451.001. DEFINITIONS
Sec. 451.002. INTERPRETATION; PRACTICE OF MEDICINE
Sec. 451.003. APPLICABILITY
[Sections 451.004-451.050 reserved for expansion]
SUBCHAPTER B. ADVISORY BOARD OF ATHLETIC TRAINERS
Sec. 451.051. BOARD; MEMBERSHIP
Sec. 451.052. OFFICIAL OATH
Sec. 451.053. TERMS; VACANCY
Sec. 451.054. COMPENSATION
Sec. 451.055. OFFICERS
Sec. 451.056. MEETINGS
[Sections 451.057-451.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 451.101. GENERAL POWERS AND DUTIES
Sec. 451.102. EXECUTIVE SECRETARY AND EMPLOYEES
Sec. 451.103. RULES
Sec. 451.104. RECORDS
Sec. 451.105. EXPENDITURES
Sec. 451.106. FEES
Sec. 451.107. ANNUAL REPORT
[Sections 451.108-451.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 451.151. LICENSE REQUIRED
Sec. 451.152. LICENSE APPLICATION
Sec. 451.153. APPLICANT QUALIFICATIONS
Sec. 451.154. OUT-OF-STATE LICENSE APPLICANTS
Sec. 451.155. EXAMINATION RESULTS
Sec. 451.156. REQUIREMENTS FOR LICENSE ISSUANCE
Sec. 451.157. TEMPORARY LICENSE
[Sections 451.158-451.200 reserved for expansion]
SUBCHAPTER E. LICENSE RENEWAL
Sec. 451.201. LICENSE EXPIRATION
Sec. 451.202. LICENSE RENEWAL
Sec. 451.203. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
[Sections 451.204-451.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEDURES
Sec. 451.251. GROUNDS FOR DENIAL OF LICENSE OR DISCIPLINARY
ACTION
Sec. 451.252. ADMINISTRATIVE HEARING
Sec. 451.253. AUTHORITY TO ISSUE SUBPOENA
Sec. 451.254. ADMINISTRATIVE PROCEDURE
[Sections 451.255-451.300 reserved for expansion]
SUBCHAPTER G. PENALTIES
Sec. 451.301. CRIMINAL PENALTY
CHAPTER 451. ATHLETIC TRAINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 451.001. DEFINITIONS. In this chapter:
(1) "Athletic trainer" means a person who, on the advice and consent of the team physician, practices the prevention or physical rehabilitation of injuries to athletes through the use of physical modalities, including heat, light, sound, cold, electricity, or mechanical devices related to rehabilitation and treatment.
(2) "Board" means the Advisory Board of Athletic Trainers.
(3) "Department" means the Texas Department of Health. (V.A.C.S. Art. 4512d, Secs. 1(1), (2); New.)
Sec. 451.002. INTERPRETATION; PRACTICE OF MEDICINE. This chapter does not authorize the practice of medicine by a person not licensed by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4512d, Sec. 1(3).)
Sec. 451.003. APPLICABILITY. This chapter does not apply to:
(1) a physician licensed by the Texas State Board of Medical Examiners;
(2) a dentist, licensed under the laws of this state, engaged in the practice of dentistry;
(3) a licensed optometrist or therapeutic optometrist engaged in the practice of optometry or therapeutic optometry as defined by statute;
(4) an occupational therapist engaged in the practice of occupational therapy;
(5) a nurse engaged in the practice of nursing;
(6) a licensed podiatrist engaged in the practice of podiatry as defined by statute;
(7) a physical therapist engaged in the practice of physical therapy;
(8) a massage therapist engaged in the practice of massage therapy; or
(9) a commissioned or contract physician, physical therapist, or physical therapist assistant in the United States Army, Navy, Air Force, or Public Health Service. (V.A.C.S. Art. 4512d, Sec. 1(4).)
[Sections 451.004-451.050 reserved for expansion]
SUBCHAPTER B. ADVISORY BOARD OF ATHLETIC TRAINERS
Sec. 451.051. BOARD; MEMBERSHIP. (a) The Advisory Board of Athletic Trainers is a part of the department and shall perform its duties as a board within the department.
(b) The board consists of six members appointed by the governor with the advice and consent of the senate.
(c) Each member of the board must be:
(1) a citizen of the United States and a resident of this state for the five years preceding appointment; and
(2) a licensed athletic trainer. (V.A.C.S. Art. 4512d, Secs. 2(a), (b) (part).)
Sec. 451.052. OFFICIAL OATH. A person appointed to the board shall take the constitutional oath of office not later than the 15th day after the date of appointment. On presentation of the oath, the secretary of state shall issue a commission to the appointee as evidence of the appointee's authority to act as a member of the board. (V.A.C.S. Art. 4512d, Sec. 2(c).)
Sec. 451.053. TERMS; VACANCY. (a) Board members serve staggered six-year terms with the terms of two members expiring on January 31 of each odd-numbered year.
(b) If a vacancy occurs on the board, the governor shall appoint a successor to serve for the unexpired portion of the term. (V.A.C.S. Art. 4512d, Secs. 2(b) (part), (d).)
Sec. 451.054. COMPENSATION. A member or employee of the board is entitled to compensation and reimbursement of travel expenses incurred by the member or employee as provided by the General Appropriations Act. (V.A.C.S. Art. 4512d, Sec. 6.)
Sec. 451.055. OFFICERS. (a) The board shall elect a presiding officer, vice presiding officer, and secretary-treasurer from its members. The presiding officer, vice presiding officer, and secretary-treasurer serve a one-year term.
(b) Before taking office, the secretary-treasurer of the board must give bond for the performance of the secretary-treasurer's duties in an amount determined by the board. The premium on the bond shall be paid from available board funds. (V.A.C.S. Art. 4512d, Secs. 3(a) (part), 5(f), (h) (part).)
Sec. 451.056. MEETINGS. The board shall meet at least twice a year. The board may hold additional meetings on the call of the presiding officer or at the written request of any three members of the board. (V.A.C.S. Art. 4512d, Sec. 3(b).)
[Sections 451.057-451.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 451.101. GENERAL POWERS AND DUTIES. (a) The board shall:
(1) establish guidelines for athletic trainers, including requirements for continuing education;
(2) adopt an official seal;
(3) prescribe the application form for a license applicant;
(4) prescribe a suitable form for a license certificate; and
(5) prepare and conduct an examination for license applicants.
(b) The board shall have suitable office space to:
(1) administer this chapter; and
(2) maintain permanent records.
(c) The board may appoint committees that the board considers necessary to carry out its duties. (V.A.C.S. Art. 4512d, Secs. 3(a) (part), 5(b), (c), (e).)
Sec. 451.102. EXECUTIVE SECRETARY AND EMPLOYEES. The board may employ an executive secretary and other personnel necessary to administer this chapter. The executive secretary has the duties and responsibilities determined by the board. (V.A.C.S. Art. 4512d, Sec. 5(d).)
Sec. 451.103. RULES. The board may adopt rules necessary for the performance of its duties. (V.A.C.S. Art. 4512d, Sec. 5(a).)
Sec. 451.104. RECORDS. (a) The board shall:
(1) keep a record of its proceedings in a book kept for that purpose;
(2) maintain a complete record of all licensed athletic trainers; and
(3) annually prepare a roster showing the names and addresses of all licensed athletic trainers.
(b) The board shall make a copy of the roster available to any person requesting it on payment of a fee established by the board in an amount sufficient to cover the cost of the roster. (V.A.C.S. Art. 4512d, Sec. 4.)
Sec. 451.105. EXPENDITURES. (a) The department may expend funds appropriated to it to administer this chapter.
(b) The board may authorize all necessary expenditures to administer this chapter, including expenditures for:
(1) stationery;
(2) equipment; and
(3) facilities. (V.A.C.S. Art. 4512d, Secs. 2A, 5(h) (part).)
Sec. 451.106. FEES. After consultation with the commissioner of public health or the department, the board by rule shall set fees under this chapter in amounts reasonable and necessary to cover the cost of administering this chapter. (V.A.C.S. Art. 4512d, Sec. 7(a).)
Sec. 451.107. ANNUAL REPORT. (a) The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board or the department during the preceding fiscal year.
(b) The annual report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4512d, Sec. 7(c).)
[Sections 451.108-451.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 451.151. LICENSE REQUIRED. A person may not hold the person out as an athletic trainer or perform any activity of an athletic trainer unless the person holds a license under this chapter. (V.A.C.S. Art. 4512d, Sec. 8.)
Sec. 451.152. LICENSE APPLICATION. An applicant for an athletic trainer license must submit to the board:
(1) an application on a form prescribed by the board; and
(2) the required examination fee. (V.A.C.S. Art. 4512d, Sec. 10(a).)
Sec. 451.153. APPLICANT QUALIFICATIONS. (a) An applicant for an athletic trainer license must:
(1) have met the athletic training curriculum requirements of a college or university approved by the board and give proof of graduation;
(2) hold a degree or certificate in physical therapy and have completed:
(A) a basic athletic training course from an accredited college or university; and
(B) an apprenticeship described by Subsection (b); or
(3) have a degree in corrective therapy with at least a minor in physical education or health that includes a basic athletic training course and meet the apprenticeship requirement or any other requirement established by the board.
(b) The apprenticeship required to be completed by an applicant consists of 720 hours completed in two years under the direct supervision of a licensed athletic trainer acceptable to the board. Actual working hours include a minimum of 20 hours a week during each fall semester. (V.A.C.S. Art. 4512d, Sec. 9 (part).)
Sec. 451.154. OUT-OF-STATE LICENSE APPLICANTS. (a) An out-of-state applicant must:
(1) satisfy the requirements under Section 451.153; and
(2) submit proof of active engagement as an athletic trainer in this state as described by Subsection (b).
(b) A person is actively engaged as an athletic trainer if the person:
(1) is employed on a salary basis by an educational institution for the institution's school year or by a professional or other bona fide athletic organization for the athletic organization's season; and
(2) performs the duties of athletic trainer as the major responsibility of that employment. (V.A.C.S. Art. 4512d, Secs. 9 (part), 16(b).)
Sec. 451.155. EXAMINATION RESULTS. (a) Not later than the 30th day after the day on which a licensing examination is administered under this chapter, the board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the day on which the board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails a licensing examination administered under this chapter, the board shall furnish the person with an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512d, Sec. 10A.)
Sec. 451.156. REQUIREMENTS FOR LICENSE ISSUANCE. An applicant for an athletic trainer license is entitled to receive the license if the applicant:
(1) satisfies the requirements of Section 451.153 or 451.154;
(2) satisfactorily completes the examination administered by the board;
(3) pays the required license fee; and
(4) has not committed an act that constitutes grounds for refusal of a license under Section 451.251. (V.A.C.S. Art. 4512d, Sec. 10(b).)
Sec. 451.157. TEMPORARY LICENSE. (a) The board may issue a temporary license to an applicant if the applicant satisfies:
(1) the requirements of Section 451.153 or 451.154; and
(2) any other requirement established by the board.
(b) The board by rule shall prescribe the time during which a temporary license is valid. (V.A.C.S. Art. 4512d, Sec. 10(c).)
[Sections 451.158-451.200 reserved for expansion]
SUBCHAPTER E. LICENSE RENEWAL
Sec. 451.201. LICENSE EXPIRATION. (a) A license issued under Section 451.156 expires on the first anniversary of the date of issuance.
(b) The board by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, the license fee shall be prorated on a monthly basis so that a license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512d, Secs. 11(a), 11A.)
Sec. 451.202. LICENSE RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the board the renewal fee and a fee that is equal to half of the examination fee for the license.
(c) If the person's license has been expired for longer than 90 days but less than two years, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the examination fee for the license.
(d) If the person's license has been expired for two years or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(e) At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address. (V.A.C.S. Art. 4512d, Secs. 11(b), (c), (d), (e) (part), (f).)
Sec. 451.203. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without examination the expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee that is equal to the examination fee for the license. (V.A.C.S. Art. 4512d, Sec. 11(e) (part).)
[Sections 451.204-451.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEDURES
Sec. 451.251. GROUNDS FOR DENIAL OF LICENSE OR DISCIPLINARY ACTION. (a) The board may refuse to issue a license to an applicant or may suspend or revoke the person's license if the person:
(1) has been convicted of a misdemeanor involving moral turpitude or a felony;
(2) obtained the license by fraud or deceit; or
(3) violated or conspired to violate this chapter or a rule adopted under this chapter.
(b) For the purposes of Subsection (a)(1), the record of conviction is conclusive evidence of conviction. (V.A.C.S. Art. 4512d, Sec. 12.)
Sec. 451.252. ADMINISTRATIVE HEARING. A person whose application for a license or license renewal is denied is entitled to a hearing before the board in accordance with Chapter 2001, Government Code, if the person submits to the board a written request for a hearing not later than the 30th day after the day the license or license renewal is denied. (V.A.C.S. Art. 4512d, Sec. 13(a).)
Sec. 451.253. AUTHORITY TO ISSUE SUBPOENA. The board may issue a subpoena to compel a witness to testify or produce evidence in a proceeding to deny, revoke, or suspend a license. (V.A.C.S. Art. 4512d, Sec. 5(i).)
Sec. 451.254. ADMINISTRATIVE PROCEDURE. A proceeding to revoke or suspend a license and an appeal from the proceeding are governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512d, Sec. 13(b).)
[Sections 451.255-451.300 reserved for expansion]
SUBCHAPTER G. PENALTIES
Sec. 451.301. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200. (V.A.C.S. Art. 4512d, Sec. 15.)
CHAPTER 452. EXECUTIVE COUNCIL OF PHYSICAL THERAPY
AND OCCUPATIONAL THERAPY EXAMINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 452.001. DEFINITIONS
Sec. 452.002. APPLICATION OF SUNSET ACT
[Sections 452.003-452.050 reserved for expansion]
SUBCHAPTER B. EXECUTIVE COUNCIL OF PHYSICAL THERAPY
AND OCCUPATIONAL THERAPY EXAMINERS
Sec. 452.051. APPOINTMENT OF EXECUTIVE COUNCIL
Sec. 452.052. ELIGIBILITY OF PUBLIC MEMBER APPOINTED BY
GOVERNOR
Sec. 452.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 452.054. TERMS; VACANCY
Sec. 452.055. PRESIDING OFFICER
Sec. 452.056. GROUNDS FOR REMOVAL
Sec. 452.057. COMPENSATION; REIMBURSEMENT
Sec. 452.058. MEETINGS; QUORUM
[Sections 452.059-452.100 reserved for expansion]
SUBCHAPTER C. DIRECTOR AND OTHER EXECUTIVE COUNCIL PERSONNEL
Sec. 452.101. DIRECTOR; PERSONNEL
Sec. 452.102. DIVISION OF RESPONSIBILITIES
Sec. 452.103. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 452.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 452.105-452.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 452.151. GENERAL POWERS AND DUTIES
Sec. 452.152. ADMINISTRATIVE FUNCTIONS
Sec. 452.153. LIMITATION ON EXECUTIVE COUNCIL AUTHORITY
Sec. 452.154. FEES
Sec. 452.155. RULES
Sec. 452.156. REVIEW OF RULES
Sec. 452.157. REVIEW OF BOARDS
Sec. 452.158. DISBURSEMENT OF FUNDS
Sec. 452.159. ANNUAL REPORTS
[Sections 452.160-452.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 452.201. PUBLIC INTEREST INFORMATION
Sec. 452.202. COMPLAINTS
Sec. 452.203. PUBLIC PARTICIPATION
CHAPTER 452. EXECUTIVE COUNCIL OF PHYSICAL THERAPY AND
OCCUPATIONAL THERAPY EXAMINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 452.001. DEFINITIONS. In this chapter:
(1) "Executive council" means the Executive Council of Physical Therapy and Occupational Therapy Examiners.
(2) "Occupational therapy board" means the Texas Board of Occupational Therapy Examiners.
(3) "Physical therapy board" means the Texas Board of Physical Therapy Examiners. (V.A.C.S. Art. 4512e-1, Sec. 1.)
Sec. 452.002. APPLICATION OF SUNSET ACT. The Executive Council of Physical Therapy and Occupational Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the executive council is abolished and the following laws expire September 1, 2005:
(1) this chapter;
(2) Chapter 453; and
(3) Chapter 454. (V.A.C.S. Art. 4512e-1, Sec. 25.)
[Sections 452.003-452.050 reserved for expansion]
SUBCHAPTER B. EXECUTIVE COUNCIL OF PHYSICAL THERAPY
AND OCCUPATIONAL THERAPY EXAMINERS
Sec. 452.051. APPOINTMENT OF EXECUTIVE COUNCIL. (a) The Executive Council of Physical Therapy and Occupational Therapy Examiners consists of:
(1) an occupational therapist member of the occupational therapy board appointed by that board;
(2) a public member of the occupational therapy board appointed by that board;
(3) a physical therapist member of the physical therapy board appointed by that board;
(4) a public member of the physical therapy board appointed by that board; and
(5) a public member appointed by the governor.
(b) The occupational therapy board and the physical therapy board may designate an alternate to attend an executive council meeting if a member appointed by that board cannot attend. The alternate has the same powers and duties and is subject to the same qualifications as the appointed member.
(c) Appointments to the executive council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512e-1, Secs. 2(a), (b), (d).)
Sec. 452.052. ELIGIBILITY OF PUBLIC MEMBER APPOINTED BY GOVERNOR. A person is not eligible for appointment by the governor as a public member of the executive council if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the executive council, the occupational therapy board, or the physical therapy 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 funds from the executive council, the occupational therapy board, or the physical therapy board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the executive council, the occupational therapy board, or the physical therapy board, other than compensation or reimbursement authorized by law for executive council, occupational therapy board, or physical therapy board membership, attendance, or expenses. (V.A.C.S. Art. 4512e-1, Sec. 5.)
Sec. 452.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the executive council and may not be an employee of the executive council who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the executive council and may not be an employee of the executive council who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the executive council or act as the general counsel to the executive council 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 executive council, the occupational therapy board, or the physical therapy board. (V.A.C.S. Art. 4512e-1, Secs. 6, 7.)
Sec. 452.054. TERMS; VACANCY. (a) Members of the executive council are appointed for two-year terms that expire on February 1 of each odd-numbered year.
(b) A member appointed to fill a vacancy holds office for the unexpired portion of the term. (V.A.C.S. Art. 4512e-1, Sec. 4.)
Sec. 452.055. PRESIDING OFFICER. The member appointed by the governor is the presiding officer of the executive council. (V.A.C.S. Art. 4512e-1, Sec. 2(c).)
Sec. 452.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the executive council that a member:
(1) does not have at the time of appointment the qualifications required by Section 452.051;
(2) does not maintain during service on the executive council the qualifications required by Section 452.051;
(3) violates a prohibition established by Section 452.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled executive council meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the executive council.
(b) The validity of an action of the executive council is not affected by the fact that it is taken when a ground for removal of an executive council member exists.
(c) If the director has knowledge that a potential ground for removal exists, the director shall notify the presiding officer of the executive council of the potential ground. The presiding officer shall then notify the authority that appointed the member that a potential ground for removal exists. (V.A.C.S. Art. 4512e-1, Sec. 8.)
Sec. 452.057. COMPENSATION; REIMBURSEMENT. (a) The presiding officer of the executive council is entitled to a per diem as provided by the General Appropriations Act for each day that the presiding officer engages in the business of the executive council.
(b) A member of the executive council, other than the presiding officer, may not receive compensation for service on the executive council. A member may receive reimbursement for transportation expenses as provided by the General Appropriations Act. A member may not receive reimbursement for any other travel expenses, including expenses for meals and lodging. (V.A.C.S. Art. 4512e-1, Sec. 3(b).)
Sec. 452.058. MEETINGS; QUORUM. (a) The executive council shall hold at least two regular meetings each year.
(b) The executive council may hold additional meetings on the request of the presiding officer or on the written request of three members of the executive council.
(c) A quorum of the executive council exists if both therapist members and one public member are present. (V.A.C.S. Art. 4512e-1, Secs. 3(a), (c).)
[Sections 452.059-452.100 reserved for expansion]
SUBCHAPTER C. DIRECTOR AND OTHER EXECUTIVE COUNCIL PERSONNEL
Sec. 452.101. DIRECTOR; PERSONNEL. (a) The executive council shall employ a director and administrative and clerical employees as necessary to carry out the functions of the executive council, the occupational therapy board, and the physical therapy board.
(b) The director shall employ a coordinator of occupational therapy programs and a coordinator of physical therapy programs to carry out the functions of the respective boards. The coordinators may request the executive council to assign additional employees to carry out the duties of the coordinators. (V.A.C.S. Art. 4512e-1, Secs. 9(a), (c).)
Sec. 452.102. DIVISION OF RESPONSIBILITIES. The executive council shall develop and implement policies that clearly define the respective responsibilities of the executive council and the staff of the executive council. (V.A.C.S. Art. 4512e-1, Sec. 9(b).)
Sec. 452.103. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The director or the director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The director or the director's designee shall develop a system of annual performance evaluations that are based on documented employee performance. All merit pay for executive council employees must be based on the system established under this subsection. (V.A.C.S. Art. 4512e-1, Sec. 18.)
Sec. 452.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The director or the director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the executive council workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the executive council workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Texas Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4512e-1, Sec. 19.)
[Sections 452.105-452.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 452.151. GENERAL POWERS AND DUTIES. (a) Except as otherwise provided by this chapter, the executive council shall administer and enforce Chapters 453 and 454.
(b) The executive council shall:
(1) develop and prepare a budget for the executive council, the occupational therapy board, and the physical therapy board; and
(2) manage all physical property used by the executive council, the occupational therapy board, or the physical therapy board. (V.A.C.S. Art. 4512e-1, Secs. 10, 11(d).)
Sec. 452.152. ADMINISTRATIVE FUNCTIONS. (a) In administering Chapters 453 and 454, the executive council shall:
(1) perform data processing functions; and
(2) administer records relating to payroll, personnel files, and employee leave, benefits, and applications.
(b) The executive council shall perform the administrative functions relating to issuing and renewing licenses, including:
(1) the administration of written examinations and collection of fees; and
(2) the ministerial functions of preparing and delivering licenses, obtaining material and information in connection with the renewal of a license, and receiving and forwarding complaints to the appropriate board. (V.A.C.S. Art. 4512e-1, Secs. 11(a), (b) (part).)
Sec. 452.153. LIMITATION ON EXECUTIVE COUNCIL AUTHORITY. (a) The executive council may not exercise discretionary authority in the review of an applicant's qualifications for a license.
(b) The administration of practical examinations and other examinations requiring skill or expertise in a particular area on the part of the person administering the examination is the responsibility of the appropriate board. The selection of standardized national or generally accepted examinations for a profession or the design of individual examinations is the responsibility of the appropriate board. (V.A.C.S. Art. 4512e-1, Sec. 11(b) (part).)
Sec. 452.154. FEES. The executive council shall set all fees for a license issued or service performed by a board represented on the executive council. (V.A.C.S. Art. 4512e-1, Sec. 11(e).)
Sec. 452.155. RULES. Subject to Section 452.156, the appropriate professional board shall adopt rules concerning the qualifications, licensing, regulation, or practice of a profession. (V.A.C.S. Art. 4512e-1, Sec. 11(c).)
Sec. 452.156. REVIEW OF RULES. (a) Before submitting a rule for publication in the Texas Register, a board represented on the executive council shall forward the proposed rule to the executive council for review.
(b) The executive council may review the rule and shall approve the rule for submission for publication unless the rule exceeds the rulemaking authority of the board.
(c) If the executive council fails to approve a rule, it shall return the rule to the board with an explanation of the reasons for the denial. (V.A.C.S. Art. 4512e-1, Sec. 15.)
Sec. 452.157. REVIEW OF BOARDS. (a) The executive council shall routinely examine and evaluate the operations of the boards represented on the executive council.
(b) The executive council may structure the examination in a manner that the executive council considers appropriate to produce an efficient and thorough review.
(c) Each board represented on the executive council shall cooperate with the examination conducted by the executive council under this section. (V.A.C.S. Art. 4512e-1, Secs. 12, 14.)
Sec. 452.158. DISBURSEMENT OF FUNDS. The executive council may authorize from its appropriated funds all necessary disbursements to carry out:
(1) this chapter;
(2) Chapter 453; and
(3) Chapter 454. (V.A.C.S. Art. 4512e-1, Sec. 16(a).)
Sec. 452.159. ANNUAL REPORTS. (a) The executive council shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the executive council during the preceding fiscal year. The report must be in the form and reported in the time provided by the General Appropriations Act.
(b) The executive council shall prepare a report of its activities and file the report before January 1 of each odd-numbered year with the presiding officer of each house of the legislature, the governor, and the Legislative Budget Board. (V.A.C.S. Art. 4512e-1, Secs. 13, 17.)
[Sections 452.160-452.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 452.201. PUBLIC INTEREST INFORMATION. (a) The executive council shall prepare information of public interest describing the functions of the executive council and the procedures by which complaints are filed with and resolved by the executive council, the occupational therapy board, or the physical therapy board.
(b) The executive council shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512e-1, Sec. 20(a).)
Sec. 452.202. COMPLAINTS. (a) The executive council by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the executive council for the purpose of directing complaints to the executive council. The executive council may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the executive council, the occupational therapy board, or the physical therapy board;
(2) on a sign prominently displayed in the place of business of each person regulated by the executive council, the occupational therapy board, or the physical therapy board; or
(3) in a bill for service provided by a person regulated by the executive council, the occupational therapy board, or the physical therapy board.
(b) The executive council shall list with its regular telephone number any toll-free telephone number established under other state law for presenting a complaint about a health professional. (V.A.C.S. Art. 4512e-1, Secs. 20(b), (c).)
Sec. 452.203. PUBLIC PARTICIPATION. (a) The executive council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the executive council and to speak on any issue under the jurisdiction of the executive council.
(b) The executive council shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the executive council's programs and services. (V.A.C.S. Art. 4512e-1, Secs. 21, 22 (part).)
CHAPTER 453. PHYSICAL THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 453.001. DEFINITIONS
Sec. 453.002. APPLICATION OF SUNSET ACT
Sec. 453.003. CONFLICT WITH OTHER LAW
Sec. 453.004. EFFECT OF CHAPTER; APPLICABILITY
Sec. 453.005. PRACTICE OF PHYSICAL THERAPY
Sec. 453.006. PRACTICE OF MEDICINE
[Sections 453.007-453.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF PHYSICAL THERAPY EXAMINERS
Sec. 453.051. BOARD MEMBERSHIP
Sec. 453.052. PURPOSE OF BOARD
Sec. 453.053. PUBLIC MEMBER ELIGIBILITY
Sec. 453.054. MEMBERSHIP RESTRICTIONS
Sec. 453.055. TERMS; VACANCY
Sec. 453.056. GROUNDS FOR REMOVAL
Sec. 453.057. PER DIEM REIMBURSEMENT
Sec. 453.058. OFFICERS
Sec. 453.059. MEETINGS
Sec. 453.060. TRAINING
Sec. 453.061. CIVIL LIABILITY
[Sections 453.062-453.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 453.101. GENERAL POWERS AND DUTIES
Sec. 453.102. RULES
Sec. 453.103. RULES REGARDING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 453.104. FEES
Sec. 453.105. EMPLOYEES; DIVISION OF RESPONSIBILITIES
Sec. 453.106. LIST OF LICENSE HOLDERS
Sec. 453.107. BOARD DUTIES REGARDING COMPLAINTS
Sec. 453.108. PROSECUTING VIOLATIONS
Sec. 453.109. ANNUAL REPORT
[Sections 453.110-453.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 453.151. PUBLIC INTEREST INFORMATION
Sec. 453.152. COMPLAINTS
Sec. 453.153. RECORD OF COMPLAINTS
Sec. 453.154. GENERAL RULES INVOLVING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 453.155. PUBLIC PARTICIPATION
[Sections 453.156-453.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS; REGISTRATION
OF FACILITIES
Sec. 453.201. LICENSE REQUIRED; USE OF TITLE
Sec. 453.202. LICENSE APPLICATION
Sec. 453.203. QUALIFICATIONS FOR PHYSICAL THERAPIST OR
PHYSICAL THERAPIST ASSISTANT LICENSE
Sec. 453.204. FOREIGN-TRAINED APPLICANTS
Sec. 453.205. LICENSE EXAMINATION
Sec. 453.206. EXAMINATION RESULTS
Sec. 453.207. REEXAMINATION
Sec. 453.208. ISSUANCE OF LICENSE
Sec. 453.209. PROVISIONAL LICENSE
Sec. 453.210. TEMPORARY LICENSE
Sec. 453.211. INACTIVE STATUS
Sec. 453.212. DISPLAY OF LICENSE AND RENEWAL CERTIFICATE
Sec. 453.213. PHYSICAL THERAPY FACILITY REGISTRATION
[Sections 453.214-453.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 453.251. LICENSE EXPIRATION
Sec. 453.252. RENEWAL OF LICENSE
Sec. 453.253. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 453.254. MANDATORY CONTINUING EDUCATION
[Sections 453.255-453.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 453.301. TREATING PATIENT UNDER PRIOR REFERRAL
Sec. 453.302. TREATING PATIENT WITHOUT REFERRAL
Sec. 453.303. PROHIBITED USE OF CERTAIN PROCEDURES
Sec. 453.304. PROHIBITED PRACTICE
[Sections 453.305-453.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY ACTION AND PROCEDURE
Sec. 453.351. GROUNDS FOR DENIAL OF LICENSE OR
DISCIPLINE OF LICENSE HOLDER
Sec. 453.352. PROCEDURE FOR LICENSE DENIAL OR
DISCIPLINARY ACTION; SCHEDULE OF SANCTIONS
Sec. 453.353. SUBPOENAS
Sec. 453.354. TEMPORARY LICENSE SUSPENSION
Sec. 453.355. REISSUANCE OF LICENSE; ISSUANCE OF
LICENSE AFTER DENIAL
Sec. 453.356. INFORMAL PROCEEDINGS
[Sections 453.357-453.400 reserved for expansion]
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 453.401. IMPOSITION OF PENALTY
Sec. 453.402. AMOUNT OF PENALTY
Sec. 453.403. ADMINISTRATIVE PROCEDURE
[Sections 453.404-453.450 reserved for expansion]
SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 453.451. INJUNCTIVE RELIEF
Sec. 453.452. MONITORING OF LICENSE HOLDER
Sec. 453.453. CIVIL PENALTY
Sec. 453.454. RECOVERY OF COSTS AND FEES
Sec. 453.455. CRIMINAL OFFENSE
CHAPTER 453. PHYSICAL THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 453.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Physical Therapy Examiners.
(2) "Coordinator of physical therapy programs" is the person employed in that position under Section 452.101.
(3) "Executive council" means the Executive Council of Physical Therapy and Occupational Therapy Examiners.
(4) "Physical therapist" means a person who is licensed by the board as a physical therapist and practices physical therapy. The term includes a hydrotherapist, physiotherapist, mechano-therapist, functional therapist, physical therapy practitioner, physical therapist specialist, physical therapy specialist, physiotherapy practitioner, kinesiotherapist, physical rehabilitation specialist, and myofunctional therapist.
(5) "Physical therapist assistant" means a person licensed by the board as a physical therapist assistant:
(A) who assists and is supervised by a physical therapist in the practice of physical therapy; and
(B) whose activities require an understanding of physical therapy.
(6) "Physical therapy" means a form of health care that prevents, identifies, corrects, or alleviates acute or prolonged movement dysfunction or pain of anatomic or physiologic origin.
(7) "Physical therapy aide" or "physical therapy technician" means a person:
(A) who aids in the practice of physical therapy under the on-site supervision of a physical therapist or a physical therapist assistant; and
(B) whose activities require on-the-job training.
(8) "Physical therapy facility" means a physical site, including a building, office, or portable facility, where the practice of physical therapy takes place.
(9) "Referring practitioner" means a qualified licensed health care professional who, within the scope of professional licensure, may refer a person for health care services. The term includes:
(A) a physician licensed to practice medicine by a state board of medical examiners;
(B) a dentist licensed by a state board of dental examiners;
(C) a chiropractor licensed by a state board of chiropractic examiners; and
(D) a podiatrist licensed by a state board of podiatric medical examiners. (V.A.C.S. Art. 4512e, Secs. 1(1) (part), (2), (3), (4), (5), (8) (part); 19(a)(1) (part); New.)
Sec. 453.002. APPLICATION OF SUNSET ACT. The Texas Board of Physical Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512e, Sec. 2M.)
Sec. 453.003. CONFLICT WITH OTHER LAW. To the extent of any conflict between this chapter and Chapter 452, Chapter 452 controls. (V.A.C.S. Art. 4512e, Sec. 26.)
Sec. 453.004. EFFECT OF CHAPTER; APPLICABILITY. (a) This chapter does not restrict the holder of a license issued by another state agency from performing health care services within the scope of the applicable licensing act if the license holder:
(1) does not represent to another that the license holder is a physical therapist;
(2) does not violate Sections 453.201(a) and (c) and 453.304; and
(3) practices strictly in conformity with the statutes and rules relating to the license holder's license.
(b) This chapter does not apply to:
(1) a physical therapy aide;
(2) a physical therapy student or physical therapist assistant student:
(A) participating in an accredited physical therapy or physical therapist assistant educational program; and
(B) being supervised by a license holder under this chapter;
(3) a student:
(A) participating in an accredited allied health science program leading to licensure by another state agency; and
(B) being supervised by properly licensed, certified, or registered personnel;
(4) a person practicing physical therapy and engaging in a special project in patient care while working toward an advanced degree from an accredited college or university; or
(5) a physical therapist who does not live in this state, is licensed by the appropriate authority, and is in this state for a period not to exceed six months to attend an educational activity. (V.A.C.S. Art. 4512e, Sec. 6.)
Sec. 453.005. PRACTICE OF PHYSICAL THERAPY. (a) The practice of physical therapy requires that a person practicing have education, training, and experience in physical therapy.
(b) The practice of physical therapy includes:
(1) measurement or testing of the function of the musculoskeletal, neurological, pulmonary, or cardiovascular system;
(2) rehabilitative treatment concerned with restoring function or preventing disability caused by illness, injury, or birth defect;
(3) treatment, consultative, educational, or advisory services to reduce the incidence or severity of disability or pain to enable, train, or retrain a person to perform the independent skills and activities of daily living; and
(4) delegation of selective forms of treatment to support personnel while a physical therapist retains the responsibility for caring for the patient and directing and supervising the support personnel. (V.A.C.S. Art. 4512e, Secs. 1(1) (part), (7) (part).)
Sec. 453.006. PRACTICE OF MEDICINE. (a) A person may not engage in diagnosing diseases or in practicing medicine as defined by law on the basis of a license issued under this chapter.
(b) A person may not use an affix indicating or implying that the person is a physician on the basis of a license issued under this chapter. (V.A.C.S. Art. 4512e, Secs. 1(1) (part); 12(a) (part), (b) (part).)
[Sections 453.007-453.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF PHYSICAL THERAPY EXAMINERS
Sec. 453.051. BOARD MEMBERSHIP. (a) The Texas Board of Physical Therapy Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six physical therapist members; and
(2) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, creed, sex, religion, disability, age, or national origin of the appointee. (V.A.C.S. Art. 4512e, Secs. 2(a) (part), (c).)
Sec. 453.052. PURPOSE OF BOARD. The board shall regulate the practice of physical therapy in this state to safeguard the public health and welfare. (V.A.C.S. Art. 4512e, Sec. 2(a) (part).)
Sec. 453.053. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the executive council or board or receiving funds from the executive council or board;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the executive council or board or receiving funds from the executive council or board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the executive council or board, other than compensation or reimbursement authorized by law for executive council or board membership, attendance, or expenses. (V.A.C.S. Art. 4512e, Sec. 2B.)
Sec. 453.054. MEMBERSHIP RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board.
(d) A person may not serve as a member of 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. (V.A.C.S. Art. 4512e, Secs. 2C, 2D.)
Sec. 453.055. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms with the terms of two physical therapist members and one public member expiring January 31 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired part of the term. (V.A.C.S. Art. 4512e, Secs. 2(a) (part), (b).)
Sec. 453.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 453.051(a);
(2) does not maintain during service on the board the qualifications required by Section 453.051(a);
(3) violates a prohibition established by Section 453.054;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the coordinator of physical therapy programs has knowledge that a potential ground for removal exists, the coordinator shall notify the presiding officer of the board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4512e, Sec. 2E.)
Sec. 453.057. PER DIEM REIMBURSEMENT. (a) A member of the board is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A member may receive reimbursement for meals, lodging, and transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4512e, Sec. 2A.)
Sec. 453.058. OFFICERS. After the appointment of members every two years, the members of the board shall elect from among its members a presiding officer, secretary, and other officers required to conduct the business of the board. (V.A.C.S. Art. 4512e, Sec. 4(a) (part).)
Sec. 453.059. MEETINGS. (a) A special meeting of the board:
(1) may be called jointly by the presiding officer and secretary; or
(2) shall be called on the written request of any two members.
(b) The secretary shall keep a record of each meeting of the board. The record shall be open to public inspection at all times. (V.A.C.S. Art. 4512e, Secs. 4(a) (part), (b) (part).)
Sec. 453.060. TRAINING. (a) Before a member of the board may assume the member's duties, the member must complete at least a course of the training program established by the board under this section.
(b) A training program shall provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training requirements provided for by this section, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4512e, Sec. 2K.)
Sec. 453.061. CIVIL LIABILITY. A member of the board is not liable in a civil action for an act performed in good faith in executing duties as a board member. (V.A.C.S. Art. 4512e, Sec. 2(d).)
[Sections 453.062-453.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 453.101. GENERAL POWERS AND DUTIES. Except as provided by Chapter 452, the board shall administer and enforce this chapter. (V.A.C.S. Art. 4512e, Sec. 2G.)
Sec. 453.102. RULES. (a) The board may adopt rules necessary to implement this chapter.
(b) The board may adopt bylaws and rules necessary to govern its proceedings. (V.A.C.S. Art. 4512e, Sec. 4(a) (part).)
Sec. 453.103. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4512e, Sec. 19(b).)
Sec. 453.104. FEES. (a) The board may recommend to the executive council reasonable and necessary fees for licenses issued or services performed under this chapter that in the aggregate produce sufficient revenue to cover the cost of administering this chapter.
(b) The board may not recommend to the executive council a fee that existed on September 1, 1993, for an amount less than the amount of that fee on that date. (V.A.C.S. Art. 4512e, Sec. 17.)
Sec. 453.105. EMPLOYEES; DIVISION OF RESPONSIBILITIES. (a) The board may request the executive council to assign administrative and clerical employees as necessary to carry out the board's functions.
(b) The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the executive council. (V.A.C.S. Art. 4512e, Sec. 2F.)
Sec. 453.106. LIST OF LICENSE HOLDERS. (a) The secretary shall maintain a list of the names of each physical therapist licensed under this chapter.
(b) The list shall be open to public inspection at all times.
(c) On March 1 of each year, the coordinator of physical therapy programs shall transmit an official copy of the list to the executive council and the secretary of state for permanent record.
(d) A certified copy of the list of license holders is admissible as evidence in a court of this state. (V.A.C.S. Art. 4512e, Sec. 4(b) (part).)
Sec. 453.107. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint. (V.A.C.S. Art. 4512e, Secs. 22(c), (d).)
Sec. 453.108. PROSECUTING VIOLATIONS. The board shall assist the proper legal authorities in prosecuting a person who violates this chapter. (V.A.C.S. Art. 4512e, Sec. 4(c).)
Sec. 453.109 ANNUAL REPORT. Not later than January 1 of each year, the board shall submit to the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year. (V.A.C.S. Art. 4512e, Sec. 21(c).)
[Sections 453.110-453.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 453.151. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512e, Sec. 2H.)
Sec. 453.152. COMPLAINTS. A license holder shall at all times prominently display in the license holder's place of business a sign containing:
(1) the board's name, mailing address, and telephone number; and
(2) a statement informing consumers that a complaint against a license holder can be directed to the board. (V.A.C.S. Art. 4512e, Sec. 14(b).)
Sec. 453.153. RECORD OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the executive council and referred to the board. The board's information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 453.154 and a notation about a change in the schedule; and
(5) other relevant information.
(b) If a written complaint is received by the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512e, Secs. 22(a), (b), 23(b) (part).)
Sec. 453.154. GENERAL RULES INVOLVING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules relating to the investigation of a complaint received by the board. The rules shall:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint;
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator; and
(6) require the board to advise the executive council of complaints that have been disposed of.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of the investigation of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) Each party shall be notified of the projected time requirements for the complaint.
(d) Each party to the complaint must be notified of a change in the schedule not later than the seventh day after the date the change is made.
(e) The coordinator of physical therapy programs shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512e, Secs. 23(a), (b) (part), (c).)
Sec. 453.155. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512e, Secs. 2I, 2J (part).)
[Sections 453.156-453.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS; REGISTRATION
OF FACILITIES
Sec. 453.201. LICENSE REQUIRED; USE OF TITLE. (a) A person may not practice physical therapy or practice as a physical therapist assistant, unless the person is an individual who holds a license issued by the board.
(b) A person, including the person's employee or other agent or representative, may not extend or provide physical therapy services unless the services are provided by a physical therapist.
(c) A person is considered to be practicing physical therapy if the person:
(1) performs, offers to perform, or attempts to perform physical therapy; or
(2) publicly professes to be or holds the person out to be a physical therapist or as providing physical therapy.
(d) A person, including the person's employee or other agent or representative, may not use in connection with the person's name or business activity:
(1) the words "physical therapy," "physical therapist," "physiotherapy," "physiotherapist," "licensed physical therapist," "registered physical therapist," or "physical therapist assistant";
(2) the letters "PT," "PhT," "LPT," "RPT," or "PTA"; or
(3) any other words, letters, abbreviations, or insignia indicating or implying, by any means or in any way, that physical therapy is provided or supplied.
(e) A person may not use the title "Physical Therapist" unless the person is a physical therapist.
(f) A person may not use the title "Physical Therapist Assistant" unless the person is a physical therapist assistant. (V.A.C.S. Art. 4512e, Secs. 1(7) (part); 7(a), (b); 12(a) (part), (b) (part).)
Sec. 453.202. LICENSE APPLICATION. (a) An applicant for a physical therapist license or a physical therapist assistant license must submit to the board a written application on a form provided by the board.
(b) The application must be accompanied by:
(1) an examination fee prescribed by the board; and
(2) a nonrefundable application fee prescribed by the board.
(c) The examination fee under Subsection (b)(1) is refundable if the applicant does not take the examination. (V.A.C.S. Art. 4512e, Secs. 8(a) (part); 9(a) (part).)
Sec. 453.203. QUALIFICATIONS FOR PHYSICAL THERAPIST OR PHYSICAL THERAPIST ASSISTANT LICENSE. (a) An applicant for a physical therapist license must, in addition to other requirements and qualifications established by the board, present:
(1) evidence satisfactory to the board that the applicant has completed an accredited physical therapy educational program; or
(2) official documentation from an educational credentials review agency approved by the board certifying that the applicant has completed:
(A) a program equivalent to a Commission on Accreditation of Physical Therapy Education accredited program; and
(B) at least 60 academic semester credits or the equivalent from an accredited institution of higher education.
(b) An applicant for a physical therapist assistant license must, in addition to other requirements and qualifications established by the board, present evidence satisfactory to the board that the applicant has completed an accredited physical therapist assistant program or an accredited physical therapy educational program, including courses in the anatomical, biological, and physical sciences, and clinical procedures prescribed and approved by the board.
(c) A physical therapy educational program or physical therapist assistant program is an accredited program if the program is:
(1) accredited by the Commission on Accreditation in Physical Therapy Education; and
(2) associated with an institution of higher education. (V.A.C.S. Art. 4512e, Secs. 1(9); 8(a) (part), (c); 9(a) (part), (c).)
Sec. 453.204. FOREIGN-TRAINED APPLICANTS. (a) To obtain a license under this chapter, an applicant who is foreign-trained must satisfy the examination requirements of Section 453.208.
(b) Before allowing a foreign-trained applicant to take the examination, the board shall require the applicant to furnish proof of:
(1) good moral character; and
(2) completion of requirements substantially equal to those under Section 453.203. (V.A.C.S. Art. 4512e, Sec. 10A.)
Sec. 453.205. LICENSE EXAMINATION. (a) The board shall examine applicants for licenses at least once each year at a reasonable place and time designated by the board.
(b) The examination must cover the subjects generally taught by an accredited physical therapy educational program or an accredited physical therapist assistant program and may include clinical decision-making and evaluation, treatment program planning and implementation, and administration, education, consultation, and research in physical therapy.
(c) The board by rule may establish a procedure for administering the examination, including the conditions under which and the number of times an applicant may retake an examination.
(d) The board shall have any written portion of the examination validated by an independent testing entity. (V.A.C.S. Art. 4512e, Secs. 3(a), (b), (d), (e).)
Sec. 453.206. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the day on which the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the day on which the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails a licensing examination, the board shall furnish the person with an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512e, Secs. 3(c), (f); 13(c).)
Sec. 453.207. REEXAMINATION. (a) An applicant who fails to pass a one-part examination or a part of a divided examination may take another one-part examination or the part of the divided examination that the applicant failed on payment of an additional examination fee.
(b) If an applicant fails to pass a second or subsequent examination, the board shall require the applicant to complete an additional course of study designated by the board. Before taking a subsequent examination, the applicant must:
(1) present to the board satisfactory evidence that the applicant has completed the required course of study; and
(2) pay an additional fee equal to the amount of the fee required for filing the original application. (V.A.C.S. Art. 4512e, Secs. 13(a), (b).)
Sec. 453.208. ISSUANCE OF LICENSE. (a) The board shall issue a license to an applicant who:
(1) passes the examination under Section 453.205;
(2) meets the qualifications prescribed by Section 453.203; and
(3) has not committed an act that constitutes a ground for denial of a license under Section 453.351.
(b) The board may issue a physical therapist assistant license to a person who has not completed an accredited physical therapist assistant program if the person:
(1) meets the requirements under Section 453.203(a); and
(2) has not been the subject of disciplinary action in another state or nation. (V.A.C.S. Art. 4512e, Secs. 8(b); 9(b), (d).)
Sec. 453.209. PROVISIONAL LICENSE. (a) The board may issue a provisional license to an applicant licensed in another state that maintains professional standards considered by the board to be equivalent to and has licensing requirements that are substantially equivalent to the requirements under this chapter. An applicant for a provisional license under this section must:
(1) present proof to the board that the applicant is licensed in good standing as a physical therapist or physical therapist assistant in that state;
(2) have passed a national examination or other examination recognized by the board relating to the practice of physical therapy; and
(3) be sponsored by a person licensed under this chapter with whom the provisional license holder may practice.
(b) The board may waive the requirement of Subsection (a)(3) for an applicant if the board determines that compliance with that requirement constitutes a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a physical therapist or physical therapist assistant license.
(d) The board shall issue a physical therapist or physical therapist assistant license to the provisional license holder if:
(1) the provisional license holder passes a jurisprudence examination, if required;
(2) the board verifies that the provisional license holder has the academic and experience requirements for a physical therapist or physical therapist assistant license; and
(3) the provisional license holder satisfies any other requirements for a physical therapist or physical therapist assistant license.
(e) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend that deadline if the results on an examination have not been received by the board. (V.A.C.S. Art. 4512e, Sec. 10.)
Sec. 453.210. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license.
(b) The holder of a temporary license must practice under the supervision of a physical therapist.
(c) A rule adopted under this section must include a time limit for a person to hold a temporary license. (V.A.C.S. Art. 4512e, Sec. 11(a).)
Sec. 453.211. INACTIVE STATUS. (a) The board by rule may provide for a license holder to place the holder's license under this chapter on inactive status.
(b) A rule adopted under this section must include a time limit for a license holder's license to remain on inactive status. (V.A.C.S. Art. 4512e, Sec. 11(b).)
Sec. 453.212. DISPLAY OF LICENSE AND RENEWAL CERTIFICATE. A license holder under this chapter shall display the license holder's license and renewal certificate in a conspicuous place in the principal office in which the license holder practices physical therapy. (V.A.C.S. Art. 4512e, Sec. 14(a).)
Sec. 453.213. PHYSICAL THERAPY FACILITY REGISTRATION. (a) The board by rule shall adopt requirements for the registration and renewal of a registration of a physical therapy facility. A facility licensed under Subtitle B, Title 4, Health and Safety Code, is exempt from the registration requirements under this section.
(b) If a person owns more than one physical therapy facility, the board may require the person to make only one application for the registration of all facilities.
(c) In accordance with Section 453.004, a rule adopted under this section may not prohibit a license holder from practicing in a physical therapy facility within the scope of the license holder's license.
(d) A physical therapy facility must be under the direction of a physical therapist and meet any other requirements established by the board. (V.A.C.S. Art. 4512e, Secs. 1(8) (part); 27.)
[Sections 453.214-453.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 453.251. LICENSE EXPIRATION. (a) A physical therapist or physical therapist assistant license expires on the second anniversary of the date the license is issued.
(b) The board may adopt a system under which licenses expire on various dates during the year. For the term in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512e, Secs. 15(a), 16.)
Sec. 453.252. RENEWAL OF LICENSE. (a) A person may renew an unexpired license by paying the required renewal fee to the executive council before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the executive council the renewal fee and a fee that is equal to half of the amount charged for examination for the license. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the executive council all unpaid renewal fees and a fee that is equal to the amount charged for examination for the license.
(c) A person whose license has been expired for one year or longer may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(d) At least 30 days before the expiration of a person's license, the executive council shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the executive council. (V.A.C.S. Art. 4512e, Secs. 15(b), (c), (d), (e) (part), (f).)
Sec. 453.253. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination the license of a person who was licensed to practice as a physical therapist or physical therapist assistant in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the executive council a fee that is equal to the examination fee for the license. (V.A.C.S. Art. 4512e, Sec. 15(e) (part).)
Sec. 453.254. MANDATORY CONTINUING EDUCATION. (a) The board by rule shall:
(1) assess the continuing education needs of license holders and adopt requirements for mandatory continuing education for license holders in subjects pertaining to the practice of physical therapy;
(2) establish a minimum number of hours of continuing education required to renew a license; and
(3) develop a process to evaluate and approve continuing education courses.
(b) The board may require license holders to attend continuing education courses specified by the board. The board shall adopt a procedure to assess a license holder's participation and performance in continuing education programs.
(c) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. (V.A.C.S. Art. 4512e, Sec. 16A.)
[Sections 453.255-453.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 453.301. TREATING PATIENT UNDER PRIOR REFERRAL. (a) A physical therapist may treat a patient for an injury or condition that was the subject of a prior referral if the physical therapist:
(1) has been licensed to practice physical therapy for at least one year;
(2) notifies the referring practitioner of the therapy not later than the fifth business day after the date therapy is begun;
(3) begins any episode of treatment before the first anniversary of the referral by the referring practitioner;
(4) for physical therapy episodes subsequent to the episode which was initiated by the referral, treats the patient for not more than 20 treatment sessions or 30 consecutive calendar days, whichever occurs first; and
(5) satisfies any other requirement set by the board.
(b) The physical therapist must confer with the referring practitioner before the physical therapist may continue treatment that exceeds treatment authorized under Subsection (a)(4). (V.A.C.S. Art. 4512e, Secs. 19(a)(2), (3).)
Sec. 453.302. TREATING PATIENT WITHOUT REFERRAL. (a) In this section:
(1) "Emergency circumstance" means an instance in which emergency medical care is necessary.
(2) "Emergency medical care" means a bona fide emergency service provided after the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in:
(A) serious jeopardy to the patient's health;
(B) serious dysfunction of any bodily organ or part; or
(C) serious impairment to bodily functions.
(b) In an emergency circumstance, including a minor emergency, a physical therapist may provide emergency medical care to a person to the best of the therapist's ability without a referral from a referring practitioner.
(c) A physical therapist may provide physical assessments or instructions to an asymptomatic person without a referral from a referring practitioner. (V.A.C.S. Art. 4512e, Secs. 19(a)(4), (5).)
Sec. 453.303. PROHIBITED USE OF CERTAIN PROCEDURES. In practicing physical therapy, a person may not use:
(1) roentgen rays or radium for a diagnostic or therapeutic purpose; or
(2) electricity for a surgical purpose, including cauterization. (V.A.C.S. Art. 4512e, Sec. 1(1) (part).)
Sec. 453.304. PROHIBITED PRACTICE. It is a violation of this chapter for an individual licensed by the board to violate Section 161.091, Health and Safety Code. (V.A.C.S. Art. 4512e, Sec. 7(d).)
[Sections 453.305-453.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY ACTION AND PROCEDURE
Sec. 453.351. GROUNDS FOR DENIAL OF LICENSE OR DISCIPLINE OF LICENSE HOLDER. (a) The board may deny a license or suspend or revoke a license, place a license holder on probation, reprimand a license holder, impose an administrative penalty, or otherwise discipline a license holder if the applicant or license holder has:
(1) except as provided by Section 453.301 or 453.302, provided physical therapy to a person without a referral from a referring practitioner;
(2) used drugs or intoxicating liquors to an extent that affects the license holder's or applicant's professional competence;
(3) been convicted of a felony, including a finding or verdict of guilty, an admission of guilt, or a plea of nolo contendere, in this state or in any other state or nation;
(4) obtained or attempted to obtain a license by fraud or deception;
(5) been grossly negligent in the practice of physical therapy or in acting as a physical therapist assistant;
(6) been found to be mentally incompetent by a court;
(7) practiced physical therapy in a manner detrimental to the public health and welfare;
(8) had a license to practice physical therapy revoked or suspended or had other disciplinary action taken against the license holder or applicant;
(9) had the license holder's or applicant's application for a license refused, revoked, or suspended by the proper licensing authority of another state or nation; or
(10) in the case of a physical therapist assistant, treated a person other than under the direction of a physical therapist.
(b) The board shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for a violation of this chapter or a rule adopted by the board.
(c) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4512e, Secs. 1(6); 19(a)(1) (part); 20A(a), (b).)
Sec. 453.352. PROCEDURE FOR LICENSE DENIAL OR DISCIPLINARY ACTION; SCHEDULE OF SANCTIONS. (a) A person whose application for a license is denied is entitled to a hearing before the State Office of Administrative Hearings if the applicant submits a written request for a hearing to the board.
(b) A proceeding to take action under Section 453.351 or an appeal from the proceeding is a contested case for the purposes of Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board by rule for a sanction imposed as the result of a hearing conducted by the office. (V.A.C.S. Art. 4512e, Secs. 19(a)(1) (part); 20(a), (b); 20A(c).)
Sec. 453.353. SUBPOENAS. (a) The board may request or compel by subpoena:
(1) the attendance of a witness for examination under oath; and
(2) the production for inspection or copying of evidence relevant to an investigation of an alleged violation of this chapter.
(b) If a person fails to comply with the subpoena, the board, acting through the attorney general, may 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.
(c) If the court determines that good cause exists for issuing the subpoena, the court shall order the person to comply with the subpoena. The court may punish for contempt a person who fails to obey the court order. (V.A.C.S. Art. 4512e, Sec. 3(m).)
Sec. 453.354. TEMPORARY LICENSE SUSPENSION. (a) The board may temporarily suspend a license issued under this chapter on an emergency basis if the board, by at least a two-thirds vote, determines from the evidence or information presented to the board that the continued practice by the license holder constitutes a continuing or imminent threat to the public health or welfare.
(b) The board may suspend a license under this section without notice or a hearing if, at the time the suspension is ordered, a hearing on whether to institute disciplinary proceedings against the license holder is scheduled to be held not later than the 14th day after the date of the temporary suspension.
(c) The board shall hold a second hearing on the license suspension not later than the 60th day after the date the temporary suspension was ordered. If the second hearing is not held within the required time, the suspended license is automatically reinstated.
(d) The board shall adopt rules that establish procedures and standards for the temporary suspension of a license under this section. (V.A.C.S. Art. 4512e, Sec. 20B.)
Sec. 453.355. REISSUANCE OF LICENSE; ISSUANCE OF LICENSE AFTER DENIAL. (a) On application by the person, the board may reissue a license to a person whose license has been revoked.
(b) An application to reinstate a revoked license:
(1) may not be made before the 180th day after the date the revocation order became final; and
(2) must be made in the manner and form the board requires.
(c) On application by the person, the board may issue a license to a person whose license application has been denied. The application may not be made before the first anniversary of the date of the denial. (V.A.C.S. Art. 4512e, Secs. 20(c), (d).)
Sec. 453.356. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) A rule adopted under this section must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of the board's legal counsel or a representative of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4512e, Sec. 24.)
[Sections 453.357-453.400 reserved for expansion]
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 453.401. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter or a facility registered under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4512e, Sec. 18A(a).)
Sec. 453.402. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $200 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of a prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) efforts to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 4512e, Secs. 18A(b), (c).)
Sec. 453.403. ADMINISTRATIVE PROCEDURE. (a) The board shall adopt rules that establish procedures for assessing an administrative penalty and that provide for notice and a hearing for a license holder or facility administrator that may be subject to a penalty under this subchapter.
(b) A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512e, Secs. 18A(d), (e).)
[Sections 453.404-453.450 reserved for expansion]
SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 453.451. INJUNCTIVE RELIEF. The attorney general, a district attorney, a county attorney, or any other person may institute a proceeding to enforce this chapter, including a suit to enjoin or restrain a person from practicing physical therapy without complying with this chapter. (V.A.C.S. Art. 4512e, Sec. 18(c) (part).)
Sec. 453.452. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system for monitoring a license holder's compliance with this chapter. The rules must include procedures for:
(1) monitoring for compliance a license holder who is ordered by the board to perform a certain act; and
(2) identifying and monitoring each license holder who represents a risk to the public. (V.A.C.S. Art. 4512e, Sec. 25.)
Sec. 453.453. CIVIL PENALTY. (a) A person found by a court to have violated this chapter is liable to the state for a civil penalty of $200 for each day the violation continues.
(b) A civil penalty may be recovered in a suit brought by the attorney general, a district attorney, a county attorney, or any other person. (V.A.C.S. Art. 4512e, Sec. 18(c) (part).)
Sec. 453.454. RECOVERY OF COSTS AND FEES. A person other than the attorney general, a district attorney, or a county attorney who brings an action to enforce this chapter or for injunctive relief may recover the person's court costs and attorney's fees. (V.A.C.S. Art. 4512e, Sec. 18(c) (part).)
Sec. 453.455. CRIMINAL OFFENSE. (a) A person commits an offense if the person knowingly violates this chapter.
(b) An offense under this section is a Class A misdemeanor.
(c) Each day of violation constitutes a separate offense. (V.A.C.S. Art. 4512e, Secs. 18(a), (b).)
CHAPTER 454. OCCUPATIONAL THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 454.001. SHORT TITLE
Sec. 454.002. DEFINITIONS
Sec. 454.003. APPLICATION OF SUNSET ACT
Sec. 454.004. CONFLICT WITH OTHER LAW
Sec. 454.005. APPLICABILITY
Sec. 454.006. PRACTICE OF OCCUPATIONAL THERAPY
Sec. 454.007. USE OF TITLE OF DOCTOR
[Sections 454.008-454.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS
Sec. 454.051. BOARD MEMBERSHIP
Sec. 454.052. PUBLIC MEMBER ELIGIBILITY
Sec. 454.053. MEMBERSHIP RESTRICTIONS
Sec. 454.054. TERMS; VACANCY
Sec. 454.055. GROUNDS FOR REMOVAL
Sec. 454.056. PER DIEM; REIMBURSEMENT
Sec. 454.057. OFFICERS
Sec. 454.058. MEETINGS
Sec. 454.059. TRAINING
Sec. 454.060. CIVIL LIABILITY
[Sections 454.061-454.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 454.101. GENERAL POWERS AND DUTIES
Sec. 454.102. RULES
Sec. 454.103. RULES REGARDING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 454.104. FEES
Sec. 454.105. EMPLOYEES; DIVISION OF RESPONSIBILITIES
Sec. 454.106. LIST OF LICENSE HOLDERS
Sec. 454.107. BOARD DUTIES REGARDING COMPLAINTS
[Sections 454.108-454.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 454.151. PUBLIC INTEREST INFORMATION
Sec. 454.152. RECORD OF COMPLAINTS
Sec. 454.153. GENERAL RULES INVOLVING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 454.154. PUBLIC PARTICIPATION
[Sections 454.155-454.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS; REGISTRATION
OF FACILITIES
Sec. 454.201. LICENSE REQUIRED; USE OF TITLE
Sec. 454.202. APPLICATION
Sec. 454.203. QUALIFICATIONS FOR OCCUPATIONAL THERAPIST OR
OCCUPATIONAL THERAPY ASSISTANT LICENSE
Sec. 454.204. EDUCATIONAL REQUIREMENTS
Sec. 454.205. FOREIGN-TRAINED APPLICANTS
Sec. 454.206. APPLICATION FOR EXAMINATION
Sec. 454.207. LICENSE EXAMINATION
Sec. 454.208. EXAMINATION RESULTS
Sec. 454.209. REEXAMINATION
Sec. 454.210. PROVISIONAL LICENSE
Sec. 454.211. TEMPORARY LICENSE
Sec. 454.212. INACTIVE STATUS
Sec. 454.213. ACCEPTED PRACTICE; PHYSICIAN'S REFERRAL
Sec. 454.214. DISPLAY OF LICENSE AND RENEWAL CERTIFICATE
Sec. 454.215. OCCUPATIONAL THERAPY FACILITY REGISTRATION
[Sections 454.216-454.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 454.251. LICENSE EXPIRATION
Sec. 454.252. RENEWAL OF LICENSE
Sec. 454.253. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 454.254. MANDATORY CONTINUING EDUCATION
[Sections 454.255-454.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY ACTION AND PROCEDURE
Sec. 454.301. GROUNDS FOR DENIAL OF LICENSE OR
DISCIPLINE OF LICENSE HOLDER
Sec. 454.302. PROCEDURES FOR DISCIPLINARY ACTION;
SCHEDULE OF SANCTIONS
Sec. 454.303. ISSUANCE OF LICENSE AFTER DENIAL; REISSUANCE OF
LICENSE
Sec. 454.304. INFORMAL PROCEEDINGS
[Sections 454.305-454.350 reserved for expansion]
SUBCHAPTER H. PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 454.351. INJUNCTIVE RELIEF
Sec. 454.352. MONITORING OF LICENSE HOLDER
Sec. 454.353. CIVIL PENALTY
Sec. 454.354. RECOVERY OF COSTS AND FEES
Sec. 454.355. CRIMINAL OFFENSE
CHAPTER 454. OCCUPATIONAL THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 454.001. SHORT TITLE. This chapter may be cited as the Occupational Therapy Practice Act. (V.A.C.S. Art. 8851, Sec. 1.)
Sec. 454.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Occupational Therapy Examiners.
(2) "Coordinator of occupational therapy programs" is the person employed in that position under Section 452.101.
(3) "Executive council" means the Executive Council of Physical Therapy and Occupational Therapy Examiners.
(4) "Occupational therapist" means a person licensed to practice occupational therapy.
(5) "Occupational therapy aide" means a person:
(A) who aids in the practice of occupational therapy; and
(B) whose activities require on-the-job training and on-site supervision by an occupational therapist or an occupational therapy assistant.
(6) "Occupational therapy assistant" means a person licensed by the board as an occupational therapy assistant who assists in the practice of occupational therapy under the general supervision of an occupational therapist. (V.A.C.S. Art. 8851, Secs. 2(2), (3), (4), (7), (8), (9).)
Sec. 454.003. APPLICATION OF SUNSET ACT. The Texas Board of Occupational Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 8851, Sec. 3M.)
Sec. 454.004. CONFLICT WITH OTHER LAW. To the extent of any conflict between this chapter and Chapter 452, Chapter 452 controls. (V.A.C.S. Art. 8851, Sec. 31D.)
Sec. 454.005. APPLICABILITY. (a) This chapter does not apply to a holder of a license issued by another state agency who is performing health care services within the scope of the applicable licensing act.
(b) The licensing provisions of this chapter do not apply to:
(1) an occupational therapy aide assisting a license holder under this chapter;
(2) a person engaged in a course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program if:
(A) the activities and services constitute a part of a supervised course of study; and
(B) the person is designated by a title that clearly indicates the person's status as a student or trainee;
(3) a person fulfilling the supervised field work experience requirements of Section 454.203, if those activities and services constitute a part of the experience necessary to meet the requirement of that section;
(4) an occupational therapist performing a special project in patient care while working toward an advanced degree from an accredited college or university;
(5) an occupational therapist who does not live in this state and who:
(A) is licensed by another state or who meets the requirements for certification established by the American Occupational Therapy Association as an occupational therapist registered (OTR) or a certified occupational therapy assistant (COTA); and
(B) comes into this state for not more than four consecutive months to:
(i) provide or attend an educational activity;
(ii) assist in a case of medical emergency; or
(iii) engage in a special occupational therapy project; or
(6) a qualified and properly trained person acting under a physician's supervision under Section 157.001. (V.A.C.S. Art. 8851, Sec. 15.)
Sec. 454.006. PRACTICE OF OCCUPATIONAL THERAPY. (a) In this section, "diagnosis" means the identification of a disease from its symptoms.
(b) A person practices occupational therapy if the person:
(1) evaluates or treats a person whose ability to perform the tasks of living is threatened or impaired by developmental deficits, the aging process, environmental deprivation, sensory impairment, physical injury or illness, or psychological or social dysfunction;
(2) uses therapeutic goal-directed activities to:
(A) evaluate, prevent, or correct physical or emotional dysfunction; or
(B) maximize function in a person's life; or
(3) applies therapeutic goal-directed activities in treating patients on an individual basis, in groups, or through social systems, by means of direct or monitored treatment or consultation.
(c) The practice of occupational therapy does not include diagnosis or psychological services of the type typically performed by a licensed psychologist. (V.A.C.S. Art. 8851, Secs. 2(1), (6).)
Sec. 454.007. USE OF TITLE OF DOCTOR. An occupational therapist or occupational therapy assistant may not use the abbreviation "Dr.," the word "Doctor," or any suffix or affix indicating or implying that the person is a physician. (V.A.C.S. Art. 8851, Sec. 26 (part).)
[Sections 454.008-454.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS
Sec. 454.051. BOARD MEMBERSHIP. (a) The Texas Board of Occupational Therapy Examiners consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) three occupational therapist members who have practiced occupational therapy for at least the three years preceding appointment to the board;
(2) one occupational therapy assistant member who has practiced as an occupational therapy assistant for at least the three years preceding appointment to the board; and
(3) two members who represent the public and who are not occupational therapists.
(b) Appointments to the board shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. (V.A.C.S. Art. 8851, Secs. 3(a) (part), (b).)
Sec. 454.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the executive council or the board or that receives funds from the executive council or the board;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the executive council or the board or that receives funds from the executive council or the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the executive council or the board, other than compensation or reimbursement authorized by law for executive council or board membership, attendance, or expenses. (V.A.C.S. Art. 8851, Sec. 3B.)
Sec. 454.053. MEMBERSHIP RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board.
(d) A person may not serve as a member of 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 executive council or the board. (V.A.C.S. Art. 8851, Secs. 3C, 3D.)
Sec. 454.054. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms, with the terms of two members expiring on February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 8851, Secs. 3(a) (part), (c).)
Sec. 454.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 454.051(a);
(2) does not maintain during service on the board the qualifications required by Section 454.051(a);
(3) violates a prohibition established by Section 454.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the coordinator of occupational therapy programs has knowledge that a potential ground for removal exists, the coordinator shall notify the presiding officer of the board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 8851, Sec. 3E.)
Sec. 454.056. PER DIEM; REIMBURSEMENT. (a) A member of the board is entitled to a per diem as set by the General Appropriations Act for each day the member engages in board business.
(b) A member may receive reimbursement for transportation expenses as provided by the General Appropriations Act. A member may not receive reimbursement for any other travel expenses, including expenses for meals and lodging. (V.A.C.S. Art. 8851, Sec. 3A(b).)
Sec. 454.057. OFFICERS. After the appointment of members every two years, the members of the board shall elect from among its members a presiding officer, a secretary, and other officers required to conduct the business of the board. (V.A.C.S. Art. 8851, Sec. 3(e).)
Sec. 454.058. MEETINGS. (a) The board shall hold at least two regular meetings each year.
(b) Additional meetings may be held on the call of the presiding officer or on the written request of three members of the board.
(c) The coordinator of occupational therapy programs shall keep a record of each meeting of the board. The record must be open to public inspection at all times. (V.A.C.S. Art. 8851, Secs. 3(f) (part), 3A(a) (part).)
Sec. 454.059. TRAINING. (a) Before a member of the board may assume the member's duties, the member must complete at least a course of the training program established by the board under this section.
(b) The training program shall provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training requirements provided for by this section, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 8851, Sec. 3K.)
Sec. 454.060. CIVIL LIABILITY. A member of the board is not liable in a civil action for an act performed in good faith while performing duties as a board member. (V.A.C.S. Art. 8851, Sec. 3(d).)
[Sections 454.061-454.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 454.101. GENERAL POWERS AND DUTIES. Except as provided by Chapter 452, the board shall administer and enforce this chapter. (V.A.C.S. Art. 8851, Sec. 3G.)
Sec. 454.102. RULES. The board shall adopt rules consistent with this chapter to carry out its duties in administering this chapter. (V.A.C.S. Art. 8851, Sec. 5(c).)
Sec. 454.103. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 8851, Sec. 31A.)
Sec. 454.104. FEES. (a) The board may recommend to the executive council reasonable and necessary fees for licenses issued or services performed under this chapter that in the aggregate provide sufficient revenue to cover the cost of administering this chapter.
(b) The board may not recommend to the executive council a fee that existed on September 1, 1993, for an amount less than the amount of the fee on that date. (V.A.C.S. Art. 8851, Sec. 31C.)
Sec. 454.105. EMPLOYEES; DIVISION OF RESPONSIBILITIES. (a) The board may request the executive council to assign administrative and clerical employees as necessary to carry out the board's functions.
(b) The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the executive council. (V.A.C.S. Art. 8851, Sec. 3F.)
Sec. 454.106. LIST OF LICENSE HOLDERS. (a) The coordinator of occupational therapy programs shall maintain a list of the names of each person licensed under this chapter.
(b) The list shall be open to public inspection at all times.
(c) On March 1 of each year, the coordinator of occupational therapy programs shall transmit an official copy of the list to the executive council and the secretary of state for permanent record.
(d) A certified copy of the list is admissible as evidence in a court of this state. (V.A.C.S. Art. 8851, Sec. 3(f) (part).)
Sec. 454.107. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint. (V.A.C.S. Art. 8851, Secs. 5B(c), (d).)
[Sections 454.108-454.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 454.151. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 8851, Sec. 3H.)
Sec. 454.152. RECORD OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the executive council and referred to the board. The board's information file shall be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 454.153 and a notation about a change in the schedule; and
(5) other relevant information.
(b) If a written complaint is received by the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 8851, Secs. 5B(a), (b), 5C(b) (part).)
Sec. 454.153. GENERAL RULES INVOLVING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules relating to the investigation of a complaint received by the board. The rules shall:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint;
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator; and
(6) require the board to advise the executive council of complaints that have been disposed of.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of an investigation of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) Each party shall be notified of the projected time requirements for the complaint.
(d) Each party to the complaint must be notified of a change in the schedule not later than the seventh day after the date the change is made.
(e) The coordinator of occupational therapy programs shall notify the board of a complaint that extends beyond the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 8851, Secs. 5C(a), (b) (part), (c).)
Sec. 454.154. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 8851, Secs. 3I, 3J (part).)
[Sections 454.155-454.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS; REGISTRATION
OF FACILITIES
Sec. 454.201. LICENSE REQUIRED; USE OF TITLE. (a) A person may not practice occupational therapy or practice as an occupational therapy assistant unless the person is an individual licensed under this chapter.
(b) A person who is not licensed under this chapter as an occupational therapist or an occupational therapy assistant or whose license has been suspended or revoked may not:
(1) use in connection with the person's practice or place of business:
(A) the words "occupational therapy," "occupational therapist," "licensed occupational therapist," "occupational therapist registered," "occupational therapy assistant," "licensed occupational therapy assistant," or "certified occupational therapy assistant";
(B) the letters "O.T.," "O.T.R.," "L.O.T.," "O.T.R./L.," "O.T.A.," "L.O.T.A.," or "C.O.T.A."; or
(C) any other words, letters, abbreviations, or insignia indicating or implying that the person is an occupational therapist or an occupational therapy assistant;
(2) in any way directly or by implication represent that the person is an occupational therapist or an occupational therapy assistant; or
(3) in any way directly or indirectly represent that occupational therapy is provided, or extend or provide occupational therapy services unless the services are provided by an occupational therapist or an occupational therapy assistant. (V.A.C.S. Art. 8851, Secs. 2(5) (part), 26 (part), 28(a), (b), (c).)
Sec. 454.202. APPLICATION. (a) An applicant for an occupational therapist license or an occupational therapy assistant license must submit to the board a written application on a form provided by the board, showing to the satisfaction of the board that the applicant meets the requirements of Section 454.203.
(b) The board shall approve applicants for licenses at least once each year at reasonable times and places designated by the board. (V.A.C.S. Art. 8851, Secs. 5(a), 16 (part).)
Sec. 454.203. QUALIFICATIONS FOR OCCUPATIONAL THERAPIST OR OCCUPATIONAL THERAPY ASSISTANT LICENSE. (a) An applicant for an occupational therapist license or an occupational therapy assistant license must present evidence satisfactory to the board that the applicant has:
(1) successfully completed the academic requirements of an educational program in occupational therapy recognized by the board, as provided by Section 454.204;
(2) successfully completed a period of supervised field work experience arranged by the recognized educational institution at which the applicant met the academic requirements; and
(3) passed an examination as provided by Section 454.207.
(b) To satisfy the supervised field work experience required by Subsection (a)(2):
(1) an occupational therapist must have completed a period of at least six months; and
(2) an occupational therapy assistant must have completed a period of at least two months. (V.A.C.S. Art. 8851, Sec. 16 (part).)
Sec. 454.204. EDUCATIONAL REQUIREMENTS. To satisfy Section 454.203(a)(1):
(1) an applicant applying for an occupational therapist license must have:
(A) a baccalaureate degree in occupational therapy;
(B) a certificate evidencing successful completion of required undergraduate occupational therapy course work awarded to persons with a baccalaureate degree that is not in occupational therapy; or
(C) a postgraduate degree in occupational therapy; and
(2) an applicant applying for an occupational therapy assistant license must have:
(A) an associate degree in occupational therapy; or
(B) an occupational therapy assistant certificate. (V.A.C.S. Art. 8851, Sec. 16 (part).)
Sec. 454.205. FOREIGN-TRAINED APPLICANTS. (a) To obtain a license under this chapter, an applicant who is foreign-trained must satisfy the examination requirements of Section 454.203(a)(3).
(b) Before allowing the applicant to take the examination, the board shall require the applicant to furnish proof of:
(1) good moral character; and
(2) completion of the educational and supervised field work requirements substantially equal to those under Section 454.203. (V.A.C.S. Art. 8851, Sec. 20.)
Sec. 454.206. APPLICATION FOR EXAMINATION. (a) A person must satisfy the requirements of Sections 454.202(a) and 454.203(a)(1) and (2) before the person may apply for the examination.
(b) The board shall prescribe the manner in which the person may apply for the examination.
(c) The application must be accompanied by a nonrefundable fee prescribed by the executive council. (V.A.C.S. Art. 8851, Sec. 17(a).)
Sec. 454.207. LICENSE EXAMINATION. (a) The board shall examine each applicant for a license by written examination to test the applicant's knowledge of the basic and clinical sciences relating to occupational therapy, occupational therapy techniques and methods, and other subjects the board may require to determine the applicant's fitness to practice.
(b) The board shall examine applicants for licenses at least twice each year at the board's regular meetings and under the supervision required by the board.
(c) The board shall:
(1) approve an examination for:
(A) occupational therapists; and
(B) occupational therapy assistants;
(2) establish standards for acceptable performance; and
(3) have the written portion of the examination validated by an independent testing entity.
(d) The board shall give reasonable public notice of the examination in accordance with its rules. (V.A.C.S. Art. 8851, Secs. 3A(a) (part), 5(b), 17(b), (c).)
Sec. 454.208. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the licensing examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) An applicant may obtain the applicant's examination score and review the applicant's papers in accordance with rules adopted by the board. If requested in writing by a person who fails a licensing examination, the board shall furnish the person with an analysis of the person's performance on the examination. (V.A.C.S. Art. 8851, Secs. 17(d), (e) (part), (f).)
Sec. 454.209. REEXAMINATION. (a) An applicant who fails an examination given by the board may take a second examination on payment of the prescribed fees.
(b) An applicant who fails the second examination may take a third examination after a specific period of not longer than one year if the applicant meets the requirements prescribed for previous examinations.
(c) An applicant who fails the third examination may take additional tests at the board's discretion. (V.A.C.S. Art. 8851, Sec. 17(e) (part).)
Sec. 454.210. PROVISIONAL LICENSE. (a) On application, the board shall issue a provisional license for the practice of occupational therapy to an applicant who:
(1) is licensed in good standing as an occupational therapist or occupational therapy assistant in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;
(2) has passed a national examination or other examination recognized by the board relating to the practice of occupational therapy; and
(3) is sponsored by a person licensed under this chapter with whom the provisional license holder may practice.
(b) The board may waive the requirement of Subsection (a)(3) if the board determines that compliance with that requirement constitutes a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for an occupational therapist or occupational therapy assistant license.
(d) The board shall issue an occupational therapist or occupational therapy assistant license to the provisional license holder if:
(1) the provisional license holder passes a jurisprudence examination, if required;
(2) the board verifies that the provisional license holder has the academic and experience requirements for an occupational therapist or occupational therapy assistant license; and
(3) the provisional license holder satisfies any other requirements for an occupational therapist or occupational therapy assistant license.
(e) The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend that deadline if the results of an examination have not been received by the board. (V.A.C.S. Art. 8851, Sec. 18.)
Sec. 454.211. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license.
(b) The holder of a temporary license must practice under the supervision of an occupational therapist.
(c) A rule adopted under this section must include a time limit for a person to hold a temporary license. (V.A.C.S. Art. 8851, Sec. 22.)
Sec. 454.212. INACTIVE STATUS. (a) The board by rule may provide for a license holder to place the holder's license under this chapter on inactive status.
(b) A rule adopted under this section must include a time limit for a license holder's license to remain on inactive status. (V.A.C.S. Art. 8851, Sec. 25A.)
Sec. 454.213. ACCEPTED PRACTICE; PHYSICIAN'S REFERRAL. (a) An occupational therapist may enter a case to:
(1) provide consultation and monitored services; or
(2) evaluate a person for the need for services.
(b) Implementation of direct occupational therapy to a person for a specific medical condition must be based on a referral from a physician licensed to practice in this state. (V.A.C.S. Art. 8851, Sec. 27.)
Sec. 454.214. DISPLAY OF LICENSE AND RENEWAL CERTIFICATE. A license holder under this chapter shall display the license holder's license and renewal certificate in a conspicuous place in the principal office in which the license holder practices occupational therapy. (V.A.C.S. Art. 8851, Sec. 23.)
Sec. 454.215. OCCUPATIONAL THERAPY FACILITY REGISTRATION. (a) The board by rule shall adopt requirements for the registration and renewal of a registration of a facility in which the practice of occupational therapy is conducted. A facility licensed under Subtitle B, Title 4, Health and Safety Code, is exempt from the registration requirements under this section. The board by rule may exempt other facilities as appropriate.
(b) If a person owns more than one occupational therapy facility, the board may require only one application for the registration of all facilities.
(c) The board by rule shall adopt a procedure whereby an occupational therapy facility may apply for exemption from any registration fees under this section.
(d) A facility may not represent that it offers occupational therapy services unless it employs the services of a license holder under this chapter. (V.A.C.S. Art. 8851, Secs. 28(d), 31B.)
[Sections 454.216-454.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 454.251. LICENSE EXPIRATION. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.
(b) For the term in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 8851, Sec. 24(a).)
Sec. 454.252. RENEWAL OF LICENSE. (a) A person may renew an unexpired license by paying the required renewal fee to the executive council before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the executive council the renewal fee and a fee that is equal to one-half of the examination fee for the license. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the executive council all unpaid renewal fees and a fee that is equal to the amount charged for examination for the license.
(c) A person whose license has been expired for one year or longer may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(d) At least 30 days before the expiration of a person's license, the executive council shall send written notice of the impending license expiration to the license holder at the person's last known address. (V.A.C.S. Art. 8851, Secs. 24(b), 25(a), (b), (c) (part), (d).)
Sec. 454.253. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination the expired license of a person who was licensed to practice as an occupational therapist or occupational therapy assistant in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the executive council a renewal fee equal to the examination fee for the license. (V.A.C.S. Art. 8851, Sec. 25(c) (part).)
Sec. 454.254. MANDATORY CONTINUING EDUCATION. (a) The board by rule shall:
(1) assess the continuing education needs of license holders;
(2) establish a minimum number of hours of continuing education required to renew a license; and
(3) develop a process to evaluate and approve continuing education courses.
(b) The board may require license holders to attend continuing education courses specified by the board. The board shall adopt a procedure to assess a license holder's participation in continuing education programs.
(c) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. (V.A.C.S. Art. 8851, Sec. 5A.)
[Sections 454.255-454.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY ACTION AND PROCEDURE
Sec. 454.301. GROUNDS FOR DENIAL OF LICENSE OR DISCIPLINE OF LICENSE HOLDER. (a) The board may deny, suspend, or revoke a license or take other disciplinary action against a license holder if the applicant or license holder has:
(1) used drugs or intoxicating liquors to an extent that affects the applicant's or license holder's professional competence;
(2) been convicted of a crime, other than a minor offense defined as a "minor misdemeanor," "violation," or "offense," in any court if the act for which the applicant or license holder was convicted is determined by the board to have a direct bearing on whether the applicant or license holder should be entrusted to serve the public in the capacity of an occupational therapist or occupational therapy assistant;
(3) obtained or attempted to obtain a license by fraud or deception;
(4) been grossly negligent in the practice of occupational therapy or in acting as an occupational therapy assistant;
(5) been found mentally incompetent by a court;
(6) practiced occupational therapy in a manner detrimental to the public health and welfare;
(7) advertised in a manner that in any way tends to deceive or defraud the public;
(8) had a license to practice occupational therapy revoked or suspended or had other disciplinary action taken against the applicant or license holder by the proper licensing authority of another state, territory, or nation; or
(9) had the applicant's or license holder's application for a license refused, revoked, or suspended by the proper licensing authority of another state, territory, or nation.
(b) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 8851, Secs. 30(b), 31(b) (part).)
Sec. 454.302. PROCEDURES FOR DISCIPLINARY ACTION; SCHEDULE OF SANCTIONS. (a) Proceedings for disciplinary action against a license holder and appeals from those proceedings are governed by Chapter 2001, Government Code.
(b) After a hearing by the State Office of Administrative Hearings, the board may deny or refuse to renew a license, suspend or revoke a license, reprimand a license holder, or impose probationary conditions.
(c) The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board by rule for a sanction imposed as the result of a hearing conducted by the office. (V.A.C.S. Art. 8851, Secs. 31(a), (b) (part), (c).)
Sec. 454.303. ISSUANCE OF LICENSE AFTER DENIAL; REISSUANCE OF LICENSE. On application by the person, the board may issue a license to a person whose license has been denied or reissue a license to a person who has been disciplined by the board. The application:
(1) may not be made before the 180th day after the date the denial or discipline order became final; and
(2) must be made in the manner and form the board requires. (V.A.C.S. Art. 8851, Sec. 31(d).)
Sec. 454.304. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government Code.
(b) A rule adopted under this section must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of the board's legal counsel or a representative of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 8851, Sec. 5D.)
[Sections 454.305-454.350 reserved for expansion]
SUBCHAPTER H. PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 454.351. INJUNCTIVE RELIEF. The attorney general, a district attorney, a county attorney, or any other person may institute a proceeding to enforce this chapter, including a suit to enjoin a person from practicing occupational therapy without complying with this chapter. (V.A.C.S. Art. 8851, Sec. 29(c) (part).)
Sec. 454.352. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system for monitoring a license holder's compliance with this chapter. The rules must include procedures for:
(1) monitoring for compliance a license holder who is ordered by the board to perform a certain act; and
(2) identifying and monitoring each license holder who represents a risk to the public. (V.A.C.S. Art. 8851, Sec. 5E.)
Sec. 454.353. CIVIL PENALTY. (a) A person found by a court to have violated this chapter is liable to this state for a civil penalty of $200 for each day the violation continues.
(b) A civil penalty may be recovered in a suit brought by the attorney general, a district attorney, a county attorney, or any other person. (V.A.C.S. Art. 8851, Sec. 29(c) (part).)
Sec. 454.354. RECOVERY OF COSTS AND FEES. A person other than the attorney general, a district attorney, or a county attorney who brings an action to enforce this chapter or for injunctive relief may recover the person's court costs and attorney's fees. (V.A.C.S. Art. 8851, Sec. 29(c) (part).)
Sec. 454.355. CRIMINAL OFFENSE. (a) A person commits an offense if the person knowingly violates this chapter.
(b) An offense under this section is a Class A misdemeanor.
(c) Each day of violation constitutes a separate offense. (V.A.C.S. Art. 8851, Secs. 29(a), (b).)
CHAPTER 455. MASSAGE THERAPY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 455.001. DEFINITIONS
Sec. 455.002. MASSAGE THERAPY AS HEALTH CARE SERVICE
Sec. 455.003. PRACTICES INCLUDED IN MASSAGE THERAPY
Sec. 455.004. APPLICABILITY OF CHAPTER
Sec. 455.005. EFFECT ON LOCAL LAW
[Sections 455.006-455.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD
Sec. 455.051. GENERAL RULEMAKING AUTHORITY
Sec. 455.052. RULES REGARDING MASSAGE ESTABLISHMENTS
Sec. 455.053. RULES REGARDING MASSAGE SCHOOLS
Sec. 455.054. RULES REGARDING MASSAGE THERAPISTS
Sec. 455.055. RULES REGARDING MASSAGE THERAPY
INSTRUCTORS
[Sections 455.056-455.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF DEPARTMENT
Sec. 455.101. GENERAL DUTIES OF DEPARTMENT
Sec. 455.102. EXAMINERS; COMPENSATION
Sec. 455.103. MEMORANDUM OF UNDERSTANDING REGARDING
MASSAGE SCHOOLS
Sec. 455.104. INSPECTIONS; INVESTIGATIONS
[Sections 455.105-455.150 reserved for expansion]
SUBCHAPTER D. REGISTRATION
Sec. 455.151. REGISTRATION REQUIRED
Sec. 455.152. INELIGIBILITY FOR REGISTRATION
Sec. 455.153. APPLICATION FOR REGISTRATION
Sec. 455.154. GENERAL PROVISIONS RELATING TO
REGISTRATION
Sec. 455.155. REGISTRATION EXEMPTION FOR MASSAGE
ESTABLISHMENT
Sec. 455.156. REGISTRATION REQUIREMENTS FOR MASSAGE
THERAPIST
Sec. 455.157. TEMPORARY REGISTRATION
Sec. 455.158. STUDENT EXEMPTION FROM REGISTRATION
REQUIREMENTS
Sec. 455.159. STUDENT INTERNSHIP PROGRAM
Sec. 455.160. REGISTRATION RENEWAL
[Sections 455.161-455.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY CERTIFICATE HOLDERS
Sec. 455.201. REFERRAL FROM PHYSICIAN
Sec. 455.202. PRACTICE BY MASSAGE ESTABLISHMENT
Sec. 455.203. PRACTICE BY MASSAGE SCHOOL OR INSTRUCTOR AT
SCHOOL
Sec. 455.204. DISPLAY OF CERTIFICATE
Sec. 455.205. PROHIBITED PRACTICES
[Sections 455.206-455.250 reserved for expansion]
SUBCHAPTER F. REGISTRATION DENIAL OR
DISCIPLINARY PROCEDURES
Sec. 455.251. GROUNDS FOR REGISTRATION DENIAL OR
DISCIPLINARY ACTION
Sec. 455.252. HEARING ON DENIAL OR DISCIPLINARY ACTION
[Sections 455.253-455.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 455.301. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 455.302. AMOUNT OF PENALTY
Sec. 455.303. NOTICE OF VIOLATION AND PENALTY
Sec. 455.304. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 455.305. HEARING ON DEPARTMENT DETERMINATION
Sec. 455.306. DECISION BY COMMISSIONER
Sec. 455.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 455.308. DETERMINATION BY COURT
Sec. 455.309. REMITTANCE OF PENALTY AND INTEREST
Sec. 455.310. COLLECTION OF PENALTY
Sec. 455.311. ADMINISTRATIVE PROCEDURE
[Sections 455.312-455.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 455.351. INJUNCTIVE RELIEF; CIVIL PENALTY
Sec. 455.352. CRIMINAL PENALTY
Sec. 455.353. ENFORCEMENT BY PEACE OFFICERS
CHAPTER 455. MASSAGE THERAPY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 455.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Department" means the Texas Department of Health.
(3) "Instructor" means a person who instructs a student in any section of the course of instruction required for registration as a massage therapist.
(4) "Internship program" means a program supervised by a massage therapy instructor in which a student provides massage therapy to the public.
(5) "Massage establishment" means a place of business that advertises massage therapy or offers massage therapy as a service.
(6) "Massage school" means an entity that:
(A) teaches at a minimum the course of instruction required for registration as a massage therapist; and
(B) has at least two instructors.
(7) "Massage therapist" means a person who practices or administers massage therapy to a client for compensation. The term includes a registered massage therapist, therapeutic massage practitioner, massage technician, masseur, masseuse, myotherapist, body massager, body rubber, or any derivation of those titles.
(8) "Massage therapy" means the manipulation of soft tissue by hand or through a mechanical or electrical apparatus for the purpose of body massage and includes effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics. The terms "massage," "therapeutic massage," "massage technology," "myotherapy," "body massage," "body rub," or any derivation of those terms are synonyms for "massage therapy."
(9) "Massage therapy instructor" means a registered massage therapist who provides to one or more students instruction approved by the department in massage therapy.
(10) "Sexually oriented business" has the meaning assigned by Section 243.002, Local Government Code, unless another meaning applies under local law. (V.A.C.S. Art. 4512k, Secs. 1(1) (part), (2), (3), (4), (5), (6), (8), (9), (12) (part), (13).)
Sec. 455.002. MASSAGE THERAPY AS HEALTH CARE SERVICE. (a) Massage therapy constitutes a health care service if the massage therapy is for therapeutic purposes. Massage therapy does not constitute the practice of chiropractic.
(b) In this chapter, therapy or therapeutic procedures do not include:
(1) the diagnosis or treatment of illness or disease; or
(2) a service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. (V.A.C.S. Art. 4512k, Sec. 1(1) (part).)
Sec. 455.003. PRACTICES INCLUDED IN MASSAGE THERAPY. Massage therapy includes the use of oil, salt glows, heat lamps, hot and cold packs, and tub, shower, or cabinet baths. (V.A.C.S. Art. 4512k, Sec. 1(1) (part).)
Sec. 455.004. APPLICABILITY OF CHAPTER. This chapter does not apply to:
(1) a person licensed in this state as a physician, chiropractor, physical therapist, nurse, cosmetologist, or athletic trainer or as a member of a similar profession subject to state licensing while the person is practicing within the scope of the license;
(2) a school approved by the Texas Education Agency or otherwise approved by the state; or
(3) an instructor otherwise approved by the state to teach in an area of study included in the required course of instruction for registration as a massage therapist. (V.A.C.S. Art. 4512k, Sec. 4.)
Sec. 455.005. EFFECT ON LOCAL LAW. (a) Except as provided by Subsection (b), this chapter supersedes any regulation adopted by a political subdivision of this state relating to the licensing or regulation of massage therapists.
(b) This chapter does not affect a local regulation that:
(1) relates to zoning requirements or other similar regulations for massage establishments;
(2) authorizes or requires an investigation into the background of an owner or operator of, or an investor in, a massage establishment; or
(3) does not relate directly to the practice of massage therapy as performed by a registered massage therapist, including a regulation related to a license holder listed in Section 455.004, while the therapist:
(A) performs under the applicable licensing law; and
(B) works with a registered massage therapist.
(c) Except as provided by Chapter 243, Local Government Code, a political subdivision may not adopt a regulation of the type described by Subsection (b) that is more restrictive for massage therapists or massage establishments than for other health care professionals or establishments. (V.A.C.S. Art. 4512k, Sec. 14.)
[Sections 455.006-455.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD
Sec. 455.051. GENERAL RULEMAKING AUTHORITY. The board shall adopt rules consistent with this chapter as necessary for the performance of its duties under this chapter. (V.A.C.S. Art. 4512k, Sec. 7(a) (part).)
Sec. 455.052. RULES REGARDING MASSAGE ESTABLISHMENTS. Rules adopted under this chapter relating to a massage establishment must contain minimum standards for:
(1) the issuance, denial, renewal, suspension, revocation, or probation of a certificate of registration under this chapter;
(2) the qualifications of professional personnel;
(3) the supervision of professional personnel;
(4) the equipment essential to the health and safety of massage establishment personnel and the public;
(5) the sanitary and hygienic conditions of a massage establishment;
(6) the provision of massage therapy by a massage establishment;
(7) the records kept by a massage establishment;
(8) the organizational structure of a massage establishment, including the lines of authority and the delegation of responsibility;
(9) fire prevention and safety in a massage establishment;
(10) the inspection of a massage establishment; and
(11) any other aspect of the operation of a massage establishment necessary to protect massage establishment personnel or the public. (V.A.C.S. Art. 4512k, Sec. 7B.)
Sec. 455.053. RULES REGARDING MASSAGE SCHOOLS. Rules adopted under this chapter relating to a massage school must contain minimum standards for:
(1) the issuance, denial, renewal, suspension, revocation, or probation of a certificate of registration under this chapter;
(2) the qualifications of professional personnel;
(3) the supervision of professional personnel;
(4) the equipment essential to the education, health, and safety of students, massage school personnel, and the public;
(5) the sanitary and hygienic conditions of a massage school;
(6) the provision of massage therapy by a massage school or student;
(7) the maximum number of hours a student may accumulate in a massage school's internship program before the student is required to register under this chapter;
(8) the educational and clinical records kept by a massage school;
(9) the organizational structure of a massage school, including the lines of authority and the delegation of responsibility;
(10) fire prevention and safety in a massage school;
(11) the massage school's curriculum and educational material;
(12) massage school inspections; and
(13) any other aspect of the operation of a massage school that the board considers necessary to protect students, massage school personnel, or the public. (V.A.C.S. Art. 4512k, Sec. 7A.)
Sec. 455.054. RULES REGARDING MASSAGE THERAPISTS. Rules adopted under this chapter relating to a massage therapist must contain minimum standards for:
(1) the issuance, denial, renewal, suspension, revocation, or probation of a certificate of registration under this chapter;
(2) the qualifications of a massage therapist;
(3) the sanitary and hygienic conditions of the physical environment in which a massage therapist practices massage therapy;
(4) the records kept by a massage therapist;
(5) the inspection of the records, equipment, and sanitary and hygienic conditions of the physical environment used by a massage therapist in practicing massage therapy; and
(6) any other aspect of the practice of a massage therapist necessary to protect the public. (V.A.C.S. Art. 4512k, Sec. 7D.)
Sec. 455.055. RULES REGARDING MASSAGE THERAPY INSTRUCTORS. Rules adopted under this chapter relating to a massage therapy instructor must contain minimum standards for:
(1) the issuance, denial, renewal, suspension, revocation, or probation of a certificate of registration under this chapter;
(2) the qualifications of a massage therapy instructor;
(3) the supervision of a student by a massage therapy instructor;
(4) the maximum number of hours a student may accumulate in an internship program under the supervision of a massage therapy instructor before the student is required to register under this chapter;
(5) the equipment essential to the education, health, and safety of students and the public;
(6) the sanitary and hygienic conditions of the physical environment in which a massage therapy instructor teaches;
(7) the provision of massage therapy by a student or a massage therapy instructor;
(8) the educational and clinical records kept by a massage therapy instructor;
(9) the curriculum taught and educational material used by a massage therapy instructor;
(10) the inspection of the records, equipment, and physical environment of a massage therapy instructor; and
(11) any other aspect of a massage therapy instructor's instruction or operation of any portion of the course of instruction required for registration as a massage therapist. (V.A.C.S. Art. 4512k, Sec. 7C.)
[Sections 455.056-455.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF DEPARTMENT
Sec. 455.101. GENERAL DUTIES OF DEPARTMENT. The department shall:
(1) administer this chapter;
(2) investigate a person who may be engaging in a practice that violates this chapter;
(3) regulate the number and content of school hours provided by a massage school or a massage therapy instructor; and
(4) prepare and administer a state examination under this chapter. (V.A.C.S. Art. 4512k, Secs. 2A(j); 7(b), (c), (d) (part), (e).)
Sec. 455.102. EXAMINERS; COMPENSATION. (a) In this section, "examiner" means a registered massage therapist who administers the practical portion of the state examination to applicants for registration as massage therapists.
(b) The department may employ examiners.
(c) An examiner is entitled to compensation and the state per diem allowance as set by the General Appropriations Act for transportation and related expenses incurred by the examiner while engaging in department business. (V.A.C.S. Art. 4512k, Secs. 1(11); 7(d) (part).)
Sec. 455.103. MEMORANDUM OF UNDERSTANDING REGARDING MASSAGE SCHOOLS. (a) The department may enter into a memorandum of understanding with the Texas Education Agency to regulate massage schools.
(b) A memorandum must:
(1) be adopted by rule; and
(2) limit the total amount of the fees charged by the department and the Texas Education Agency for registering a massage school to an amount equal to the amount of the fees the department would charge for registering the massage school in the absence of the memorandum. (V.A.C.S. Art. 4512k, Sec. 19.)
Sec. 455.104. INSPECTIONS; INVESTIGATIONS. The department or its authorized representative may enter the premises of an applicant for a certificate of registration or a certificate holder at:
(1) reasonable times to conduct an inspection incidental to the issuance of a certificate of registration; and
(2) other times that the department considers necessary to ensure compliance with this chapter and the rules adopted under this chapter. (V.A.C.S. Art. 4512k, Sec. 17.)
[Sections 455.105-455.150 reserved for expansion]
SUBCHAPTER D. REGISTRATION
Sec. 455.151. REGISTRATION REQUIRED. (a) Unless the person is exempt from the registration requirement, a person may not act as a massage therapist, massage school, massage therapy instructor, or massage establishment unless the person holds an appropriate certificate of registration issued under this chapter.
(b) Unless the person is exempt from the registration requirement, a person may not represent that the person is a massage therapist unless the person holds a certificate of registration under this chapter. (V.A.C.S. Art. 4512k, Sec. 2(a) (part); Sec. 2A(a) (part), (b); Sec. 2B(a) (part).)
Sec. 455.152. INELIGIBILITY FOR REGISTRATION. (a) A person is not eligible for registration as a massage establishment, massage school, massage therapist, or massage therapy instructor if the person is an individual and has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication for an offense involving prostitution or another sexual offense.
(b) A person convicted of a violation of this chapter is ineligible for registration as a massage establishment, massage school, massage therapist, or massage therapy instructor until the fifth anniversary of the date of the conviction. (V.A.C.S. Art. 4512k, Secs. 11(b) (part), (d).)
Sec. 455.153. APPLICATION FOR REGISTRATION. An applicant for registration under this chapter must:
(1) submit an application form provided by the department; and
(2) include with the application the application fee set by the department. (V.A.C.S. Art. 4512k, Sec. 3.)
Sec. 455.154. GENERAL PROVISIONS RELATING TO REGISTRATION. (a) The holder of a certificate of registration may exercise all professional rights, honors, and privileges relating to the practice of massage therapy.
(b) A certificate of registration is the property of the department and must be surrendered on demand. (V.A.C.S. Art. 4512k, Secs. 10(c), (d).)
Sec. 455.155. REGISTRATION EXEMPTION FOR MASSAGE ESTABLISHMENT. (a) Section 455.151 does not apply to an establishment that:
(1) holds a license, permit, certificate, or other credential issued by this state under another law; and
(2) offers or performs massage therapy under the scope of that credential.
(b) A registered massage therapist who practices as a solo practitioner is not required to register as a massage establishment.
(c) The board by rule shall provide for a fair and reasonable procedure to grant exemptions from the registration requirements of this section. The rules must provide that a person is exempt if the person shows that the advertising or provision of massage therapy services is incidental to the person's primary enterprise.
(d) A sexually oriented business may not:
(1) register under this chapter; or
(2) operate as a massage establishment under this chapter. (V.A.C.S. Art. 4512k, Secs. 2B(a) (part), (c), (d), (e).)
Sec. 455.156. REGISTRATION REQUIREMENTS FOR MASSAGE THERAPIST. (a) The department shall issue a certificate of registration to each qualified applicant for registration as a message therapist.
(b) An applicant for registration under this section must be an individual and:
(1) present evidence satisfactory to the board that the person:
(A) has satisfactorily completed massage therapy studies in a 300-hour, supervised course of instruction provided by a massage therapy instructor, a registered massage school, a state-approved educational institution, or any combination of instructors or schools, in which:
(i) 125 hours are dedicated to the study of Swedish massage therapy techniques and taught by a massage therapy instructor;
(ii) 50 hours are dedicated to the study of anatomy;
(iii) 25 hours are dedicated to the study of physiology;
(iv) 15 hours are dedicated to the study of hydrotherapy;
(v) 15 hours are dedicated to the study of business practices and professional ethics standards;
(vi) 20 hours are dedicated to the study of health and hygiene; and
(vii) 50 hours are spent in an internship program;
(B) is registered as a massage therapist in another state or country that the department determines maintains standards and requirements of practice and licensing or registration that substantially conform to the standards and requirements of this state; or
(C) has practiced massage therapy as a profession for not less than five years in another state or country that the department determines does not maintain standards and requirements of practice and licensing or registration that substantially conform to the standards and requirements of this state; and
(2) pass the practical and written portions of the state examination. (V.A.C.S. Art. 4512k, Secs. 2(b); 10(a).)
Sec. 455.157. TEMPORARY REGISTRATION. (a) The department shall issue a temporary certificate of registration to an applicant who has complied with the education and experience requirements for registration.
(b) A temporary certificate of registration expires on the date the applicant is:
(1) issued a massage therapist certificate of registration after successful completion of the first examination for which the applicant is eligible; or
(2) notified by the department that the applicant has failed the first examination for which the applicant was eligible.
(c) Notwithstanding Subsection (b), a temporary certificate of registration is valid for six months from the date the certificate is issued.
(d) The department may set a reasonable fee for a temporary certificate of registration. (V.A.C.S. Art. 4512k, Sec. 10(f).)
Sec. 455.158. STUDENT EXEMPTION FROM REGISTRATION REQUIREMENTS. A student who provides massage therapy as part of an internship program or without compensation is exempt from registration under this chapter if the student is enrolled in a state-approved course of instruction that consists of at least 300 hours. (V.A.C.S. Art. 4512k, Sec. 2(c).)
Sec. 455.159. STUDENT INTERNSHIP PROGRAM. (a) An internship program must:
(1) meet the qualifications established by the board;
(2) provide a student with a minimum of 40 hours of hands-on massage therapy experience; and
(3) be conducted on the school grounds or in a clinic or classroom setting provided by the massage school or massage therapy instructor.
(b) A student must complete the first 250 hours of required training at a massage school or with a massage therapy instructor before the student is eligible to enter an internship program.
(c) A student who is participating in an internship program must be under the supervision and direction of a massage therapy instructor during the hours that the student is working in the program.
(d) A student who is participating in an internship program may:
(1) make an appointment with a client;
(2) interview a client;
(3) provide massage therapy, including providing massage therapy for compensation in an amount set by the massage school or massage therapy instructor and paid to the school or instructor;
(4) collect and review a client evaluation with the student's supervisor; and
(5) perform other tasks necessary to the business of providing massage therapy to the public. (V.A.C.S. Art. 4512k, Secs. 1(12) (part); 2A(d), (e), (f), (g), (h), (i).)
Sec. 455.160. REGISTRATION RENEWAL. (a) A person registered under this chapter must periodically renew the person's certificate of registration. The certificate expires unless the certificate holder submits an application for renewal accompanied by the renewal fee.
(b) The department shall adopt a system under which certificates of registration expire on various dates during the year. Fees must be prorated so that a registered person pays only for that part of the renewal period for which the registration is issued until the expiration date of the registration.
(c) A person registered under this chapter who fails to renew a certificate of registration by the expiration date may renew the certificate not later than the first anniversary of the expiration date by meeting the requirements of this section and paying a late renewal fee.
(d) The registration of a person who fails to meet the requirements of this section is void. To be registered under this chapter, the person must submit a new application, pay the appropriate fees, and meet the current requirements for registration. (V.A.C.S. Art. 4512k, Sec. 12.)
[Sections 455.161-455.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY CERTIFICATE HOLDERS
Sec. 455.201. REFERRAL FROM PHYSICIAN. A person issued a certificate of registration may receive referrals from a physician to administer massage therapy. (V.A.C.S. Art. 4512k, Sec. 10(e).)
Sec. 455.202. PRACTICE BY MASSAGE ESTABLISHMENT. A massage establishment may employ only registered massage therapists to perform massage therapy. (V.A.C.S. Art. 4512k, Sec. 2B(b).)
Sec. 455.203. PRACTICE BY MASSAGE SCHOOL OR INSTRUCTOR AT SCHOOL. (a) A massage school must meet the minimum standards of operation established by board rule.
(b) An instructor must meet the minimum requirements established by board rule.
(c) A massage school or massage therapy instructor registered under this chapter shall give each prospective student a notice that clearly states the number of course hours that the student must successfully complete before the student is eligible to register as a massage therapist under this chapter.
(d) The notice under Subsection (c) must be given to the prospective student at a time and in a manner that provides the student with a sufficient opportunity to read the notice and, if necessary for understanding and clarity, discuss the notice with massage school officials or with the massage therapy instructor before:
(1) the student signs an enrollment contract; and
(2) the massage school or the massage therapy instructor accepts the student in a course of study. (V.A.C.S. Art. 4512k, Secs. 2A(a) (part), (c), (l), (m).)
Sec. 455.204. DISPLAY OF CERTIFICATE. (a) A person who holds a certificate of registration shall publicly display the certificate as specified by the board.
(b) Each massage establishment must post in plain sight the certificate of registration for each massage therapist who practices in the massage establishment.
(c) Each massage school, massage establishment, massage therapy instructor, or massage therapist shall present the person's certificate of registration on the request of the department, an authorized representative of the department, or a peace officer. (V.A.C.S. Art. 4512k, Secs. 5(a), 10(b).)
Sec. 455.205. PROHIBITED PRACTICES. (a) A massage therapist may not perform massage therapy for compensation or without compensation at or for a sexually oriented business.
(b) A massage school or a massage therapy instructor may not require the successful completion of more course hours than the number of hours required for registration as a massage therapist under this chapter.
(c) A person who is not registered under this chapter may not use the word "massage" on any form of advertising unless the person is expressly exempt from the registration requirements of this chapter.
(d) A sexually oriented business may not use the word "massage" on a sign or any form of advertising. (V.A.C.S. Art. 4512k, Secs. 2(a) (part), 2A(k), 5(b).)
[Sections 455.206-455.250 reserved for expansion]
SUBCHAPTER F. REGISTRATION DENIAL OR
DISCIPLINARY PROCEDURES
Sec. 455.251. GROUNDS FOR REGISTRATION DENIAL OR DISCIPLINARY ACTION. (a) The department may refuse to issue a certificate of registration to a person, suspend or revoke the certificate of registration of a person, or place a person registered under this chapter on probation if the person:
(1) obtains a certificate of registration by fraud, misrepresentation, or concealment of material facts;
(2) sells, barters, or offers to sell or barter a certificate of registration;
(3) violates a rule adopted by the board;
(4) engages in unprofessional conduct as defined by board rule that endangers or is likely to endanger the health, welfare, or safety of the public;
(5) violates an order or ordinance adopted by a political subdivision under Chapter 243, Local Government Code; or
(6) violates this chapter.
(b) The department shall revoke the certificate of registration of a person registered as a massage therapist or massage therapy instructor if:
(1) the person is convicted of, enters a plea of nolo contendere or guilty to, or receives deferred adjudication for an offense involving prostitution or another sexual offense; or
(2) the department determines the person has practiced or administered massage therapy at or for a sexually oriented business.
(c) The department shall revoke the certificate of registration of a person registered as a massage school or massage establishment if the department determines that:
(1) the school or establishment is a sexually oriented business; or
(2) an offense involving prostitution or another sexual offense that resulted in a conviction for the offense, a plea of nolo contendere or guilty to the offense, or a grant of deferred adjudication for the offense occurred on the premises of the school or establishment. (V.A.C.S. Art. 4512k, Secs. 7(a) (part), 11(a), (b) (part).)
Sec. 455.252. HEARING ON DENIAL OR DISCIPLINARY ACTION. (a) A person whose application for a certificate of registration is denied, or whose certificate of registration is suspended or revoked, is entitled to a hearing before the department if the person submits a written request to the department.
(b) A hearing under this subchapter is a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 4512k, Sec. 11(c).)
[Sections 455.253-455.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 455.301. IMPOSITION OF ADMINISTRATIVE PENALTY. The department may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512k, Sec. 13A(a).)
Sec. 455.302. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 4512k, Secs. 13A(b), (c).)
Sec. 455.303. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person on whom the administrative penalty may be imposed. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512k, Sec. 13A(e).)
Sec. 455.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 455.303, the person may:
(1) accept the department's determination and recommended administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the department's determination, the commissioner of public health or the commissioner's designee by order shall approve the determination and require the person to pay the recommended penalty. (V.A.C.S. Art. 4512k, Secs. 13A(f), (g).)
Sec. 455.305. HEARING ON DEPARTMENT DETERMINATION. (a) If the person makes a timely request for a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commissioner of public health or the commissioner's designee a proposal for decision as to the occurrence of the violation, and, if the examiner determines a penalty is warranted, the amount of the proposed administrative penalty. (V.A.C.S. Art. 4512k, Secs. 13A(h), (i).)
Sec. 455.306. DECISION BY COMMISSIONER. (a) Based on the findings of fact, conclusions of law, and recommendations of the hearings examiner, the commissioner of public health or the commissioner's designee by order may determine that:
(1) a violation occurred and may impose an administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512k, Secs. 13A(j), (k).)
Sec. 455.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order issued under Section 455.306 becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that is:
(i) for the amount of the penalty; and
(ii) effective until judicial review of the order is final; or
(2) request the court to stay the enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the department by certified mail.
(c) If the department receives a copy of an affidavit under Subsection (b)(2), the department may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay the enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512k, Secs. 13A(l), (m), (n).)
Sec. 455.308. DETERMINATION BY COURT. (a) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount.
(b) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512k, Sec. 13A(q).)
Sec. 455.309. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person by the department if the person paid the penalty under Section 455.307(a)(2); or
(2) if the person paid the penalty under Section 455.307(b)(1)(A) or posted a supersedeas bond, order the department to:
(A) execute a complete release of the escrow account or bond, as appropriate, if the penalty is not imposed; or
(B) release the escrow account or bond, as appropriate, after the reduced penalty has been paid from the account or by the person.
(b) The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512k, Sec. 13A(r).)
Sec. 455.310. COLLECTION OF PENALTY. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(b) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the commissioner of public health or the commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of expenses and costs.
(c) If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.
(d) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs.
(e) Expenses and costs collected under this section shall be deposited in the state treasury to the credit of a special account the amounts in which may be appropriated only to the department. Section 403.095, Government Code, does not apply to the account. (V.A.C.S. Art. 4512k, Secs. 13A(o), (t), (u), (v), (w).)
Sec. 455.311. ADMINISTRATIVE PROCEDURE. A proceeding to assess an administrative penalty under this chapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512k, Sec. 13A(d).)
[Sections 455.312-455.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 455.351. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The attorney general, a district or county attorney, or the department may institute an action for injunctive relief to restrain a violation by a person who appears to be in violation of or threatening to violate this chapter or a rule adopted by the board under this chapter.
(b) The attorney general, a district or county attorney, or the department may institute an action to collect a civil penalty from a person who appears to be in violation of this chapter or a rule adopted by the board under this chapter. The amount of a civil penalty shall be not less than $100 or more than $1,000 for each violation.
(c) Each day a violation occurs or continues to occur is a separate violation.
(d) An action filed under this section by the attorney general or the department must be filed in a district court in Travis County or the county in which the violation occurred.
(e) The attorney general, district and county attorney, and the department may recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses.
(f) A civil penalty recovered in an action by the attorney general or the department under this section shall be deposited in the state treasury. (V.A.C.S. Art. 4512k, Sec. 13.)
Sec. 455.352. CRIMINAL PENALTY. (a) A person commits an offense if the person is required to be registered under this chapter and the person:
(1) knowingly violates Section 455.151, 455.159, 455.202, 455.203(a) or (c), 455.204(b) or (c), or 455.205; or
(2) collects a fee or any other form of compensation for massage therapy without being registered under this chapter.
(b) An owner or operator of a massage establishment commits an offense if the person knowingly violates Section 455.151(a), 455.155(d), 455.202, 455.204(b) or (c), or 455.205(c) or (d).
(c) An owner or operator of a massage school commits an offense if the person knowingly violates Section 455.151(a), 455.159, 455.203(a) or (c), 455.204(b) or (c), or 455.205(b), (c), or (d).
(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(e) If it is shown at the trial of an offense under this section that the defendant has been previously convicted of an offense under this section, the offense is a Class A misdemeanor. (V.A.C.S. Art. 4512k, Sec. 6.)
Sec. 455.353. ENFORCEMENT BY PEACE OFFICERS. A peace officer of this state, including a peace officer employed by a political subdivision of the state, may enforce this chapter. (V.A.C.S. Art. 4512k, Sec. 18.)
[Chapters 456-500 reserved for expansion]
SUBTITLE I. REGULATION OF PSYCHOLOGY AND COUNSELING
CHAPTER 501. PSYCHOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 501.001. SHORT TITLE
Sec. 501.002. DEFINITIONS
Sec. 501.003. PRACTICE OF PSYCHOLOGY
Sec. 501.004. APPLICABILITY
Sec. 501.005. APPLICATION OF SUNSET ACT
[Sections 501.006-501.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
Sec. 501.051. BOARD MEMBERSHIP
Sec. 501.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 501.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 501.054. TERMS; VACANCY
Sec. 501.055. GROUNDS FOR REMOVAL
Sec. 501.056. PER DIEM; REIMBURSEMENT
Sec. 501.057. OFFICERS; MEETINGS
Sec. 501.058. OATH OF OFFICE
Sec. 501.059. TRAINING PROGRAM FOR MEMBERS
[Sections 501.060-501.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 501.101. EXECUTIVE DIRECTOR
Sec. 501.102. PERSONNEL
Sec. 501.103. DIVISION OF RESPONSIBILITIES
Sec. 501.104. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 501.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 501.106-501.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 501.151. GENERAL POWERS AND DUTIES
Sec. 501.152. FEES
Sec. 501.153. FEE INCREASE
Sec. 501.154. ANNUAL LISTING
Sec. 501.155. VOLUNTARY GUIDELINES
Sec. 501.156. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 501.157. BOARD DUTIES REGARDING COMPLAINTS
Sec. 501.158. COMPETENCY REQUIREMENTS
Sec. 501.159. ANNUAL REPORT
[Sections 501.160-501.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 501.201. PUBLIC INTEREST INFORMATION
Sec. 501.202. COMPLAINTS
Sec. 501.203. RECORDS OF COMPLAINTS
Sec. 501.204. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 501.205. CONFIDENTIALITY OF COMPLAINT INFORMATION
Sec. 501.206. PUBLIC PARTICIPATION
[Sections 501.207-501.250 reserved for expansion]
SUBCHAPTER F. GENERAL LICENSE REQUIREMENTS
Sec. 501.251. LICENSE REQUIRED
Sec. 501.252. PSYCHOLOGIST LICENSE APPLICATION
Sec. 501.253. PROVISIONAL LICENSE
Sec. 501.254. PROVISIONAL LICENSE APPLICATION
Sec. 501.255. PROVISIONAL LICENSE EXAMINATION QUALIFICATIONS
Sec. 501.256. EXAMINATIONS
Sec. 501.257. REEXAMINATION
Sec. 501.258. NOTIFICATION OF EXAMINATION RESULTS
Sec. 501.259. LICENSING OF PSYCHOLOGICAL ASSOCIATE
Sec. 501.260. LICENSED SPECIALIST IN SCHOOL PSYCHOLOGY
Sec. 501.261. FORM OF LICENSE
Sec. 501.262. RECIPROCAL LICENSE
Sec. 501.263. TEMPORARY LICENSE
Sec. 501.264. INACTIVE STATUS
[Sections 501.265-501.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 501.301. LICENSE EXPIRATION
Sec. 501.302. LICENSE RENEWAL
Sec. 501.303. RENEWAL OF EXPIRED LICENSE BY
OUT-OF-STATE PRACTITIONER
Sec. 501.304. CONTINUING EDUCATION
[Sections 501.305-501.350 reserved for expansion]
SUBCHAPTER H. PSYCHOLOGICAL ASSOCIATE ADVISORY COMMITTEE
Sec. 501.351. DEFINITION
Sec. 501.352. ADVISORY COMMITTEE
Sec. 501.353. TERMS
Sec. 501.354. OFFICERS
Sec. 501.355. GROUND FOR REMOVAL
Sec. 501.356. PER DIEM
Sec. 501.357. ADVISORY COMMITTEE DUTIES RELATING TO
RECOMMENDED RULES
Sec. 501.358. BOARD APPROVAL OF ADVISORY COMMITTEE
RECOMMENDED RULES
Sec. 501.359. APPLICATION OF CERTAIN LAWS
[Sections 501.360-501.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 501.401. GROUNDS FOR DISCIPLINARY ACTION
Sec. 501.402. TEMPORARY LICENSE SUSPENSION
Sec. 501.403. HEARING
Sec. 501.404. SCHEDULE OF SANCTIONS
Sec. 501.405. APPEAL
Sec. 501.406. PROBATION
Sec. 501.407. REMEDIAL CONTINUING EDUCATION
Sec. 501.408. CORRECTIVE ADVERTISING
Sec. 501.409. ADMINISTRATIVE PROCEDURE
Sec. 501.410. RULES GOVERNING INFORMAL PROCEEDINGS
[Sections 501.411-501.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 501.451. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 501.452. AMOUNT OF PENALTY
Sec. 501.453. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 501.454. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 501.455. HEARING
Sec. 501.456. DECISION BY BOARD
Sec. 501.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 501.458. COLLECTION OF PENALTY
Sec. 501.459. DETERMINATION BY COURT
Sec. 501.460. REMITTANCE OF PENALTY AND INTEREST
Sec. 501.461. ADMINISTRATIVE PROCEDURE
Sec. 501.462. COLLECTION OF PENALTY
[Sections 501.463-501.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 501.501. INJUNCTIVE RELIEF
Sec. 501.502. CIVIL PENALTY
Sec. 501.503. CRIMINAL PENALTY
Sec. 501.504. MONITORING OF LICENSE HOLDER
CHAPTER 501. PSYCHOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 501.001. SHORT TITLE. This chapter may be cited as the Psychologists' Licensing Act. (V.A.C.S. Art. 4512c, Sec. 1.)
Sec. 501.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas State Board of Examiners of Psychologists.
(2) "Licensed specialist in school psychology" means a person who holds a license to engage in the practice of psychology under Section 501.260.
(3) "Provisional license holder" means a person who holds a license to engage in the practice of psychology under Section 501.253.
(4) "Psychological associate" means a person who holds a license to engage in the practice of psychology issued under Section 501.259.
(5) "Psychologist" means a person who holds a license to engage in the practice of psychology issued under Section 501.252. (V.A.C.S. Art. 4512c, Secs. 2(a)(1), (3), (5) (part), (6); New.)
Sec. 501.003. PRACTICE OF PSYCHOLOGY. (a) In this section, "psychological services" means acts or behaviors that are included within the purview of the practice of psychology.
(b) A person is engaged in the practice of psychology within the meaning of this chapter if the person:
(1) represents the person to the public by a title or description of services that includes the word "psychological," "psychologist," or "psychology";
(2) provides or offers to provide psychological services to individuals, groups, organizations, or the public;
(3) is a psychologist or psychological associate employed as described by Section 501.004(a)(1) who offers or provides psychological services, other than lecture services, to the public for consideration separate from the salary that person receives for performing the person's regular duties; or
(4) is employed as a psychologist or psychological associate by an organization that sells psychological services, other than lecture services, to the public for consideration.
(c) The practice of psychology:
(1) includes providing or offering to provide services to an individual or group, including providing computerized procedures, that include the application of established principles, methods, and procedures of describing, explaining, and ameliorating behavior;
(2) addresses normal behavior and involves evaluating, preventing, and remediating psychological, emotional, mental, interpersonal, learning, and behavioral disorders of individuals or groups, as well as the psychological disorders that accompany medical problems, organizational structures, stress, and health;
(3) includes:
(A) using projective techniques, neuropsychological testing, counseling, career counseling, psychotherapy, hypnosis for health care purposes, hypnotherapy, and biofeedback; and
(B) evaluating and treating mental or emotional disorders and disabilities by psychological techniques and procedures; and
(4) is based on:
(A) a systematic body of knowledge and principles acquired in an organized program of graduate study; and
(B) the standards of ethics established by the profession. (V.A.C.S. Art. 4512c, Secs. 2(b), (c), 22 (part).)
Sec. 501.004. APPLICABILITY. (a) This chapter does not apply to:
(1) the activity or service of a person, or the use of an official title by the person, who is employed as a psychologist or psychological associate by a governmental agency or regionally accredited institution of higher education if the person performs duties the person is employed by the agency or institution to perform within the confines of the agency or institution;
(2) the activity or service of a student, intern, or resident in psychology if:
(A) the person is pursuing a course of study to prepare for the profession of psychology under qualified supervision in a recognized training institution or facility;
(B) the activity or service is part of the person's supervised course of study; and
(C) the person is designated as a "psychological intern," as a "psychological trainee," or by another title that clearly indicates the person's training status;
(3) the activity or service of a licensed professional, other than a person licensed under this chapter, if:
(A) the activity or service is permitted under the person's license; and
(B) the person does not represent that the person is a psychologist or describe the service provided by using the term "psychological";
(4) the activity or service of a recognized member of the clergy who is acting within the person's ministerial capabilities if the person does not:
(A) represent that the person is a psychologist; or
(B) describe the service provided by using the term "psychological"; or
(5) the voluntary activity or service of a person employed by or working on behalf of a charitable nonprofit organization if the person does not:
(A) represent that the person is a psychologist; or
(B) describe the service provided by using the term "psychological."
(b) For purposes of Subsection (a)(3), a licensed professional includes:
(1) a physician;
(2) an attorney;
(3) a registered nurse;
(4) a licensed vocational nurse;
(5) an occupational therapist;
(6) a licensed social worker;
(7) a licensed professional counselor;
(8) a career counselor;
(9) a licensed marriage and family therapist; and
(10) a licensed chemical dependency counselor.
(c) This chapter does not authorize the practice of medicine as defined by the laws of this state. (V.A.C.S. Art. 4512c, Secs. 3, 22 (part).)
Sec. 501.005. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Psychologists is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512c, Sec. 4a.)
[Sections 501.006-501.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
Sec. 501.051. BOARD MEMBERSHIP. (a) The Texas State Board of Examiners of Psychologists consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) four psychologist members who have engaged in independent practice, teaching, or research in psychology for at least five years;
(2) two psychological associate members who have been licensed as psychological associates under this chapter for at least five years; and
(3) three members who represent the public.
(b) To ensure adequate representation on the board of the diverse fields of psychology, the governor in making appointments under Subsection (a)(1) shall appoint:
(1) at least two members who provide psychological services;
(2) at least one member who conducts research in the field of psychology; and
(3) at least one member who teaches as a member of the faculty of a psychological training institution.
(c) Each member of the board must be a citizen of the United States.
(d) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512c, Secs. 4(a) (part), (c), 5(a), (b), (c), (d) (part).)
Sec. 501.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health services;
(2) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds 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 the board or receiving funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512c, Sec. 5(d) (part).)
Sec. 501.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health services may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health services may not be a board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 4512c, Secs. 5(g), (h).)
Sec. 501.054. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms, with the terms of three members expiring October 31 of each odd-numbered year.
(b) A member who is appointed for a term of less than six years may be reappointed to one successive full six-year term. A member who is appointed for a full six-year term may not be reappointed for the six years following the expiration of the member's term.
(c) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 4512c, Secs. 4(a) (part), 5(i).)
Sec. 501.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 501.051 and 501.052;
(2) does not maintain during the member's service on the board the qualifications required by Sections 501.051 and 501.052;
(3) violates a prohibition established by Section 501.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal may exist, the executive director shall notify the board. On a determination that a potential ground for removal exists, the board shall notify the governor and attorney general. (V.A.C.S. Art. 4512c, Secs. 5(e), (f).)
Sec. 501.056. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to a per diem set by legislative appropriation for each day the member engages in board business.
(b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging. A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act.
(c) All per diem and reimbursement for expenses authorized by this section shall be paid only from fees collected under this chapter. (V.A.C.S. Art. 4512c, Sec. 6 (part).)
Sec. 501.057. OFFICERS; MEETINGS. (a) The board shall hold an annual meeting during which the board shall select from its members a presiding officer and an assistant presiding officer.
(b) The board may hold other regular meetings as provided by board rule. The board shall hold meetings at least twice each year. Special meetings may be called as necessary or by a majority of the board members.
(c) The board shall give reasonable notice of all meetings in the manner provided by board rule. (V.A.C.S. Art. 4512c, Sec. 7(a) (part).)
Sec. 501.058. OATH OF OFFICE. Before entering office, a board member must file with the secretary of state the constitutional oath taken by the person. (V.A.C.S. Art. 4512c, Sec. 4(b).)
Sec. 501.059. TRAINING PROGRAM FOR MEMBERS. (a) Before a board member may assume the member's duties or be confirmed by the senate, the member must complete at least one course of the training program established by the board under this section.
(b) The training program must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, and 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the program, the board shall consult with the governor, attorney general, and Texas Ethics Commission.
(d) If another state agency or entity is authorized to establish the training requirements for board members, the board shall adopt that training instead of developing its own program. (V.A.C.S. Art. 4512c, Sec. 8D.)
[Sections 501.060-501.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 501.101. EXECUTIVE DIRECTOR. The board shall employ an executive director, who holds that position at the pleasure of the board. (V.A.C.S. Art. 4512c, Sec. 7(b) (part).)
Sec. 501.102. PERSONNEL. The board may employ persons, including investigators, attorneys, consultants, and administrative staff, as necessary or desirable to administer this chapter. (V.A.C.S. Art. 4512c, Sec. 7(b) (part).)
Sec. 501.103. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512c, Sec. 7(c).)
Sec. 501.104. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4512c, Secs. 8(k), (l).)
Sec. 501.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4512c, Sec. 8A.)
[Sections 501.106-501.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 501.151. GENERAL POWERS AND DUTIES. (a) The board may adopt rules necessary to perform its duties and regulate its proceedings.
(b) The board shall adopt an official seal.
(c) The board shall adopt and publish a code of ethics.
(d) The board may certify the specialty of health service providers. (V.A.C.S. Art. 4512c, Secs. 7(d), 8(a) (part), (b).)
Sec. 501.152. FEES. (a) The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter.
(b) The board may not set a fee that existed on September 1, 1993, for an amount less than the amount of that fee on that date.
(c) Funds to administer this chapter may be paid only from fees collected under this chapter. (V.A.C.S. Art. 4512c, Secs. 6 (part), 16(a), (b) (part).)
Sec. 501.153. FEE INCREASE. (a) The amount of the following fees is the amount set by the board under Section 501.152 and an additional charge of $200:
(1) the fee for renewing a license;
(2) the fee for applying to take the provisional license examination; and
(3) the fee for renewing a provisional license.
(b) Of each additional $200 collected, $50 shall be deposited to the credit of the foundation school fund and $150 shall be deposited to the credit of the general revenue fund.
(c) A psychologist is exempt from this section if the psychological services provided and the psychologist's use of an official title are within the scope of the psychologist's employment as described by Section 501.004(a)(1). (V.A.C.S. Art. 4512c, Sec. 16B.)
Sec. 501.154. ANNUAL LISTING. (a) The board shall publish annually a list of all psychologists licensed under this chapter. The list shall be provided in both alphabetical and geographical arrangements.
(b) The list must contain the name and address of each psychologist and other information that the board requires.
(c) The board shall:
(1) mail a copy of the list to each person licensed under this chapter;
(2) file a copy with the secretary of state; and
(3) furnish copies to the public on request. (V.A.C.S. Art. 4512c, Sec. 18.)
Sec. 501.155. VOLUNTARY GUIDELINES. (a) The board may cooperate with an agency that is not subject to this chapter to formulate voluntary guidelines to be observed in the training, activities, and supervision of persons who perform psychological services.
(b) Except as provided by Subsection (a), the board may not adopt a rule that relates to the administration of an agency that is not subject to this chapter. (V.A.C.S. Art. 4512c, Sec. 8(a) (part).)
Sec. 501.156. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any advertising medium;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4512c, Sec. 8(h).)
Sec. 501.157. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a standardized form for filing complaints with the board; and
(2) prescribe information to be provided when a person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4512c, Secs. 25A(c), (d).)
Sec. 501.158. COMPETENCY REQUIREMENTS. (a) This section applies to a person who is:
(1) applying to take the provisional license examination;
(2) applying for a license or license renewal;
(3) currently licensed by the board; or
(4) otherwise providing psychological services under a license approved by the board.
(b) On a determination by the board based on the board's reasonable belief that a person is not physically and mentally competent to provide psychological services with reasonable skill and safety to patients or has a physical or mental disease or condition that would impair the person's competency to provide psychological services, the board may request the person to submit to:
(1) a physical examination by a physician approved by the board; or
(2) a mental examination by a physician or psychologist approved by the board.
(c) The board shall issue an order requiring an applicant or person seeking renewal of a provisional license who refuses to submit to an examination under this section to show cause for the person's refusal at a hearing on the order scheduled for not later than the 30th day after the date notice is served on the person. The board shall provide notice under this section by personal service or by registered mail, return receipt requested.
(d) At the hearing, the person may appear in person and by counsel and present evidence to justify the person's refusal to submit to examination. After the hearing, the board shall issue an order requiring the person to submit to examination under this section or withdrawing the request for the examination.
(e) Unless the request is withdrawn, a person who refuses to submit to the physical or mental examination may not take the provisional license examination or renew the person's license, as appropriate.
(f) An appeal from the board's order under this section is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512c, Sec. 24A.)
Sec. 501.159. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4512c, Sec. 10.)
[Sections 501.160-501.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 501.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512c, Sec. 8(c).)
Sec. 501.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for services provided by a person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512c, Secs. 8(d), (e).)
Sec. 501.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint relating to a license holder filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted regarding the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for dismissing a complaint;
(4) the schedule established for the complaint under Section 501.204 and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512c, Secs. 8(f), (g), 25A(a), (b), 25B(b) (part).)
Sec. 501.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:
(1) distinguish between categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the complaint is received by the board.
(c) Each party to the complaint shall be notified of the projected time requirements for pursuing the complaint and notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.
(d) The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving complaints so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512c, Secs. 25B(a), (b) (part), (c).)
Sec. 501.205. CONFIDENTIALITY OF COMPLAINT INFORMATION. (a) Except as provided by Subsection (b), a complaint and investigation concerning a license holder and all information and materials compiled by the board in connection with the complaint and investigation are not subject to:
(1) disclosure under Chapter 552, Government Code; or
(2) disclosure, discovery, subpoena, or other means of legal compulsion for release of information to any person.
(b) A complaint or investigation subject to Subsection (a) and all information and materials compiled by the board in connection with the complaint may be disclosed to:
(1) the board and board employees or agents involved in license holder discipline;
(2) a party to a disciplinary action against the license holder or that party's designated representative;
(3) a law enforcement agency if required by law;
(4) a governmental agency, if:
(A) the disclosure is required or permitted by law; and
(B) the agency obtaining the disclosure protects the identity of any patient whose records are examined; or
(5) a legislative committee or committee staff directed to make an inquiry regarding state hospitals or schools, by either house of the legislature, the presiding officer of either house of the legislature, or the chairman of the legislative committee if the information or records that identify a patient or client are not released for any purpose unless the patient consents and the records are created by the state hospital or school or its employees.
(c) Unless good cause for delay is shown to the presiding officer at the hearing, the board shall provide the license holder with access to all information that the board intends to offer into evidence at the hearing not later than the 30th day after the date the board receives a written request from a license holder who is entitled to a hearing under this chapter or from the license holder's attorney of record.
(d) The board shall protect the identity of any patient whose records are examined in connection with a disciplinary investigation or proceeding against a license holder, except:
(1) a patient who initiates the disciplinary action; or
(2) a patient who has submitted a written consent to release the records. (V.A.C.S. Art. 4512c, Secs. 25A(e), (f), (g), (h).)
Sec. 501.206. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512c, Secs. 8B, 8C (part).)
[Sections 501.207-501.250 reserved for expansion]
SUBCHAPTER F. GENERAL LICENSE REQUIREMENTS
Sec. 501.251. LICENSE REQUIRED. A person may not engage in or represent that the person is engaged in the practice of psychology unless the person is licensed under this chapter or exempt under Section 501.004. (V.A.C.S. Art. 4512c, Sec. 20.)
Sec. 501.252. PSYCHOLOGIST LICENSE APPLICATION. (a) To be licensed under this chapter, a person must apply to the board for a license. The board shall issue a license to an applicant who:
(1) complies with this section; and
(2) pays the fee set by the board.
(b) A person may not be licensed as a psychologist unless the person:
(1) is provisionally licensed as a psychologist under this chapter; and
(2) has had at least two years of supervised experience in the field of psychological services, one year of which may be as part of the doctoral program and at least one year of which began after the date the person's doctoral degree was conferred by an institution of higher education.
(c) For purposes of Subsection (b)(2), experience is supervised only if the experience is supervised by a psychologist in the manner provided by the board's supervision guidelines.
(d) To determine the acceptability of an applicant's professional experience, the board may require documentary evidence of the quality, scope, and nature of the applicant's experience. (V.A.C.S. Art. 4512c, Secs. 2(a)(5) (part), 13, 21.)
Sec. 501.253. PROVISIONAL LICENSE. (a) The board shall issue a provisional license to an applicant who has:
(1) passed the examinations prescribed by the board;
(2) satisfied the preliminary requirements of Sections 501.254 and 501.255; and
(3) paid the fee for a provisional license.
(b) A provisional license holder is entitled to practice psychology under the supervision of a psychologist to meet the requirements for issuance of a license under Section 501.252.
(c) The board shall adopt rules that apply to provisional license holders identifying:
(1) the activities that holders may engage in; and
(2) services that may be provided by holders.
(d) The board may refuse to renew the provisional license of a person who does not meet the requirements prescribed by Section 501.255. (V.A.C.S. Art. 4512c, Secs. 2(a)(4), 8(n), 15, 17(e).)
Sec. 501.254. PROVISIONAL LICENSE APPLICATION. (a) An applicant for examination for a provisional license must:
(1) apply on forms prescribed by the board; and
(2) submit the required fee with the application.
(b) The board may require that the applicant verify the application. (V.A.C.S. Art. 4512c, Sec. 12.)
Sec. 501.255. PROVISIONAL LICENSE EXAMINATION QUALIFICATIONS. (a) An applicant may take an examination for a provisional license if the applicant:
(1) has received:
(A) a doctoral degree in psychology from a regionally accredited educational institution conferred on or after January 1, 1979; or
(B) a doctoral degree in psychology, or the substantial equivalent of a doctoral degree in psychology in both subject matter and extent of training, from a regionally accredited educational institution conferred before January 1, 1979;
(2) has attained the age of majority;
(3) has good moral character;
(4) is physically and mentally competent to provide psychological services with reasonable skill and safety, as determined by the board;
(5) is not afflicted with a mental or physical disease or condition that would impair the applicant's competency to provide psychological services;
(6) has not been convicted of a crime involving moral turpitude or a felony;
(7) does not use drugs or alcohol to an extent that affects the applicant's professional competency;
(8) has not engaged in fraud or deceit in making the application; and
(9) except as provided by Section 501.263, has not:
(A) aided or abetted the practice of psychology by a person not licensed under this chapter in representing that the person is licensed under this chapter;
(B) represented that the applicant is licensed under this chapter to practice psychology when the applicant is not licensed; or
(C) practiced psychology in this state without a license under this chapter or without being exempt under this chapter.
(b) In determining under Subsection (a)(1)(B) whether a degree is substantially equivalent to a doctoral degree in psychology, the board shall consider whether, at the time the degree was conferred, the doctoral program met the prevailing standards for training in the area of psychology, including standards for training in clinical, school, and industrial counseling. (V.A.C.S. Art. 4512c, Sec. 11.)
Sec. 501.256. EXAMINATIONS. (a) The board shall administer to qualified applicants at least annually the oral and written examination required by board rules. The board shall have the written portion of the examination, if any, validated by an independent testing professional.
(b) The board shall determine the subject and scope of the examinations and establish appropriate fees for examinations administered. The examination must test the applicant's knowledge of:
(1) the discipline and profession of psychology; and
(2) the laws and rules governing the profession of psychology in this state.
(c) The board may waive the discipline and professional segment of the examination requirement for an applicant who:
(1) is a diplomate of the American Board of Professional Psychology; or
(2) in the board's judgment, has demonstrated competence in the areas covered by the examination.
(d) The contents of the examination described by Subsection (b)(2) are the jurisprudence examination. The board shall administer and each applicant must pass the jurisprudence examination before the board may issue a provisional license.
(e) If requested in writing by a person who fails an examination administered under this chapter, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512c, Secs. 14(a) (part), (c), (d).)
Sec. 501.257. REEXAMINATION. An applicant who fails an examination may be reexamined at intervals specified by the board on payment by the applicant of an examination fee that is equal to the amount of the fee charged to take the examination the applicant failed. (V.A.C.S. Art. 4512c, Sec. 14(a) (part).)
Sec. 501.258. NOTIFICATION OF EXAMINATION RESULTS. (a) Not later than the 30th day after the date an examination is administered, the board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the board shall notify examinees of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results will be delayed for longer than the 90th day after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day. (V.A.C.S. Art. 4512c, Sec. 14(b).)
Sec. 501.259. LICENSING OF PSYCHOLOGICAL ASSOCIATE. (a) The board, with the advice of the Psychological Associate Advisory Committee, shall set standards for the issuance of licenses to psychological personnel who hold a master's degree from an accredited university or college in a program that is primarily psychological in nature.
(b) The board shall designate a person who holds a license authorized by this section by a title that includes the adjective "psychological" followed by a noun such as "associate," "assistant," "examiner," or "technician." (V.A.C.S. Art. 4512c, Sec. 19.)
Sec. 501.260. LICENSED SPECIALIST IN SCHOOL PSYCHOLOGY. (a) The board by rule shall issue a license to a licensed specialist in school psychology. A license issued under this section constitutes the appropriate credential for a person who provides psychological services as required by Section 21.003(b), Education Code.
(b) The board shall set the standards to qualify for a license under this section. The standards must include:
(1) satisfaction of minimum recognized graduate degree requirements;
(2) completion of graduate course work at a regionally accredited institution of higher education in:
(A) psychological foundations;
(B) educational foundations;
(C) interventions;
(D) assessments; and
(E) professional issues and ethics;
(3) completion of at least 1,200 hours of supervised experience;
(4) receipt of a passing score on a nationally recognized qualifying examination determined to be appropriate by the board and on any other examination required by the board; and
(5) satisfaction of the requirements, other than the degree requirements, for an applicant to take an examination for a provisional license.
(c) The rules of practice for a licensed specialist in school psychology must comply with nationally recognized standards for the practice of school psychology. (V.A.C.S. Art. 4512c, Sec. 26.)
Sec. 501.261. FORM OF LICENSE. (a) A license issued under this chapter must include the full name of the license holder and a unique number assigned to that license.
(b) The presiding officer and executive director of the board shall sign the license under the seal of the board. (V.A.C.S. Art. 4512c, Sec. 17(a).)
Sec. 501.262. RECIPROCAL LICENSE. The board may enter into and implement agreements with other jurisdictions for the issuance of a license by reciprocity if the other jurisdiction's requirements for licensing, certification, or registration are substantially equal to the requirements of this chapter. (V.A.C.S. Art. 4512c, Sec. 15B.)
Sec. 501.263. TEMPORARY LICENSE. (a) The board may issue a temporary license to an applicant seeking a permanent license, including a person seeking a license by reciprocity under Section 501.262, if the applicant:
(1) pays the required application fee;
(2) submits an application to the board in the form prescribed by the board;
(3) is licensed, certified, or registered as a psychologist or psychological associate by another state having requirements substantially equal to those prescribed by this chapter;
(4) is in good standing with the regulatory agency of the jurisdiction in which the person is licensed, certified, or registered; and
(5) has passed an examination recognized by the board as equivalent to the examination required by the board for a permanent license under this chapter.
(b) A temporary license is valid until the earlier of:
(1) the date the board approves or denies the temporary license holder's application for a permanent license; or
(2) the first anniversary of the date the board issues the temporary license if no action is taken by the board.
(c) The board may adopt rules to issue a temporary license to a person who holds a license or the equivalent from another country.
(d) A temporary license issued under this section is not a vested property right.
(e) A person holding a temporary license issued under this chapter shall display a sign indicating that the license is temporary. The sign must be approved by the board and displayed in every room in which the person provides psychological services. (V.A.C.S. Art. 4512c, Sec. 15A.)
Sec. 501.264. INACTIVE STATUS. (a) A psychologist may place the psychologist's license on inactive status by applying to the board and paying a fee established by the board.
(b) A psychologist whose license is on inactive status does not accrue a penalty for late payment of the renewal fee for the license. (V.A.C.S. Art. 4512c, Sec. 17(d).)
[Sections 501.265-501.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 501.301. LICENSE EXPIRATION. (a) A license issued under this chapter expires on December 31 of the year following the date the license is issued or renewed. A license of a psychological associate expires on May 31 of the year following the date the license is issued or renewed.
(b) The board by rule may adopt a system under which licenses expire on various dates during the year. For a year in which the expiration date is changed, the board shall prorate the licensing fee so that each license holder pays only the portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the entire licensing fee is payable. (V.A.C.S. Art. 4512c, Secs. 17(b), (h) (part).)
Sec. 501.302. LICENSE RENEWAL. (a) A person may renew an unexpired license by paying to the board the required renewal fee before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the examination fee for the license. A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the examination fee for the license.
(c) Except as provided by Section 501.303, a person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(d) Not later than the 30th day before the expiration date of a person's license, the board shall send written notice of the impending expiration to the person at the person's last known address according to the board's records.
(e) The renewal procedures prescribed by this section apply to renewal of a specialty certificate. (V.A.C.S. Art. 4512c, Secs. 17(c) (part), (f), (g), (h) (part).)
Sec. 501.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal.
(b) The person must pay to the board a fee that is equal to the amount of the examination fee for the license. (V.A.C.S. Art. 4512c, Sec. 17(c) (part).)
Sec. 501.304. CONTINUING EDUCATION. (a) The board shall establish a mandatory continuing education program for persons licensed by the board. The board by rule shall establish a minimum number of hours of continuing education required to renew a license under this chapter.
(b) The board shall identify the key factors for the competent performance by a license holder of the holder's professional duties.
(c) The board shall:
(1) by rule develop a process to evaluate and approve continuing education courses; and
(2) adopt a procedure to assess a license holder's participation in continuing education programs.
(d) The board may assess the continuing education needs of license holders and require license holders to attend continuing education courses specified by the board. (V.A.C.S. Art. 4512c, Sec. 8(j).)
[Sections 501.305-501.350 reserved for expansion]
SUBCHAPTER H. PSYCHOLOGICAL ASSOCIATE ADVISORY COMMITTEE
Sec. 501.351. DEFINITION. In this subchapter, "advisory committee" means the Psychological Associate Advisory Committee. (New.)
Sec. 501.352. ADVISORY COMMITTEE. (a) The Psychological Associate Advisory Committee is an advisory committee to the board consisting of six members appointed by the governor as follows:
(1) three members who are psychological associates;
(2) one member who is a psychologist; and
(3) two members who represent the public.
(b) A public member of the advisory committee may not be licensed in the field of health care. To be eligible for appointment as a public member, a person must meet the eligibility requirements under Section 501.052 for public members of the board.
(c) A person required to register as a lobbyist under Chapter 305, Government Code, may not serve as an advisory committee member.
(d) Appointments to the advisory committee shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512c, Secs. 19A(a), (b), (c), (d), (e), (f).)
Sec. 501.353. TERMS. Members of the advisory committee serve staggered six-year terms, with the terms of two members expiring February 1 of each odd-numbered year. (V.A.C.S. Art. 4512c, Sec. 19A(h).)
Sec. 501.354. OFFICERS. The advisory committee shall select officers to serve for one year. (V.A.C.S. Art. 4512c, Sec. 19A(i).)
Sec. 501.355. GROUND FOR REMOVAL. It is a ground for removal from the advisory committee that a member fails to attend at least half of the regularly scheduled committee meetings held in a calendar year. (V.A.C.S. Art. 4512c, Sec. 19A(g).)
Sec. 501.356. PER DIEM. An advisory committee member is entitled to a per diem as set by legislative appropriation for each day the member engages in committee business. (V.A.C.S. Art. 4512c, Sec. 19A(j).)
Sec. 501.357. ADVISORY COMMITTEE DUTIES RELATING TO RECOMMENDED RULES. The advisory committee shall develop and recommend to the board rules that establish:
(1) the license qualifications for a psychological associate;
(2) the supervision requirements for a psychological associate practicing less than five years;
(3) the permitted activities and services within the practice of a psychological associate;
(4) the schedule of disciplinary sanctions required by Section 501.404 that applies to a psychological associate;
(5) the continuing education requirements for a psychological associate;
(6) the proportional billing guidelines for services provided by a psychological associate with less than five years' experience; and
(7) the guidelines, including additional educational requirements, for practice with minimal supervision for a psychological associate with at least five years' experience. (V.A.C.S. Art. 4512c, Sec. 19A(l).)
Sec. 501.358. BOARD APPROVAL OF ADVISORY COMMITTEE RECOMMENDED RULES. (a) On receipt of a recommended rule from the advisory committee, the board shall approve or reject the proposed rule.
(b) If the board does not approve a rule developed by the advisory committee, the board shall:
(1) indicate the reason the rule was not approved; and
(2) return the rule to the advisory committee for further consideration. (V.A.C.S. Art. 4512c, Sec. 19A(m).)
Sec. 501.359. APPLICATION OF CERTAIN LAWS. The advisory committee is subject to Chapters 551, 552, and 2001, Government Code. (V.A.C.S. Art. 4512c, Sec. 19A(k).)
[Sections 501.360-501.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 501.401. GROUNDS FOR DISCIPLINARY ACTION. The board shall revoke or suspend a holder's license, place on probation a person whose license has been suspended, or reprimand a license holder who:
(1) violates this chapter or a rule adopted by the board;
(2) is convicted of a felony or of any offense that would be a felony under the laws of this state, or of a violation of a law involving moral turpitude;
(3) uses drugs or alcohol to an extent that affects the person's professional competency;
(4) engages in fraud or deceit in connection with services provided as a psychologist;
(5) except as provided by Section 501.263:
(A) aids or abets the practice of psychology by a person not licensed under this chapter in representing that the person is licensed under this chapter;
(B) represents that the person is licensed under this chapter to practice psychology when the person is not licensed; or
(C) practices psychology in this state without a license under this chapter or without being qualified for an exemption under Section 501.004; or
(6) commits an act for which liability exists under Chapter 81, Civil Practice and Remedies Code. (V.A.C.S. Art. 4512c, Sec. 23(a).)
Sec. 501.402. TEMPORARY LICENSE SUSPENSION. (a) The board by rule shall adopt procedures for the temporary suspension of a license.
(b) An executive committee of the board consisting of the presiding officer and two other board members appointed by the presiding officer may temporarily suspend a license if it determines from the evidence or information presented that the continued practice by the license holder constitutes a continuing or imminent threat to the public welfare.
(c) The board may temporarily suspend a license without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings should be initiated against the license holder is scheduled for a date not later than the 14th day after the date of the suspension.
(d) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time provided by this subsection, the suspended license is automatically reinstated.
(e) The board may also temporarily suspend a license on a majority vote. (V.A.C.S. Art. 4512c, Sec. 23B.)
Sec. 501.403. HEARING. A person is entitled to a hearing before the State Office of Administrative Hearings if the board proposes to:
(1) refuse the person's application for a license;
(2) suspend or revoke the person's license; or
(3) reprimand the person. (V.A.C.S. Art. 4512c, Sec. 23(b) (part).)
Sec. 501.404. SCHEDULE OF SANCTIONS. (a) The board by rule shall adopt a broad schedule of sanctions for violations under this chapter.
(b) The State Office of Administrative Hearings shall use the schedule for any sanction imposed as the result of a hearing conducted by that office. (V.A.C.S. Art. 4512c, Sec. 23(b) (part).)
Sec. 501.405. APPEAL. An appeal of an action of the board is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512c, Sec. 23(d) (part).)
Sec. 501.406. PROBATION. If the board probates a license suspension, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit the person's practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4512c, Sec. 23(g).)
Sec. 501.407. REMEDIAL CONTINUING EDUCATION. The board may require a license holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education program that the person may attend and the number of hours that the person must complete to fulfill the requirements of this section. (V.A.C.S. Art. 4512c, Sec. 23(f).)
Sec. 501.408. CORRECTIVE ADVERTISING. The board may order corrective advertising if a psychologist, individually or under an assumed name, engages in false, misleading, or deceptive advertising. (V.A.C.S. Art. 4512c, Sec. 8(i).)
Sec. 501.409. ADMINISTRATIVE PROCEDURE. A proceeding to refuse, revoke, or suspend a license or to reprimand a person is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512c, Sec. 23(c).)
Sec. 501.410. RULES GOVERNING INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) informal proceedings held to comply with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a member of the board's legal staff, if the board has a legal staff, or, if the board does not have a legal staff, a representative of the attorney general's office to advise the board or board employees. (V.A.C.S. Art. 4512c, Sec. 25C.)
[Sections 501.411-501.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 501.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter if the person violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4512c, Sec. 23A(a).)
Sec. 501.452. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4512c, Secs. 23A(b), (c).)
Sec. 501.453. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director determines that a violation may have occurred, the executive director shall issue to the board a report stating the facts on which the determination is based. The board shall determine whether a violation occurred. If the board determines that a violation occurred, the board shall make a recommendation on the imposition of an administrative penalty, including a recommendation on the amount of any penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512c, Secs. 23A(d), (e).)
Sec. 501.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may in writing:
(1) accept the board's determination and recommended administrative penalty; or
(2) request a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the board's determination and recommended penalty, the board shall issue an order and impose the recommended penalty. (V.A.C.S. Art. 4512c, Secs. 23A(f), (g).)
Sec. 501.455. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4512c, Sec. 23A(h) (part).)
Sec. 501.456. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512c, Secs. 23A(h) (part), (i).)
Sec. 501.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that is:
(i) for the amount of the penalty; and
(ii) effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512c, Secs. 23A(j), (k), (l).)
Sec. 501.458. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4512c, Sec. 23A(m).)
Sec. 501.459. DETERMINATION BY COURT. (a) If the court finds that a violation has occurred after the court reviews the board's order imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512c, Sec. 23A(o).)
Sec. 501.460. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond if the penalty is not imposed or order the release of the bond after the person pays the penalty if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512c, Sec. 23A(p).)
Sec. 501.461. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512c, Sec. 23A(r).)
Sec. 501.462. COLLECTION OF PENALTY. An administrative penalty collected under this subchapter shall be deposited in the general revenue fund. (V.A.C.S. Art. 4512c, Sec. 23A(q).)
[Sections 501.463-501.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 501.501. INJUNCTIVE RELIEF. (a) The board may commence an action in its own name for an injunction to restrain a violation of this chapter.
(b) The attorney general or a county or district attorney shall represent the board in an action under this section.
(c) An action for injunctive relief under this section is in addition to another action authorized by law. (V.A.C.S. Art. 4512c, Sec. 24.)
Sec. 501.502. CIVIL PENALTY. (a) A person who violates this chapter or a rule or order adopted under this chapter is liable to the state for a civil penalty of $1,000 for each day of violation.
(b) On the board's request, the attorney general shall bring an action to recover a civil penalty under this section. (V.A.C.S. Art. 4512c, Sec. 23(e) (part).)
Sec. 501.503. CRIMINAL PENALTY. (a) A person commits an offense if the person engages in the practice of psychology or represents that the person is a psychologist in violation of this chapter.
(b) An offense under this section is a Class A misdemeanor.
(c) Each day a violation occurs is a separate offense. (V.A.C.S. Art. 4512c, Sec. 25.)
Sec. 501.504. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system to monitor a license holder's compliance under this chapter. Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4512c, Sec. 25D.)
CHAPTER 502. MARRIAGE AND FAMILY THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 502.001. SHORT TITLE
Sec. 502.002. DEFINITIONS
Sec. 502.003. APPLICATION OF SUNSET ACT
Sec. 502.004. APPLICATION OF CHAPTER
[Sections 502.005-502.050 reserved for expansion]
SUBCHAPTER B. BOARD OF EXAMINERS OF MARRIAGE AND
FAMILY THERAPISTS
Sec. 502.051. BOARD; MEMBERSHIP
Sec. 502.052. MEMBERSHIP; RESTRICTIONS
Sec. 502.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 502.054. TERMS; VACANCY
Sec. 502.055. OFFICERS
Sec. 502.056. GROUNDS FOR REMOVAL
Sec. 502.057. COMPENSATION; REIMBURSEMENT
Sec. 502.058. MEETINGS
Sec. 502.059. TRAINING REQUIREMENTS
[Sections 502.060-502.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 502.101. EXECUTIVE DIRECTOR
Sec. 502.102. POWERS AND DUTIES OF EXECUTIVE DIRECTOR
Sec. 502.103. PERSONNEL
Sec. 502.104. DIVISION OF RESPONSIBILITIES
Sec. 502.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
[Sections 502.106-502.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 502.151. GENERAL POWERS AND DUTIES OF BOARD
Sec. 502.152. RULES REGARDING BOARD PROCEDURES
Sec. 502.153. FEES
Sec. 502.154. EXPENDITURE OF FUNDS
Sec. 502.155. POWERS AND DUTIES REGARDING EXAMINATION
Sec. 502.156. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 502.157. ANNUAL REGISTRY
Sec. 502.158. BOARD DUTIES REGARDING COMPLAINTS
Sec. 502.159. EX PARTE COMMUNICATION PROHIBITED
Sec. 502.160. ANNUAL REPORT
[Sections 502.161-502.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 502.201. PUBLIC INTEREST INFORMATION
Sec. 502.202. COMPLAINTS
Sec. 502.203. RECORDS OF COMPLAINTS
Sec. 502.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
Sec. 502.205. PUBLIC PARTICIPATION
[Sections 502.206-502.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS AND EXEMPTIONS
Sec. 502.251. LICENSE REQUIRED
Sec. 502.252. LICENSE APPLICATION
Sec. 502.253. DETERMINATION WHETHER EXAMINATION
REQUIRED
Sec. 502.254. EXAMINATION
Sec. 502.255. EXAMINATION RESULTS
Sec. 502.256. REEXAMINATION
Sec. 502.257. ISSUANCE OF LICENSE
Sec. 502.258. TEMPORARY LICENSE
Sec. 502.259. PROVISIONAL LICENSE
Sec. 502.260. INACTIVE STATUS
Sec. 502.261. DUTIES OF LICENSE HOLDER
[Sections 502.262-502.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 502.301. RENEWAL OF LICENSE
Sec. 502.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 502.303. CONTINUING EDUCATION
[Sections 502.304-502.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 502.351. GROUNDS FOR DISCIPLINARY ACTIONS
Sec. 502.352. PROBATION
Sec. 502.353. INFORMAL PROCEEDINGS
Sec. 502.354. HEARING
Sec. 502.355. SANCTIONS
[Sections 502.356-502.400 reserved for expansion]
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 502.401. IMPOSITION OF PENALTY
Sec. 502.402. AMOUNT OF PENALTY
Sec. 502.403. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 502.404. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 502.405. HEARING
Sec. 502.406. DECISION BY BOARD
Sec. 502.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 502.408. COLLECTION OF PENALTY
Sec. 502.409. DETERMINATION BY COURT
Sec. 502.410. REMITTANCE OF PENALTY AND INTEREST
Sec. 502.411. ADMINISTRATIVE PROCEDURE
[Sections 502.412-502.450 reserved for expansion]
SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 502.451. INJUNCTION
Sec. 502.452. MONITORING OF LICENSE HOLDER
Sec. 502.453. CIVIL PENALTY
Sec. 502.454. CRIMINAL PENALTY
CHAPTER 502. MARRIAGE AND FAMILY THERAPISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 502.001. SHORT TITLE. This chapter may be cited as the Licensed Marriage and Family Therapist Act. (V.A.C.S. Art. 4512c-1, Sec. 1.)
Sec. 502.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas State Board of Examiners of Marriage and Family Therapists.
(2) "Commissioner" means the commissioner of public health.
(3) "Department" means the Texas Department of Health.
(4) "Licensed marriage and family therapist" means a person who offers marriage and family therapy for compensation.
(5) "Marriage and family therapy" means providing professional therapy services to individuals, families, or married couples, alone or in groups, that involve applying family systems theories and techniques. The term includes the evaluation and remediation of cognitive, affective, behavioral, or relational dysfunction in the context of marriage or family systems. (V.A.C.S. Art. 4512c-1, Sec. 2; New.)
Sec. 502.003. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Marriage and Family Therapists is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512c-1, Sec. 4.)
Sec. 502.004. APPLICATION OF CHAPTER. This chapter does not apply to:
(1) the activities of a person employed to perform marriage and family therapy by a federal, state, county, or municipal agency or a public or private educational institution, if the activities are within the scope of the person's employment;
(2) the activities of a student, intern, or trainee in marriage and family therapy in a recognized course of study in marriage and family therapy at an accredited institution of higher education or other training institution, if:
(A) the activities constitute a part of the course of study; and
(B) the person is called a "marriage and family therapist intern" or similar title;
(3) services provided by a person who is not a resident of this state if:
(A) the services are performed for 30 days or less during a calendar year; and
(B) the person is authorized to provide the services under the law of the state or country of the person's residence;
(4) the activities and services of a person licensed to practice another profession, including a physician, attorney, registered nurse, occupational therapist, psychologist, certified social worker, or licensed professional counselor; or
(5) the activities and services of a recognized religious practitioner, including a pastoral counselor or Christian Science practitioner recognized by the Church of Christ Scientist as registered and published in the Christian Science Journal, if the practitioner practices marriage and family therapy in a manner consistent with the laws of this state. (V.A.C.S. Art. 4512c-1, Sec. 16.)
[Sections 502.005-502.050 reserved for expansion]
SUBCHAPTER B. BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS
Sec. 502.051. BOARD; MEMBERSHIP. (a) The Texas State Board of Examiners of Marriage and Family Therapists consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) five marriage and family therapist members; and
(2) four members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
(c) In making appointments under Subsection (a)(1), the governor shall consider recommendations made by recognized professional associations of marriage and family therapists in this state. (V.A.C.S. Art. 4512c-1, Secs. 3(a) (part), (b).)
Sec. 502.052. MEMBERSHIP; RESTRICTIONS. (a) A board member appointed under Section 502.051(a)(1) must:
(1) be eligible for a license under this chapter; and
(2) have been engaged in the practice or education of marriage and family therapy for at least five years or have 5,000 hours of clinical experience in the practice of marriage and family therapy.
(b) One member appointed under Section 502.051(a)(1) must be a professional educator in marriage and family therapy.
(c) A person is not eligible for appointment as a public member of the board under Section 502.051(a)(2) if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512c-1, Secs. 3(a) (part), 9(e).)
Sec. 502.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act as 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. (V.A.C.S. Art. 4512c-1, Secs. 9(b), (c), (d), (f).)
Sec. 502.054. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms. The terms of three members expire on February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 4512c-1, Sec. 5.)
Sec. 502.055. OFFICERS. (a) The governor shall designate a board member as the presiding officer. The presiding officer serves in that capacity at the will of the governor.
(b) At the meeting of the board held closest to August 31 of each year, the board shall elect one of its members as the assistant presiding officer. The assistant presiding officer serves as provided by board rule. (V.A.C.S. Art. 4512c-1, Sec. 6.)
Sec. 502.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the board;
(2) does not maintain during service on the board the qualifications required for appointment to the board;
(3) violates a prohibition established by Section 502.052(c), 502.053, or 502.159;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4512c-1, Sec. 10.)
Sec. 502.057. COMPENSATION; REIMBURSEMENT. (a) A board member may not receive compensation for service on the board.
(b) A board member is entitled to:
(1) the per diem set by the General Appropriations Act for each day that the member performs duties as a board member; and
(2) reimbursement for expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4512c-1, Sec. 7.)
Sec. 502.058. MEETINGS. (a) The board shall meet at least twice during each year.
(b) The board may meet at other times at the call of the presiding officer or as provided by board rule. (V.A.C.S. Art. 4512c-1, Sec. 8.)
Sec. 502.059. TRAINING REQUIREMENTS. (a) Before a board member may assume the member's duties, the member must complete at least one course of the training program established by the board under this section.
(b) The training program must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program, and each member shall comply with the training requirements established by any other state agency that is given authority to establish training requirements for the board. (V.A.C.S. Art. 4512c-1, Secs. 14D(a), 14E.)
[Sections 502.060-502.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 502.101. EXECUTIVE DIRECTOR. After consulting with the board's members, the commissioner shall appoint an executive director for the board. The executive director must be an employee of the department. (V.A.C.S. Art. 4512c-1, Sec. 14(a).)
Sec. 502.102. POWERS AND DUTIES OF EXECUTIVE DIRECTOR. The executive director shall administer the licensing activities under this chapter as directed by the board or the commissioner. (V.A.C.S. Art. 4512c-1, Sec. 14(b).)
Sec. 502.103. PERSONNEL. (a) The commissioner shall designate and make available to the board personnel and facilities necessary for the efficient administration of the board's duties.
(b) The department shall:
(1) enter into agreements to obtain necessary services; and
(2) provide compensation for the services provided.
(c) The department may employ and compensate professional consultants, technical assistants, and employees on a full-time or part-time basis as necessary to administer this chapter.
(d) Salaries and reimbursements paid by the department under this chapter shall be comparable to the salaries and reimbursements provided for in the General Appropriations Act for persons holding comparable positions. (V.A.C.S. Art. 4512c-1, Secs. 12(d) (part), 14(c).)
Sec. 502.104. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512c-1, Sec. 14(d).)
Sec. 502.105. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4512c-1, Sec. 14D(b).)
[Sections 502.106-502.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 502.151. GENERAL POWERS AND DUTIES OF BOARD. The board shall:
(1) determine the qualifications and fitness of a license applicant under this chapter; and
(2) adopt a code of professional ethics for license holders. (V.A.C.S. Art. 4512c-1, Secs. 13(c), (d).)
Sec. 502.152. RULES REGARDING BOARD PROCEDURES. The board may adopt rules establishing the board's procedures. (V.A.C.S. Art. 4512c-1, Sec. 13(a).)
Sec. 502.153. FEES. (a) The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter.
(b) The board may not set a fee that existed on September 1, 1993, in an amount that is less than the amount of the fee on that date. (V.A.C.S. Art. 4512c-1, Secs. 12(a), (b) (part).)
Sec. 502.154. EXPENDITURE OF FUNDS. The general rules of the General Appropriations Act apply to the expenditure of funds under this chapter. (V.A.C.S. Art. 4512c-1, Sec. 12(d) (part).)
Sec. 502.155. POWERS AND DUTIES REGARDING EXAMINATION. The board shall:
(1) determine the times and places for licensing examinations;
(2) offer examinations at least semiannually; and
(3) give reasonable public notice of the examinations in the manner provided by board rules. (V.A.C.S. Art. 4512c-1, Sec. 19(c).)
Sec. 502.156. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement used by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4512c-1, Sec. 27A.)
Sec. 502.157. ANNUAL REGISTRY. (a) The board shall annually prepare a registry of all license holders.
(b) The board shall make the registry available to the public, license holders, and other state agencies. (V.A.C.S. Art. 4512c-1, Sec. 23(b).)
Sec. 502.158. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4512c-1, Secs. 11(d), (e).)
Sec. 502.159. EX PARTE COMMUNICATION PROHIBITED. A board member or department employee who performs functions for the board and who is assigned to make a decision, a finding of fact, or a conclusion of law in a proceeding pending before the board may not directly or indirectly communicate with a party to the proceeding or the party's representative unless notice and an opportunity to participate are given to each party to the proceeding. (V.A.C.S. Art. 4512c-1, Sec. 9(a).)
Sec. 502.160. ANNUAL REPORT. Not later than February 1 of each year, the board shall file with the governor and the presiding officer of each house of the legislature a written report that:
(1) describes the activities of the board; and
(2) contains a detailed accounting of all funds received and disbursed by the board during the preceding year. (V.A.C.S. Art. 4512c-1, Sec. 13(e).)
[Sections 502.161-502.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 502.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and to appropriate state agencies. (V.A.C.S. Art. 4512c-1, Sec. 11(a).)
Sec. 502.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512c-1, Secs. 11(g), (h).)
Sec. 502.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file shall be kept current and must contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule required under Section 502.204 and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512c-1, Secs. 11(b), (c), 11A(b) (part).)
Sec. 502.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of all complaints in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) Each party shall be notified of the projected schedule for the complaint.
(d) Each party to the complaint must be notified of a change in the schedule for the complaint not later than the seventh day after the date the change is made.
(e) The executive director of the board shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512c-1, Secs. 11A(a), (b) (part), (c).)
Sec. 502.205. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512c-1, Secs. 11(f), 14C (part).)
[Sections 502.206-502.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS AND EXEMPTIONS
Sec. 502.251. LICENSE REQUIRED. (a) A person may not practice as a marriage and family therapist unless the person holds a license under this chapter or is exempt under Section 502.004.
(b) A person may not use the title "licensed marriage and family therapist" unless the person is licensed under this chapter.
(c) A person may not use a title that implies that the person is licensed or certified in marriage and family therapy unless the person is:
(1) licensed under this chapter; or
(2) authorized to perform marriage and family therapy in the course and scope of another license issued under a law of this state. (V.A.C.S. Art. 4512c-1, Sec. 15.)
Sec. 502.252. LICENSE APPLICATION. (a) An applicant for a license must:
(1) file a written application with the board on a form prescribed by the board; and
(2) pay the application fee.
(b) To qualify for a license, a person must:
(1) be at least 18 years of age;
(2) hold a master's or doctorate degree in marriage and family therapy or in a related mental health field with coursework and training determined by the board to be substantially equivalent to a graduate degree in marriage and family therapy from a regionally accredited institution of higher education or an institution of higher education approved by the board;
(3) have completed two years of experience in marriage and family therapy services that is:
(A) attained after the person receives a degree that meets the requirements of Subdivision (2); and
(B) supervised in a manner acceptable to the board;
(4) be of good moral character;
(5) have not been convicted of a felony or a crime involving moral turpitude;
(6) not use drugs or alcohol to an extent that affects the applicant's professional competency;
(7) not have had a license or certification revoked by a licensing agency or by a certifying professional organization; and
(8) not have engaged in fraud or deceit in applying for a license under this chapter.
(c) The work experience required by Subsection (b)(3) must include at least 1,000 hours of direct clinical services to individuals, couples, or families, including:
(1) at least 500 hours of direct clinical services to couples or families; and
(2) at least 200 hours of supervised provision of direct clinical services, 100 hours of which must be supervised on an individual basis. (V.A.C.S. Art. 4512c-1, Secs. 17(a), (b).)
Sec. 502.253. DETERMINATION WHETHER EXAMINATION REQUIRED. (a) Each applicant for a license under this chapter must pass an examination prescribed by the board unless the applicant is exempted from the examination requirement:
(1) under this chapter; or
(2) by a determination of the board based on the applicant's education and professional experience.
(b) The board shall investigate each application and any other information submitted by the applicant.
(c) Not later than the 90th day after the date the board receives the completed application from a person seeking a license without examination, the board shall notify the applicant that:
(1) the applicant may be licensed without examination;
(2) the applicant must take an examination to be licensed; or
(3) the application is rejected.
(d) If an applicant under Subsection (c) is required to take an examination, the notice required under Subsection (c) must state:
(1) the reason for requiring the examination;
(2) the time and manner of conducting the examination; and
(3) the acts required of the applicant in connection with the examination.
(e) Not later than the 30th day before the date of a scheduled examination, the board shall notify an applicant seeking a license by examination whether the application has been accepted or rejected. A notice that an application is rejected must state the reason for the rejection. (V.A.C.S. Art. 4512c-1, Secs. 18, 19(a) (part).)
Sec. 502.254. EXAMINATION. (a) To take the examination, an applicant must:
(1) file an application on a form prescribed by the board not later than the 90th day before the date of the examination; and
(2) pay the examination fee set by the Texas Board of Health.
(b) The examination consists of:
(1) a written examination;
(2) an oral examination;
(3) a field examination that:
(A) uses questionnaires answered by persons who are competent in the judgment of the board to assess the applicant's professional ability, including the applicant's instructors, employers, or supervisors; and
(B) may include written case studies and taped interviews; or
(4) any combination of those examinations.
(c) The board shall have any written portion of an examination validated by an independent testing professional. (V.A.C.S. Art. 4512c-1, Secs. 17(c), 19(a) (part), (b).)
Sec. 502.255. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512c-1, Secs. 19(d), (f).)
Sec. 502.256. REEXAMINATION. (a) If an applicant fails an examination, the applicant may retake the examination by:
(1) paying an additional examination fee; and
(2) retaking the examination not later than the first anniversary of the date of the unsuccessful examination.
(b) If an applicant fails the examination two or more times, the board may require the applicant to:
(1) complete additional courses of study designated by the board; and
(2) present satisfactory evidence of completion of the required courses. (V.A.C.S. Art. 4512c-1, Sec. 19(e).)
Sec. 502.257. ISSUANCE OF LICENSE. The board shall issue a license to an applicant who:
(1) complies with the requirements of this chapter;
(2) passes the licensing examination, unless the board exempts the person from the examination requirement; and
(3) pays the required fees. (V.A.C.S. Art. 4512c-1, Sec. 20(a).)
Sec. 502.258. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license.
(b) Rules adopted under this section must include a time limit for temporary licenses. (V.A.C.S. Art. 4512c-1, Sec. 20(c).)
Sec. 502.259. PROVISIONAL LICENSE. (a) The board may grant a provisional license to practice as a marriage and family therapist in this state without examination to an applicant who is licensed or otherwise registered as a marriage and family therapist by another state or jurisdiction if the requirements to be licensed or registered in the other state or jurisdiction were, on the date the person was licensed or registered, substantially equal to the requirements of this chapter.
(b) An applicant for a provisional license must:
(1) be licensed in good standing as a marriage and family therapist in another state or jurisdiction that has licensing requirements that are substantially equal to the requirements of this chapter;
(2) have passed a national or other examination that:
(A) is recognized by the board; and
(B) relates to marriage and family therapy; and
(3) be sponsored by a person licensed by the board with whom the provisional license holder may practice under this section.
(c) An applicant may be excused from the requirement of Subsection (b)(3) if the board determines that compliance with that subsection constitutes a hardship to the applicant.
(d) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license under Section 502.257. The board shall complete processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend this period to allow for the receipt and tabulation of pending examination results.
(e) The board shall issue a license under Section 502.257 to a provisional license holder if:
(1) the provisional license holder passes the examination required by Section 502.254;
(2) the board verifies that the provisional license holder satisfies the academic and experience requirements of this chapter; and
(3) the provisional license holder satisfies any other license requirements under this chapter. (V.A.C.S. Art. 4512c-1, Sec. 22.)
Sec. 502.260. INACTIVE STATUS. (a) The board may place a license holder's license under this chapter on inactive status if the holder is not actively engaged in the practice of marriage and family therapy and the holder submits a written request to the board before the expiration of the holder's license.
(b) The board shall maintain a list of each license holder whose license is on inactive status.
(c) A license holder whose license is on inactive status:
(1) is not required to pay an annual renewal fee; and
(2) may not perform an activity regulated under this chapter.
(d) The board shall remove the license holder's license from inactive status if the person:
(1) notifies the board in writing that the person intends to return to active practice;
(2) pays an administrative fee; and
(3) complies with educational or other requirements the board adopts by rule. (V.A.C.S. Art. 4512c-1, Sec. 24.)
Sec. 502.261. DUTIES OF LICENSE HOLDER. (a) A license holder shall display the license holder's license in a conspicuous manner in the person's principal place of practice.
(b) Each license holder shall notify the board of the license holder's current address. (V.A.C.S. Art. 4512c-1, Secs. 20(b), 23(a).)
[Sections 502.262-502.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 502.301. RENEWAL OF LICENSE. (a) A license issued under this chapter is subject to annual renewal. The board shall adopt a system under which licenses expire on various dates during the year.
(b) The board shall notify each license holder in writing of the pending license expiration not later than the 30th day before the date on which the license expires.
(c) A license holder may renew an unexpired license by paying to the board the required renewal fee before the date the license expires.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the examination fee. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the examination fee for the license.
(e) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4512c-1, Secs. 21(a), (b), (c), (d), (e) (part), (f).)
Sec. 502.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the application.
(b) The person must pay to the board a fee that is equal to the amount of the examination fee. (V.A.C.S. Art. 4512c-1, Sec. 21(e) (part).)
Sec. 502.303. CONTINUING EDUCATION. (a) The board shall establish a mandatory continuing education program for license holders.
(b) The board by rule shall establish:
(1) the minimum number of hours of continuing education required to renew a license under this chapter; and
(2) a process to evaluate and approve continuing education courses.
(c) The board may assess the continuing education needs of license holders and require license holders to attend continuing education courses specified by the board.
(d) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. The board shall implement a procedure to assess a license holder's participation in continuing education programs. (V.A.C.S. Art. 4512c-1, Secs. 21(g), (h), (i).)
[Sections 502.304-502.350 reserved for expansion]
SUBCHAPTER H. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 502.351. GROUNDS FOR DISCIPLINARY ACTIONS. The board shall reprimand a license holder, place on probation a person whose license has been suspended, or suspend or revoke a holder's license if the person:
(1) is convicted of a misdemeanor involving moral turpitude or a felony;
(2) obtains or attempts to obtain a license by fraud or deception;
(3) uses drugs or alcohol to an extent that affects the license holder's professional competence;
(4) performs professional duties in a grossly negligent manner;
(5) is adjudicated as mentally incompetent by a court;
(6) practices in a manner that is detrimental to the public health or welfare;
(7) advertises in a manner that tends to deceive or defraud the public;
(8) has a license or certification revoked by a licensing agency or a certifying professional organization;
(9) violates this chapter or a rule or code of ethics adopted under this chapter; or
(10) commits an act for which liability exists under Chapter 81, Civil Practice and Remedies Code. (V.A.C.S. Art. 4512c-1, Sec. 25(a).)
Sec. 502.352. PROBATION. If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in the areas that are the basis for probation. (V.A.C.S. Art. 4512c-1, Sec. 25(c).)
Sec. 502.353. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder with an opportunity to be heard; and
(2) require the presence of a member of the board's legal staff, if the board has a legal staff, or, if the board does not have a legal staff, an attorney employed by the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4512c-1, Sec. 11B.)
Sec. 502.354. HEARING. A license holder is entitled to a hearing before the State Office of Administrative Hearings before a sanction is imposed under this subchapter. (V.A.C.S. Art. 4512c-1, Sec. 25(d).)
Sec. 502.355. SANCTIONS. (a) The board by rule shall adopt a broad schedule of sanctions for violations under this chapter.
(b) The State Office of Administrative Hearings shall use the schedule for a sanction imposed as the result of a hearing conducted by that office. (V.A.C.S. Art. 4512c-1, Sec. 25(e).)
[Sections 502.356-502.400 reserved for expansion]
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 502.401. IMPOSITION OF PENALTY. The commissioner may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4512c-1, Sec. 25A(a).)
Sec. 502.402. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of the prohibited acts; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4512c-1, Secs. 25A(b), (c).)
Sec. 502.403. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the commissioner determines that a violation has occurred, the commissioner may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the commissioner shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512c-1, Secs. 25A(d), (e).)
Sec. 502.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 502.403, the person, in writing, may:
(1) accept the commissioner's determination and recommended administrative penalty; or
(2) request a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the commissioner's determination and recommended administrative penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4512c-1, Secs. 25A(f), (g).)
Sec. 502.405. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the department shall set a hearing and give notice of the hearing to the person.
(b) A hearing examiner designated by the department shall hold the hearing.
(c) The hearing examiner shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of a proposed administrative penalty. (V.A.C.S. Art. 4512c-1, Sec. 25A(h) (part).)
Sec. 502.406. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may determine that:
(1) a violation occurred and impose a penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512c-1, Secs. 25A(h) (part), (i).)
Sec. 502.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty that is effective until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commissioner by certified mail.
(c) If the commissioner receives a copy of an affidavit under Subsection (b)(2), the commissioner may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is unable to pay the penalty or give a supersedeas bond. (V.A.C.S. Art. 4512c-1, Secs. 25A(j), (k), (l).)
Sec. 502.408. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the commissioner may refer the matter to the attorney general for collection. (V.A.C.S. Art. 4512c-1, Sec. 25A(m).)
Sec. 502.409. DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If a court does not sustain the determination that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S. Art. 4512c-1, Sec. 25A(o).)
Sec. 502.410. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid to the court and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512c-1, Sec. 25A(p).)
Sec. 502.411. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512c-1, Sec. 25A(r).)
[Sections 502.412-502.450 reserved for expansion]
SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 502.451. INJUNCTION. (a) In addition to any other action authorized by law, the board or department may institute an action to enjoin a violation of this chapter.
(b) An action filed under this section must be filed in Travis County, the county of the defendant's residence, or the county in which any part of the violation occurred.
(c) The attorney general or the appropriate county or district attorney shall represent the board or department in an action under this section. (V.A.C.S. Art. 4512c-1, Sec. 26.)
Sec. 502.452. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system to ensure that a license holder complies with this chapter. Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4512c-1, Sec. 11C.)
Sec. 502.453. CIVIL PENALTY. (a) A person who violates this chapter or a rule or order adopted by the board under this chapter is liable for a civil penalty not to exceed $1,000 a day.
(b) At the request of the board or department, the attorney general shall bring an action to recover a civil penalty authorized under this section. (V.A.C.S. Art. 4512c-1, Sec. 25(b).)
Sec. 502.454. CRIMINAL PENALTY. (a) A person required to hold a license under this chapter commits an offense if the person knowingly acts as a marriage and family therapist without holding a license issued under this chapter.
(b) An offense under Subsection (a) is a Class B misdemeanor. (V.A.C.S. Art. 4512c-1, Sec. 27.)
CHAPTER 503. LICENSED PROFESSIONAL COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 503.001. SHORT TITLE
Sec. 503.002. GENERAL DEFINITIONS
Sec. 503.003. DEFINITION: PRACTICE OF PROFESSIONAL
COUNSELING
Sec. 503.004. PRACTICE OF MEDICINE NOT AUTHORIZED
Sec. 503.005. APPLICATION OF SUNSET ACT
[Sections 503.006-503.050 reserved for expansion]
SUBCHAPTER B. APPLICATION OF CHAPTER
Sec. 503.051. COUNSELING FOR GOVERNMENT OR EDUCATIONAL
INSTITUTION
Sec. 503.052. COUNSELOR INTERN
Sec. 503.053. TEMPORARY COUNSELING BY PERSON AUTHORIZED
BY ANOTHER JURISDICTION
Sec. 503.054. COUNSELING BY OTHER LICENSED OR CERTIFIED
PROFESSIONAL OR BY RELIGIOUS PRACTITIONER
Sec. 503.055. PERSON LICENSED TO PRACTICE LAW
Sec. 503.056. COUNSELING FOR NONPROFIT ORGANIZATION OR
CHARITY
Sec. 503.057. COUNSELING UNDER OTHER CERTIFICATION
Sec. 503.058. CERTIFIED CAREER COUNSELING
Sec. 503.059. EXEMPT PERSON VOLUNTARILY LICENSED UNDER
CHAPTER
[Sections 503.060-503.100 reserved for expansion]
SUBCHAPTER C. TEXAS STATE BOARD OF EXAMINERS OF
PROFESSIONAL COUNSELORS
Sec. 503.101. BOARD MEMBERSHIP
Sec. 503.102. MEMBERSHIP QUALIFICATIONS
Sec. 503.103. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 503.104. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 503.105. TERMS
Sec. 503.106. OFFICERS
Sec. 503.107. GROUNDS FOR REMOVAL
Sec. 503.108. PER DIEM; REIMBURSEMENT
Sec. 503.109. MEETINGS
Sec. 503.110. TRAINING
Sec. 503.111. OFFICIAL OATH
[Sections 503.112-503.150 reserved for expansion]
SUBCHAPTER D. EXECUTIVE SECRETARY AND OTHER BOARD
PERSONNEL
Sec. 503.151. EXECUTIVE SECRETARY
Sec. 503.152. POWERS AND DUTIES OF EXECUTIVE SECRETARY
Sec. 503.153. PERSONNEL AND FACILITIES
Sec. 503.154. DIVISION OF RESPONSIBILITIES
Sec. 503.155. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
[Sections 503.156-503.200 reserved for expansion]
SUBCHAPTER E. BOARD POWERS AND DUTIES
Sec. 503.201. GENERAL POWERS AND DUTIES
Sec. 503.202. FEES
Sec. 503.203. GENERAL RULEMAKING AUTHORITY
Sec. 503.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 503.205. DELEGATION TO INDIVIDUAL MEMBER OR COMMITTEE
Sec. 503.206. ANNUAL REPORT OF BOARD ACTIVITIES
Sec. 503.207. LICENSE HOLDER REGISTRY
Sec. 503.208. COMPETENT PERFORMANCE OF PROFESSIONAL DUTIES
Sec. 503.209. BOARD DUTIES REGARDING COMPLAINTS
[Sections 503.210-503.250 reserved for expansion]
SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 503.251. PUBLIC INTEREST INFORMATION
Sec. 503.252. COMPLAINTS
Sec. 503.253. RECORDS OF COMPLAINTS
Sec. 503.254. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 503.255. DISPOSITION OF COMPLAINT
Sec. 503.256. PUBLIC PARTICIPATION
[Sections 503.257-503.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 503.301. LICENSE REQUIRED
Sec. 503.302. QUALIFICATIONS FOR LICENSE
Sec. 503.303. SPECIALIZATION IN ART THERAPY
Sec. 503.304. REVIEW OF APPLICATION
Sec. 503.305. LICENSE EXAMINATION
Sec. 503.306. EXAMINATION RESULTS
Sec. 503.307. REEXAMINATION
Sec. 503.308. TEMPORARY LICENSE
Sec. 503.309. TEMPORARY LICENSE TO PRACTICE ART THERAPY
Sec. 503.310. PROVISIONAL LICENSE
Sec. 503.311. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE
HOLDER
Sec. 503.312. INACTIVE STATUS
Sec. 503.313. RETIREMENT STATUS
Sec. 503.314. DISPLAY AND SURRENDER OF LICENSE CERTIFICATE
[Sections 503.315-503.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 503.351. ANNUAL RENEWAL; ELIGIBILITY
Sec. 503.352. LICENSE EXPIRATION DATE
Sec. 503.353. NOTICE OF LICENSE EXPIRATION
Sec. 503.354. PROCEDURE FOR RENEWAL
Sec. 503.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 503.356. CONTINUING EDUCATION
[Sections 503.357-503.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 503.401. DISCIPLINARY ACTIONS
Sec. 503.402. SCHEDULE OF SANCTIONS
Sec. 503.403. TEMPORARY LICENSE SUSPENSION
Sec. 503.404. INFORMAL PROCEDURES
Sec. 503.405. MONITORING OF LICENSE HOLDER
Sec. 503.406. APPLICATION OF ADMINISTRATIVE PROCEDURE LAW
[Sections 503.407-503.450 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 503.451. INJUNCTION
Sec. 503.452. CRIMINAL OFFENSES
Sec. 503.453. REPORT OF ALLEGED OFFENSE
CHAPTER 503. LICENSED PROFESSIONAL COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 503.001. SHORT TITLE. This chapter may be cited as the Licensed Professional Counselor Act. (V.A.C.S. Art. 4512g, Sec. 1.)
Sec. 503.002. GENERAL DEFINITIONS. In this chapter:
(1) "Board" means the Texas State Board of Examiners of Professional Counselors.
(2) "Department" means the Texas Department of Health.
(3) "Graduate semester hour" means a semester hour or the quarter hour equivalent as defined by regional accrediting educational associations when applied only to domestic training programs.
(4) "Licensed professional counselor" means a person who holds a license issued under this chapter and who:
(A) represents the person to the public by any title or description of services incorporating the words "licensed counselor" and offers to provide professional counseling services to any individual, couple, family, group, or other entity for compensation, implying that the person offering the services is licensed and trained, experienced, or expert in counseling; or
(B) engages in any practice of counseling. (V.A.C.S. Art. 4512g, Secs. 2(1), (2), (3), (5).)
Sec. 503.003. DEFINITION: PRACTICE OF PROFESSIONAL COUNSELING. (a) In this chapter, "practice of professional counseling" means the application of mental health, psychotherapeutic, and human development principles to:
(1) facilitate human development and adjustment throughout life;
(2) prevent, assess, evaluate, and treat mental, emotional, or behavioral disorders and associated distresses that interfere with mental health;
(3) conduct assessments and evaluations to establish treatment goals and objectives; and
(4) plan, implement, and evaluate treatment plans using counseling treatment interventions that include:
(A) counseling;
(B) assessment;
(C) consulting; and
(D) referral.
(b) In this section:
(1) "Assessment" means the selection, administration, scoring, and interpretation of an instrument designed to assess an individual's aptitudes, attitudes, abilities, achievements, interests, personal characteristics, disabilities, and mental, emotional, and behavioral disorders, and the use of methods and techniques for understanding human behavior that may include the evaluation, assessment, and treatment by counseling methods, techniques, and procedures for mental and emotional disorders, alcoholism and substance abuse, and conduct disorders. The term does not include the use of standardized projective techniques or permit the diagnosis of a physical condition or disorder.
(2) "Consulting" means applying scientific principles and procedures in counseling and human development to assist in understanding and solving current or potential problems that the person seeking consultation may have with regard to another person, including an individual, group, or organization.
(3) "Counseling" means assisting a client through a therapeutic relationship, using a combination of mental health and human development principles, methods, and techniques, including the use of psychotherapy, to achieve the mental, emotional, physical, social, moral, educational, spiritual, or career-related development and adjustment of the client throughout the client's life.
(4) "Counseling treatment intervention" means the application of cognitive, affective, behavioral, psychodynamic, and systemic counseling strategies, including strategies for developmental, wellness, and psychological dysfunction that reflect a pluralistic society. The term does not permit or include the diagnosis or treatment of a physical condition or disorder. The term includes:
(A) an intervention specifically implemented in the context of a professional counseling relationship;
(B) individual, group, or family counseling or psychotherapy;
(C) the assessment, evaluation, and treatment of a person with a mental, emotional, or behavioral disorder;
(D) guidance and consulting to facilitate normal growth and development, including educational and career development;
(E) the use of functional assessment and counseling for a person requesting assistance in adjustment to a disability or handicapping condition;
(F) research; and
(G) referrals.
(5) "Referral" means:
(A) evaluating and identifying the needs of a person being counseled to determine the advisability of referral to another specialist;
(B) informing the person of that judgment; and
(C) communicating to the person to whom the referral is made as requested by the person being counseled or as appropriate.
(c) The use of specific methods, techniques, or modalities within the practice of professional counseling is limited to professional counselors appropriately trained in the use of those methods, techniques, or modalities. (V.A.C.S. Art. 4512g, Secs. 2(6), (7).)
Sec. 503.004. PRACTICE OF MEDICINE NOT AUTHORIZED. This chapter does not authorize the practice of medicine as defined by the law of this state. (V.A.C.S. Art. 4512g, Sec. 1A(b).)
Sec. 503.005. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Professional Counselors is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4512g, Sec. 21.)
[Sections 503.006-503.050 reserved for expansion]
SUBCHAPTER B. APPLICATION OF CHAPTER
Sec. 503.051. COUNSELING FOR GOVERNMENT OR EDUCATIONAL INSTITUTION. This chapter does not apply to an activity, service, or use of an official title by a person employed as a counselor by a federal, state, county, or municipal agency or public or private educational institution if the person is performing counseling or counseling-related activities within the scope of the person's employment. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.052. COUNSELOR INTERN. This chapter does not apply to an activity or service of a student, intern, or trainee in counseling pursuing a course of study in counseling in a regionally accredited institution of higher education or training institution if:
(1) the activity or service is a part of the supervised course of study; and
(2) the person is designated as a "counselor intern." (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.053. TEMPORARY COUNSELING BY PERSON AUTHORIZED BY ANOTHER JURISDICTION. This chapter does not apply to an activity or service of a person who is not a resident of this state that is performed in this state not more than 30 days during any year if the person is authorized to perform the activity or service under the law of the state or country of the person's residence. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.054. COUNSELING BY OTHER LICENSED OR CERTIFIED PROFESSIONAL OR BY RELIGIOUS PRACTITIONER. This chapter does not apply to an activity or service of any of the following persons performing counseling consistent with the law of this state, the person's training, and any code of ethics of the person's profession if the person does not represent the person by any title or description as described by the definition of "licensed professional counselor" in Section 503.002:
(1) a member of another profession licensed or certified by this state, including:
(A) a physician, registered nurse, psychologist, social worker, marriage and family therapist, chemical dependency counselor, physician assistant, or occupational therapist; or
(B) an optometrist engaged in the evaluation and remediation of learning or behavioral disabilities associated with or caused by a defective or abnormal condition of vision; or
(2) a recognized religious practitioner, including a Christian Science practitioner recognized by the Church of Christ Scientist as registered and published in the Christian Science Journal. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.055. PERSON LICENSED TO PRACTICE LAW. This chapter does not apply to an activity, service, title, or description of a person licensed to practice law. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.056. COUNSELING FOR NONPROFIT ORGANIZATION OR CHARITY. This chapter does not apply to an activity, service, title, or description of a person who is employed as a professional by or who volunteers in the practice of counseling for a public or private nonprofit organization or charity if the person:
(1) is accountable to the person's sponsoring organization; and
(2) does not use the title or hold the person out to be a licensed counselor. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.057. COUNSELING UNDER OTHER CERTIFICATION. This chapter does not apply to an activity, service, title, or description of a person certified by the Commission on Rehabilitation Counselor Certification or the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists who:
(1) is performing counseling consistent with state law, the person's training, and any code of ethics of the person's profession; and
(2) does not use the title or hold the person out to be a licensed counselor. (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.058. CERTIFIED CAREER COUNSELING. This chapter does not apply to a person who owns, operates, or is employed by a certified career counseling service regulated under Chapter 222, Acts of the 70th Legislature, Regular Session, 1987 (Article 5221a-8, Vernon's Texas Civil Statutes). (V.A.C.S. Art. 4512g, Sec. 3(a) (part).)
Sec. 503.059. EXEMPT PERSON VOLUNTARILY LICENSED UNDER CHAPTER. A person otherwise exempt under this subchapter who obtains a license under this chapter is subject to this chapter to the same extent as any other person licensed under this chapter. (V.A.C.S. Art. 4512g, Secs. 3(a) (part), (b).)
[Sections 503.060-503.100 reserved for expansion]
SUBCHAPTER C. TEXAS STATE BOARD OF EXAMINERS OF
PROFESSIONAL COUNSELORS
Sec. 503.101. BOARD MEMBERSHIP. The Texas State Board of Examiners of Professional Counselors consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) five licensed professional counselor members, at least three of whom are in private practice and at least one of whom is a counselor educator; and
(2) four members who represent the public. (V.A.C.S. Art. 4512g, Secs. 4(a), (b), (c).)
Sec. 503.102. MEMBERSHIP QUALIFICATIONS. (a) To be qualified for appointment as a licensed professional counselor member of the board, a person must:
(1) be a citizen of the United States and a resident of this state for the 30 months preceding appointment;
(2) have engaged in the field of counseling for at least 24 months or 2,000 hours; and
(3) be licensed under this chapter.
(b) To be qualified for appointment as a public member of the board, a person must:
(1) be a citizen of the United States and a resident of this state for the 30 months preceding appointment; and
(2) be at least 18 years old. (V.A.C.S. Art. 4512g, Secs. 5(a), (b).)
Sec. 503.103. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization receiving funds from the board;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving funds from the board; or
(4) uses or receives a substantial amount of funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512g, Sec. 5(e).)
Sec. 503.104. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the department who carries out the functions of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the department who carries out the functions of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 4512g, Secs. 4(e), (f), (g).)
Sec. 503.105. TERMS. Board members serve staggered six-year terms with the terms of three members expiring on February 1 of each odd-numbered year. In making an appointment to the board, the governor shall specify which member the new appointee succeeds. (V.A.C.S. Art. 4512g, Sec. 4(d) (part).)
Sec. 503.106. OFFICERS. (a) The governor shall designate a member of the board as presiding officer. The presiding officer serves in that capacity at the will of the governor.
(b) The board shall elect an assistant presiding officer to serve as provided by board rule. (V.A.C.S. Art. 4512g, Sec. 6(a).)
Sec. 503.107. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 503.102 for appointment to the board;
(2) does not maintain during the service on the board the qualifications required by Section 503.102 for appointment to the board;
(3) violates a prohibition established by Section 503.103 or Section 503.104(b) or (c);
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a member of the board exists.
(c) If the executive secretary has knowledge that a potential ground for removal of a board member exists, the executive secretary shall notify the governor and the attorney general that a potential ground for removal exists. (V.A.C.S. Art. 4512g, Secs. 5(c), (d), (f).)
Sec. 503.108. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A board member may receive reimbursement for expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4512g, Sec. 7.)
Sec. 503.109. MEETINGS. The board shall hold at least two regular meetings each year as provided by board rule. (V.A.C.S. Art. 4512g, Sec. 6(b) (part).)
Sec. 503.110. TRAINING. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.
(b) The training program must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.
(d) If another state agency or entity is authorized to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4512g, Sec. 6D(a), 6E.)
Sec. 503.111. OFFICIAL OATH. Before assuming the duties of office, each board member shall file with the secretary of state a copy of the constitutional oath of office taken by the member. (V.A.C.S. Art. 4512g, Sec. 4(d) (part).)
[Sections 503.112-503.150 reserved for expansion]
SUBCHAPTER D. EXECUTIVE SECRETARY AND OTHER BOARD
PERSONNEL
Sec. 503.151. EXECUTIVE SECRETARY. The commissioner of public health, with the advice and consent of the board, shall appoint an executive secretary for the board. The executive secretary must be an employee of the department. (V.A.C.S. Art. 4512g, Sec. 8(a) (part).)
Sec. 503.152. POWERS AND DUTIES OF EXECUTIVE SECRETARY. (a) The executive secretary serves as the administrator of professional counselor licensing activities for the board. The executive secretary shall:
(1) keep full and accurate minutes of the board's transactions and proceedings;
(2) serve as custodian of the board's files and records;
(3) prepare and recommend to the board plans and procedures necessary to implement the purposes and objectives of this chapter, including rules and proposals on administrative procedures;
(4) exercise general supervision over persons employed by the department in the administration of this chapter;
(5) investigate complaints and present formal complaints;
(6) attend all board meetings;
(7) handle or arrange for the handling of the board's correspondence;
(8) conduct or arrange for necessary inspections and investigations;
(9) obtain, assemble, or prepare reports and information as directed or authorized by the board; and
(10) perform other duties prescribed by this chapter and by the department.
(b) The executive secretary is not entitled to vote at board meetings. (V.A.C.S. Art. 4512g, Sec. 8(a) (part).)
Sec. 503.153. PERSONNEL AND FACILITIES. (a) The department shall provide the basic personnel and facilities required to administer this chapter. The department personnel administering this chapter act as agents of the board.
(b) The department by agreement may secure services that it considers necessary to administer this chapter and may provide for compensation for those services.
(c) The department may employ on a full-time or part-time basis the professional consultants, technical assistants, and employees necessary to administer this chapter. (V.A.C.S. Art. 4512g, Sec. 8(c).)
Sec. 503.154. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512g, Secs. 6D(c), 8(b).)
Sec. 503.155. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4512g, Sec. 6D(b).)
[Sections 503.156-503.200 reserved for expansion]
SUBCHAPTER E. BOARD POWERS AND DUTIES
Sec. 503.201. GENERAL POWERS AND DUTIES. (a) The board shall:
(1) determine the qualifications and fitness of an applicant for a license, license renewal, or provisional license;
(2) examine for, deny, approve, issue, revoke, suspend, suspend on an emergency basis, place on probation, and renew the license of an applicant or license holder under this chapter;
(3) adopt and publish a code of ethics;
(4) by rule adopt a list of authorized counseling methods or practices that a license holder may undertake or perform; and
(5) adopt an official seal.
(b) The board may request and shall receive the assistance of a state educational institution or other state agency. (V.A.C.S. Art. 4512g, Sec. 6(e) (part).)
Sec. 503.202. FEES. (a) The board by rule shall establish fees for the board's services in amounts reasonable and necessary to cover the costs of administering this chapter without accumulating an unnecessary surplus.
(b) The board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date. (V.A.C.S. Art. 4512g, Secs. 6(e) (part); 19(b), (c).)
Sec. 503.203. GENERAL RULEMAKING AUTHORITY. (a) The board shall adopt rules necessary to administer this chapter.
(b) The board shall conduct hearings on the rules adopted under this section. (V.A.C.S. Art. 4512g, Sec. 6(e) (part).)
Sec. 503.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:
(1) restricts the license holder's use of any advertising medium;
(2) restricts the license holder's personal appearance or use of the license holder's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the license holder; or
(4) restricts the license holder's advertisement under a trade name. (V.A.C.S. Art. 4512g, Sec. 6(e) (part).)
Sec. 503.205. DELEGATION TO INDIVIDUAL MEMBER OR COMMITTEE. The board may delegate a function or activity required by this chapter to an individual board member or to a committee on a permanent or temporary basis if:
(1) the board agrees to the delegation; and
(2) the person clearly possesses the professional and personal qualifications to carry out the delegation. (V.A.C.S. Art. 4512g, Sec. 6(c).)
Sec. 503.206. ANNUAL REPORT OF BOARD ACTIVITIES. As part of the report required by Section 11.017, Health and Safety Code, the Texas Board of Health shall include a report about the activities of the Texas State Board of Examiners of Professional Counselors during the preceding fiscal year. (V.A.C.S. Art. 4512g, Sec. 20.)
Sec. 503.207. LICENSE HOLDER REGISTRY. (a) Each year the board shall prepare a registry of persons licensed under this chapter. The registry must include listings of any specializations permitted by law or by board rule. The registry shall be made available on request to a license holder, another state agency, or a member of the public.
(b) A person licensed under this chapter shall inform the board of the person's current address at all times. (V.A.C.S. Art. 4512g, Secs. 14(c), (d).)
Sec. 503.208. COMPETENT PERFORMANCE OF PROFESSIONAL DUTIES. The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. (V.A.C.S. Art. 4512g, Sec. 14(g) (part).)
Sec. 503.209. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4512g, Secs. 16B(c), (d).)
[Sections 503.210-503.250 reserved for expansion]
SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 503.251. PUBLIC INTEREST INFORMATION. (a) The board shall prepare and disseminate consumer information that describes the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512g, Sec. 6(e) (part).)
Sec. 503.252. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for service provided by a person regulated under this chapter.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512g, Sec. 6A.)
Sec. 503.253. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for dismissal of a complaint;
(4) the schedule established for the complaint under Section 503.255 and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512g, Secs. 16B(a), (b); 16C(b) (part).)
Sec. 503.254. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who files a complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator. (V.A.C.S. Art. 4512g, Secs. 6(d), 16C(a).)
Sec. 503.255. DISPOSITION OF COMPLAINT. (a) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(b) Each party shall be notified of the projected time requirements for pursuing the complaint. The board shall notify each party to the complaint of any change in the schedule established under Subsection (a)(2) not later than the seventh day after the date the change is made.
(c) The executive secretary shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint. (V.A.C.S. Art. 4512g, Secs. 16C(b) (part), (c).)
Sec. 503.256. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512g, Secs. 6B, 6C (part).)
[Sections 503.257-503.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 503.301. LICENSE REQUIRED. A person may not engage in the practice of professional counseling unless the person is:
(1) licensed under this chapter; or
(2) exempt from this chapter under Subchapter B. (V.A.C.S. Art. 4512g, Sec. 15(a).)
Sec. 503.302. QUALIFICATIONS FOR LICENSE. (a) A person qualifies for a license under this chapter if the person:
(1) is at least 18 years old;
(2) has a master's or doctorate degree in counseling or a related field;
(3) has successfully completed a graduate degree at a regionally accredited institution of higher education and a planned graduate program of 48 graduate semester hours or the substantial equivalent, including 300 clock hours of supervised practicum that:
(A) is primarily counseling in nature; and
(B) meets the specific academic course content and training standards established by the board;
(4) has completed 36 months or 3,000 hours of supervised experience working in a counseling setting that meets the requirements established by the board after the completion of the graduate program described by Subdivision (3);
(5) except as provided by Subsection (b), passes the license examination required by this chapter;
(6) submits an application as required by the board, accompanied by the required application fee; and
(7) meets any other requirement prescribed by the board.
(b) An applicant who meets the requirements for a provisional license under Section 503.310 is exempt from the license examination.
(c) A person may complete not more than six of the 48 graduate semester hours required under Subsection (a)(3) during or after the time the person completes the 3,000 hours of supervised work experience required under Subsection (a)(4) if, at the time the person began the work experience, the person possessed a graduate degree and fewer hours of supervised work experience were required by the law of this state or of the jurisdiction in which the work experience was performed.
(d) In establishing the standards described by Subsection (a)(3)(B), the board shall review and consider the standards as developed by the appropriate professional association.
(e) The board may require the statements on a license application to be made under oath. (V.A.C.S. Art. 4512g, Secs. 10, 12(f).)
Sec. 503.303. SPECIALIZATION IN ART THERAPY. (a) A person qualifies for a license as a professional counselor with a specialization in art therapy if the person:
(1) meets the requirements for a license under Section 503.302;
(2) holds:
(A) a master's or doctoral degree in art therapy that includes at least 700 hours of supervised practicum from an accredited institution; or
(B) a master's degree in a counseling-related field if the person has completed at least:
(i) 21 semester hours of sequential course work in the history, theory, and practice of art therapy; and
(ii) 700 hours of supervised practicum from an accredited institution;
(3) completes the following postgraduate experience in addition to the requirements of Subdivision (2) under the supervision of a licensed professional counselor with a specialization in art therapy:
(A) at least 1,000 client contact hours, if the applicant holds a degree described by Subdivision (2)(A); or
(B) at least 2,000 client contact hours, if the applicant holds a degree described by Subdivision (2)(B); and
(4) demonstrates successful completion of the national Certification Examination in Art Therapy of the Art Therapy Credentials Board.
(b) The board shall accept an individual course from an art therapy program accredited through the American Art Therapy Association as satisfying the education requirements under Section 503.302(a)(3) if at least 75 percent of the course content is substantially equivalent to the content of a course required by board rule.
(c) A counselor intern pursuing a course of study in an art therapy program accredited by the American Art Therapy Association may use the designation "art therapy intern." (V.A.C.S. Art. 4512g, Secs. 10A, 12(e).)
Sec. 503.304. REVIEW OF APPLICATION. (a) Not later than the 30th day before the examination date, after investigation of a license application and review of other evidence submitted, the board shall notify the applicant that the application and evidence submitted are:
(1) satisfactory and accepted; or
(2) unsatisfactory and rejected.
(b) If the board rejects an application, the board shall state in the notice the reasons for the rejection. (V.A.C.S. Art. 4512g, Sec. 11.)
Sec. 503.305. LICENSE EXAMINATION. (a) The board shall administer examinations to determine the competence of qualified applicants at least twice each calendar year.
(b) As determined by the board for each applicant, the license examination may be:
(1) a field examination using questionnaires answered by the applicant's instructors, employers, supervisors, references, and others who are competent, in the board's judgment, to evaluate the applicant's professional competence; or
(2) another type of examination as prescribed by the board.
(c) A field examination may include, as the board considers necessary, the submission of:
(1) written case studies and taped interviews with the applicant's instructors, employers, supervisors, references, and others; or
(2) documentary evidence of the quality, scope, and nature of the applicant's experience and competence.
(d) If a written examination is required, the board shall grade the examination and recommend to the presiding officer the action to be taken. To ensure impartiality, the board shall grade a written examination anonymously. Written examination documents shall be identified by number and may not be marked with the name of an applicant.
(e) The board shall have the written portion of the examination, if any, validated under the direction of a testing professional. (V.A.C.S. Art. 4512g, Secs. 12(a), (b) (part).)
Sec. 503.306. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the date on which the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the examination results not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed for more than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512g, Secs. 12(c), (d).)
Sec. 503.307. REEXAMINATION. (a) An applicant who fails an examination may reapply and take a subsequent examination.
(b) An applicant who has failed two successive examinations may not reapply for another examination before:
(1) the second anniversary of the date of the last examination taken by the applicant; or
(2) the date the applicant has satisfactorily completed nine graduate semester hours in the applicant's weakest portion of the examination. (V.A.C.S. Art. 4512g, Sec. 12(b) (part).)
Sec. 503.308. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license. Rules adopted under this subsection must provide a time limit for the period a temporary license is valid.
(b) The board by rule may adopt a system under which a temporary license may be issued to a person who:
(1) meets all of the academic requirements for licensing; and
(2) enters into a supervisory agreement with a supervisor approved by the board. (V.A.C.S. Art. 4512g, Secs. 14(p), (q).)
Sec. 503.309. TEMPORARY LICENSE TO PRACTICE ART THERAPY. (a) The board by rule may provide for the issuance of a temporary license to practice art therapy to a person who:
(1) has completed at least 42 graduate semester hours of the education requirements under Section 503.302(a)(3) in an art therapy program accredited by the American Art Therapy Association;
(2) has completed the supervised work experience requirements under Section 503.303(a)(3);
(3) passes the required license examination;
(4) is a registered art therapist with the American Art Therapy Association authorized to use the title "A.T.R." in the practice of art therapy; and
(5) files a plan acceptable to the board for a course of study to complete the additional graduate semester hours necessary to satisfy the education requirements under Section 503.302(a)(3).
(b) The holder of a temporary license under this section:
(1) may represent the person to the public as an "art therapist"; and
(2) shall limit the scope of the person's practice to art therapy, as defined by board rule. (V.A.C.S. Art. 4512g, Sec. 14(s).)
Sec. 503.310. PROVISIONAL LICENSE. (a) On application and payment of applicable fees, the board may issue a provisional license to a person who holds a license as a counselor or art therapist issued by another state or by a jurisdiction acceptable to the board.
(b) An applicant for a provisional license must:
(1) be licensed in good standing as a counselor or art therapist in another state, territory, or jurisdiction that has licensing requirements substantially equivalent to the requirements of this chapter;
(2) have passed a national or other examination recognized by the board relating to counseling or art therapy; and
(3) be sponsored by a person licensed under this chapter with whom the applicant may practice under a provisional license.
(c) An applicant is not required to comply with Subsection (b)(3) if the board determines that compliance with that subsection is a hardship to the applicant.
(d) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license under Section 503.311. (V.A.C.S. Art. 4512g, Secs. 18(a), (b), (c) (part).)
Sec. 503.311. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. (a) The board shall issue a license to the holder of a provisional license who applies for a license if:
(1) the board verifies that the applicant has the academic and experience requirements for a regular license under this chapter; and
(2) the applicant satisfies any other license requirements under this chapter.
(b) The board must complete the processing of a provisional license holder's application for a license not later than the later of:
(1) the 180th day after the date the provisional license is issued; or
(2) the date licenses are issued following completion of the examination. (V.A.C.S. Art. 4512g, Secs. 18(c) (part), (d).)
Sec. 503.312. INACTIVE STATUS. (a) On request of a person licensed under this chapter, the board shall place the person's license on inactive status.
(b) A person whose license is inactive:
(1) foregoes the licensing rights granted under this chapter; and
(2) is not required to pay a license renewal fee or any penalty fee.
(c) A person whose license is inactive may apply to reactivate the license. The board shall reactivate the license if the applicant:
(1) pays a license fee;
(2) is not in violation of this chapter when the applicant applies to reactivate the license; and
(3) fulfills the requirements provided by board rule for the holder of an inactive license. (V.A.C.S. Art. 4512g, Sec. 14(o).)
Sec. 503.313. RETIREMENT STATUS. The board by rule may adopt a system for placing a person licensed under this chapter on retirement status. (V.A.C.S. Art. 4512g, Sec. 14(r).)
Sec. 503.314. DISPLAY AND SURRENDER OF LICENSE CERTIFICATE. (a) A person licensed under this chapter shall display the person's license certificate in an appropriate and public manner.
(b) A license certificate issued by the board is the property of the board and must be surrendered on demand. (V.A.C.S. Art. 4512g, Secs. 14(a), (b).)
[Sections 503.315-503.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 503.351. ANNUAL RENEWAL; ELIGIBILITY. A person licensed under this chapter may renew the license annually if the person:
(1) is not in violation of this chapter when the person applies for renewal; and
(2) fulfills the continuing education requirements established by the board. (V.A.C.S. Art. 4512g, Sec. 14(e).)
Sec. 503.352. LICENSE EXPIRATION DATE. (a) The board shall adopt a system under which licenses expire on various dates during the year.
(b) For the year in which an initial license is issued, the license fee shall be prorated on a monthly basis so that each license holder pays only that portion of the fee that is applicable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512g, Sec. 14(i).)
Sec. 503.353. NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the expiration date of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records. (V.A.C.S. Art. 4512g, Sec. 14(n).)
Sec. 503.354. PROCEDURE FOR RENEWAL. (a) A license holder is responsible for renewing the license before the expiration date of the license.
(b) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the license examination fee.
(d) If a person's license has been expired for more than 90 days but less than one year because the person did not pay the renewal fee or did not meet continuing education requirements, the person may renew the license by:
(1) paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee; and
(2) providing the board with proof that the person has completed the required continuing education.
(e) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4512g, Secs. 14(h), (j), (k), (l), (m) (part).)
Sec. 503.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal. The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4512g, Sec. 14(m) (part).)
Sec. 503.356. CONTINUING EDUCATION. (a) The board by rule shall establish a minimum number of hours of continuing education required to renew a license under this chapter.
(b) The board may:
(1) assess the continuing education needs of license holders; and
(2) require license holders to attend continuing education courses specified by the board.
(c) The board by rule shall develop a process to evaluate and approve continuing education courses.
(d) The board shall implement a procedure to assess a license holder's participation in continuing education programs. (V.A.C.S. Art. 4512g, Secs. 6(e) (part), 14(f), (g) (part).)
[Sections 503.357-503.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 503.401. DISCIPLINARY ACTIONS. (a) A person licensed under this chapter is subject to disciplinary action under this section if the person:
(1) violates this chapter or a rule or code of ethics adopted by the board;
(2) commits an act for which the license holder would be liable under Chapter 81, Civil Practice and Remedies Code;
(3) is legally committed to an institution because of mental incompetence from any cause; or
(4) directly or indirectly offers to pay or agrees to accept remuneration to or from any person for securing or soliciting a patient or patronage.
(b) If a person is subject to disciplinary action under this section, the board shall:
(1) revoke or suspend the person's license, including a suspension on an emergency basis;
(2) refuse to renew the person's license;
(3) suspend the person's license and place the person on probation with the license suspension probated; or
(4) reprimand the person.
(c) If a license suspension is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit the license holder's practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.
(d) A license holder is entitled to a hearing conducted by the State Office of Administrative Hearings before a sanction is imposed under this section. (V.A.C.S. Art. 4512g, Secs. 16(a), (b), (c).)
Sec. 503.402. SCHEDULE OF SANCTIONS. (a) The board by rule shall adopt a broad schedule of sanctions for violations under this chapter.
(b) The State Office of Administrative Hearings shall use the schedule for any sanction imposed under this chapter as the result of a hearing conducted by that office. (V.A.C.S. Art. 4512g, Sec. 16(d).)
Sec. 503.403. TEMPORARY LICENSE SUSPENSION. (a) The board or a three-member committee of board members designated by the board shall temporarily suspend the license of a license holder if the board or committee determines from the evidence or information presented to it that continued practice by the license holder would constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a hearing before the State Office of Administrative Hearings simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine if there is probable cause to believe that a continuing and imminent threat to the public welfare still exists. A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension. (V.A.C.S. Art. 4512g, Sec. 16A.)
Sec. 503.404. INFORMAL PROCEDURES. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054(c), Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the department's legal staff to advise the board or the board's employees. (V.A.C.S. Art. 4512g, Sec. 16D.)
Sec. 503.405. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system for monitoring a license holder's compliance with this chapter.
(b) The rules must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor license holders who represent a risk to the public. (V.A.C.S. Art. 4512g, Sec. 16E.)
Sec. 503.406. APPLICATION OF ADMINISTRATIVE PROCEDURE LAW. A proceeding to revoke or suspend a license and an appeal from the proceeding is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512g, Sec. 16(e).)
[Sections 503.407-503.450 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 503.451. INJUNCTION. (a) The board or the department may institute in its own name an action to enjoin a violation of this chapter. An action under this section is in addition to any other action authorized by law.
(b) The attorney general or the appropriate county or district attorney shall represent the board in an action under this section. (V.A.C.S. Art. 4512g, Secs. 6(e) (part), 17.)
Sec. 503.452. CRIMINAL OFFENSES. (a) A person commits an offense if the person knowingly:
(1) engages in the practice of professional counseling without holding a license under this chapter;
(2) represents the person by the title "Licensed Professional Counselor" or "Licensed Counselor" without holding a license under this chapter;
(3) represents the person by the title "Licensed Professional Counselor - Art Therapist," "Art Therapist," or by the initials "L.P.C. - A.T." or "A.T." without:
(A) holding a license with a specialization in art therapy under Section 503.303; or
(B) holding a license under Section 503.309; or
(4) uses any title, words, letters, or abbreviations that imply that the person is licensed under this chapter if the person is not licensed under this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4512g, Secs. 15(b) (part), (c).)
Sec. 503.453. REPORT OF ALLEGED OFFENSE. The board shall notify the appropriate prosecuting attorney of an alleged offense committed under this chapter. (V.A.C.S. Art. 4512g, Sec. 6(e) (part).)
CHAPTER 504. CHEMICAL DEPENDENCY COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 504.001. DEFINITIONS
Sec. 504.002. EXEMPTIONS; APPLICABILITY
[Sections 504.003-504.050 reserved for expansion]
SUBCHAPTER B. TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Sec. 504.051. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 504.052. DISCRIMINATION PROHIBITED
Sec. 504.053. FEES; ACCOUNT
Sec. 504.054. COLLECTION ACTION
Sec. 504.055. OFFICIAL ROSTER
Sec. 504.056. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
[Sections 504.057-504.100 reserved for expansion]
SUBCHAPTER C. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 504.101. CONSUMER INTEREST INFORMATION
Sec. 504.102. CONSUMER INFORMATION FOR FILING COMPLAINTS
Sec. 504.103. RECORDS OF COMPLAINTS
[Sections 504.104-504.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 504.151. LICENSE REQUIRED; USE OF TITLE
Sec. 504.152. ELIGIBILITY REQUIREMENTS
Sec. 504.153. ALTERNATIVE QUALIFICATIONS AND EVIDENCE OF
LICENSE REQUIREMENT SATISFACTION
Sec. 504.154. LICENSING WITHOUT EXAMINATION FOR
CERTAIN APPLICANTS
Sec. 504.155. LICENSE APPLICATION
Sec. 504.156. LICENSE EXAMINATION
Sec. 504.157. EXAMINATION RESULTS; REEXAMINATION
Sec. 504.158. PROVISIONAL LICENSE
Sec. 504.159. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE
HOLDER
Sec. 504.160. ISSUANCE OF LICENSE TO CERTAIN OUT-OF-STATE
APPLICANTS
Sec. 504.161. CRIMINAL HISTORY RECORD INFORMATION
[Sections 504.162-504.200 reserved for expansion]
SUBCHAPTER E. LICENSE EXPIRATION AND RENEWAL
Sec. 504.201. LICENSE EXPIRATION
Sec. 504.202. NOTICE OF LICENSE EXPIRATION AND REQUIREMENTS
TO RENEW
Sec. 504.203. LICENSE RENEWAL
Sec. 504.204. RENEWAL OF EXPIRED LICENSE OF OUT-OF-STATE
PRACTITIONER
Sec. 504.205. CONTINUING EDUCATION REQUIREMENTS
[Sections 504.206-504.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEEDINGS
Sec. 504.251. GROUNDS FOR LICENSE DENIAL OR
DISCIPLINARY ACTION
Sec. 504.252. DISCIPLINARY POWERS OF COMMISSION
Sec. 504.253. COMPLAINT AND INVESTIGATION
Sec. 504.254. RIGHT TO ADMINISTRATIVE HEARING
[Sections 504.255-504.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 504.301. IMPOSITION OF PENALTY
Sec. 504.302. AMOUNT OF PENALTY
Sec. 504.303. NOTICE OF VIOLATION AND PENALTY
Sec. 504.304. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 504.305. HEARING
Sec. 504.306. DECISION BY COMMISSION
Sec. 504.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 504.308. DETERMINATION BY COURT
Sec. 504.309. REMITTANCE OF PENALTY AND INTEREST
Sec. 504.310. COLLECTION OF PENALTY
Sec. 504.311. ADMINISTRATIVE PROCEDURE
[Sections 504.312-504.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 504.351. INJUNCTIVE RELIEF; CIVIL PENALTY
CHAPTER 504. CHEMICAL DEPENDENCY COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 504.001. DEFINITIONS. In this chapter:
(1) "Chemical dependency counseling" means assisting an individual or group to:
(A) develop an understanding of chemical dependency problems;
(B) define goals; and
(C) plan action reflecting the individual's or group's interest, abilities, and needs as affected by claimed or indicated chemical dependency problems.
(2) "Chemical dependency counselor" means a person licensed under this chapter.
(3) "Commission" means the Texas Commission on Alcohol and Drug Abuse.
(4) "Executive director" means the executive director of the Texas Commission on Alcohol and Drug Abuse.
(5) "Person" means an individual, corporation, partnership, association, or other business or professional entity.
(6) "Practice of chemical dependency counseling" means providing or offering to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession. (V.A.C.S. Art. 4512o, Secs. 1(2), (3) (part), (4), (5), (6); New.)
Sec. 504.002. EXEMPTIONS; APPLICABILITY. (a) A person is exempt from this chapter if the person does not:
(1) directly or indirectly represent to the public that the person is licensed under this chapter; and
(2) use any name, title, or designation indicating that the person is licensed under this chapter.
(b) This chapter does not apply to an activity or service of a person who:
(1) is employed as a counselor by a federal institution and is providing chemical dependency counseling within the scope of the person's employment;
(2) is a student, intern, or trainee pursuing a supervised course of study in counseling at a regionally accredited institution of higher education or training institution, if the person:
(A) is designated as a "counselor intern"; and
(B) is engaging in the activity or providing the service as part of the course of study;
(3) is not a resident of this state, if the person:
(A) engages in the activity or provides the service in this state for not more than 30 days during any year; and
(B) is authorized to engage in the activity or provide the service under the law of the state of the person's residence;
(4) is a licensed physician, psychologist, professional counselor, or social worker;
(5) is a religious leader of a congregation providing pastoral chemical dependency counseling within the scope of the person's duties;
(6) is working for or providing counseling with a program exempt under Subchapter C, Chapter 464, Health and Safety Code; or
(7) is a school counselor certified by the State Board for Educator Certification.
(c) A person exempt under this section who obtains a license under this chapter is subject to this chapter to the same extent as any other person who obtains a license under this chapter. (V.A.C.S. Art. 4512o, Secs. 2 (part), 3.)
[Sections 504.003-504.050 reserved for expansion]
SUBCHAPTER B. TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Sec. 504.051. GENERAL POWERS AND DUTIES OF COMMISSION. The commission shall:
(1) adopt and enforce rules as necessary for the performance of its duties under this chapter;
(2) establish standards of conduct and ethics for persons licensed under this chapter; and
(3) ensure strict compliance with and enforcement of this chapter. (V.A.C.S. Art. 4512o, Sec. 5(a).)
Sec. 504.052. DISCRIMINATION PROHIBITED. In taking an action or making a decision under this chapter, the commission shall do so without regard to the sex, race, religion, national origin, color, or political affiliation of the person affected. For purposes of this section, taking an action or making a decision under this chapter includes:
(1) considering a license application;
(2) conducting an examination;
(3) adopting or enforcing a rule; and
(4) conducting a disciplinary proceeding. (V.A.C.S. Art. 4512o, Sec. 4.)
Sec. 504.053. FEES; ACCOUNT. (a) The commission shall set application, examination, license renewal, and other fees in amounts sufficient to cover the costs of administering this chapter. The amount of the license renewal fee may not exceed $200.
(b) General revenue taxes may not be used to administer this chapter. (V.A.C.S. Art. 4512o, Secs. 9(a), 13(a) (part), 19 (part).)
Sec. 504.054. COLLECTION ACTION. A district court in Travis County has exclusive jurisdiction of an action to collect an obligation owed to the commission, including an administrative penalty assessed under Subchapter G. (V.A.C.S. Art. 4512o, Sec. 18A(x).)
Sec. 504.055. OFFICIAL ROSTER. (a) The commission may prepare and publish a roster showing the name and address, as reflected by the commission's records, of each chemical dependency counselor.
(b) If the commission publishes a roster under this section, the commission shall mail a copy of the roster to each person licensed by the commission and shall file a copy of the roster with the secretary of state.
(c) A person's name and address may appear in the roster only if each fee assessed against the person under this chapter is current and paid in full at the time the roster is sent to the printer or publisher.
(d) The commission may charge a fee for the roster published under this section. (V.A.C.S. Art. 4512o, Secs. 8, 9(b).)
Sec. 504.056. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commission may not adopt a rule restricting advertising or competitive bidding by a person regulated by the commission under this chapter except to prohibit a false, misleading, or deceptive practice.
(b) The commission may not include in rules adopted under this chapter a rule that:
(1) restricts the person's use of any advertising medium;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4512o, Sec. 7.)
[Sections 504.057-504.100 reserved for expansion]
SUBCHAPTER C. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 504.101. CONSUMER INTEREST INFORMATION. (a) The commission shall prepare information of consumer interest describing the regulatory functions of the commission and the procedures by which consumer complaints are filed with and resolved by the commission.
(b) The commission shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512o, Sec. 6(a).)
Sec. 504.102. CONSUMER INFORMATION FOR FILING COMPLAINTS. Each person licensed under this chapter shall display prominently at all times in the person's place of business a sign containing:
(1) the name, mailing address, and telephone number of the commission; and
(2) a statement informing a consumer that a complaint against a person licensed under this chapter may be directed to the commission. (V.A.C.S. Art. 4512o, Sec. 6(b).)
Sec. 504.103. RECORDS OF COMPLAINTS. (a) The commission shall keep information about each complaint filed with the commission. The information must include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of each person contacted in relation to the complaint;
(5) a summary of the results of the review or investigation of the complaint; and
(6) for a complaint for which the commission took no action, an explanation of the reason the complaint was closed without action.
(b) The commission shall keep an information file about each complaint filed with the commission that the commission has authority to resolve.
(c) The commission, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person or entity that is the subject of the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512o, Secs. 17(c) (part), (d).)
[Sections 504.104-504.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 504.151. LICENSE REQUIRED; USE OF TITLE. (a) A person may not engage in the practice of chemical dependency counseling unless the person is licensed as a chemical dependency counselor under this chapter.
(b) A person, other than a person licensed under this chapter or exempt from the application of this chapter, may not use:
(1) the term "chemical dependency counselor" or any combination, variation, or abbreviation of that term as a professional, business, or commercial identification, name, title, or representation; or
(2) any letter, abbreviation, work symbol, slogan, sign, or any combination or variation likely to create the impression that the person is authorized to practice chemical dependency counseling or is a licensed chemical dependency counselor.
(c) Unless a person is engaged in the practice of chemical dependency counseling in accordance with this chapter, the person may not:
(1) hold the person out to the public as engaged in the practice of chemical dependency counseling;
(2) offer chemical dependency counseling services, including offering those services under an assumed, trade, business, professional, partnership, or corporate name or title; or
(3) use the term "licensed chemical dependency counselor," the abbreviation "LCDC," or any combination or variation of that term or abbreviation in connection with the person's practice. (V.A.C.S. Art. 4512o, Secs. 1(3) (part), 2 (part), 12.)
Sec. 504.152. ELIGIBILITY REQUIREMENTS. To be eligible for a license under this chapter, a person must:
(1) be at least 18 years of age;
(2) have a high school diploma or its equivalent;
(3) have completed:
(A) 270 classroom hours of approved curricula;
(B) 4,000 hours of approved supervised experience working with chemically dependent persons; and
(C) 300 hours of approved supervised field work practicum;
(4) provide two letters of reference from chemical dependency counselors;
(5) pass a written examination approved by the commission;
(6) submit a case presentation to the test administrator;
(7) pass an oral examination approved by the commission;
(8) be determined by the commission to be worthy of the public trust and confidence;
(9) successfully complete the chemical dependency counselor examination under Section 504.156; and
(10) sign a written agreement to comply with the standards of ethics approved by the commission. (V.A.C.S. Art. 4512o, Sec. 10(b).)
Sec. 504.153. ALTERNATIVE QUALIFICATIONS AND EVIDENCE OF LICENSE REQUIREMENT SATISFACTION. (a) An applicant is exempt from the requirements of Sections 504.152(3)(A) and (C) if the applicant holds a baccalaureate degree in:
(1) chemical dependency counseling; or
(2) psychology, sociology, or any other related program approved by the commission.
(b) On presentation of documentation by an applicant who holds a degree described by Subsection (a), the commission may waive any portion of the requirement established by Section 504.152(3)(B) that the commission determines has been satisfied as evidenced by the documentation. (V.A.C.S. Art. 4512o, Secs. 10(d), (e).)
Sec. 504.154. LICENSING WITHOUT EXAMINATION FOR CERTAIN APPLICANTS. An applicant may be licensed as a chemical dependency counselor without taking the examination required by Section 504.156 if the applicant:
(1) is certified on or before October 1, 1991, as an alcohol and drug abuse counselor by the Texas Association of Alcohol and Drug Abuse Counselors; or
(2) holds a baccalaureate degree in chemical dependency counseling or in sociology, psychology, criminology, or a related field conferred by an educational program approved by the commission and has successfully completed two years of actual and active chemical dependency counseling experience approved by the commission on or before October 1, 1991. (V.A.C.S. Art. 4512o, Sec. 20(b).)
Sec. 504.155. LICENSE APPLICATION. (a) An application for a license under this chapter must:
(1) be on a form prescribed and furnished by the commission; and
(2) contain a statement made under oath of the applicant's education, experience, and other qualifications established by the commission as required for a license under this chapter.
(b) The commission may require additional information regarding the quality, scope, and nature of the experience and competence of the applicant if the commission determines that a person's application lacks sufficient information for consideration by the commission. (V.A.C.S. Art. 4512o, Secs. 10(a), (c).)
Sec. 504.156. LICENSE EXAMINATION. (a) At least twice each year, the commission may prepare and administer or contract with an organization approved by the International Certification Reciprocity Consortium to prepare and administer an examination to determine the qualifications of an applicant for a license under this chapter. The examination shall be conducted as determined by the commission and in a manner that is fair and impartial to and takes into consideration each school or system of chemical dependency counseling.
(b) An examiner may know an applicant only by number until after the examination has been graded and the licenses have been granted or denied.
(c) The scope and content of the examination must be sufficient to ensure professional competence in keeping with the highest standards of the chemical dependency counseling profession. (V.A.C.S. Art. 4512o, Sec. 11(a).)
Sec. 504.157. EXAMINATION RESULTS; REEXAMINATION. (a) The commission shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered.
(b) If requested by an applicant who fails the examination, the commission shall furnish the applicant with an analysis of the applicant's performance on the examination.
(c) An applicant who fails the examination may take a subsequent examination on payment of the required examination fee. An applicant may not be reexamined more than three times. (V.A.C.S. Art. 4512o, Secs. 11(b), (c), (d).)
Sec. 504.158. PROVISIONAL LICENSE. (a) The commission may issue a provisional license to an applicant who is licensed in another state. An applicant for a provisional license under this section must:
(1) be licensed in good standing as a chemical dependency counselor at least two years in another state or country that has licensing requirements substantially equivalent to the requirements of this chapter;
(2) have passed a national or other examination recognized by the commission relating to the practice of chemical dependency counseling; and
(3) be sponsored by a person licensed by the commission under this chapter with whom the provisional license holder may practice.
(b) The commission may waive the requirement of Subsection (a)(3) if the commission determines that compliance with that subsection would constitute a hardship to the applicant.
(c) The commission may establish a fee for a provisional license in an amount reasonable and necessary to cover the cost of issuing the license.
(d) A provisional license is valid until the date the commission approves or denies the provisional license holder's application for a license under Section 504.159. (V.A.C.S. Art. 4512o, Secs. 10A(a), (b), (c), (f).)
Sec. 504.159. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. (a) The commission shall issue a license under this chapter to a provisional license holder who satisfies the eligibility requirements established by Section 504.152. When issuing a license under this subsection, the commission may waive the requirements established by Sections 504.152(6), (7), and (9).
(b) The commission shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The commission may extend the 180-day period if the commission has not received information necessary to determine whether the applicant is eligible for a license as provided by Subsection (a). (V.A.C.S. Art. 4512o, Secs. 10A(d), (e).)
Sec. 504.160. ISSUANCE OF LICENSE TO CERTAIN OUT-OF-STATE APPLICANTS. (a) The commission may, on application and payment of the appropriate fee, issue a license to a person who is licensed or certified by another state as a chemical dependency counselor if the commission determines that the license or certificate requirements of that state are substantially equivalent to the requirements of this chapter.
(b) The commission may waive any license requirement for an applicant with a license or certificate issued by another state with which this state has a reciprocity agreement. (V.A.C.S. Art. 4512o, Sec. 14.)
Sec. 504.161. CRIMINAL HISTORY RECORD INFORMATION. (a) The commission may obtain criminal history record information as provided by Section 411.132, Government Code, as added by Chapter 18, Acts of the 75th Legislature, Regular Session, 1997, and consider that information in determining a person's license status under this chapter.
(b) The commission may charge a person on whom criminal history record information is sought a fee in an amount set by the commission as reasonably necessary to cover the costs of administering this section. A fee collected under this subsection may be appropriated only to the commission to administer this section. (V.A.C.S. Art. 4512o, Sec. 17A.)
[Sections 504.162-504.200 reserved for expansion]
SUBCHAPTER E. LICENSE EXPIRATION AND RENEWAL
Sec. 504.201. LICENSE EXPIRATION. (a) A license issued under this chapter expires on the second anniversary of the date of issuance. The commission by rule shall adopt a system under which licenses expire on various dates during the year.
(b) A person may not engage in activities that require a license if the person's license has expired and is not renewed as provided by this subchapter. (V.A.C.S. Art. 4512o, Secs. 13(a) (part), (c) (part).)
Sec. 504.202. NOTICE OF LICENSE EXPIRATION AND REQUIREMENTS TO RENEW. Not later than the 31st day before the expiration date of a person's license, the commission shall send to the license holder at the license holder's last known address according to commission records written notice of:
(1) the impending license expiration;
(2) the amount of the renewal fee; and
(3) any continuing education required to renew the license. (V.A.C.S. Art. 4512o, Sec. 13(b).)
Sec. 504.203. LICENSE RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the commission before the expiration date of the license.
(b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the commission a fee in an amount equal to one and one-half times the required renewal fee.
(c) If the person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the commission a fee in an amount equal to two times the required renewal fee.
(d) If the person's license has been expired for one year or more, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4512o, Secs. 13(c) (part), (d), (e), (f).)
Sec. 504.204. RENEWAL OF EXPIRED LICENSE OF OUT-OF-STATE PRACTITIONER. (a) The commission may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applies for renewal.
(b) The person must pay to the commission a fee in an amount equal to two times the required renewal fee for the license. (V.A.C.S. Art. 4512o, Sec. 13(g).)
Sec. 504.205. CONTINUING EDUCATION REQUIREMENTS. (a) The commission shall recognize, prepare, or administer a continuing education program for chemical dependency counselors. The commission by rule shall provide for the administration of the continuing education requirements established under this section.
(b) As a prerequisite for renewal of a license issued under this chapter, the license holder must participate in the continuing education program and complete at least 60 hours of continuing education in each two-year licensing period. (V.A.C.S. Art. 4512o, Sec. 15.)
[Sections 504.206-504.250 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEEDINGS
Sec. 504.251. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. The commission shall refuse to issue a license to an applicant, refuse to renew a license holder's license, or take disciplinary action against a license holder if the applicant or license holder:
(1) violates or assists another to violate this chapter or a rule adopted under this chapter;
(2) circumvents or attempts to circumvent this chapter or a rule adopted under this chapter;
(3) directly or indirectly participates in a plan to evade this chapter or a rule adopted under this chapter;
(4) has a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the commission determines would constitute a violation of this chapter or a rule adopted under this chapter;
(5) engages in false, misleading, or deceptive conduct as defined by Section 17.46, Business & Commerce Code;
(6) engages in conduct that discredits or tends to discredit the profession of chemical dependency counseling;
(7) directly or indirectly reveals a confidential communication made to the person by a client or recipient of services, except as required by law;
(8) refuses to perform an act or service the person is licensed to perform under this chapter on the basis of the client's or recipient's age, sex, race, religion, national origin, color, or political affiliation; or
(9) commits an act for which liability exists under Chapter 81, Civil Practice and Remedies Code. (V.A.C.S. Art. 4512o, Sec. 16(a) (part).)
Sec. 504.252. DISCIPLINARY POWERS OF COMMISSION. (a) On a determination that grounds exist to deny a license or license renewal or to take disciplinary action against a license holder, the commission may:
(1) refuse to issue or renew a license;
(2) revoke or suspend a license;
(3) place on probation a license holder whose license is suspended; or
(4) reprimand a license holder.
(b) If the commission places on probation a license holder whose license is suspended, the commission may require the license holder to:
(1) report regularly to the commission on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the commission; or
(3) continue or review professional education until the license holder attains a degree of skill satisfactory to the commission in the areas that are the basis of the probation. (V.A.C.S. Art. 4512o, Secs. 16(a) (part), (b).)
Sec. 504.253. COMPLAINT AND INVESTIGATION. (a) A person may file a complaint with the commission alleging a violation of this chapter. The complaint must be in writing and under oath.
(b) The commission shall provide to the person filing the complaint and to each person or entity that is the subject of the complaint the commission's policies and procedures pertaining to complaint investigation and resolution. (V.A.C.S. Art. 4512o, Secs. 17(a), (c) (part).)
Sec. 504.254. RIGHT TO ADMINISTRATIVE HEARING. (a) If the commission proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.
(b) Procedures for disciplinary action are governed by Chapter 2001, Government Code. Rules of practice adopted by the commission under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (V.A.C.S. Art. 4512o, Sec. 17(b).)
[Sections 504.255-504.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 504.301. IMPOSITION OF PENALTY. The commission may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512o, Sec. 18A(a).)
Sec. 504.302. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day of a continuing violation is a separate violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice requires. (V.A.C.S. Art. 4512o, Secs. 18A(b), (c).)
Sec. 504.303. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the commission determines that a violation occurred, the commission shall give written notice of the violation to the person alleged to have committed the violation. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512o, Sec. 18A(e).)
Sec. 504.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 504.303, the person may:
(1) accept the commission's determination and proposed administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the commission's determination, the executive director or the executive director's designee by order shall approve the determination and assess the proposed penalty. (V.A.C.S. Art. 4512o, Secs. 18A(f), (g).)
Sec. 504.305. HEARING. (a) If the person requests a hearing in a timely manner, the commission shall set a hearing and give written notice of the hearing to the person.
(b) The commission may employ a hearings examiner for this purpose.
(c) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the executive director or the executive director's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4512o, Secs. 18A(h), (i).)
Sec. 504.306. DECISION BY COMMISSION. (a) Based on the findings of fact, conclusions of law, and recommendations of the hearings examiner, the executive director or the executive director's designee by order may determine that:
(1) a violation occurred and assess an administrative penalty; or
(2) a violation did not occur.
(b) The commission shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty assessed; and
(3) a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4512o, Secs. 18A(j), (k).)
Sec. 504.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the commission's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commission by certified mail.
(c) If the commission receives a copy of an affidavit under Subsection (b)(2), the commission may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512o, Secs. 18A(l), (m), (n).)
Sec. 504.308. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512o, Sec. 18A(q).)
Sec. 504.309. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount be remitted to the person if the person paid the penalty, plus accrued interest if the person paid the penalty under Section 504.307(a)(2); or
(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512o, Sec. 18A(r).)
Sec. 504.310. COLLECTION OF PENALTY. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the commission and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(b) If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed under Section 504.307, the commission may refer the matter to the attorney general for collection of the penalty.
(c) The commission may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the executive director or the executive director's designee requiring the payment of expenses and costs is final. The commission may refer the matter to the attorney general for collection of expenses and costs.
(d) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for the administrative penalty, the attorney general may recover, on behalf of the attorney general and the commission, reasonable expenses and costs. (V.A.C.S. Art. 4512o, Secs. 18A(o), (t), (u), (v).)
Sec. 504.311. ADMINISTRATIVE PROCEDURE. A proceeding to assess an administrative penalty under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512o, Sec. 18A(d).)
[Sections 504.312-504.350 reserved for expansion]
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 504.351. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) If it appears that a person has violated, is violating, or is threatening to violate this chapter or a rule adopted under this chapter, the commission or the attorney general at the request of the commission may institute an action in district court for an injunction, a civil penalty, or both.
(b) On application for injunctive relief and a finding that a person is violating or threatening to violate this chapter or a rule adopted under this chapter, the district court may grant injunctive relief as the facts warrant. The commission is not required to give an appeal bond in an appeal of an action seeking injunctive relief under this section.
(c) The amount of a civil penalty imposed under this section may not be less than $50 or more than $500 for each day of the violation. (V.A.C.S. Art. 4512o, Secs. 5(b) (part), 18.)
CHAPTER 505. SOCIAL WORKERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 505.001. SHORT TITLE
Sec. 505.002. DEFINITIONS
Sec. 505.003. APPLICATIONS AND EXEMPTIONS
Sec. 505.004. NONDISCRIMINATORY ACTIONS AND DECISIONS
Sec. 505.005. APPLICATION OF SUNSET ACT
[Sections 505.006-505.100 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF SOCIAL WORKER EXAMINERS
Sec. 505.101. BOARD; MEMBERSHIP
Sec. 505.102. PUBLIC MEMBERSHIP ELIGIBILITY
Sec. 505.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 505.104. TERMS; VACANCY
Sec. 505.105. GROUNDS FOR REMOVAL
Sec. 505.106. EXPENSE REIMBURSEMENT
Sec. 505.107. OFFICERS
Sec. 505.108. MEETINGS
Sec. 505.109. TRAINING
[Sections 505.110-505.150 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 505.151. EXECUTIVE DIRECTOR
Sec. 505.152. EXECUTIVE DIRECTOR POWERS AND DUTIES
Sec. 505.153. PERSONNEL AND FACILITIES
Sec. 505.154. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
[Sections 505.155-505.200 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 505.201. GENERAL RULEMAKING AND ENFORCEMENT
AUTHORITY
Sec. 505.202. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 505.203. FEES
Sec. 505.204. BOARD DUTIES REGARDING COMPLAINTS
Sec. 505.205. ROSTER OF LICENSE HOLDERS
Sec. 505.206. ROSTER OF PRIVATE AND INDEPENDENT SOCIAL
WORKERS
Sec. 505.207. ANNUAL REPORT REGARDING LICENSING
Sec. 505.208. ANNUAL REPORT REGARDING FUNDS
[Sections 505.209-505.250 reserved for expansion]
SUBCHAPTER E. PUBLIC ACCESS INFORMATION AND
COMPLAINT PROCEDURES
Sec. 505.251. CONSUMER INTEREST INFORMATION
Sec. 505.252. COMPLAINTS
Sec. 505.253. RECORDS OF COMPLAINTS
Sec. 505.254. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 505.255. PUBLIC PARTICIPATION
[Sections 505.256-505.300 reserved for expansion]
SUBCHAPTER F. SPECIALTY AREAS OF SOCIAL WORK
Sec. 505.301. ESTABLISHMENT OF SPECIALTY AREA
Sec. 505.302. REGULATION OF SPECIALTY AREAS
Sec. 505.303. CLINICAL SOCIAL WORK SPECIALTY
Sec. 505.304. ORDER OF RECOGNITION OF SPECIALTY
Sec. 505.305. RECOGNITION OF SPECIALTY; ISSUANCE OF
ORDER
Sec. 505.306. PROHIBITED USE OF SPECIALTY AREA
IDENTIFICATION OR TITLE
Sec. 505.307. PRIVATE AND INDEPENDENT PRACTICE RECOGNITION;
MINIMUM QUALIFICATIONS
[Sections 505.308-505.350 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 505.351. LICENSE REQUIRED
Sec. 505.352. LICENSE APPLICATION
Sec. 505.353. ELIGIBILITY
Sec. 505.354. EXAMINATION
Sec. 505.355. EXAMINATION RESULTS
Sec. 505.356. REEXAMINATION
Sec. 505.357. TEMPORARY LICENSE
Sec. 505.358. PROVISIONAL LICENSE
Sec. 505.359. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE
HOLDER
Sec. 505.360. PROFESSIONAL IDENTIFICATION
[Sections 505.361-505.400 reserved for expansion]
SUBCHAPTER H. RENEWAL OF LICENSE AND ORDER OF RECOGNITION
OF SPECIALTY
Sec. 505.401. STAGGERED EXPIRATION DATES
Sec. 505.402. RENEWAL OF LICENSE AND ORDER OF
RECOGNITION OF SPECIALTY
Sec. 505.403. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 505.404. CONTINUING EDUCATION
[Sections 505.405-505.450 reserved for expansion]
SUBCHAPTER I. DENIAL OF LICENSE OR ORDER AND
DISCIPLINARY PROCEDURES
Sec. 505.451. GROUNDS FOR DENIAL, REVOCATION, OR SUSPENSION
OF LICENSE OR ORDER OF RECOGNITION OF
SPECIALTY
Sec. 505.452. CONDITIONS OF PROBATION
Sec. 505.453. EMERGENCY SUSPENSION
Sec. 505.454. SANCTIONS FOR HOLDER OF EXPIRED LICENSE OR
ORDER OF RECOGNITION OF SPECIALTY
Sec. 505.455. PROCEDURE; HEARING
Sec. 505.456. SCHEDULE OF SANCTIONS
Sec. 505.457. INFORMAL PROCEDURES
[Sections 505.458-505.500 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 505.501. MONITORING OF LICENSE HOLDER
Sec. 505.502. PROHIBITED CONDUCT BY BUSINESS OR
PROFESSIONAL ENTITY
Sec. 505.503. INJUNCTION
Sec. 505.504. CIVIL PENALTY
Sec. 505.505. APPEAL BOND NOT REQUIRED
Sec. 505.506. REPRESENTATION BY ATTORNEY GENERAL
CHAPTER 505. SOCIAL WORKERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 505.001. SHORT TITLE. This chapter may be cited as the Professional Social Work Act. (Sec. 50.001(a), Human Resources Code.)
Sec. 505.002. DEFINITIONS. In this chapter:
(1) "Advanced clinical practitioner" means a licensed master social worker recognized by the board as qualified for the practice of clinical social work.
(2) "Board" means the Texas State Board of Social Worker Examiners.
(3) "Council on Social Work Education" means the national organization that is primarily responsible for the accreditation of schools of social work in the United States.
(4) "Department" means the Texas Department of Health.
(5) "Licensed master social worker" means a person who holds a master social worker license issued by the board under this chapter.
(6) "Licensed social worker" means a person who holds a social worker license issued by the board under this chapter.
(7) "Professional social work" means:
(A) acts or services performed for compensation to change:
(i) human behavior;
(ii) human emotional responses;
(iii) interpersonal relationships; and
(iv) the social conditions of individuals, families, groups, organizations, or communities;
(B) a practice guided by special knowledge, acquired through formal professional social work education, of:
(i) social welfare policies and services;
(ii) social welfare systems and resources;
(iii) human development and behavior within the context of the social environment; and
(iv) methods to enhance the functioning of individuals, families, groups, communities, and social welfare organizations; and
(C) the disciplined application of social work values, principles, and methods, including psychotherapy, marriage and family therapy, couples therapy, group therapy, counseling, assessment, and evaluation.
(8) "Social work associate" means a person who holds a social work associate license issued by the board under this chapter.
(9) "Social worker" means a person who holds any license issued by the board under this chapter. (Secs. 50.001(b)(1), (2), (3), (4), (5), (6), (8), (9), (10), Human Resources Code.)
Sec. 505.003. APPLICATIONS AND EXEMPTIONS. (a) This chapter does not apply to:
(1) an activity conducted or a service performed by a person who is licensed, certified, or registered in a profession other than social work, including a physician, attorney, registered nurse, licensed vocational nurse, psychologist, occupational therapist, licensed marriage and family therapist, licensed chemical dependency counselor, or licensed professional counselor, if:
(A) the activity or service is conducted or performed within the scope of the person's license, certificate, or registration; and
(B) the person does not use a title listed in Section 505.351;
(2) a service performed by a person as a volunteer or staff member if the person does not:
(A) represent the service as professional social work;
(B) represent the person as a social worker; or
(C) use a title that implies that the person is licensed in professional social work;
(3) an activity conducted by a social work student, intern, or trainee in connection with an institution of higher education accredited by the Council on Social Work Education;
(4) an activity that is a part of a course of study for a baccalaureate or master's degree in social work if the person does not use a title that implies that the person is licensed in professional social work;
(5) a service performed by a person who does not reside in this state if:
(A) the service is performed for fewer than 30 days in a calendar year; and
(B) the person is authorized to perform the service under the laws of the state or country in which the person resides;
(6) an activity conducted or a service performed by a pastoral care counselor who does not use a title that implies that the counselor is licensed in professional social work, including:
(A) a Christian Science practitioner who is recognized by the Church of Christ Scientist as registered and published in the Christian Science Journal; and
(B) any other recognized religious practitioner; or
(7) a person who does not:
(A) directly or indirectly represent to the public that the person is licensed under this chapter; or
(B) use a name, title, or designation indicating that the person is licensed under this chapter.
(b) This chapter does not require a public agency or private employer, including a nonprofit corporation, to employ a licensed master social worker, licensed social worker, or social work associate. (Secs. 50.002, 50.033, Human Resources Code.)
Sec. 505.004. NONDISCRIMINATORY ACTIONS AND DECISIONS. An action taken or a decision made under this chapter, including an action or a decision relating to a license application, examination, regulation, or disciplinary proceeding, shall be taken or made without regard to sex, race, religion, national origin, color, or political affiliation. (Sec. 50.003, Human Resources Code.)
Sec. 505.005. APPLICATION OF SUNSET ACT. The Texas State Board of Social Worker Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and Section 505.101 expires September 1, 2005. (Sec. 50.004(h), Human Resources Code.)
[Sections 505.006-505.100 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF SOCIAL WORKER EXAMINERS
Sec. 505.101. BOARD; MEMBERSHIP. (a) The Texas State Board of Social Worker Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) three members who are licensed master social workers, at least two of whom are recognized as advanced clinical practitioners;
(2) two members who are licensed social workers;
(3) one member who is a social work associate; and
(4) three members who represent the public.
(b) The governor shall make appointments to the board after considering representation on the board by race, sex, age, and geographical area. (Secs. 50.004(b) (part), (d), Human Resources Code.)
Sec. 505.102. PUBLIC MEMBERSHIP ELIGIBILITY. (a) A public member of the board may not:
(1) be licensed under this chapter; or
(2) have an interest in the practice of social work other than as a consumer.
(b) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the board or department;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the board or department; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board or department, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (Secs. 50.004(b) (part), 50.0041, Human Resources Code.)
Sec. 505.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or serve as 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. (Secs. 50.0042, 50.0043, Human Resources Code.)
Sec. 505.104. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms. The terms of one-third of the members expire February 1 of each odd-numbered year.
(b) A person who is appointed to fill a vacancy on the board shall serve as a board member for the remainder of the unexpired term. (Sec. 50.004(c), Human Resources Code.)
Sec. 505.105. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 505.101 and 505.102(a);
(2) does not maintain during service on the board the qualifications required by Sections 505.101 and 505.102(a);
(3) violates a prohibition established by Section 505.103;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the governor and the attorney general that a potential ground for removal exists. (Sec. 50.0044, Human Resources Code.)
Sec. 505.106. EXPENSE REIMBURSEMENT. Each board member is entitled to reimbursement for expenses incurred in traveling to and from the business of the board at the rates provided in the General Appropriations Act for state employees. A member may not receive actual or necessary expenses except for travel to and from meetings. (Sec. 50.004(e), Human Resources Code.)
Sec. 505.107. OFFICERS. (a) The governor shall designate one board member as presiding officer. The presiding officer serves in that capacity at the will of the governor.
(b) The board shall elect other officers at the first regular meeting of the board each year. (Sec. 50.004(f) (part), Human Resources Code.)
Sec. 505.108. MEETINGS. (a) The board shall hold a meeting at least once a year.
(b) The board may hold other regular meetings as provided by board rule and special meetings as determined by the board. (Sec. 50.004(f) (part), Human Resources Code.)
Sec. 505.109. TRAINING. (a) Before a board member may assume the member's duties, the member must complete at least one course of a training program established by the board under this section.
(b) The training program must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, and 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.
(d) If another state agency or entity is authorized to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (Sec. 50.0065, Human Resources Code.)
[Sections 505.110-505.150 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 505.151. EXECUTIVE DIRECTOR. (a) The commissioner of public health shall designate an employee of the department to serve as executive director of the board. The executive director serves at the will of the board.
(b) The executive director is the administrator of the licensing and regulatory activities of the board. (Secs. 50.0045(b) (part), (c) (part), Human Resources Code.)
Sec. 505.152. EXECUTIVE DIRECTOR POWERS AND DUTIES. In addition to other duties provided by this chapter or by the department, the executive director shall:
(1) keep full and accurate minutes of board transactions and proceedings;
(2) serve as custodian of board files and records;
(3) prepare and recommend to the board plans and procedures necessary to implement the purposes of this chapter, including rules and proposals on administrative procedures consistent with this chapter;
(4) exercise general supervision of department employees involved in the administration of this chapter;
(5) investigate complaints and present formal complaints;
(6) attend each board meeting as a nonvoting participant;
(7) manage board correspondence; and
(8) obtain, assemble, or prepare reports and other information as directed or authorized by the board. (Sec. 50.0045(b) (part), Human Resources Code.)
Sec. 505.153. PERSONNEL AND FACILITIES. (a) The board is administratively attached to the department. Department personnel shall administer this chapter as agents of the board. The department shall provide the necessary staff to assist the board in performing its duties.
(b) If necessary to administer this chapter, the department by agreement may:
(1) obtain and provide for the compensation for services; and
(2) employ professional consultants, technical assistants, and employees on a full-time or part-time basis.
(c) Department facilities shall be used as necessary to administer this chapter. (Secs. 50.0045(a), (c) (part), Human Resources Code.)
Sec. 505.154. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (Sec. 50.0064, Human Resources Code.)
[Sections 505.155-505.200 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 505.201. GENERAL RULEMAKING AND ENFORCEMENT AUTHORITY. (a) The board may:
(1) adopt and enforce rules necessary to perform the board's duties under this chapter;
(2) establish standards of conduct and ethics for license holders; and
(3) ensure strict compliance with and enforcement of this chapter.
(b) In adopting rules under this section, the board shall consider the rules and procedures of the Texas Board of Health and the department. The board shall adopt procedural rules, which may not be inconsistent with similar rules and procedures of the Texas Board of Health or the department.
(c) The board by rule may define a term not defined under Section 505.002 if a definition is necessary to administer or enforce this chapter. (Secs. 50.001(c), 50.006(a), Human Resources Code.)
Sec. 505.202. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (Sec. 50.0061, Human Resources Code.)
Sec. 505.203. FEES. (a) The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter.
(b) The board may not set a fee that existed on September 1, 1993, in an amount that is less than the amount of that fee on that date. (Secs. 50.009(a), (b) (part), Human Resources Code.)
Sec. 505.204. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (Secs. 50.0221(c), (d), Human Resources Code.)
Sec. 505.205. ROSTER OF LICENSE HOLDERS. (a) The board shall prepare and publish at its discretion a roster that contains the name and address of each licensed master social worker, licensed social worker, and social work associate as stated in the board's records.
(b) The board shall:
(1) mail a copy of the roster to each license holder; and
(2) file a copy of the roster with the secretary of state.
(c) The board may not include in the roster the name and address of a person who is delinquent in the payment of a fee required under this chapter on the date the roster is sent for printing. (Sec. 50.008, Human Resources Code.)
Sec. 505.206. ROSTER OF PRIVATE AND INDEPENDENT SOCIAL WORKERS. The board shall publish a roster of persons recognized under Section 505.307 as qualified for the private and independent practice of social work. (Sec. 50.020(a) (part), Human Resources Code.)
Sec. 505.207. ANNUAL REPORT REGARDING LICENSING. Not later than November 1 of each year, the commissioner of public health shall file with the governor and the presiding officer of each house of the legislature a written report regarding the licensing of social workers by the department during the preceding fiscal year. (Sec. 50.007, Human Resources Code.)
Sec. 505.208. ANNUAL REPORT REGARDING FUNDS. (a) The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (Sec. 50.005(d), Human Resources Code.)
[Sections 505.209-505.250 reserved for expansion]
SUBCHAPTER E. PUBLIC ACCESS INFORMATION AND
COMPLAINT PROCEDURES
Sec. 505.251. CONSUMER INTEREST INFORMATION. (a) The board shall prepare information of consumer interest describing the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (Sec. 50.006(d), Human Resources Code.)
Sec. 505.252. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for services provided by a person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (Secs. 50.006(e), (f), Human Resources Code.)
Sec. 505.253. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the department and referred to the board. The information file shall be kept current and must contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule established under Section 505.254(b)(2) for the complaint and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is referred to the board that the board has the authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (Secs. 50.0221(a), (b), 50.0222(b) (part), Human Resources Code.)
Sec. 505.254. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the department and referred to the board. The rules adopted under this subsection must:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) Each party to the complaint shall be notified of the projected time requirements for the complaint. Each party to the complaint shall be notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.
(d) The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.
(e) The board may conduct an investigation of a complaint and determine the validity of the complaint regardless of the status of the license or order of recognition of specialty of the person against whom the complaint is made. (Secs. 50.0222(a), (b) (part), (c), (d), Human Resources Code.)
Sec. 505.255. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (Secs. 50.0062, 50.0063 (part), Human Resources Code.)
[Sections 505.256-505.300 reserved for expansion]
SUBCHAPTER F. SPECIALTY AREAS OF SOCIAL WORK
Sec. 505.301. ESTABLISHMENT OF SPECIALTY AREA. (a) The board may establish within the scope of social work and this chapter a specialty area of social work for licensed master social workers in good standing if establishment of the specialty area:
(1) is necessary to promote the public interest; and
(2) assists the public in identifying qualified persons in the profession who perform specialty social work.
(b) The board may not authorize a specialty for the private practice of social work except for a licensed master social worker who satisfies the minimum number of years of active social work practice with appropriate supervision and examination, as determined by the board.
(c) The board may not establish a specialty area of social work or a specialty area identification that conflicts with a state licensing law. (Secs. 50.024(a), (c), Human Resources Code.)
Sec. 505.302. REGULATION OF SPECIALTY AREAS. (a) In establishing a specialty area of social work, the board shall:
(1) define the scope of the specialty;
(2) establish qualifications for specialty area practitioners that describe, in accordance with Subdivision (1), the scope of the specialty area;
(3) adopt rules of conduct to ensure strict compliance with and enforcement of this chapter; and
(4) adopt rules for the suspension or revocation of an order of recognition of specialty.
(b) A person who is not recognized as satisfying the qualifications for a specialty area may not practice in the specialty area. (Sec. 50.024(b), Human Resources Code.)
Sec. 505.303. CLINICAL SOCIAL WORK SPECIALTY. (a) The board shall establish a specialty area for the practice of clinical social work that is available only to a licensed master social worker who satisfies the minimum number of years of active social work practice with appropriate supervision and clinical examination, as determined by the board.
(b) A person may not use the title "Advanced Clinical Practitioner" or the initials "A.C.P." unless the person is recognized as qualified for the practice of clinical social work.
(c) For purposes of Article 21.52, Insurance Code:
(1) a person recognized as qualified for the practice of clinical social work may use the title "Advanced Clinical Practitioner" or other title approved by the board; and
(2) a board-approved title under this subsection has the same meaning and effect as the title "Advanced Clinical Practitioner." (Secs. 50.024(d), (e), Human Resources Code.)
Sec. 505.304. ORDER OF RECOGNITION OF SPECIALTY. (a) The board shall prescribe the name, design, and content of an order of recognition of specialty.
(b) An order of recognition of specialty must:
(1) state the full name of the person recognized in the order;
(2) state the official specialty serial number;
(3) include the presiding officer's signature; and
(4) include the board's official seal. (Sec. 50.026 (part), Human Resources Code.)
Sec. 505.305. RECOGNITION OF SPECIALTY; ISSUANCE OF ORDER. (a) The board shall recognize a licensed master social worker as qualified for the practice of a specialty area of social work if the licensed master social worker satisfies the recognition requirements established by the board and the board determines that the person is worthy of the public trust in performing services within the scope of the specialty area.
(b) The board shall issue an order of recognition of specialty to a licensed master social worker who is recognized as qualified for the practice of a specialty area of social work. The order of recognition of specialty evidences the state's recognition of the licensed master social worker as a specialty social work practitioner under the professional identification or title designated by the board. (Secs. 50.025 (part), 50.026 (part), Human Resources Code.)
Sec. 505.306. PROHIBITED USE OF SPECIALTY AREA IDENTIFICATION OR TITLE. If the board establishes a specialty area of social work, a licensed master social worker may not use the specialty area professional identification or title designated by the board unless the person is recognized as qualified for the practice of the specialty area. (Sec. 50.025 (part), Human Resources Code.)
Sec. 505.307. PRIVATE AND INDEPENDENT PRACTICE RECOGNITION; MINIMUM QUALIFICATIONS. (a) The board shall establish procedures for recognizing a licensed master social worker qualified for the private and independent practice of social work.
(b) A licensed master social worker may not be recognized as qualified for the private and independent practice of social work unless the person satisfies the minimum number of years of acceptable social work experience as determined by the board.
(c) A licensed social worker or social work associate is not eligible for recognition as qualified for the private and independent practice of social work. (Secs. 50.020(a) (part), (b), Human Resources Code.)
[Sections 505.308-505.350 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 505.351. LICENSE REQUIRED. (a) A person may not use or cause to be used the title "social worker," "licensed master social worker," "licensed social worker," or "social work associate," or any combination, variation, or abbreviation of those titles, as a professional or business identification, representation, asset, or means of obtaining a benefit unless the person holds an appropriate license issued under this chapter.
(b) A person may not use a title that implies that the person holds a license in professional social work unless the person holds an appropriate license issued under this chapter.
(c) A person who engages in or attempts to engage in conduct described by this section is considered to be engaged in the practice of professional social work. (Sec. 50.010, Human Resources Code.)
Sec. 505.352. LICENSE APPLICATION. A person may apply for a license under this chapter by submitting an application to the board. The application must:
(1) be on a form prescribed by the board; and
(2) contain statements made under oath regarding the applicant's education and experience and any other information required by the board that qualifies the applicant for a license. (Sec. 50.013 (part), Human Resources Code.)
Sec. 505.353. ELIGIBILITY. (a) To be eligible for a license under this chapter, an applicant must:
(1) be at least 18 years of age;
(2) be worthy of the public trust and confidence;
(3) satisfy the education and experience requirements under this section; and
(4) pass the licensing examination conducted by the board under Section 505.354.
(b) An applicant may take the licensing examination conducted by the board under Section 505.354 for:
(1) a master social worker license if the applicant possesses a doctoral or master's degree in social work from a graduate program accredited by the Council on Social Work Education;
(2) a social worker license if the applicant possesses a baccalaureate degree in social work from an educational program accredited by the Council on Social Work Education; or
(3) a social work associate license if the applicant:
(A) possesses a baccalaureate degree in a field other than social work from an accredited educational institution or an associate of arts degree in the behavioral sciences as determined by the board from an accredited educational institution; and
(B) satisfactorily completes a reasonable specified number of years of actual and active social work experience approved by the board.
(c) The board may require an applicant to submit documentary evidence of the quality, scope, and nature of the applicant's experience and competence to:
(1) determine the credibility and acceptability of the applicant's professional or technical experience or competence; and
(2) ensure the public safety, health, and welfare. (Secs. 50.013 (part), 50.014(b), 50.015, 50.016, 50.017, 50.018, Human Resources Code.)
Sec. 505.354. EXAMINATION. (a) The board, at least once each calendar year, shall prepare and administer an examination to assess an applicant's qualifications for a license under this chapter.
(b) Each license examination shall be conducted in a manner that is determined by the board and is fair and impartial to each applicant and school or system of social work.
(c) Applicants may be known to the examiners only by numbers until after the general averages of the applicants' numbers in the class are determined and licenses are issued or denied.
(d) To maintain the highest standards in the social work profession, the scope and content of each examination must be sufficient to ensure professional efficacy and competence.
(e) The board shall have the written portion of the examination, if any, validated by an independent testing entity. (Sec. 50.014(a), Human Resources Code.)
Sec. 505.355. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the date the licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the results of an examination graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (Secs. 50.014(d), (e), Human Resources Code.)
Sec. 505.356. REEXAMINATION. The board by rule shall establish:
(1) a limit on the number of times an applicant who fails an examination may retake the examination;
(2) the requirements for retaking an examination; and
(3) alternative methods of examining applicants' competency. (Sec. 50.014(c), Human Resources Code.)
Sec. 505.357. TEMPORARY LICENSE. (a) The board shall issue a temporary license to an applicant who:
(1) has not taken the licensing examination under Section 505.354; and
(2) satisfies the requirements for obtaining a license under this chapter other than passing the licensing examination.
(b) A temporary license is valid until the results of the first appropriate written examination given after the date the license is issued are available. (Sec. 50.019, Human Resources Code.)
Sec. 505.358. PROVISIONAL LICENSE. (a) A person may apply for a provisional license as a social worker or social work associate by paying the appropriate fee and filing an application with the board. The board may issue a provisional license to a person who meets the requirements of this section.
(b) An applicant for a provisional license must:
(1) be licensed or certified in good standing as a social worker or social work associate, as appropriate, in another state that has licensing or certification requirements determined by the board to be substantially equivalent to the requirements of this chapter;
(2) have passed a national or other examination recognized by the board relating to the practice of social work; and
(3) be sponsored by a person licensed under this chapter with whom the provisional license holder may practice social work.
(c) An applicant is not required to comply with Subsection (b)(3) if the board determines that compliance constitutes a hardship to the applicant.
(d) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license under Section 505.359. (Secs. 50.032(a), (b), (c) (part), Human Resources Code.)
Sec. 505.359. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. (a) The board shall issue an appropriate license to a provisional license holder:
(1) who passes the licensing examination under Section 505.354;
(2) for whom the board verifies that the person satisfies the academic and experience requirements under Section 505.353; and
(3) who satisfies any other license requirements under this chapter.
(b) The board shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued or the date licenses are issued after successful completion of the next licensing examination, whichever date is later.
(c) The board may waive a license requirement for an applicant who is licensed or certified in another state if this state has entered into a reciprocity agreement with that state. (Secs. 50.032(c) (part), (d), (e), Human Resources Code.)
Sec. 505.360. PROFESSIONAL IDENTIFICATION. (a) A license holder shall use an identification provided by this section:
(1) in the professional use of the license holder's name; and
(2) in connection with any sign, directory, contract, document, pamphlet, stationery, advertisement, signature, or other means of written professional identification.
(b) A licensed master social worker shall use the identification "licensed master social worker" or the initials "L.M.S.W."
(c) A licensed social worker shall use the identification "licensed social worker" or the initials "L.S.W."
(d) A licensed social work associate shall use the identification "social work associate" or the initials "S.W.A." (Sec. 50.011, Human Resources Code.)
[Sections 505.361-505.400 reserved for expansion]
SUBCHAPTER H. RENEWAL OF LICENSE AND ORDER OF RECOGNITION
OF SPECIALTY
Sec. 505.401. STAGGERED EXPIRATION DATES. (a) The board by rule shall adopt a system under which licenses and orders of recognition of specialty expire on various dates during the year.
(b) In the year in which the expiration date of an order of recognition of specialty is changed, the total renewal fee is payable. (Secs. 50.023(a) (part), 50.027, Human Resources Code.)
Sec. 505.402. RENEWAL OF LICENSE AND ORDER OF RECOGNITION OF SPECIALTY. (a) A person may renew an unexpired license or order of recognition of specialty by paying the required renewal fee to the department before the expiration date of the license or order.
(b) Not later than the 30th day before the expiration date of a person's license or order of recognition of specialty, the board shall send written notice of the impending license or order expiration to the person at the person's last known address according to the board's records.
(c) A person whose license or order of recognition of specialty has been expired for 90 days or less may renew the license or order by paying to the department the required renewal fee and a fee that is equal to half the amount of the examination fee for the license. If a license or order has been expired for more than 90 days but less than one year, the person may renew the license or order by paying to the department all unpaid renewal fees and a fee that is equal to the amount of the examination fee for the license.
(d) Except as provided by Section 505.403, a person whose license or order of recognition of specialty has been expired for one year or more may not renew the license or order. The person may obtain a new license or order by submitting to reexamination, if an examination was originally required for the license or order, and complying with the requirements and procedures for obtaining the original license or order. (Secs. 50.023(a) (part), (b), (c), (d), (e) (part), Human Resources Code.)
Sec. 505.403. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license or order of recognition of specialty of a person who was licensed in this state, moved to another state, and is currently licensed or certified and has been in practice in the other state for the two years preceding the date the person applied for a renewal license or order.
(b) The person must pay to the department a fee that is equal to the amount of the examination fee for the license. (Sec. 50.023(e) (part), Human Resources Code.)
Sec. 505.404. CONTINUING EDUCATION. (a) The board by rule shall:
(1) establish mandatory continuing education requirements for licensed master social workers, licensed social workers, and social work associates; and
(2) establish a minimum number of hours of continuing education required to renew a license or an order of recognition of specialty.
(b) In establishing continuing education requirements, the board shall:
(1) assess the continuing education needs of persons who hold licenses or orders of recognition of specialty;
(2) adopt procedures to assess the participation of a person who holds a license or order of recognition of specialty in continuing education programs; and
(3) identify the key factors for the competent performance of professional duties by a person who holds a license or order of recognition of specialty.
(c) The board by rule shall develop a process to evaluate and approve continuing education courses. The board may require persons who hold licenses or orders of recognition of specialty to attend continuing education courses specified by the board.
(d) For the purpose of establishing and maintaining continuing education programs, the board or department may take any action necessary to qualify for, accept, and receive funds and grants from any source, including the United States, this state, or a private foundation. (Secs. 50.031, 50.034, Human Resources Code.)
[Sections 505.405-505.450 reserved for expansion]
SUBCHAPTER I. DENIAL OF LICENSE OR ORDER AND
DISCIPLINARY PROCEDURES
Sec. 505.451. GROUNDS FOR DENIAL, REVOCATION, OR SUSPENSION OF LICENSE OR ORDER OF RECOGNITION OF SPECIALTY. The board shall deny an application for a license or order of recognition of specialty and shall revoke or suspend, including a suspension on an emergency basis, a license or order, place a holder of a license or order that has been suspended on probation, or reprimand a holder of a license or order for:
(1) violating this chapter or a rule adopted by the board under this chapter;
(2) circumventing or attempting to circumvent the requirements of this chapter or a rule adopted by the board under this chapter;
(3) directly or indirectly participating in a scheme to evade the requirements of this chapter or a rule adopted by the board under this chapter;
(4) engaging in unethical conduct;
(5) engaging in conduct that discredits or tends to discredit the social work profession;
(6) performing an act, allowing an omission, or making an assertion or representation that is fraudulent, deceitful, or misleading or that tends to create a misleading impression;
(7) knowingly associating with or permitting the use of a license holder's professional services or identification in connection with an enterprise that the person knows or should have known in the exercise of reasonable diligence violates this chapter or a rule adopted by the board under this chapter;
(8) knowingly associating with or permitting the use of a license holder's name, professional services or identification, or endorsement in connection with an enterprise that the person knows or should have known in the exercise of reasonable diligence is a trade, business, or professional practice of a fraudulent, deceitful, or misleading nature;
(9) directly or indirectly revealing or causing to be revealed a confidential communication transmitted to the license holder by a client or other recipient of the license holder's services unless revealing the communication is required by law;
(10) having been denied an application for a license or certificate to practice social work in another jurisdiction for a reason that the board determines would be a violation of this chapter or a rule adopted by the board under this chapter;
(11) holding a license or certificate in another jurisdiction that is suspended or revoked for a reason that the board determines would be a violation of this chapter or a rule adopted by the board under this chapter;
(12) having been convicted of a felony in this state, another state, or the United States;
(13) refusing to perform an act or service within the scope of the license holder's license solely because of the recipient's age, sex, race, religion, national origin, color, or political affiliation; or
(14) committing an act for which liability exists under Chapter 81, Civil Practice and Remedies Code. (Secs. 50.006(b), 50.021(a), Human Resources Code.)
Sec. 505.452. CONDITIONS OF PROBATION. The board may require a person for whom a suspension of a license or order of recognition of specialty is probated to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the person attains a degree of skill satisfactory to the board in each area that is a basis of the probation. (Sec. 50.021(b), Human Resources Code.)
Sec. 505.453. EMERGENCY SUSPENSION. The suspension by the board of a license or order of recognition of specialty on an emergency basis is effective immediately. The board shall provide an opportunity for a hearing to be held not later than the 20th day after the date of the emergency suspension. (Sec. 50.021(c), Human Resources Code.)
Sec. 505.454. SANCTIONS FOR HOLDER OF EXPIRED LICENSE OR ORDER OF RECOGNITION OF SPECIALTY. (a) A person who holds an expired license or order of recognition of specialty under this chapter is subject to a sanction under this chapter if the board determines that the person violated this chapter or a rule adopted by the board under this chapter during the period in which the license or order was valid.
(b) Sections 505.455(b) and (c) and 505.456 apply to a disciplinary proceeding against a person under this section. (Sec. 50.022(d), Human Resources Code.)
Sec. 505.455. PROCEDURE; HEARING. (a) A proceeding under Section 505.451 is initiated when a person files a written charge under oath with the department that is referred to the board. A charge may be filed by any person.
(b) A person subject to a sanction under Section 505.451 is entitled to notice and hearing before the State Office of Administrative Hearings before the sanction is imposed.
(c) Disciplinary proceedings and appeals from disciplinary proceedings of the board are governed by Chapter 2001, Government Code. (Secs. 50.022(a), (b), (c) (part), Human Resources Code.)
Sec. 505.456. SCHEDULE OF SANCTIONS. (a) The board by rule shall adopt a broad schedule of sanctions for violations of this chapter.
(b) The State Office of Administrative Hearings shall use the schedule of sanctions for any sanction imposed as a result of a hearing conducted by that office. (Sec. 50.022(c) (part), Human Resources Code.)
Sec. 505.457. INFORMAL PROCEDURES. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the holder of a license or order of recognition of specialty an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the department's legal staff to advise the board or the board's employees. (Sec. 50.0223, Human Resources Code.)
[Sections 505.458-505.500 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 505.501. MONITORING OF LICENSE HOLDER. The board by rule shall develop a system for monitoring compliance with this chapter by a person who holds a license or order of recognition of specialty. The rules under this section must include procedures to:
(1) monitor for compliance a person who holds a license or order who is ordered by the board to perform certain acts; and
(2) identify and monitor persons who hold licenses or orders of recognition of specialty who represent a risk to the public. (Sec. 50.0224, Human Resources Code.)
Sec. 505.502. PROHIBITED CONDUCT BY BUSINESS OR PROFESSIONAL ENTITY. (a) Except as provided by Subsection (b), a business or professional entity may not:
(1) represent itself or another to the public as being engaged in the practice of social work or as offering social work services under an assumed, trade, business, professional, partnership, or corporate name or title;
(2) directly or indirectly use or cause to be used the term "social work," "social work services," "social work, inc.," "professional social workers," "licensed social workers," "licensed master social workers," "social work associate," "L.M.S.W.," "L.S.W.," or "S.W.A." or any combination, abbreviation, or variation of those terms; or
(3) directly or indirectly use or cause to be used a term listed in Subdivision (2) in combination with any other word, letter, initial, sign, legend, or symbol on, in, or directly or indirectly as a part of:
(A) any sign, directory, contract, pamphlet, stationery, advertisement, or other document;
(B) a signature; or
(C) a trade, assumed, corporate, or other business or professional name.
(b) A business or professional entity may engage in conduct described by Subsection (a) if:
(1) the entity is actively engaged in the practice of social work; and
(2) the social work services that constitute the entity's practice are:
(A) personally performed by a social worker who is practicing in accordance with this chapter; or
(B) performed under the supervision of a licensed social worker or licensed master social worker. (Sec. 50.012, Human Resources Code.)
Sec. 505.503. INJUNCTION. (a) In addition to any other action authorized by law, an action may be initiated in a district court to restrain a violation or threatened violation of this chapter, a rule adopted by the board under this chapter, or an order issued by the board or department under this chapter.
(b) Venue for an action brought under this section is in:
(1) Travis County;
(2) the county in which the defendant resides; or
(3) the county in which any part of the alleged violation occurred.
(c) At the request of the board or department, the attorney general shall initiate and conduct an action in a district court in the state's name to obtain an injunction under this section.
(d) To obtain an injunction under this section, it is not necessary to allege or prove that:
(1) an adequate remedy at law does not exist; or
(2) substantial or irreparable damage would result from the continued violation.
(e) Any party in an action brought under this section may appeal. (Secs. 50.006(c) (part), 50.029(a) (part), (b) (part), Human Resources Code.)
Sec. 505.504. CIVIL PENALTY. (a) A person who violates or threatens to violate this chapter, a rule adopted by the board under this chapter, or an order issued by the board or department under this chapter is liable to the state for a civil penalty of not less than $50 or more than $500 for each day of violation.
(b) At the request of the board or department, the attorney general shall initiate and conduct an action in a district court in the state's name to obtain a civil penalty under this section. (Secs. 50.028, 50.029(a) (part), (b) (part), Human Resources Code.)
Sec. 505.505. APPEAL BOND NOT REQUIRED. The board or department is not required to post an appeal bond in any action arising under this chapter. (Sec. 50.006(c) (part), Human Resources Code.)
Sec. 505.506. REPRESENTATION BY ATTORNEY GENERAL. The attorney general shall represent the board or department in an action brought to enforce this chapter. (Sec. 50.006(c) (part), Human Resources Code.)
[Chapters 506-550 reserved for expansion]
SUBTITLE J. PHARMACY AND PHARMACISTS
CHAPTER 551. GENERAL PROVISIONS
Sec. 551.001. SHORT TITLE
Sec. 551.002. LEGISLATIVE DECLARATION; PURPOSE
Sec. 551.003. DEFINITIONS
Sec. 551.004. APPLICABILITY OF SUBTITLE
Sec. 551.005. APPLICATION OF SUNSET ACT
CHAPTER 551. GENERAL PROVISIONS
Sec. 551.001. SHORT TITLE. The chapters of this subtitle, other than Chapter 567, may be cited as the Texas Pharmacy Act. (V.A.C.S. Art. 4542a-1, Sec. 1.)
Sec. 551.002. LEGISLATIVE DECLARATION; PURPOSE. (a) This subtitle shall be liberally construed to regulate in the public interest the practice of pharmacy in this state as a professional practice that affects the public health, safety, and welfare.
(b) It is a matter of public interest and concern that the practice of pharmacy merits and receives the confidence of the public and that only qualified persons be permitted to engage in the practice of pharmacy in this state.
(c) The purpose of this subtitle is to promote, preserve, and protect the public health, safety, and welfare through:
(1) effectively controlling and regulating the practice of pharmacy; and
(2) licensing pharmacies engaged in the sale, delivery, or distribution of prescription drugs and devices used in diagnosing and treating injury, illness, and disease. (V.A.C.S. Art. 4542a-1, Secs. 2, 4.)
Sec. 551.003. DEFINITIONS. In Chapters 551-566:
(1) "Administer" means to directly apply a prescription drug to the body of a patient by any means, including injection, inhalation, or ingestion, by:
(A) a person authorized by law to administer the drug, including a practitioner or an authorized agent under a practitioner's supervision; or
(B) the patient at the direction of a practitioner.
(2) "Board" means the Texas State Board of Pharmacy.
(3) "Class A pharmacy license" or "community pharmacy license" means a license described by Section 560.051.
(4) "Class B pharmacy license" or "nuclear pharmacy license" means a license described by Section 560.051.
(5) "Class C pharmacy license" or "institutional pharmacy license" means a license described by Section 560.051.
(6) "Class D pharmacy license" or "clinic pharmacy license" means a license described by Section 560.051.
(7) "Class E pharmacy license" or "nonresident pharmacy license" means a license described by Section 560.051.
(8) "College of pharmacy" means a school, university, or college of pharmacy that:
(A) satisfies the accreditation standards of the American Council on Pharmaceutical Education as adopted by the board; or
(B) has degree requirements that meet the standards of accreditation set by the board.
(9) "Compounding" means the preparation, mixing, assembling, packaging, or labeling of a drug or device:
(A) as the result of a practitioner's prescription drug order or the practitioner's initiative based on the practitioner-patient-pharmacist relationship in the course of professional practice;
(B) in anticipation of a prescription drug order based on a routine, regularly observed prescribing pattern; or
(C) for or as an incident to research, teaching, or chemical analysis and not for selling or dispensing.
(10) "Confidential record" means a health-related record, including a patient medication record, prescription drug order, or medication order, that:
(A) contains information that identifies an individual; and
(B) is maintained by a pharmacy or pharmacist.
(11) "Controlled substance" means a substance, including a drug or immediate precursor:
(A) listed in Schedule I, II, III, IV, or V, as established by the commissioner of public health under Chapter 481, Health and Safety Code, or in Penalty Group 1, 2, 3, or 4, Chapter 481; or
(B) included in Schedule I, II, III, IV, or V of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.).
(12) "Dangerous drug" means a drug or device that:
(A) is not included in Penalty Group 1, 2, 3, or 4, Chapter 481, Health and Safety Code, and is unsafe for self-medication; or
(B) bears or is required to bear the legend:
(i) "Caution: federal law prohibits dispensing without prescription"; or
(ii) "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."
(13) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, with or without consideration.
(14) "Designated agent" means:
(A) an individual, including a licensed nurse, physician assistant, or pharmacist:
(i) who is designated by a practitioner and authorized to communicate a prescription drug order to a pharmacist; and
(ii) for whom the practitioner assumes legal responsibility;
(B) a licensed nurse, physician assistant, or pharmacist employed in a health care facility to whom a practitioner communicates a prescription drug order; or
(C) a registered nurse or physician assistant authorized by a practitioner to administer a prescription drug order for a dangerous drug under Subchapter B, Chapter 157.
(15) "Device" means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including a component part or accessory, that is required under federal or state law to be ordered or prescribed by a practitioner.
(16) "Dispense" means to prepare, package, compound, or label, in the course of professional practice, a prescription drug or device for delivery to an ultimate user or the user's agent under a practitioner's lawful order.
(17) "Distribute" means to deliver a prescription drug or device other than by administering or dispensing.
(18) "Drug" means:
(A) a substance recognized as a drug in a drug compendium, including the current official United States Pharmacopoeia, official National Formulary, or official Homeopathic Pharmacopoeia, or in a supplement to a drug compendium;
(B) a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in a human or another animal;
(C) a substance, other than food, intended to affect the structure or a function of the body of a human or another animal;
(D) a substance intended for use as a component of a substance specified in Paragraph (A), (B), or (C);
(E) a dangerous drug; or
(F) a controlled substance.
(19) "Drug regimen review" includes evaluation of prescription drug or medication orders and a patient medication record for:
(A) a known allergy;
(B) a rational therapy-contraindication;
(C) a reasonable dose and route of administration;
(D) reasonable directions for use;
(E) duplication of therapy;
(F) a drug-drug interaction;
(G) drug-food interaction;
(H) drug-disease interaction;
(I) adverse drug reaction; and
(J) proper use, including overuse or underuse.
(20) "Internship" means a practical experience program that is approved by the board.
(21) "Label" means written, printed, or graphic matter on the immediate container of a drug or device.
(22) "Labeling" means the process of affixing a label, including all information required by federal and state statute or regulation, to a drug or device container. The term does not include:
(A) the labeling by a manufacturer, packer, or distributor of a nonprescription drug or commercially packaged prescription drug or device; or
(B) unit dose packaging.
(23) "Manufacturing" means the production, preparation, propagation, conversion, or processing of a drug or device, either directly or indirectly, by extraction from a substance of natural origin or independently by a chemical or biological synthesis. The term includes packaging or repackaging a substance or labeling or relabeling a container and promoting and marketing the drug or device and preparing and promoting a commercially available product from a bulk compound for resale by a person, including a pharmacy or practitioner. The term does not include compounding.
(24) "Medication order" means an order from a practitioner or a practitioner's designated agent for administration of a drug or device.
(25) "Nonprescription drug" means a nonnarcotic drug or device that may be sold without a prescription and that is labeled and packaged in compliance with state or federal law.
(26) "Patient counseling" means communication by a pharmacist of information, as specified by board rule, to a patient or caregiver to improve therapy by ensuring proper use of a drug or device.
(27) "Pharmaceutical care" means providing drug therapy and other pharmaceutical services defined by board rule and intended to assist in curing or preventing a disease, eliminating or reducing a patient's symptom, or arresting or slowing a disease process.
(28) "Pharmacist" means a person licensed by the board to practice pharmacy.
(29) "Pharmacist-in-charge" means the pharmacist designated on a pharmacy license as the pharmacist who has the authority or responsibility for the pharmacy's compliance with statutes and rules relating to the practice of pharmacy.
(30) "Pharmacist-intern" means:
(A) an undergraduate student who is enrolled in the professional sequence of a college of pharmacy approved by the board and who is participating in a school-based board-approved internship program; or
(B) a graduate of a college of pharmacy who is participating in a board-approved internship.
(31) "Pharmacy" means a facility at which a prescription drug or medication order is received, processed, or dispensed under this subtitle, Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). The term does not include a narcotic drug treatment program that is regulated under Chapter 466, Health and Safety Code.
(32) "Pharmacy technician" means an individual employed by a pharmacy whose responsibility is to provide technical services that do not require professional judgment regarding preparing and distributing drugs and who works under the direct supervision of and is responsible to a pharmacist.
(33) "Practice of pharmacy" means:
(A) providing an act or service necessary to provide pharmaceutical care;
(B) interpreting or evaluating a prescription drug order or medication order;
(C) participating in drug or device selection as authorized by law, and participating in drug administration, drug regimen review, or drug or drug-related research;
(D) providing patient counseling;
(E) being responsible for:
(i) dispensing a prescription drug order or distributing a medication order;
(ii) compounding or labeling a drug or device, other than labeling by a manufacturer, repackager, or distributor of a nonprescription drug or commercially packaged prescription drug or device;
(iii) properly and safely storing a drug or device; or
(iv) maintaining proper records for a drug or device;
(F) performing for a patient a specific act of drug therapy management delegated to a pharmacist by a written protocol from a physician licensed in this state in compliance with Subtitle B; or
(G) administering an immunization or vaccination under a physician's written protocol.
(34) "Practitioner" means:
(A) a person licensed or registered to prescribe, distribute, administer, or dispense a prescription drug or device in the course of professional practice in this state, including a physician, dentist, podiatrist, or veterinarian but excluding a person licensed under this subtitle;
(B) a person licensed by another state, Canada, or the United Mexican States in a health field in which, under the law of this state, a license holder in this state may legally prescribe a dangerous drug; or
(C) a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, who has a current federal Drug Enforcement Administration registration number and who may legally prescribe a Schedule II, III, IV, or V controlled substance, as specified under Chapter 481, Health and Safety Code, in that other state.
(35) "Preceptor" has the meaning assigned by Section 558.057.
(36) "Prescription drug" means:
(A) a substance for which federal or state law requires a prescription before the substance may be legally dispensed to the public;
(B) a drug or device that under federal law is required, before being dispensed or delivered, to be labeled with either of the following statements:
(i) "Caution: federal law prohibits dispensing without prescription"; or
(ii) "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian"; or
(C) a drug or device that is required by federal or state statute or regulation to be dispensed on prescription or that is restricted to use by a practitioner only.
(37) "Prescription drug order" means:
(A) an order from a practitioner or a practitioner's designated agent to a pharmacist for a drug or device to be dispensed; or
(B) an order under Subchapter B, Chapter 157.
(38) "Prospective drug use review" means the review of a patient's drug therapy and prescription drug order or medication order, as defined by board rule, before dispensing or distributing a drug to the patient.
(39) "Provide" means to supply one or more unit doses of a nonprescription drug or dangerous drug to a patient.
(40) "Radioactive drug" means a drug that exhibits spontaneous disintegration of unstable nuclei with the emission of nuclear particles or photons, including a nonradioactive reagent kit or nuclide generator that is intended to be used in the preparation of the substance.
(41) "Substitution" means the dispensing of a drug or a brand of drug other than the drug or brand of drug ordered or prescribed.
(42) "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession.
(43) "Ultimate user" means a person who obtains or possesses a prescription drug or device for the person's own use or for the use of a member of the person's household or for administering to an animal owned by the person or by a member of the person's household.
(44) "Unit dose packaging" means the ordered amount of drug in a dosage form ready for administration to a particular patient, by the prescribed route at the prescribed time, and properly labeled with the name, strength, and expiration date of the drug.
(45) "Written protocol" means a physician's order, standing medical order, standing delegation order, or other order or protocol as defined by rule of the Texas State Board of Medical Examiners under Subtitle B. (V.A.C.S. Art. 4542a-1, Secs. 5(2), (4), (5) (part), (6) (part), (7) (part), (8) (part), (9) (part), (10), (11), (12), (13), (15), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), (29), (30), (32), (33), (34), (35), (36), (37), (38), as amended Acts 75th Leg., R.S., Chs. 347, 1180, (39), (40) (part), (41), (42), (43), (44), (45), (46), (47), (48), (49), (50).)
Sec. 551.004. APPLICABILITY OF SUBTITLE. (a) This subtitle does not apply to:
(1) a practitioner licensed by the appropriate state board who supplies a patient of the practitioner with a drug in a manner authorized by state or federal law and who does not operate a pharmacy for the retailing of prescription drugs;
(2) a member of the faculty of a college of pharmacy recognized by the board who is a pharmacist and who performs the pharmacist's services only for the benefit of the college;
(3) a person who procures prescription drugs for lawful research, teaching, or testing and not for resale; or
(4) a home and community support services agency that possesses a dangerous drug as authorized by Section 142.0061, 142.0062, or 142.0063, Health and Safety Code.
(b) This subtitle does not prevent a practitioner from administering a drug to a patient of the practitioner.
(c) This subtitle does not prevent the sale by a person, other than a pharmacist, firm, joint stock company, partnership, or corporation, of:
(1) a nonprescription drug that is harmless if used according to instructions on a printed label on the drug's container and that does not contain a narcotic;
(2) an insecticide, a fungicide, or a chemical used in the arts if the insecticide, fungicide, or chemical is properly labeled; or
(3) an insecticide or fungicide that is mixed or compounded only for an agricultural purpose.
(d) A wholesaler or manufacturer may distribute a prescription drug as provided by state or federal law. (V.A.C.S. Art. 4542a-1, Secs. 19(b), (c), (d), (e), (f).)
Sec. 551.005. APPLICATION OF SUNSET ACT. The Texas State Board of Pharmacy is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this subtitle expires September 1, 2005. (V.A.C.S. Art. 4542a-1, Sec. 3.)
CHAPTER 552. TEXAS STATE BOARD OF PHARMACY
Sec. 552.001. MEMBERSHIP
Sec. 552.002. QUALIFICATIONS
Sec. 552.003. PUBLIC MEMBERSHIP ELIGIBILITY
Sec. 552.004. MEMBERSHIP RESTRICTIONS
Sec. 552.005. TERMS; VACANCY
Sec. 552.006. BOARD MEMBER TRAINING
Sec. 552.007. OFFICERS
Sec. 552.008. GROUNDS FOR REMOVAL
Sec. 552.009. PER DIEM; REIMBURSEMENT
Sec. 552.010. MEETINGS
Sec. 552.011. EXECUTIVE SESSION
Sec. 552.012. QUORUM; VALIDITY OF BOARD ACTION
CHAPTER 552. TEXAS STATE BOARD OF PHARMACY
Sec. 552.001. MEMBERSHIP. (a) The Texas State Board of Pharmacy consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six members who are pharmacists; and
(2) three members who represent the public.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4542a-1, Secs. 7(a) (part), 9(a).)
Sec. 552.002. QUALIFICATIONS. (a) The board must include representation for pharmacists who are primarily employed in Class A pharmacies and Class C pharmacies.
(b) A pharmacist board member must, at the time of appointment:
(1) be a resident of this state;
(2) have been licensed for the five years preceding appointment;
(3) be in good standing to practice pharmacy in this state; and
(4) be practicing pharmacy in this state.
(c) Each person appointed to the board shall, not later than the 15th day after the date of appointment, qualify by taking the constitutional oath of office. (V.A.C.S. Art. 4542a-1, Secs. 7(a) (part), 8(a) (part), 10(d) (part).)
Sec. 552.003. PUBLIC MEMBERSHIP ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4542a-1, Sec. 8(b).)
Sec. 552.004. MEMBERSHIP RESTRICTIONS. (a) A person may not serve on 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.
(b) A pharmacist member of the board may not be:
(1) a salaried faculty member at a college of pharmacy; or
(2) an officer, employee, or paid consultant of a Texas trade association in the field of health care or the spouse of an officer, employee, or paid consultant. (V.A.C.S. Art. 4542a-1, Secs. 7(b) (part), 8(a) (part).)
Sec. 552.005. TERMS; VACANCY. (a) Members of the board are appointed for staggered six-year terms. The terms of three members expire every other year at midnight on the last day of the state fiscal year in the last year of the member's term.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term.
(c) A board member may not serve more than two consecutive full terms. The completion of the unexpired portion of a full term is not service for a full term for purposes of this subsection.
(d) A person appointed by the governor to a full term before the expiration of the term of the member being succeeded becomes a member of the board on the first day of the next state fiscal year following the appointment.
(e) A person appointed to an unexpired portion of a full term becomes a member of the board on the day after the date of appointment. (V.A.C.S. Art. 4542a-1, Secs. 10(a), (b), (c), (d) (part), (e), 11.)
Sec. 552.006. BOARD MEMBER TRAINING. Each board member shall comply with the board member training requirements established by any other state agency with authority to establish the requirements for the board. (V.A.C.S. Art. 4542a-1, Sec. 12(f).)
Sec. 552.007. OFFICERS. (a) The board shall elect from its members for one-year terms a president, vice president, treasurer, and other officers the board considers appropriate and necessary to conduct board business.
(b) The board's president shall preside at each board meeting and is responsible for the performance of the board's duties and functions under this subtitle.
(c) An officer, other than the president, shall perform the duties normally associated with the officer's position and other duties assigned to the officer by the board.
(d) The term of an officer begins on the first day of the state fiscal year following the officer's election and ends on election of a successor.
(e) A member elected as an officer may not serve more than two consecutive full terms in each office to which the member is elected. (V.A.C.S. Art. 4542a-1, Secs. 12(a), (b).)
Sec. 552.008. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the board;
(2) does not maintain during service on the board the qualifications required for appointment to the board;
(3) violates a prohibition established by Section 552.004;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the ground. The president shall then notify the governor that a potential ground for removal exists.
(c) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists. (V.A.C.S. Art. 4542a-1, Secs. 8(c), (d), (e), 10(f).)
Sec. 552.009. PER DIEM; REIMBURSEMENT. (a) Each member of the board is entitled to a per diem set by legislative appropriation for each day the member engages in board business.
(b) A member is entitled to reimbursement for transportation expenses as prescribed by the General Appropriations Act. A member may not receive reimbursement for any other travel expenses, including expenses for meals and lodging. (V.A.C.S. Art. 4542a-1, Sec. 13(a).)
Sec. 552.010. MEETINGS. (a) The board shall meet at least:
(1) once every four months to transact board business; and
(2) twice each year for the examination of applicants.
(b) The board may meet at other times at the call of the board's president or two-thirds of the board's members. (V.A.C.S. Art. 4542a-1, Sec. 14(a).)
Sec. 552.011. EXECUTIVE SESSION. (a) The board may, in accordance with Chapter 551, Government Code, conduct a portion of a board meeting in executive session.
(b) The board may conduct in executive session a deliberation relating to discipline of a license holder. At the conclusion of the deliberation, in open session the board shall vote and announce the board's decision relating to the license holder.
(c) The board may conduct in executive session a disciplinary hearing relating to a pharmacist or pharmacy student who is impaired because of chemical abuse or mental or physical illness. (V.A.C.S. Art. 4542a-1, Sec. 14(c) (part).)
Sec. 552.012. QUORUM; VALIDITY OF BOARD ACTION. Except when a greater number is required by this subtitle or by board rule, an action of the board must be by a majority of a quorum. (V.A.C.S. Art. 4542a-1, Sec. 14(b) (part).)
CHAPTER 553. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 553.001. EXECUTIVE DIRECTOR
Sec. 553.002. QUALIFICATIONS OF EXECUTIVE DIRECTOR
Sec. 553.003. GENERAL DUTIES OF EXECUTIVE DIRECTOR
Sec. 553.004. PERSONNEL
Sec. 553.005. EMPLOYEE RESTRICTIONS
Sec. 553.006. POSSESSION BY EMPLOYEE OF REGULATED
SUBSTANCE
Sec. 553.007. DIVISION OF RESPONSIBILITIES
Sec. 553.008. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 553.009. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 553.010. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
CHAPTER 553. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 553.001. EXECUTIVE DIRECTOR. The board shall employ an executive director. (V.A.C.S. Art. 4542a-1, Sec. 12(c) (part).)
Sec. 553.002. QUALIFICATIONS OF EXECUTIVE DIRECTOR. The executive director must be a pharmacist. (V.A.C.S. Art. 4542a-1, Sec. 12(c) (part).)
Sec. 553.003. GENERAL DUTIES OF EXECUTIVE DIRECTOR. (a) The executive director is an ex officio member of the board without vote.
(b) The executive director is a full-time employee of the board and shall:
(1) serve as secretary to the board; and
(2) perform the regular administrative functions of the board and any other duty as the board directs.
(c) The executive director may not perform a discretionary or decision-making function for which the board is solely responsible.
(d) The executive director shall keep the seal of the board. The executive director may affix the seal only in the manner prescribed by the board. (V.A.C.S. Art. 4542a-1, Secs. 12(c) (part), 17(e).)
Sec. 553.004. PERSONNEL. The board may employ persons in positions or capacities the board considers necessary to properly conduct the board's business and fulfill the board's responsibilities under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 15(a).)
Sec. 553.005. EMPLOYEE RESTRICTIONS. (a) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(b) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person may not act as 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. (V.A.C.S. Art. 4542a-1, Secs. 7(b) (part), 15(c), (d).)
Sec. 553.006. POSSESSION BY EMPLOYEE OF REGULATED SUBSTANCE. A board employee may possess a dangerous drug or controlled substance when acting in the employee's official capacity. (V.A.C.S. Art. 4542a-1, Sec. 17(r).)
Sec. 553.007. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4542a-1, Sec. 12(c) (part).)
Sec. 553.008. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this subtitle; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4542a-1, Secs. 8(f), 15(f).)
Sec. 553.009. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4542a-1, Secs. 12(d), (e).)
Sec. 553.010. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4542a-1, Sec. 15A.)
CHAPTER 554. BOARD POWERS AND DUTIES; RULEMAKING AUTHORITY
SUBCHAPTER A. POWERS AND DUTIES
Sec. 554.001. GENERAL POWERS AND DUTIES OF BOARD
Sec. 554.002. REGULATION OF PRACTICE OF PHARMACY
Sec. 554.003. PROCEDURES
Sec. 554.004. ADMINISTRATION OF MEDICATION
Sec. 554.005. PRESCRIPTION DRUGS AND DEVICES
Sec. 554.006. FEES
Sec. 554.007. FUNDS; STATE PHARMACY ACCOUNT
Sec. 554.008. SURETY BONDS
Sec. 554.009. LEASE OR PURCHASE OF VEHICLES
Sec. 554.010. PEACE OFFICERS
Sec. 554.011. PILOT AND DEMONSTRATION RESEARCH PROJECTS
Sec. 554.012. NOTIFICATION RELATING TO THERAPEUTIC
OPTOMETRISTS
Sec. 554.013. ANNUAL REPORT
[Sections 554.014-554.050 reserved for expansion]
SUBCHAPTER B. RULEMAKING
Sec. 554.051. RULEMAKING: GENERAL POWERS AND DUTIES
Sec. 554.052. IMMUNIZATIONS AND VACCINATIONS; PHYSICIAN
SUPERVISION
Sec. 554.053. RULEMAKING: PHARMACY TECHNICIAN
Sec. 554.054. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
CHAPTER 554. BOARD POWERS AND DUTIES; RULEMAKING AUTHORITY
SUBCHAPTER A. POWERS AND DUTIES
Sec. 554.001. GENERAL POWERS AND DUTIES OF BOARD. (a) The board shall:
(1) administer and enforce this subtitle and rules adopted under this subtitle and enforce other laws relating to the practice of pharmacy and other powers and duties granted under other law;
(2) cooperate with other state and federal agencies in the enforcement of any law relating to the practice of pharmacy or any drug or drug-related law;
(3) maintain an office in which permanent records are kept; and
(4) preserve a record of the board's proceedings.
(b) The board may:
(1) join a professional organization or association organized to promote the improvement of the standards of the practice of pharmacy for protecting the health and welfare of the public; and
(2) appoint committees from the board's membership, an advisory committee from the pharmacy profession, and any other group to assist in administering this subtitle.
(c) The board may:
(1) issue a duplicate copy of a license to practice pharmacy or a license renewal certificate on a request from the holder and on payment of a fee determined by the board; and
(2) inspect a facility licensed under this subtitle for compliance with this subtitle.
(d) The board may be represented by counsel, including the attorney general, district attorney, or county attorney, if necessary in a legal action taken under this subtitle. (V.A.C.S. Art. 4542a-1, Secs. 6; 17(a) (part), (c), (l), (m), (n), (p), (t); 24(i) (part); 29(f).)
Sec. 554.002. REGULATION OF PRACTICE OF PHARMACY. The board shall regulate the practice of pharmacy in this state by:
(1) issuing a license after examination or by reciprocity to an applicant qualified to practice pharmacy and issuing a license to a pharmacy under this subtitle;
(2) renewing a license to practice pharmacy and a license to operate a pharmacy;
(3) determining and issuing standards for recognizing and approving degree requirements of colleges of pharmacy whose graduates are eligible for a license in this state;
(4) specifying and enforcing requirements for practical training, including an internship;
(5) enforcing the provisions of this subtitle relating to:
(A) the conduct or competence of a pharmacist practicing in this state and the conduct of a pharmacy operating in this state; and
(B) the suspension, revocation, retirement, or restriction of a license to practice pharmacy or to operate a pharmacy or the imposition of an administrative penalty or reprimand on a license holder; and
(6) regulating the training, qualifications, and employment of a pharmacist-intern. (V.A.C.S. Art. 4542a-1, Sec. 17(a) (part).)
Sec. 554.003. PROCEDURES. The board by rule shall specify:
(1) the licensing procedures to be followed, including specification of forms to be used, in applying for a pharmacy license; and
(2) fees for filing an application for a pharmacy license. (V.A.C.S. Art. 4542a-1, Sec. 30(a).)
Sec. 554.004. ADMINISTRATION OF MEDICATION. (a) The board shall specify conditions under which a pharmacist may administer medication, including an immunization and vaccination. The conditions must ensure that:
(1) a licensed health care provider authorized to administer the medication is not reasonably available to administer the medication;
(2) failure to administer the medication, other than an immunization or vaccination, might result in a significant delay or interruption of a critical phase of drug therapy;
(3) the pharmacist possesses the necessary skill, education, and certification as specified by the board to administer the medication;
(4) within a reasonable time after administering medication, the pharmacist notifies the licensed health care provider responsible for the patient's care that the medication was administered;
(5) the pharmacist may not administer medication to a patient at the patient's residence, except at a licensed nursing home or hospital;
(6) the pharmacist administers an immunization or vaccination under a physician's written protocol and meets the standards established by the board; and
(7) the authority of a pharmacist to administer medication may not be delegated.
(b) This section does not prohibit a pharmacist from preparing or manipulating a biotechnological agent or device.
(c) This section does not prohibit a pharmacist from performing an act delegated by a physician in accordance with Chapter 157. The pharmacist performing a delegated medical act under that chapter is considered to be performing a medical act and not to be engaging in the practice of pharmacy. (V.A.C.S. Art. 4542a-1, Sec. 17(a) (part).)
Sec. 554.005. PRESCRIPTION DRUGS AND DEVICES. (a) In regulating the practice of pharmacy and the use in this state of prescription drugs and devices in the diagnosis, mitigation, or treatment or prevention of injury, illness, or disease, the board shall:
(1) regulate the delivery or distribution of a prescription drug or device;
(2) specify minimum standards for the professional environment, technical equipment, and security in a prescription dispensing area;
(3) specify minimum standards for:
(A) drug storage;
(B) maintenance of prescription drug records; and
(C) procedures for the:
(i) delivering and dispensing in a suitable, appropriately labeled container;
(ii) providing of prescription drugs or devices;
(iii) monitoring of drug therapy; and
(iv) counseling of patients on proper use of a prescription drug or device in the practice of pharmacy;
(4) adopt rules regulating a prescription drug order or medication order transmitted by electronic means; and
(5) annually register a balance used for compounding drugs in a pharmacy licensed in this state and periodically inspect the balance to verify accuracy.
(b) In implementing Subsection (a)(1), the board may, after notice and hearing, seize any prescription drug or device that poses a hazard to the public health and welfare.
(c) In implementing Subsection (a)(1), the board may not regulate:
(1) any manufacturer's representative or employee acting in the normal course of business;
(2) a person engaged in the wholesale drug business and licensed by the commissioner of public health as provided by Chapter 431, Health and Safety Code; or
(3) an employee of a person described by Subdivision (2) if the employee is acting in the normal course of business. (V.A.C.S. Art. 4542a-1, Sec. 17(b).)
Sec. 554.006. FEES. The board by rule shall establish reasonable and necessary fees so that the fees, in the aggregate, produce sufficient revenue to cover the cost of administering this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 39.)
Sec. 554.007. FUNDS; STATE PHARMACY ACCOUNT. (a) The board shall deposit revenue, other than an administrative penalty, collected under this subtitle to the credit of the state pharmacy account in the general revenue fund.
(b) The board may receive and spend money from a party, other than the state, in addition to money collected under Subsection (a), in accordance with state law.
(c) The board shall pay the expense of administering this subtitle out of the state pharmacy account. (V.A.C.S. Art. 4542a-1, Secs. 17(g) (part), (h).)
Sec. 554.008. SURETY BONDS. (a) The board may require a surety bond in an amount the board considers necessary to guarantee the performance of the duties of an officer or employee who receives or disburses funds, including the executive director or treasurer.
(b) Any bond required for the executive director or treasurer must be in the amount of at least $100,000. (V.A.C.S. Art. 4542a-1, Sec. 17(d).)
Sec. 554.009. LEASE OR PURCHASE OF VEHICLES. (a) The board may lease or purchase vehicles for use in official board business.
(b) A vehicle acquired under Subsection (a) is exempt from a requirement to bear state government identification.
(c) The board may register a vehicle with the Texas Department of Transportation in an alias name only for investigative personnel. (V.A.C.S. Art. 4542a-1, Sec. 17(s).)
Sec. 554.010. PEACE OFFICERS. (a) The board may commission as a peace officer to enforce this subtitle an employee who has been certified as qualified to be a peace officer by the Commission on Law Enforcement Officer Standards and Education.
(b) An employee commissioned as a peace officer under this subtitle has the powers, privileges, and immunities of a peace officer while carrying out duties as a peace officer under this subtitle, except that the employee may not carry a firearm or make an arrest. (V.A.C.S. Art. 4542a-1, Sec. 17(u).)
Sec. 554.011. PILOT AND DEMONSTRATION RESEARCH PROJECTS. (a) The board may approve pilot and demonstration research projects for innovative applications in the practice of pharmacy.
(b) The board shall specify the procedures to be followed in applying for approval of a project.
(c) The approval may include a provision granting an exception to any rule adopted under this subtitle. The board may condition approval of a project on compliance with this section and rules adopted under this section.
(d) A project may not include therapeutic substitution or substitution of a medical device used in patient care.
(e) This section does not expand the definition of pharmacy under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 17(v).)
Sec. 554.012. NOTIFICATION RELATING TO THERAPEUTIC OPTOMETRISTS. The board shall inform each holder of a license to practice pharmacy and each holder of a license to operate a pharmacy of the authority of a therapeutic optometrist to prescribe a drug under Section 351.357 by annually mailing to each license holder a notice that:
(1) describes the authority of a therapeutic optometrist to prescribe a drug; and
(2) lists each drug that a therapeutic optometrist may lawfully prescribe. (V.A.C.S. Art. 4542a-1, Sec. 17(w).)
Sec. 554.013. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received or disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4542a-1, Sec. 17(f).)
[Sections 554.014-554.050 reserved for expansion]
SUBCHAPTER B. RULEMAKING
Sec. 554.051. RULEMAKING: GENERAL POWERS AND DUTIES. (a) The board shall adopt rules consistent with this subtitle for the administration and enforcement of this subtitle.
(b) If the board determines it necessary to protect the health and welfare of the citizens of this state, the board may make a rule concerning the operation of a licensed pharmacy located in this state applicable to a pharmacy licensed by the board that is located in another state.
(c) The board shall adopt rules regarding records to be maintained by a pharmacist performing a specific act under a written protocol.
(d) The board by rule shall specify minimum standards for professional responsibility in the conduct of a pharmacy. (V.A.C.S. Art. 4542a-1, Secs. 16(a) (part), (b); 17(x); 30(e).)
Sec. 554.052. IMMUNIZATIONS AND VACCINATIONS; PHYSICIAN SUPERVISION. (a) The board by rule shall require a pharmacist to notify a physician who prescribes an immunization or vaccination within 24 hours after the pharmacist administers the immunization or vaccination.
(b) The board shall establish minimum education and continuing education standards for a pharmacist who administers an immunization or vaccination. The standards must include Centers for Disease Control and Prevention training, basic life support training, and hands-on training in techniques for administering immunizations and vaccinations.
(c) Supervision by a physician is adequate if the delegating physician:
(1) is responsible for formulating or approving an order or protocol, including the physician's order, standing medical order, or standing delegation order, and periodically reviews the order or protocol and the services provided to a patient under the order or protocol;
(2) has established a physician-patient relationship with each patient under 14 years of age and referred the patient to the pharmacist;
(3) is geographically located to be easily accessible to the pharmacy where an immunization or vaccination is administered;
(4) receives, as appropriate, a periodic status report on the patient, including any problem or complication encountered; and
(5) is available through direct telecommunication for consultation, assistance, and direction.
(d) The Texas State Board of Medical Examiners by rule shall establish the minimum content of a written order or protocol. The order or protocol may not permit delegation of medical diagnosis. (V.A.C.S. Art. 4542a-1, Secs. 17(y), (z), (aa).)
Sec. 554.053. RULEMAKING: PHARMACY TECHNICIAN. (a) The board shall establish rules for the use and the duties of a pharmacy technician in a pharmacy licensed by the board. A technician shall be responsible to and must be directly supervised by a pharmacist.
(b) The board may not adopt a rule establishing a ratio of pharmacists to pharmacy technicians in a Class C pharmacy or limiting the number of pharmacy technicians that may be used in a Class C pharmacy.
(c) The board may determine and issue standards for recognition and approval of a training program for pharmacy technicians and maintain a list of training programs that meet those standards. (V.A.C.S. Art. 4542a-1, Secs. 17(o), 29(e) (part).)
Sec. 554.054. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement used by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4542a-1, Secs. 16(c), (d).)
CHAPTER 555. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 555.001. PUBLIC INTEREST INFORMATION
Sec. 555.002. COMPLAINTS
Sec. 555.003. COMPLAINT FORM
Sec. 555.004. ASSISTANCE WITH COMPLAINT
Sec. 555.005. RECORDS OF COMPLAINTS
Sec. 555.006. NOTIFICATION CONCERNING COMPLAINT
Sec. 555.007. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
Sec. 555.008. NOTICE TO BOARD CONCERNING COMPLAINTS
Sec. 555.009. PUBLIC PARTICIPATION
Sec. 555.010. CONFIDENTIALITY
Sec. 555.011. IMMUNITY
Sec. 555.012. COUNTERCLAIM OR SUIT
CHAPTER 555. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 555.001. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and procedures by which complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4542a-1, Sec. 17A(a).)
Sec. 555.002. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional.
(c) Any person who has knowledge relating to an action or omission of a pharmacist or pharmacy licensed by the board that constitutes a ground for disciplinary action under Section 565.001 or 565.002, or a rule adopted under one of those sections, may provide relevant records, report relevant information, or provide assistance to the board. (V.A.C.S. Art. 4542a-1, Secs. 17A(b), (c), 27B(a) (part).)
Sec. 555.003. COMPLAINT FORM. The board by rule shall adopt a form on which a person may file a complaint with the board. (V.A.C.S. Art. 4542a-1, Sec. 17B(c) (part).)
Sec. 555.004. ASSISTANCE WITH COMPLAINT. The board shall provide reasonable assistance to a person who wants to file a complaint with the board. (V.A.C.S. Art. 4542a-1, Sec. 17B(d).)
Sec. 555.005. RECORDS OF COMPLAINTS. The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of the results of the review or investigation of the complaint;
(3) an explanation of the reason the complaint was closed without action if the board did not take action;
(4) the schedule for disposing of the complaint prepared as required by Section 555.007(b) and a notation of any change in the schedule; and
(5) other relevant information. (V.A.C.S. Art. 4542a-1, Secs. 17B(a), 17C(b) (part).)
Sec. 555.006. NOTIFICATION CONCERNING COMPLAINT. (a) The board shall notify the complainant not later than the 30th day after the date the board receives the complaint and shall provide an estimated time for resolution of the complaint.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least every four months and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4542a-1, Secs. 17B(b), (c) (part).)
Sec. 555.007. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt policies and procedures concerning the investigation of a complaint filed with the board. The policies and procedures must:
(1) determine the seriousness of the complaint;
(2) ensure that a complaint is not closed without appropriate consideration;
(3) ensure that a letter is sent to the person who filed the complaint explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the types of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of a complaint in a timely manner; and
(2) establish a schedule for conducting each phase of the investigation or disposition that is under the control of the board. (V.A.C.S. Art. 4542a-1, Secs. 17C(a), (b) (part).)
Sec. 555.008. NOTICE TO BOARD CONCERNING COMPLAINTS. (a) The executive director shall notify the board of the number of complaints that are unresolved after two years after the date of the filing of the complaint. The executive director shall provide the board with an explanation of the reason that a complaint has not been resolved.
(b) The executive director shall provide the notice and explanation required under Subsection (a) periodically at regularly scheduled board meetings. (V.A.C.S. Art. 4542a-1, Sec. 17C(c).)
Sec. 555.009. PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on an issue under the board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4542a-1, Secs. 17A(d), (e) (part).)
Sec. 555.010. CONFIDENTIALITY. The identity of a person who reports to or assists the board under Section 555.002(c) and a document that could disclose the identity of that person are confidential and are not considered public information for the purposes of Chapter 552, Government Code. (V.A.C.S. Art. 4542a-1, Sec. 27B(c).)
Sec. 555.011. IMMUNITY. (a) A person who provides information or assistance under Section 555.002(c) is immune from civil liability arising from providing the information or assistance.
(b) Subsection (a) shall be liberally construed to accomplish the purposes of this chapter, and the immunity provided under that subsection is in addition to any other immunity provided by law.
(c) A person who provides information or assistance to the board under this chapter is presumed to have acted in good faith. A person who alleges a lack of good faith has the burden of proof on that issue. (V.A.C.S. Art. 4542a-1, Sec. 27B(a) (part), (b).)
Sec. 555.012. COUNTERCLAIM OR SUIT. (a) A person who provides information or assistance under Section 555.002(c) and who is named as a defendant in a civil action filed as a result of the information or assistance may file a counterclaim in a pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined to be frivolous, unreasonable, without foundation, or brought in bad faith.
(b) A board employee or member or an agent of the board who is named as a defendant in a civil action filed as a result of an action taken in the person's official capacity or in the course and scope of employment may file a counterclaim in a pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined to be frivolous, unreasonable, without foundation, or brought in bad faith. (V.A.C.S. Art. 4542a-1, Secs. 27B(d), (e).)
CHAPTER 556. ADMINISTRATIVE INSPECTIONS AND WARRANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 556.001. DEFINITION
[Sections 556.002-556.050 reserved for expansion]
SUBCHAPTER B. INSPECTIONS
Sec. 556.051. AUTHORIZATION TO ENTER AND INSPECT
Sec. 556.052. REQUIREMENTS BEFORE ENTRY AND INSPECTION
Sec. 556.053. EXTENT OF INSPECTION
Sec. 556.054. LIMITATION ON INSPECTION
Sec. 556.055. INSPECTIONS WITH WARNING NOTICE
Sec. 556.056. CODE OF PROFESSIONAL RESPONSIBILITY
[Sections 556.057-556.100 reserved for expansion]
SUBCHAPTER C. WARRANTS
Sec. 556.101. WARRANT NOT REQUIRED
Sec. 556.102. COMPLIANCE WITH CHAPTER
Sec. 556.103. ISSUANCE OF WARRANT
Sec. 556.104. CONTENTS OF WARRANT
Sec. 556.105. EXECUTION AND RETURN OF WARRANT
Sec. 556.106. FILING WITH DISTRICT COURT
Sec. 556.107. DISPOSAL OF SEIZED PROPERTY
CHAPTER 556. ADMINISTRATIVE INSPECTIONS AND WARRANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 556.001. DEFINITION. In this chapter, "facility" means a place:
(1) for which an application has been made for a pharmacy license under this subtitle;
(2) at which a pharmacy licensed under this subtitle is located;
(3) at which a pharmacy is being operated in violation of this subtitle; or
(4) where the practice of pharmacy occurs. (V.A.C.S. Art. 4542a-1, Sec. 18(a).)
[Sections 556.002-556.050 reserved for expansion]
SUBCHAPTER B. INSPECTIONS
Sec. 556.051. AUTHORIZATION TO ENTER AND INSPECT. The board or a representative of the board may enter and inspect a facility relative to the following:
(1) drug storage and security;
(2) equipment;
(3) sanitary conditions; or
(4) records, reports, or other documents required to be kept or made under this subtitle, Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.) or rules adopted under one of those laws. (V.A.C.S. Art. 4542a-1, Sec. 18(b).)
Sec. 556.052. REQUIREMENTS BEFORE ENTRY AND INSPECTION. (a) Before an entry and inspection of the facility, the person authorized to represent the board must:
(1) state the purpose for the inspection; and
(2) present to the owner, pharmacist, or agent in charge of the facility:
(A) appropriate credentials; and
(B) written notice of the authority for the inspection.
(b) If an inspection is required by or is supported by an administrative inspection warrant, the warrant is the notice for purposes of Subsection (a)(2)(B). (V.A.C.S. Art. 4542a-1, Sec. 18(c).)
Sec. 556.053. EXTENT OF INSPECTION. Except as otherwise provided in an inspection warrant, the person authorized to represent the board may:
(1) inspect and copy documents, including records or reports, required to be kept or made under this subtitle, Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.) or rules adopted under one of those laws;
(2) inspect, within reasonable limits and in a reasonable manner, a facility's storage, equipment, security, prescription drugs or devices, or records; or
(3) perform an inventory of any stock of prescription drugs or devices in a facility and obtain samples of those substances. (V.A.C.S. Art. 4542a-1, Sec. 18(d).)
Sec. 556.054. LIMITATION ON INSPECTION. Unless the owner, pharmacist, or agent in charge of a facility consents in writing, an inspection of the facility authorized by this chapter may not extend to:
(1) financial data;
(2) sales data, other than shipment data; or
(3) pricing data. (V.A.C.S. Art. 4542a-1, Sec. 18(e).)
Sec. 556.055. INSPECTIONS WITH WARNING NOTICE. Before a complaint may be filed with the board as the result of a written warning notice that is issued during an inspection authorized by this chapter and that lists a specific violation of this subtitle or a rule adopted under this subtitle, the license holder must be given a reasonable time, as determined by the board, to comply with this subtitle or rules adopted under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 18(i).)
Sec. 556.056. CODE OF PROFESSIONAL RESPONSIBILITY. (a) The board shall adopt a code of professional responsibility to regulate the conduct of a representative of the board authorized to inspect and survey a pharmacy.
(b) The code must contain:
(1) a procedure to be followed by a person authorized to represent the board:
(A) on entering a pharmacy;
(B) during inspection of the pharmacy; and
(C) during an exit conference; and
(2) standards of conduct that the person must follow in dealing with the staff and management of the pharmacy and the public.
(c) The board shall establish a procedure for receiving and investigating a complaint of a code violation. The board shall investigate each complaint of a code violation. The board shall forward results of an investigation to the complainant.
(d) The board may adopt rules establishing sanctions for code violations. (V.A.C.S. Art. 4542a-1, Sec. 41.)
[Sections 556.057-556.100 reserved for expansion]
SUBCHAPTER C. WARRANTS
Sec. 556.101. WARRANT NOT REQUIRED. A warrant is not required under this chapter to:
(1) inspect books or records under an administrative subpoena issued under this subtitle; or
(2) enter a facility or conduct an administrative inspection of a facility if:
(A) the owner, pharmacist, or agent in charge of the facility consents to the inspection;
(B) the situation presents imminent danger to the public health and safety;
(C) the situation involves inspection of a conveyance, if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant; or
(D) any other exceptional situation or emergency exists involving an act of God or natural disaster in which time or opportunity to apply for a warrant is lacking. (V.A.C.S. Art. 4542a-1, Sec. 18(f).)
Sec. 556.102. COMPLIANCE WITH CHAPTER. An administrative inspection warrant may be issued and executed only in accordance with this chapter. (V.A.C.S. Art. 4542a-1, Sec. 18(g) (part).)
Sec. 556.103. ISSUANCE OF WARRANT. (a) In this section, "probable cause" means a valid public interest exists in the effective enforcement of this subtitle or a rule adopted under this subtitle that is sufficient to justify an administrative inspection of the facility, area, building, or conveyance, or its contents in the circumstances specified in the application for the warrant.
(b) A district judge may, on proper oath or affirmation that shows probable cause, issue a warrant to:
(1) conduct an administrative inspection authorized by this chapter or rules adopted under this subtitle; and
(2) seize property appropriate to the inspection.
(c) A warrant may be issued only on an affidavit that:
(1) is given by a board representative who has knowledge of the facts alleged;
(2) is sworn to before the judge; and
(3) establishes the grounds for issuance of the warrant.
(d) The judge shall issue a warrant if the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist. (V.A.C.S. Art. 4542a-1, Sec. 18(g) (part).)
Sec. 556.104. CONTENTS OF WARRANT. The warrant must:
(1) identify:
(A) the facility, area, building, or conveyance to be inspected;
(B) the purpose of the inspection;
(C) the type of property to be inspected, if appropriate; and
(D) each item or type of property to be seized, if any;
(2) state the grounds for issuance of the warrant and the name of each person whose affidavit has been taken in support of the warrant;
(3) be directed to a person authorized under this chapter to execute the warrant;
(4) command the person to whom the warrant is directed to inspect the facility, area, building, or conveyance identified for the purpose specified;
(5) direct the seizure of the property specified, if appropriate;
(6) direct that the warrant be served during normal business hours; and
(7) designate the judge to whom the warrant is to be returned. (V.A.C.S. Art. 4542a-1, Sec. 18(g) (part).)
Sec. 556.105. EXECUTION AND RETURN OF WARRANT. (a) A warrant issued under this chapter must be executed and returned not later than the 10th day after the date of the warrant's issuance unless the judge allows additional time in the warrant after a showing by the board of a need for additional time.
(b) A person who seizes property under a warrant shall provide a copy of the warrant and a receipt for the property taken by:
(1) giving the copy and receipt to the person from whom or from whose facility the property was taken; or
(2) leaving the copy and receipt at the facility from which the property was taken.
(c) The return of the warrant shall be made promptly and be accompanied by a written inventory of any property taken. The inventory shall be:
(1) prepared in the presence of the person executing the warrant and of:
(A) the person from whose possession or facility the property was taken, if present; or
(B) at least one credible person other than the person preparing the inventory; and
(2) verified by the person executing the warrant.
(d) The judge, on request, shall deliver a copy of the inventory to:
(1) the person from whose possession or facility the property was taken; and
(2) the applicant for the warrant. (V.A.C.S. Art. 4542a-1, Sec. 18(g) (part).)
Sec. 556.106. FILING WITH DISTRICT COURT. (a) A judge who issues a warrant under this chapter shall attach to the warrant:
(1) a copy of the return; and
(2) the papers filed in connection with the warrant.
(b) The judge shall file the copy of the return and the papers with the clerk of the district court with jurisdiction of the area in which the inspection was conducted. (V.A.C.S. Art. 4542a-1, Sec. 18(g) (part).)
Sec. 556.107. DISPOSAL OF SEIZED PROPERTY. Property seized under this chapter must be disposed of in a manner considered appropriate by the board if the board has jurisdiction over the property or the district court if the court has jurisdiction over the property. (V.A.C.S. Art. 4542a-1, Sec. 18(h).)
CHAPTER 557. PHARMACIST-INTERNS
Sec. 557.001. PHARMACIST-INTERN REGISTRATION
Sec. 557.002. APPLICATION FOR REGISTRATION
Sec. 557.003. DURATION OF REGISTRATION
Sec. 557.004. LIMITATIONS ON REGISTRATION
CHAPTER 557. PHARMACIST-INTERNS
Sec. 557.001. PHARMACIST-INTERN REGISTRATION. A person must register with the board before beginning a board-approved internship in this state. (V.A.C.S. Art. 4542a-1, Sec. 20(a) (part).)
Sec. 557.002. APPLICATION FOR REGISTRATION. An application for registration as a pharmacist-intern must be on a form prescribed by the board. (V.A.C.S. Art. 4542a-1, Sec. 20(a) (part).)
Sec. 557.003. DURATION OF REGISTRATION. A person's registration as a pharmacist-intern remains in effect as long as the person meets the qualifications for an internship specified by board rule. (V.A.C.S. Art. 4542a-1, Sec. 20(a) (part).)
Sec. 557.004. LIMITATIONS ON REGISTRATION. The board may:
(1) refuse to issue a registration to an applicant; or
(2) restrict, suspend, or revoke a pharmacist-intern registration for a violation of this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 20(b) (part).)
CHAPTER 558. LICENSE TO PRACTICE PHARMACY
SUBCHAPTER A. LICENSE
Sec. 558.001. LICENSE REQUIRED
Sec. 558.002. UNAUTHORIZED ACQUISITION OF LICENSE
[Sections 558.003-558.050 reserved for expansion]
SUBCHAPTER B. LICENSING BY EXAMINATION
Sec. 558.051. QUALIFICATIONS FOR LICENSE BY
EXAMINATION
Sec. 558.052. CONTENT, PREPARATION, AND VALIDATION OF
EXAMINATION
Sec. 558.053. GRADING OF EXAMINATION
Sec. 558.054. FREQUENCY OF OFFERING EXAMINATION
Sec. 558.055. FAILURE TO PASS; REEXAMINATION
Sec. 558.056. NOTIFICATION
Sec. 558.057. INTERNSHIP OR OTHER PROGRAM TO QUALIFY FOR
EXAMINATION
[Sections 558.058-558.100 reserved for expansion]
SUBCHAPTER C. LICENSING BY RECIPROCITY
Sec. 558.101. QUALIFICATIONS FOR LICENSE BY RECIPROCITY
[Sections 558.102-558.150 reserved for expansion]
SUBCHAPTER D. PROVISIONAL AND TEMPORARY LICENSING
Sec. 558.151. QUALIFICATIONS FOR PROVISIONAL LICENSE
Sec. 558.152. DURATION OF PROVISIONAL LICENSE
Sec. 558.153. PROCESSING OF LICENSE APPLICATION
Sec. 558.154. ISSUANCE OF LICENSE TO PROVISIONAL
LICENSE HOLDER
Sec. 558.155. TEMPORARY LICENSE
[Sections 558.156-558.200 reserved for expansion]
SUBCHAPTER E. CERTAIN PROHIBITED PRACTICES
Sec. 558.201. DUPLICATING LICENSE OR CERTIFICATE
Sec. 558.202. FALSE AFFIDAVIT
CHAPTER 558. LICENSE TO PRACTICE PHARMACY
SUBCHAPTER A. LICENSE
Sec. 558.001. LICENSE REQUIRED. (a) A person may not practice pharmacy unless the person holds a license to practice pharmacy under this subtitle.
(b) A person may not:
(1) impersonate a pharmacist; or
(2) use the title "Registered Pharmacist" or "R.Ph.," or words of similar intent, unless the person is licensed to practice pharmacy in this state.
(c) A person may not dispense or distribute prescription drugs unless the person:
(1) is a pharmacist; or
(2) is otherwise authorized by this subtitle to dispense or distribute prescription drugs. (V.A.C.S. Art. 4542a-1, Secs. 19(a) (part), 36 (part).)
Sec. 558.002. UNAUTHORIZED ACQUISITION OF LICENSE. A person may not:
(1) impersonate before the board an applicant applying for a license under this subtitle; or
(2) acquire, with the intent to fraudulently acquire the license, a license in a manner other than the manner provided by this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 36 (part).)
[Sections 558.003-558.050 reserved for expansion]
SUBCHAPTER B. LICENSING BY EXAMINATION
Sec. 558.051. QUALIFICATIONS FOR LICENSE BY EXAMINATION. (a) To qualify for a license to practice pharmacy, an applicant for licensing by examination must submit to the board:
(1) a license fee set by the board; and
(2) a completed application on a form prescribed by the board with satisfactory sworn evidence that the applicant:
(A) is at least 18 years of age;
(B) is of good moral character;
(C) has completed a minimum of a 1,000-hour internship or other program that has been approved by the board or has demonstrated, to the board's satisfaction, experience in the practice of pharmacy that meets or exceeds the board's minimum internship requirements;
(D) has graduated and received a professional practice degree, as defined by board rule, from an accredited pharmacy degree program approved by the board;
(E) has passed the examination required by the board; and
(F) has not had a pharmacist license granted by another state restricted, suspended, revoked, or surrendered, for any reason.
(b) Each applicant must obtain practical experience in the practice of pharmacy concurrent with college attendance or after college graduation, or both, under conditions the board determines. (V.A.C.S. Art. 4542a-1, Secs. 21(a), (f).)
Sec. 558.052. CONTENT, PREPARATION, AND VALIDATION OF EXAMINATION. (a) The board shall determine the content and subject matter of a licensing examination.
(b) The examination shall be prepared to measure the competence of the applicant to practice pharmacy.
(c) The board may employ and cooperate with an organization or consultant in preparing an appropriate examination.
(d) A written examination prepared or offered by the board, including a standardized national examination, must be validated by an independent testing professional. (V.A.C.S. Art. 4542a-1, Secs. 21(c) (part), (d) (part).)
Sec. 558.053. GRADING OF EXAMINATION. (a) The board may employ and cooperate with an organization or consultant in grading the examination.
(b) The board shall determine whether an applicant has passed the examination. The board has sole discretion and responsibility for that determination. (V.A.C.S. Art. 4542a-1, Secs. 21(c) (part), (d) (part).)
Sec. 558.054. FREQUENCY OF OFFERING EXAMINATION. The board shall give the examination at least two times during each state fiscal year. (V.A.C.S. Art. 4542a-1, Sec. 21(c) (part).)
Sec. 558.055. FAILURE TO PASS; REEXAMINATION. (a) An applicant who on the applicant's first attempt fails the examination may take the examination two additional times.
(b) Before an applicant who has failed the examination three times is allowed to retake the examination, the applicant must provide documentation from a college of pharmacy that the applicant has successfully completed additional college course work in each examination subject area the applicant failed.
(c) If requested in writing by a person who fails the examination, the board shall furnish the person with an analysis of the person's performance on the examination. (V.A.C.S. Art. 4542a-1, Sec. 21(c) (part).)
Sec. 558.056. NOTIFICATION. The board shall notify each person taking an examination of the results of the examination not later than the 30th day after the date the board receives the results from a national testing service if the board uses a national testing service. (V.A.C.S. Art. 4542a-1, Sec. 21(e).)
Sec. 558.057. INTERNSHIP OR OTHER PROGRAM TO QUALIFY FOR EXAMINATION. (a) In this section, "preceptor" means a pharmacist licensed in this state to practice pharmacy who meets the preceptor requirements specified by rule and who is certified by the board to supervise and be responsible for the activities and functions of a pharmacist-intern in an internship program.
(b) The board shall:
(1) establish standards for an internship or other program necessary to qualify an applicant for the licensing examination; and
(2) determine the qualifications necessary for a preceptor used in the program. (V.A.C.S. Art. 4542a-1, Secs. 5(40), 21(g).)
[Sections 558.058-558.100 reserved for expansion]
SUBCHAPTER C. LICENSING BY RECIPROCITY
Sec. 558.101. QUALIFICATIONS FOR LICENSE BY RECIPROCITY. (a) To qualify for a license to practice pharmacy, an applicant for licensing by reciprocity must:
(1) submit to the board:
(A) a reciprocity fee set by the board; and
(B) a completed application in the form prescribed by the board, given under oath;
(2) be of good moral character;
(3) have graduated and received a professional practice degree, as defined by board rule, from an accredited pharmacy degree program approved by the board;
(4) have possessed, at the time of initial licensing as a pharmacist, other qualifications necessary to have been eligible for licensing at that time in this state;
(5) have presented to the board:
(A) proof of initial licensing by examination; and
(B) proof that the license and any other license granted to the applicant by another state has not been restricted, suspended, revoked, or surrendered for any reason; and
(6) pass the Texas Pharmacy Jurisprudence examination.
(b) An applicant is not eligible for licensing by reciprocity unless the state in which the applicant was initially licensed as a pharmacist grants reciprocal licensing to pharmacists licensed by examination in this state, under like circumstances and conditions. (V.A.C.S. Art. 4542a-1, Secs. 22(a), (c).)
[Sections 558.102-558.150 reserved for expansion]
SUBCHAPTER D. PROVISIONAL AND TEMPORARY LICENSING
Sec. 558.151. QUALIFICATIONS FOR PROVISIONAL LICENSE. (a) The board may grant a provisional license to practice pharmacy to an applicant licensed in another state who seeks a license in this state. An applicant for a provisional license under this section must:
(1) pay a fee set by the board;
(2) be licensed in good standing as a pharmacist in another state that has professional standards and licensing requirements that the board considers to be substantially equivalent to the requirements of this subtitle;
(3) have passed a national or other examination recognized by the board relating to pharmacy; and
(4) be sponsored by a person licensed under this subtitle with whom the provisional license holder may practice under this subchapter.
(b) The board may waive the requirement of Subsection (a)(4) for an applicant if the board determines that compliance with that subsection constitutes a hardship to the applicant. (V.A.C.S. Art. 4542a-1, Secs. 22A(a), (b).)
Sec. 558.152. DURATION OF PROVISIONAL LICENSE. A provisional license is valid until the date the board approves or denies the license application under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 22A(c) (part).)
Sec. 558.153. PROCESSING OF LICENSE APPLICATION. The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued or at the time licenses are issued following the successful completion of the examination, whichever date is later. (V.A.C.S. Art. 4542a-1, Sec. 22A(d).)
Sec. 558.154. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. The board shall issue a license to practice pharmacy under this subtitle to the holder of a provisional license if:
(1) the provisional license holder passes the jurisprudence examination required under this subtitle;
(2) the board verifies that the provisional license holder has the academic and experience requirements for a license to practice pharmacy under this subtitle; and
(3) the provisional license holder satisfies all other requirements for a license to practice pharmacy under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 22A(c) (part).)
Sec. 558.155. TEMPORARY LICENSE. The board by rule may provide for the issuance of a temporary license. (V.A.C.S. Art. 4542a-1, Sec. 24C.)
[Sections 558.156-558.200 reserved for expansion]
SUBCHAPTER E. CERTAIN PROHIBITED PRACTICES
Sec. 558.201. DUPLICATING LICENSE OR CERTIFICATE. Except as expressly provided under this subtitle, a person may not in any manner duplicate a license to practice pharmacy or a license renewal certificate. (V.A.C.S. Art. 4542a-1, Sec. 24(i) (part).)
Sec. 558.202. FALSE AFFIDAVIT. A person who falsely makes the affidavit prescribed by Section 558.051 or 558.101 is guilty of fraudulent and dishonorable conduct and malpractice. (V.A.C.S. Art. 4542a-1, Sec. 21(b).)
CHAPTER 559. RENEWAL OF LICENSE TO PRACTICE PHARMACY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 559.001. EXPIRATION OF LICENSE
Sec. 559.002. RENEWAL PERIOD
Sec. 559.003. REQUIREMENTS FOR RENEWAL
Sec. 559.004. ISSUANCE OF LICENSE RENEWAL CERTIFICATE
Sec. 559.005. ISSUANCE OF NEW LICENSE
Sec. 559.006. LICENSE EXPIRATION NOTICE
Sec. 559.007. PRACTICING PHARMACY WITHOUT RENEWAL
CERTIFICATE
[Sections 559.008-559.050 reserved for expansion]
SUBCHAPTER B. MANDATORY CONTINUING EDUCATION
Sec. 559.051. SATISFACTION OF CONTINUING EDUCATION
REQUIREMENT
Sec. 559.052. RULES RELATING TO CONTINUING EDUCATION
Sec. 559.053. PROGRAM HOURS REQUIRED
Sec. 559.054. CERTIFICATE OF COMPLETION
Sec. 559.055. RECORDS
Sec. 559.056. DEMONSTRATION OF COMPLIANCE
[Sections 559.057-559.100 reserved for expansion]
SUBCHAPTER C. INACTIVE STATUS
Sec. 559.101. ELIGIBILITY FOR INACTIVE STATUS
Sec. 559.102. RESTRICTION ON LENGTH OF INACTIVE STATUS
Sec. 559.103. APPLICATION FOR INACTIVE STATUS
Sec. 559.104. RETURN TO ACTIVE STATUS
Sec. 559.105. PRACTICING PHARMACY DURING INACTIVE STATUS
CHAPTER 559. RENEWAL OF LICENSE TO PRACTICE PHARMACY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 559.001. EXPIRATION OF LICENSE. (a) Except as provided by Subsection (b), a license to practice pharmacy expires December 31 of each year or of every other year, as determined by the board.
(b) The board may adopt a system under which licenses to practice pharmacy expire on various dates during the year.
(c) If the board changes the expiration date of a license, the board shall prorate the license renewal fee to cover the months for which the license is valid for the year in which the date is changed. The total license renewal fee is due on the new expiration date. (V.A.C.S. Art. 4542a-1, Secs. 24(a) (part), 25.)
Sec. 559.002. RENEWAL PERIOD. A license to practice pharmacy may be renewed for one or two years, as determined by the board. (V.A.C.S. Art. 4542a-1, Sec. 24(b) (part).)
Sec. 559.003. REQUIREMENTS FOR RENEWAL. (a) To renew a license to practice pharmacy, the license holder must before the expiration date of the license:
(1) pay a renewal fee as determined by the board;
(2) comply with the continuing education requirements prescribed by the board; and
(3) file with the board a completed application for a license renewal certificate that:
(A) is given under oath; and
(B) is accompanied by a certified statement executed by the license holder that attests that the license holder has satisfied the continuing education requirements during the preceding license period.
(b) A person whose license has been expired for 90 days or less may renew the expired license by paying to the board the required renewal fee and a fee that is equal to one-half of the examination fee for the license.
(c) A person whose license has been expired for more than 90 days but less than one year may renew the expired license by paying to the board all unpaid renewal fees and a fee that is equal to the examination fee for the license.
(d) If a person's license has been expired for one year or more, the person may not renew the license. (V.A.C.S. Art. 4542a-1, Secs. 24(a) (part), (b) (part), (d), (e), (f) (part), 24A(a).)
Sec. 559.004. ISSUANCE OF LICENSE RENEWAL CERTIFICATE. (a) The board shall issue a license renewal certificate to an applicant after the board has received, in a time prescribed by Section 559.003:
(1) the completed application;
(2) the renewal fee; and
(3) proof of completion of the continuing education requirements prescribed by Subchapter B.
(b) The renewal certificate must contain:
(1) the pharmacist's license number;
(2) the period for which the license is renewed; and
(3) other information the board determines necessary. (V.A.C.S. Art. 4542a-1, Sec. 24(c).)
Sec. 559.005. ISSUANCE OF NEW LICENSE. (a) The board may issue a new license to practice pharmacy to a person who is prohibited under Section 559.003(d) from renewing a license if the person has not had a license granted by any other state restricted, suspended, revoked, canceled, or surrendered for any reason and qualifies under this section.
(b) A person qualifies for a license under this section if the person:
(1) was licensed as a pharmacist in this state, moved to another state, and is licensed and has been practicing pharmacy in the other state for the two years preceding the date the application for a new license is submitted;
(2) pays to the board an amount equal to the examination fee for the license; and
(3) passes the Texas Pharmacy Jurisprudence examination.
(c) A person qualifies for a license under this section if the person:
(1) was licensed as a pharmacist in this state;
(2) pays to the board an amount equal to the examination fee for the license; and
(3) passes the Texas Pharmacy Jurisprudence examination and any other examination required by the board and in addition to or instead of passing the examination as required by the board, participates in continuing pharmacy education and practices under conditions set by the board.
(d) A person qualifies for a license under this section if the person:
(1) submits to reexamination; and
(2) complies with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4542a-1, Sec. 24(f) (part).)
Sec. 559.006. LICENSE EXPIRATION NOTICE. At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the license holder's last known address according to the board's records. (V.A.C.S. Art. 4542a-1, Sec. 24(g).)
Sec. 559.007. PRACTICING PHARMACY WITHOUT RENEWAL CERTIFICATE. A person who practices pharmacy without a current license renewal certificate as required by this chapter is practicing pharmacy without a license and is subject to all penalties for practicing pharmacy without a license. (V.A.C.S. Art. 4542a-1, Sec. 24(h).)
[Sections 559.008-559.050 reserved for expansion]
SUBCHAPTER B. MANDATORY CONTINUING EDUCATION
Sec. 559.051. SATISFACTION OF CONTINUING EDUCATION REQUIREMENT. (a) A holder of a license to practice pharmacy may meet the continuing education requirement by:
(1) completing continuing education programs approved by the board; or
(2) passing a standardized pharmacy examination approved by the board.
(b) A license holder who takes the examination under Subsection (a)(2) must pay the examination fee assessed by the board under Section 554.006. (V.A.C.S. Art. 4542a-1, Sec. 24A(b).)
Sec. 559.052. RULES RELATING TO CONTINUING EDUCATION. (a) The board shall adopt rules relating to:
(1) the adoption or approval of mandatory continuing education programs;
(2) the approval of providers and the operation of continuing education programs; and
(3) the evaluation of the effectiveness of continuing education programs and a license holder's participation and performance in those programs.
(b) In establishing the requirement for continuing education, the board shall consider:
(1) factors that lead to the competent performance of professional duties; and
(2) the continuing education needs of license holders.
(c) In adopting rules relating to the approval of continuing education programs or providers, the board may consider:
(1) programs approved by the Texas Pharmacy Foundation; and
(2) providers approved by the American Council on Pharmaceutical Education.
(d) The board shall approve home study courses, correspondence courses, or other similar programs.
(e) The board by rule may grant an extension for the completion of a continuing education requirement for good cause.
(f) The board by rule may exempt a person from all or part of the continuing education requirements. (V.A.C.S. Art. 4542a-1, Secs. 24A(c) (part), (f), (g), (h), (i).)
Sec. 559.053. PROGRAM HOURS REQUIRED. (a) A license holder satisfies the continuing education requirement by presenting evidence satisfactory to the board of completion of at least 12 hours of continuing education during the preceding license period.
(b) A license holder who completes more than 12 hours of continuing education during the preceding license period may carry forward not more than 12 hours for the next license period. (V.A.C.S. Art. 4542a-1, Sec. 24A(d).)
Sec. 559.054. CERTIFICATE OF COMPLETION. Each continuing education program approved by the board shall issue a certificate of completion to a license holder who satisfactorily completes the program. (V.A.C.S. Art. 4542a-1, Sec. 24A(c) (part).)
Sec. 559.055. RECORDS. Each license holder shall maintain records for three years showing the continuing education programs completed by the license holder. (V.A.C.S. Art. 4542a-1, Sec. 24A(e) (part).)
Sec. 559.056. DEMONSTRATION OF COMPLIANCE. On an audit by the board, a license holder is in compliance with the continuing education requirements if the license holder submits to the board:
(1) an affidavit stating that the license holder has complied with those requirements; and
(2) records showing completion of the continuing education programs. (V.A.C.S. Art. 4542a-1, Sec. 24A(e) (part).)
[Sections 559.057-559.100 reserved for expansion]
SUBCHAPTER C. INACTIVE STATUS
Sec. 559.101. ELIGIBILITY FOR INACTIVE STATUS. The board by rule shall adopt a system for placing on inactive status a license held by a person who:
(1) is licensed by the board to practice pharmacy;
(2) is not eligible to renew the license because of failure to comply with the continuing education requirements under Subchapter B; and
(3) is not practicing pharmacy in this state. (V.A.C.S. Art. 4542a-1, Sec. 24B(a) (part).)
Sec. 559.102. RESTRICTION ON LENGTH OF INACTIVE STATUS. The board may restrict the length of time a license may remain on inactive status. (V.A.C.S. Art. 4542a-1, Sec. 24B(a) (part).)
Sec. 559.103. APPLICATION FOR INACTIVE STATUS. A license holder may place the holder's license on inactive status by:
(1) applying for inactive status on a form prescribed by the board before the expiration date of the license; and
(2) complying with all other requirements for renewal of a license other than the continuing education requirements under Subchapter B. (V.A.C.S. Art. 4542a-1, Sec. 24B(b).)
Sec. 559.104. RETURN TO ACTIVE STATUS. A holder of a license that is on inactive status may return the license to active status by:
(1) applying for active status on a form prescribed by the board; and
(2) providing evidence satisfactory to the board that the license holder has completed the number of hours of continuing education, up to 36 hours, that would otherwise have been required for renewal of the license. (V.A.C.S. Art. 4542a-1, Sec. 24B(d).)
Sec. 559.105. PRACTICING PHARMACY DURING INACTIVE STATUS. (a) A holder of a license that is on inactive status may not practice pharmacy in this state.
(b) A license holder who practices pharmacy while the holder's license is on inactive status is practicing pharmacy without a license. (V.A.C.S. Art. 4542a-1, Sec. 24B(c).)
CHAPTER 560. LICENSING OF PHARMACIES
SUBCHAPTER A. LICENSE REQUIRED
Sec. 560.001. LICENSE REQUIRED
Sec. 560.002. USE OF "PHARMACY"; PROVIDING PHARMACY SERVICES
WITHOUT LICENSE
Sec. 560.003. PROHIBITED ADVERTISING OF PHARMACY
Sec. 560.004. EXEMPTION
[Sections 560.005-560.050 reserved for expansion]
SUBCHAPTER B. PHARMACY CLASSIFICATION
Sec. 560.051. LICENSE CLASSIFICATIONS
Sec. 560.052. QUALIFICATIONS
[Sections 560.053-560.100 reserved for expansion]
SUBCHAPTER C. RESTRICTIONS ON LICENSE
Sec. 560.101. LICENSE NOT TRANSFERABLE
Sec. 560.102. SEPARATE LICENSE FOR EACH LOCATION
Sec. 560.103. FALSE AFFIDAVIT
CHAPTER 560. LICENSING OF PHARMACIES
SUBCHAPTER A. LICENSE REQUIRED
Sec. 560.001. LICENSE REQUIRED. (a) A person may not operate a pharmacy in this state unless the pharmacy is licensed by the board.
(b) A pharmacy located in another state may not ship, mail, or deliver to this state a prescription drug or device dispensed under a prescription drug order to a resident of this state unless the pharmacy is licensed by the board or is exempt under Section 560.004. (V.A.C.S. Art. 4542a-1, Secs. 19(a) (part), 29(a) (part), 34(a) (part), 37(b).)
Sec. 560.002. USE OF "PHARMACY"; PROVIDING PHARMACY SERVICES WITHOUT LICENSE. (a) A person may not display in or on a place of business the word "pharmacy" in any language, any word or combination of words of the same or similar meaning, or a graphic representation that would lead or tend to lead the public to believe that the business is a pharmacy unless the facility is a pharmacy licensed under this chapter.
(b) A person may not advertise a place of business as a pharmacy or provide pharmacy services unless the facility is a pharmacy licensed under this chapter. (V.A.C.S. Art. 4542a-1, Sec. 35.)
Sec. 560.003. PROHIBITED ADVERTISING OF PHARMACY. (a) A pharmacy that is not licensed under this chapter may not advertise the pharmacy's services in this state.
(b) A person who is a resident of this state may not advertise the pharmacy services of a pharmacy that is not licensed by the board if the pharmacy or person makes the advertisement with the knowledge that the advertisement will or is likely to induce a resident of this state to use the pharmacy to dispense a prescription drug order. (V.A.C.S. Art. 4542a-1, Sec. 37(c).)
Sec. 560.004. EXEMPTION. The board may grant an exemption from the licensing requirements of this chapter on the application of a pharmacy located in another state that restricts to isolated transactions the pharmacy's dispensing of a prescription drug or device to a resident of this state. (V.A.C.S. Art. 4542a-1, Sec. 30(k).)
[Sections 560.005-560.050 reserved for expansion]
SUBCHAPTER B. PHARMACY CLASSIFICATION
Sec. 560.051. LICENSE CLASSIFICATIONS. (a) Each applicant for a pharmacy license shall apply for a license in one or more of the following classifications:
(1) Class A;
(2) Class B;
(3) Class C;
(4) Class D; or
(5) Class E.
(b) A Class A pharmacy license or community pharmacy license authorizes a pharmacy to dispense a drug or device to the public under a prescription drug order.
(c) A Class B pharmacy license or nuclear pharmacy license authorizes a pharmacy to dispense a radioactive drug or device for administration to an ultimate user.
(d) A Class C pharmacy license or institutional pharmacy license may be issued to:
(1) a pharmacy located in:
(A) an inpatient facility, including a hospital, licensed under Chapter 241 or 577, Health and Safety Code; or
(B) a hospital maintained or operated by the state; or
(2) a hospice inpatient facility licensed under Chapter 142, Health and Safety Code.
(e) A Class D pharmacy license or clinic pharmacy license authorizes a pharmacy to dispense a limited type of drug or device under a prescription drug order.
(f) A Class E pharmacy license or nonresident pharmacy license may be issued to a pharmacy located in another state whose primary business is to:
(A) dispense a prescription drug or device under a prescription drug order; and
(B) deliver the drug or device to a patient, including a patient in this state, by United States mail, common carrier, or delivery service.
(g) The board may determine the classification under which a pharmacy may be licensed. (V.A.C.S. Art. 4542a-1, Secs. 5(5), (6), (7), (8), (9); 29(b), (e) (part).)
Sec. 560.052. QUALIFICATIONS. (a) The board by rule shall establish the standards that each pharmacy and the pharmacy's employees involved in the practice of pharmacy must meet to qualify for licensing as a pharmacy in each classification.
(b) To qualify for a pharmacy license, an applicant must submit to the board:
(1) a license fee set by the board, except as provided by Subsection (d); and
(2) a completed application that:
(A) is on a form prescribed by the board;
(B) is given under oath; and
(C) includes a statement of:
(i) the ownership;
(ii) the location of the pharmacy;
(iii) the license number of each pharmacist who is employed by the pharmacy, if the pharmacy is located in this state, or who is licensed to practice pharmacy in this state, if the pharmacy is a Class E pharmacy;
(iv) the license number of the pharmacist-in-charge; and
(v) any other information the board determines necessary.
(c) To qualify for a Class E pharmacy license, an applicant, in addition to satisfying the other requirements of this chapter, must provide to the board:
(1) evidence that the applicant holds a pharmacy license, registration, or permit in good standing issued by the state in which the pharmacy is located;
(2) the name of the owner and pharmacist-in-charge of the pharmacy for service of process;
(3) evidence of the applicant's ability to provide to the board a record of a prescription drug order dispensed by the applicant to a resident of this state not later than 72 hours after the time the board requests the record; and
(4) an affidavit by the pharmacist-in-charge that states that the pharmacist has read and understands the laws and rules relating to a Class E pharmacy.
(d) A pharmacy operated by the state or a local government that qualifies for a Class D pharmacy license is not required to pay a fee to obtain a license. (V.A.C.S. Art. 4542a-1, Secs. 29(d) (part), (g), 30(b), (j).)
[Sections 560.053-560.100 reserved for expansion]
SUBCHAPTER C. RESTRICTIONS ON LICENSE
Sec. 560.101. LICENSE NOT TRANSFERABLE. A pharmacy license issued under this chapter is not transferable or assignable. (V.A.C.S. Art. 4542a-1, Sec. 30(d).)
Sec. 560.102. SEPARATE LICENSE FOR EACH LOCATION. (a) A separate pharmacy license is required for each principal place of business of a pharmacy.
(b) Only one pharmacy license may be issued for a specific location. (V.A.C.S. Art. 4542a-1, Sec. 30(f).)
SUBCHAPTER D. CERTAIN PROHIBITED PRACTICES
Sec. 560.103. FALSE AFFIDAVIT. A person who falsely makes the affidavit prescribed by Section 560.052 is guilty of fraudulent and dishonorable conduct and malpractice. (V.A.C.S. Art. 4542a-1, Sec. 30(c).)
CHAPTER 561. RENEWAL OF PHARMACY LICENSE
Sec. 561.001. EXPIRATION OF LICENSE
Sec. 561.002. ANNUAL RENEWAL
Sec. 561.003. REQUIREMENTS FOR RENEWAL
Sec. 561.004. ISSUANCE OF LICENSE RENEWAL CERTIFICATE
Sec. 561.005. SUSPENSION OF PHARMACY LICENSE FOR NONRENEWAL
CHAPTER 561. RENEWAL OF PHARMACY LICENSE
Sec. 561.001. EXPIRATION OF LICENSE. (a) A pharmacy license expires May 31 of each year.
(b) The board may adopt a system under which pharmacy licenses expire on various dates during the year.
(c) If the board changes the expiration date of a license, the board shall prorate the license renewal fee to cover the number of months for which the license is valid for the year in which the date is changed. The total license renewal fee is due on the new expiration date. (V.A.C.S. Art. 4542a-1, Secs. 31(a), (f), (g).)
Sec. 561.002. ANNUAL RENEWAL. A pharmacy license must be renewed annually. (V.A.C.S. Art. 4542a-1, Sec. 29(a) (part).)
Sec. 561.003. REQUIREMENTS FOR RENEWAL. (a) The board by rule shall establish:
(1) procedures to be followed for renewal of a pharmacy license;
(2) the fees to be paid for renewal of a pharmacy license;
(3) penalties for late renewal of a pharmacy license; and
(4) the standards in each classification that each pharmacy and the pharmacy's employees involved in the practice of pharmacy must meet to qualify for relicensing as a pharmacy.
(b) A pharmacy license may be renewed by:
(1) payment of a renewal fee set by the board; and
(2) filing with the board a completed application for a license renewal certificate given under oath before the expiration date of the license or license renewal certificate. (V.A.C.S. Art. 4542a-1, Secs. 29(d) (part), 31(b), (e).)
Sec. 561.004. ISSUANCE OF LICENSE RENEWAL CERTIFICATE. On timely receipt of a completed application and renewal fee, the board shall issue a license renewal certificate that contains:
(1) the pharmacy license number;
(2) the period for which the license is renewed; and
(3) other information the board determines necessary. (V.A.C.S. Art. 4542a-1, Sec. 31(c).)
Sec. 561.005. SUSPENSION OF PHARMACY LICENSE FOR NONRENEWAL. The board shall suspend the license and remove from the register of licensed pharmacies the name of a pharmacy that does not file a completed application and pay the renewal fee on or before the date the license or license renewal certificate expires. (V.A.C.S. Art. 4542a-1, Sec. 31(d).)
CHAPTER 562. PRACTICE BY LICENSE HOLDER
SUBCHAPTER A. PRESCRIPTION AND SUBSTITUTION REQUIREMENTS
Sec. 562.001. DEFINITIONS
Sec. 562.002. LEGISLATIVE INTENT
Sec. 562.003. WRITTEN PRESCRIPTION ISSUED BY PRACTITIONER
Sec. 562.004. PRESCRIPTION TRANSMITTED ORALLY BY
PRACTITIONER
Sec. 562.005. RECORD OF DISPENSED DRUG
Sec. 562.006. LABEL
Sec. 562.007. REFILLS
Sec. 562.008. GENERIC EQUIVALENT AUTHORIZED
Sec. 562.009. REQUIREMENTS CONCERNING SELECTION OF
GENERICALLY EQUIVALENT DRUG
Sec. 562.010. RESPONSIBILITY CONCERNING GENERICALLY
EQUIVALENT DRUG; LIABILITY
Sec. 562.011. RESTRICTION ON SELECTION OF AND CHARGING
FOR GENERICALLY EQUIVALENT DRUG
Sec. 562.012. SUBSTITUTION OF DOSAGE FORM PERMITTED
Sec. 562.013. APPLICABILITY OF SUBCHAPTER
Sec. 562.014. APPLICATION TO NARROW THERAPEUTIC INDEX
DRUGS
[Sections 562.015-562.050 reserved for expansion]
SUBCHAPTER B. OTHER PRACTICE BY PHARMACIST
Sec. 562.051. DISPLAY OF PHARMACIST LICENSE
Sec. 562.052. RELEASE OF CONFIDENTIAL RECORDS
Sec. 562.053. REPORTS TO BOARD
Sec. 562.054. EMERGENCY REFILLS
[Sections 562.055-562.100 reserved for expansion]
SUBCHAPTER C. PRACTICE BY PHARMACY
Sec. 562.101. SUPERVISION OF PHARMACY
Sec. 562.102. CONFIDENTIAL RECORD
Sec. 562.103. DISPLAY OF LICENSES BY PHARMACY
Sec. 562.104. TOLL-FREE TELEPHONE NUMBER REQUIRED
Sec. 562.105. MAINTENANCE OF RECORDS
Sec. 562.106. NOTIFICATION
Sec. 562.107. WRITTEN CONSUMER INFORMATION REQUIRED
CHAPTER 562. PRACTICE BY LICENSE HOLDER
SUBCHAPTER A. PRESCRIPTION AND SUBSTITUTION REQUIREMENTS
Sec. 562.001. DEFINITIONS. In this subchapter:
(1) "Generically equivalent" means a drug that is pharmaceutically equivalent and therapeutically equivalent to the drug prescribed.
(2) "Pharmaceutically equivalent" means drug products that have identical amounts of the same active chemical ingredients in the same dosage form and that meet the identical compendial or other applicable standards of strength, quality, and purity according to the United States Pharmacopoeia or another nationally recognized compendium.
(3) "Therapeutically equivalent" means pharmaceutically equivalent drug products that, if administered in the same amounts, will provide the same therapeutic effect, identical in duration and intensity. (V.A.C.S. Art. 4542a-1, Sec. 40(c).)
Sec. 562.002. LEGISLATIVE INTENT. It is the intent of the legislature to save consumers money by allowing the substitution of lower-priced generically equivalent drug products for certain brand name drug products and for pharmacies and pharmacists to pass on the net benefit of the lower costs of the generically equivalent drug product to the purchaser. (V.A.C.S. Art. 4542a-1, Sec. 40(a).)
Sec. 562.003. WRITTEN PRESCRIPTION ISSUED BY PRACTITIONER. A pharmacist may not dispense a written prescription issued by a practitioner unless the prescription is ordered on a form that meets the requirements specified under Section 563.002. (V.A.C.S. Art. 4542a-1, Sec. 40(h) (part).)
Sec. 562.004. PRESCRIPTION TRANSMITTED ORALLY BY PRACTITIONER. A pharmacist to whom a prescription is transmitted orally shall:
(1) note on the file copy of the prescription the dispensing instructions of the practitioner or the practitioner's agent; and
(2) retain the prescription for the period specified by law. (V.A.C.S. Art. 4542a-1, Sec. 40(i) (part).)
Sec. 562.005. RECORD OF DISPENSED DRUG. A pharmacist shall record on the prescription form the name, strength, and manufacturer or distributor of a drug dispensed as authorized by this subchapter. (V.A.C.S. Art. 4542a-1, Sec. 40(j).)
Sec. 562.006. LABEL. (a) Unless otherwise directed by the practitioner, the label on the dispensing container must indicate the actual drug dispensed, indicated by either:
(1) the brand name; or
(2) if there is not a brand name, the generic name, the strength of the drug, and the name of the manufacturer or distributor of the drug.
(b) If a drug has been selected other than the one prescribed, the pharmacist shall place on the container the words "Substituted for brand prescribed" or "Substituted for 'brand name'" where "brand name" is the name of the brand name drug prescribed. (V.A.C.S. Art. 4542a-1, Sec. 40(e).)
Sec. 562.007. REFILLS. A properly authorized prescription refill shall follow the original dispensing instruction unless otherwise indicated by the practitioner or the practitioner's agent. (V.A.C.S. Art. 4542a-1, Sec. 40(i) (part).)
Sec. 562.008. GENERIC EQUIVALENT AUTHORIZED. (a) If the practitioner's signature on the form required under Section 563.002 does not clearly indicate that the prescription must be dispensed as written, the pharmacist may select a generically equivalent drug.
(b) Except as otherwise provided by this subchapter, a pharmacist who receives a prescription for a drug for which there is one or more generic equivalents may dispense any of the generic equivalents. (V.A.C.S. Art. 4542a-1, Secs. 40(b), (h) (part).)
Sec. 562.009. REQUIREMENTS CONCERNING SELECTION OF GENERICALLY EQUIVALENT DRUG. (a) A pharmacist who selects a generically equivalent drug as authorized by this subchapter shall:
(1) personally, or through the pharmacist's agent or employee, and before delivery of a generically equivalent drug inform the patient or the patient's agent that a less expensive generically equivalent drug has been substituted for the brand prescribed and that the patient or the patient's agent is entitled to refuse that substitution; or
(2) display, in a prominent place that is in clear public view where prescription drugs are dispensed, a sign in block letters not less than one inch in height that reads, in both English and Spanish:
"TEXAS LAW ALLOWS A LESS EXPENSIVE GENERICALLY EQUIVALENT DRUG TO BE SUBSTITUTED FOR CERTAIN BRAND NAME DRUGS UNLESS YOUR PHYSICIAN DIRECTS OTHERWISE. YOU HAVE A RIGHT TO REFUSE SUCH SUBSTITUTION. CONSULT YOUR PHYSICIAN OR PHARMACIST CONCERNING THE AVAILABILITY OF A SAFE, LESS EXPENSIVE DRUG FOR YOUR USE."
(b) To comply with Subsection (a)(2), only one sign is required to be displayed in a pharmacy. (V.A.C.S. Art. 4542a-1, Sec. 40(g)(1).)
Sec. 562.010. RESPONSIBILITY CONCERNING GENERICALLY EQUIVALENT DRUG; LIABILITY. (a) A pharmacist who selects a generically equivalent drug to be dispensed under this subchapter assumes the same responsibility for selecting the generically equivalent drug as the pharmacist does in filling a prescription for a drug prescribed by generic name.
(b) The prescribing practitioner is not liable for a pharmacist's act or omission in selecting, preparing, or dispensing a drug under this subchapter. (V.A.C.S. Art. 4542a-1, Sec. 40(k).)
Sec. 562.011. RESTRICTION ON SELECTION OF AND CHARGING FOR GENERICALLY EQUIVALENT DRUG. (a) A pharmacist may not select a generically equivalent drug unless the generically equivalent drug selected costs the patient less than the prescribed drug.
(b) A pharmacist may not charge for dispensing a generically equivalent drug a professional fee higher than the fee the pharmacist customarily charges for dispensing the brand name drug prescribed. (V.A.C.S. Art. 4542a-1, Sec. 40(f).)
Sec. 562.012. SUBSTITUTION OF DOSAGE FORM PERMITTED. With the patient's consent and notification to the practitioner, a pharmacist may dispense a dosage form of a drug different from that prescribed, such as a tablet instead of a capsule or a liquid instead of a tablet, if the dosage form dispensed:
(1) contains the identical amount of the active ingredients as the dosage prescribed for the patient;
(2) is not an enteric-coated or timed release product; and
(3) does not alter desired clinical outcomes. (V.A.C.S. Art. 4542a-1, Sec. 40(d).)
Sec. 562.013. APPLICABILITY OF SUBCHAPTER. Unless a drug is determined to be generically equivalent to the brand prescribed, drug selection as authorized by this subchapter does not apply to:
(1) an enteric-coated tablet;
(2) a controlled release product;
(3) an injectable suspension, other than an antibiotic;
(4) a suppository containing active ingredients for which systemic absorption is necessary for therapeutic activity; or
(5) a different delivery system for aerosol or nebulizer drugs. (V.A.C.S. Art. 4542a-1, Sec. 40(l).)
Sec. 562.014. APPLICATION TO NARROW THERAPEUTIC INDEX DRUGS. Except as provided by this section, drug selection as authorized by this subchapter does not apply to the refill of a prescription for a narrow therapeutic index drug. The board, in consultation with the Texas State Board of Medical Examiners, shall by rule establish a list of narrow therapeutic index drugs to which this subsection applies. A prescription for a narrow therapeutic index drug may be refilled only by using the same drug product by the same manufacturer that the pharmacist last dispensed under the prescription, unless otherwise agreed to by the prescribing physician. If a pharmacist does not have the same drug product by the same manufacturer in stock to refill the prescription, the pharmacist may dispense a drug product that is generically equivalent if the pharmacist, before dispensing the generically equivalent drug product, notifies:
(1) the patient, at the time the prescription is dispensed, that a substitution of the prescribed drug product has been made; and
(2) the prescribing physician of the drug product substitution by telephone, facsimile, or mail, at the earliest reasonable time, but not later than 72 hours after dispensing the prescription. (V.A.C.S. Art. 4542a-1, Sec. 40(m).)
[Sections 562.015-562.050 reserved for expansion]
SUBCHAPTER B. OTHER PRACTICE BY PHARMACIST
Sec. 562.051. DISPLAY OF PHARMACIST LICENSE. A pharmacist shall publicly display the pharmacist's license to practice pharmacy and license renewal certificate in the pharmacist's primary place of practice. (V.A.C.S. Art. 4542a-1, Sec. 23.)
Sec. 562.052. RELEASE OF CONFIDENTIAL RECORDS. A confidential record is privileged and a pharmacist may release a confidential record only to:
(1) the patient or the patient's agent;
(2) a practitioner or another pharmacist if, in the pharmacist's professional judgment, the release is necessary to protect the patient's health and well-being;
(3) the board or to a person or another state or federal agency authorized by law to receive the confidential record;
(4) a law enforcement agency engaged in investigation of a suspected violation of Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(5) a person employed by a state agency that licenses a practitioner, if the person is performing the person's official duties; or
(6) an insurance carrier or other third party payor authorized by the patient to receive the information. (V.A.C.S. Art. 4542a-1, Sec. 40C.)
Sec. 562.053. REPORTS TO BOARD. A pharmacist shall report in writing to the board not later than the 10th day after the date of a change of address or place of employment. (V.A.C.S. Art. 4542a-1, Sec. 32(b).)
Sec. 562.054. EMERGENCY REFILLS. A pharmacist may exercise the pharmacist's professional judgment in refilling a prescription for a prescription drug, other than a controlled substance listed in Schedule II as established by the commissioner of public health under Chapter 481, Health and Safety Code, without the authorization of the prescribing practitioner if:
(1) failure to refill the prescription might result in an interruption of a therapeutic regimen or create patient suffering;
(2) either:
(A) a natural or manmade disaster has occurred that prohibits the pharmacist from being able to contact the practitioner; or
(B) the pharmacist is unable to contact the practitioner after reasonable effort;
(3) the quantity of prescription drug dispensed does not exceed a 72-hour supply;
(4) the pharmacist informs the patient or the patient's agent at the time of dispensing that the refill is being provided without the practitioner's authorization and that authorization of the practitioner is required for a future refill; and
(5) the pharmacist informs the practitioner of the emergency refill at the earliest reasonable time. (V.A.C.S. Art. 4542a-1, Sec. 40B.)
[Sections 562.055-562.100 reserved for expansion]
SUBCHAPTER C. PRACTICE BY PHARMACY
Sec. 562.101. SUPERVISION OF PHARMACY. (a) A pharmacy is required to be under the supervision of a pharmacist as provided by this section.
(b) A Class A or Class B pharmacy is required to be under the continuous on-site supervision of a pharmacist during the time the pharmacy is open for pharmacy services.
(c) A Class C pharmacy that is in an institution with more than 100 beds is required to be under the continuous on-site supervision of a pharmacist during the time the pharmacy is open for pharmacy services.
(d) A Class C pharmacy that is in an institution with 100 beds or fewer is required to have the services of a pharmacist on a part-time or consulting basis according to the needs of the institution.
(e) A Class D pharmacy is required to be under the continuous supervision of a pharmacist whose services are required according to the needs of the pharmacy.
(f) A Class E pharmacy is required to be under the continuous on-site supervision of a pharmacist and shall designate one pharmacist licensed to practice pharmacy by the regulatory or licensing agency of the state in which the Class E pharmacy is located to serve as the pharmacist-in-charge of the Class E pharmacy. (V.A.C.S. Art. 4542a-1, Sec. 29(c).)
Sec. 562.102. CONFIDENTIAL RECORD. A pharmacy shall comply with Section 562.052 concerning the release of a confidential record. (New.)
Sec. 562.103. DISPLAY OF LICENSES BY PHARMACY. (a) A pharmacy shall display in the pharmacy in full public view the license under which the pharmacy operates.
(b) A Class A or Class C pharmacy that serves the public shall:
(1) display the word "pharmacy" or a similar word or symbol as determined by the board in a prominent place on the front of the pharmacy; and
(2) display in public view the license of each pharmacist employed in the pharmacy. (V.A.C.S. Art. 4542a-1, Secs. 30(g), (h).)
Sec. 562.104. TOLL-FREE TELEPHONE NUMBER REQUIRED. A pharmacy whose primary business is to dispense a prescription drug or device under a prescription drug order to a patient located outside the area covered by the pharmacy's telephone area code shall provide a toll-free telephone line that is answered during normal business hours to enable communication between a patient or the patient's physician and a pharmacist at the pharmacy who has access to the patient's records. (V.A.C.S. Art. 4542a-1, Sec. 30(i) (part).)
Sec. 562.105. MAINTENANCE OF RECORDS. A pharmacy shall maintain a permanent record of:
(1) any civil litigation initiated against the pharmacy by a resident of this state; or
(2) a complaint that arises out of a prescription for a resident of this state that was lost during delivery. (V.A.C.S. Art. 4542a-1, Sec. 30(i) (part).)
Sec. 562.106. NOTIFICATION. (a) A pharmacy shall report in writing to the board not later than the 10th day after the date of:
(1) a permanent closing of the pharmacy;
(2) a change of ownership of the pharmacy;
(3) a change of location of the pharmacy;
(4) a change of the person designated as the pharmacist-in-charge of the pharmacy;
(5) a sale or transfer of any controlled substance or dangerous drug as a result of the permanent closing or change of ownership of the pharmacy;
(6) any matter or occurrence that the board requires by rule to be reported;
(7) as determined by the board, an out-of-state purchase of any controlled substance;
(8) a final order against the pharmacy license holder by the regulatory or licensing agency of the state in which the pharmacy is located if the pharmacy is a Class E pharmacy; or
(9) a final order against a pharmacist who is designated as the pharmacist-in-charge of the pharmacy by the regulatory or licensing agency of the state in which the pharmacy is located if the pharmacy is a Class E pharmacy.
(b) A pharmacy shall report in writing to the board a theft or significant loss of any controlled substance immediately on discovery of the theft or loss. The pharmacy shall include with the report a list of all controlled substances stolen or lost.
(c) A pharmacy shall report in writing to the board a disaster, accident, or emergency that may affect the strength, purity, or labeling of a drug, medication, device, or other material used in the diagnosis or treatment of injury, illness, or disease, immediately on the occurrence of the disaster, accident, or emergency.
(d) The reporting pharmacy shall maintain a copy of any notification required by this section or Section 562.053 for two years and make the copy available for inspection. (V.A.C.S. Art. 4542a-1, Secs. 32(a), (c).)
Sec. 562.107. WRITTEN CONSUMER INFORMATION REQUIRED. (a) Each pharmacy shall make available to a consumer written information designed for the consumer that provides at a minimum:
(1) the therapeutic use of a drug; and
(2) the names of generically equivalent drugs.
(b) The information must be in a conspicuous location that is easily accessible to pharmacy customers. The information shall be periodically updated, as necessary, to reflect a change in the information.
(c) On request by a consumer, the pharmacy shall make available to the consumer the cost index ratio of the prescribed drug and any generic equivalents of the prescribed drug. (V.A.C.S. Art. 4542a-1, Sec. 40A.)
CHAPTER 563. PRESCRIPTION REQUIREMENTS; DELEGATION OF
ADMINISTRATION AND PROVISION OF DANGEROUS DRUGS
SUBCHAPTER A. PRESCRIPTION REQUIREMENTS FOR PRACTITIONERS
Sec. 563.001. PRESCRIPTION ISSUED BY PRACTITIONER
Sec. 563.002. REQUIREMENTS RELATED TO PRESCRIPTION FORMS
[Sections 563.003-563.050 reserved for expansion]
SUBCHAPTER B. DELEGATION OF ADMINISTRATION AND PROVISION OF
DANGEROUS DRUGS
Sec. 563.051. GENERAL DELEGATION OF ADMINISTRATION
AND PROVISION OF DANGEROUS DRUGS
Sec. 563.052. SUITABLE CONTAINER REQUIRED
Sec. 563.053. DISPENSING OF DANGEROUS DRUGS IN
CERTAIN RURAL AREAS
Sec. 563.054. ADMINISTRATION OF DANGEROUS DRUGS
CHAPTER 563. PRESCRIPTION REQUIREMENTS; DELEGATION OF
ADMINISTRATION AND PROVISION OF DANGEROUS DRUGS
SUBCHAPTER A. PRESCRIPTION REQUIREMENTS FOR PRACTITIONERS
Sec. 563.001. PRESCRIPTION ISSUED BY PRACTITIONER. A practitioner may not issue a prescription to be dispensed unless the prescription contains the following typed, printed, or stamped information:
(1) the practitioner's name, address, and telephone number; and
(2) the practitioner's required identification number. (V.A.C.S. Art. 4542a-1, Sec. 33(e).)
Sec. 563.002. REQUIREMENTS RELATED TO PRESCRIPTION FORMS. (a) A written prescription issued by a practitioner must be on a form that:
(1) contains two signature lines of equal prominence, side by side, at the bottom of the form;
(2) has printed clearly, under one signature line, the words "product selection permitted"; and
(3) has printed clearly, under the other signature line, the words "dispense as written."
(b) The practitioner shall communicate dispensing instructions to the pharmacist by signing on the appropriate line.
(c) A prescription form furnished a practitioner may not contain a preprinted order for a drug product by brand name, generic name, or manufacturer. (V.A.C.S. Art. 4542a-1, Sec. 40(h) (part).)
[Sections 563.003-563.050 reserved for expansion]
SUBCHAPTER B. DELEGATION OF ADMINISTRATION AND PROVISION
OF DANGEROUS DRUGS
Sec. 563.051. GENERAL DELEGATION OF ADMINISTRATION AND PROVISION OF DANGEROUS DRUGS. (a) A physician may delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs in the physician's office, as ordered by the physician, that are used or required to meet the immediate needs of the physician's patients. The administration or provision of the dangerous drugs must be performed in compliance with laws relating to the practice of medicine and state and federal laws relating to those dangerous drugs.
(b) A physician may also delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs through a facility licensed by the board, as ordered by the physician, that are used or required to meet the needs of the physician's patients. The administration of those dangerous drugs must be in compliance with laws relating to the practice of medicine, professional nursing, and pharmacy and state and federal drug laws. The provision of those dangerous drugs must be in compliance with:
(1) laws relating to the practice of medicine, professional nursing, and pharmacy;
(2) state and federal drug laws; and
(3) rules adopted by the board.
(c) The administration or provision of the drugs may be delegated through a physician's order, a standing medical order, a standing delegation order, or another order defined by the Texas State Board of Medical Examiners.
(d) This section does not authorize a physician or a person acting under the supervision of a physician to keep a pharmacy, advertised or otherwise, for the retail sale of dangerous drugs, other than as authorized under Section 158.003, without complying with the applicable laws relating to the dangerous drugs. (V.A.C.S. Art. 4542a-1, Secs. 33(a), (b) (part).)
Sec. 563.052. SUITABLE CONTAINER REQUIRED. A drug or medicine provided under this subchapter must be supplied in a suitable container labeled in compliance with applicable drug laws. A qualified and trained person, acting under the supervision of a physician, may specify at the time of the provision of the drug the inclusion on the container of the date of the provision and the patient's name and address. (V.A.C.S. Art. 4542a-1, Sec. 33(b) (part).)
Sec. 563.053. DISPENSING OF DANGEROUS DRUGS IN CERTAIN RURAL AREAS. (a) In this section, "reimbursement for cost" means an additional charge, separate from that imposed for the physician's professional services, that includes the cost of the drug product and all other actual costs to the physician incidental to providing the dispensing service. The term does not include a separate fee imposed for the act of dispensing the drug itself.
(b) This section applies to an area located in a county with a population of 5,000 or less, or in a municipality or an unincorporated town with a population of less than 2,500, that is within a 15-mile radius of the physician's office and in which a pharmacy is not located. This section does not apply to a municipality or an unincorporated town that is adjacent to a municipality with a population of 2,500 or more.
(c) A physician who practices medicine in an area described by Subsection (b) may:
(1) maintain a supply of dangerous drugs in the physician's office to be dispensed in the course of treating the physician's patients; and
(2) be reimbursed for the cost of supplying those drugs without obtaining a license under Chapter 558.
(d) A physician who dispenses dangerous drugs under Subsection (c) shall:
(1) comply with each labeling provision under this subtitle applicable to that class of drugs; and
(2) oversee compliance with packaging and recordkeeping provisions applicable to that class of drugs.
(e) A physician who desires to dispense dangerous drugs under this section shall notify both the board and the Texas State Board of Medical Examiners that the physician practices in an area described by Subsection (b). The physician may continue to dispense dangerous drugs in the area until the board determines, after notice and hearing, that the physician no longer practices in an area described by Subsection (b). (V.A.C.S. Art. 4542a-1, Sec. 33(c).)
Sec. 563.054. ADMINISTRATION OF DANGEROUS DRUGS. (a) A veterinarian may:
(1) administer or provide dangerous drugs to a patient in the veterinarian's office, or on the patient's premises, if the drugs are used or required to meet the needs of the veterinarian's patients;
(2) delegate the administration or provision of dangerous drugs to a person who:
(A) is qualified and properly trained; and
(B) acts under the veterinarian's supervision; and
(3) itemize and receive compensation for the administration or provision of the dangerous drugs under Subdivision (1).
(b) This section does not permit a veterinarian to maintain a pharmacy for the retailing of drugs without complying with applicable laws.
(c) The administration or provision of dangerous drugs must comply with:
(1) laws relating to the practice of veterinary medicine; and
(2) state and federal laws relating to dangerous drugs. (V.A.C.S. Art. 4542a-1, Sec. 33(d).)
CHAPTER 564. PROGRAM TO AID IMPAIRED PHARMACISTS AND
PHARMACY STUDENTS
SUBCHAPTER A. REPORTING AND CONFIDENTIALITY
Sec. 564.001. REPORTS
Sec. 564.002. CONFIDENTIALITY
Sec. 564.003. DISCLOSURE OF CERTAIN INFORMATION
Sec. 564.004. IMMUNITY
Sec. 564.005. RECORD OF REPORT
Sec. 564.006. EXAMINATION OF REPORT
[Sections 564.007-564.050 reserved for expansion]
SUBCHAPTER B. PROGRAM ADMINISTRATION
Sec. 564.051. PROGRAM AUTHORIZATION; FUNDING
Sec. 564.052. RULES OR CRITERIA
CHAPTER 564. PROGRAM TO AID IMPAIRED PHARMACISTS AND
PHARMACY STUDENTS
SUBCHAPTER A. REPORTING AND CONFIDENTIALITY
Sec. 564.001. REPORTS. (a) A person, including a pharmaceutical peer review committee, who has knowledge relating to an action or omission of a pharmacist in this state or a pharmacy student who is enrolled in the professional sequence of an accredited pharmacy degree program approved by the board that might provide grounds for disciplinary action under Section 565.001(a)(4) or (7) may report relevant facts to the board.
(b) A committee of a professional society composed primarily of pharmacists, the staff of the committee, or a district or local intervenor participating in a program established to aid pharmacists or eligible pharmacy students impaired by chemical abuse or mental or physical illness may report in writing to the board the name of an impaired pharmacist or pharmacy student and the relevant information relating to the impairment.
(c) The board may report to a committee of the professional society or the society's designated staff information that the board receives relating to a pharmacist or pharmacy student who may be impaired by chemical abuse or mental or physical illness. (V.A.C.S. Art. 4542a-1, Secs. 27A(a), (b).)
Sec. 564.002. CONFIDENTIALITY. The records and proceedings of the board, an authorized agent of the board, or a pharmaceutical organization committee described under Section 564.001(a) or (b), in connection with a report under Section 564.001(a) or (b), are confidential and are not considered public information for purposes of Chapter 552, Government Code. (V.A.C.S. Art. 4542a-1, Sec. 27A(d) (part).)
Sec. 564.003. DISCLOSURE OF CERTAIN INFORMATION. (a) The board may disclose information confidential under Section 564.002 only:
(1) in a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;
(2) to a pharmacist licensing or disciplinary authority of another jurisdiction;
(3) under a court order; or
(4) as provided by Subsection (b).
(b) The board may disclose that the license of a pharmacist who is the subject of an order of the board that is confidential under Section 564.002(b) is suspended, revoked, canceled, restricted, or retired or that the pharmacist is in any other manner limited in the practice of pharmacy. The board may not disclose the nature of the impairment or other information that resulted in the board's action. (V.A.C.S. Art. 4542a-1, Secs. 27A(d) (part), (j).)
Sec. 564.004. IMMUNITY. (a) Any person, including a board employee or member, peer review committee member, pharmaceutical organization committee member, or pharmaceutical organization district or local intervenor, who provides information, reports, or records under Section 564.001(a) or (b) to aid an impaired pharmacist or pharmacy student is immune from civil liability if the person provides the information in good faith.
(b) Subsection (a) shall be liberally construed to accomplish the purposes of this subchapter, and the immunity provided under that subsection is in addition to any other immunity provided by law.
(c) A person who provides information or assistance to the board under this subchapter is presumed to have acted in good faith. A person who alleges a lack of good faith has the burden of proof on that issue. (V.A.C.S. Art. 4542a-1, Secs. 27A(e), (f).)
Sec. 564.005. RECORD OF REPORT. On a determination by the board that a report submitted by a peer review committee or pharmaceutical organization committee under Section 564.001(a) or (b) is without merit, the board shall expunge the report from the pharmacist's or pharmacy student's individual record in the board's office. (V.A.C.S. Art. 4542a-1, Sec. 27A(c) (part).)
Sec. 564.006. EXAMINATION OF REPORT. A pharmacist, a pharmacy student, or an authorized representative of the pharmacist or student is entitled on request to examine the peer review or the pharmaceutical organization committee report submitted to the board and to place into the record a statement of reasonable length of the pharmacist's or pharmacy student's view concerning information in the report. (V.A.C.S. Art. 4542a-1, Sec. 27A(c) (part).)
[Sections 564.007-564.050 reserved for expansion]
SUBCHAPTER B. PROGRAM ADMINISTRATION
Sec. 564.051. PROGRAM AUTHORIZATION; FUNDING. (a) The board may add a surcharge of not more than $10 to a license or license renewal fee authorized under this subtitle to fund a program to aid impaired pharmacists and pharmacy students.
(b) The board may accept, transfer, and spend funds from the federal or state government, from another public source, or from a private source to be used in the program authorized by this section.
(c) Funds and surcharges collected under this section shall be deposited in the account created under Section 554.007 and may be used by the board to administer the program authorized by this section, including providing for initial evaluation and referral of an impaired pharmacist or pharmacy student by a qualified health professional and paying the administrative costs incurred by the board in connection with that funding. The money may not be used for costs incurred for treatment or rehabilitation after initial evaluation and referral. (V.A.C.S. Art. 4542a-1, Secs. 27A(g), (h), (i).)
Sec. 564.052. RULES OR CRITERIA. In administering and enforcing this subchapter, the board shall adopt rules or minimum criteria that are at least as strict as the rules or minimum criteria for the administration or enforcement of a peer assistance program adopted by the Texas Commission on Alcohol and Drug Abuse under Chapter 467, Health and Safety Code. (V.A.C.S. Art. 4542a-1, Sec. 27A(k).)
CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES;
REINSTATEMENT OF LICENSE
SUBCHAPTER A. GROUNDS FOR DISCIPLINE OF APPLICANT OR
LICENSE HOLDER
Sec. 565.001. APPLICANT FOR OR HOLDER OF LICENSE TO PRACTICE
PHARMACY
Sec. 565.002. APPLICANT FOR OR HOLDER OF PHARMACY LICENSE
Sec. 565.003. ADDITIONAL GROUNDS FOR DISCIPLINE REGARDING
APPLICANT FOR OR HOLDER OF CLASS E PHARMACY
LICENSE
[Sections 565.004-565.050 reserved for expansion]
SUBCHAPTER B. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 565.051. DISCIPLINE AUTHORIZED
Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION
Sec. 565.053. DISCIPLINE OF CLASS E PHARMACY
Sec. 565.054. SERVICE OF PROCESS ON CLASS E PHARMACY
Sec. 565.055. INVESTIGATION; CONFIDENTIALITY OF
INFORMATION
Sec. 565.056. INFORMAL PROCEEDINGS
Sec. 565.057. MONITORING OF LICENSE HOLDER
Sec. 565.058. SUBPOENA AUTHORITY
Sec. 565.059. TEMPORARY SUSPENSION OF LICENSE
Sec. 565.060. APPLICANT FOR OR HOLDER OF LICENSE: CERTAIN
FELONY DRUG CONVICTIONS
Sec. 565.061. ADMINISTRATIVE PROCEDURE
Sec. 565.062. BURDEN OF PROOF
Sec. 565.063. LIABILITY
Sec. 565.064. CONSTRUCTION
[Sections 565.065-565.100 reserved for expansion]
SUBCHAPTER C. REINSTATEMENT OF LICENSE
Sec. 565.101. PETITION FOR REINSTATEMENT
Sec. 565.102. ACTION BY BOARD
Sec. 565.103. CONDITION FOR REINSTATEMENT
CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES;
REINSTATEMENT OF LICENSE
SUBCHAPTER A. GROUNDS FOR DISCIPLINE OF APPLICANT OR
LICENSE HOLDER
Sec. 565.001. APPLICANT FOR OR HOLDER OF LICENSE TO PRACTICE PHARMACY. (a) The board may discipline an applicant for or the holder of a license to practice pharmacy if the board finds that the applicant or license holder has:
(1) violated this subtitle or a board rule adopted under this subtitle;
(2) engaged in unprofessional conduct as defined by board rule;
(3) engaged in gross immorality as defined by board rule;
(4) developed an incapacity that prevents the applicant or license holder from practicing pharmacy with reasonable skill, competence, and safety to the public;
(5) engaged in fraud, deceit, or misrepresentation, as defined by board rule, in practicing pharmacy or in seeking a license to practice pharmacy;
(6) been convicted of a misdemeanor involving moral turpitude or a felony;
(7) developed a drug or alcohol dependency;
(8) failed to maintain records required by this subtitle or failed to maintain complete and accurate records of purchases or disposals of drugs listed in Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(9) violated any provision of:
(A) Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.), or rules relating to one of those laws;
(B) Section 485.031, 485.032, 485.033, 485.034, or 485.035, Health and Safety Code; or
(C) a rule adopted under Section 485.011, Health and Safety Code;
(10) aided or abetted an unlicensed person in the practice of pharmacy if the pharmacist knew or reasonably should have known that the person was unlicensed at the time;
(11) refused entry into a pharmacy for an inspection authorized by this subtitle if the pharmacist received notification from which the pharmacist knew or reasonably should have known that the attempted inspection was authorized;
(12) violated any pharmacy or drug statute or rule of this state, another state, or the United States;
(13) been negligent in the practice of pharmacy;
(14) failed to submit to an examination after hearing and being ordered to do so by the board under Section 565.052;
(15) dispensed a prescription drug while acting outside the usual course and scope of professional practice; or
(16) had a license to practice pharmacy issued by another state canceled, revoked, surrendered, or suspended for conduct substantially equivalent to conduct described under this subsection.
(b) A certified copy of the record of the state taking action described by Subsection (a)(16) is conclusive evidence of the action taken by that state. (V.A.C.S. Art. 4542a-1, Sec. 26(a) (part).)
Sec. 565.002. APPLICANT FOR OR HOLDER OF PHARMACY LICENSE. The board may discipline an applicant for or the holder of a pharmacy license if the board finds that the applicant or license holder has:
(1) been convicted of a misdemeanor involving moral turpitude or a felony or, if the applicant or license holder is a legal business entity, that a managing officer of the applicant or license holder has been convicted of a misdemeanor involving moral turpitude or a felony under the law of this state, another state, or the United States;
(2) advertised a prescription drug or device in a deceitful, misleading, or fraudulent manner;
(3) violated any provision of this subtitle or any rule adopted under this subtitle or that an owner or employee of a pharmacy has violated any provision of this subtitle or any rule adopted under this subtitle;
(4) sold without legal authorization a prescription drug or device to a person other than:
(A) a pharmacy licensed by the board;
(B) a practitioner;
(C) a person who procures a prescription drug or device for lawful research, teaching, or testing, and not for resale;
(D) a manufacturer or wholesaler licensed by the commissioner of public health as required by Chapter 431, Health and Safety Code; or
(E) a carrier or warehouseman;
(5) allowed an employee who is not a pharmacist to practice pharmacy;
(6) sold an adulterated or misbranded prescription or nonprescription drug;
(7) failed to engage in or ceased to engage in the business described in the application for a license;
(8) failed to maintain records as required by this subtitle, Chapter 481 or 483, Health and Safety Code, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.), or any rule adopted under this subtitle or Chapter 483, Health and Safety Code;
(9) failed to establish and maintain effective controls against diversion of prescription drugs into other than a legitimate medical, scientific, or industrial channel as provided by this subtitle, another state statute or rule, or a federal statute or rule; or
(10) engaged in fraud, deceit, or misrepresentation as defined by board rule in operating a pharmacy or in applying for a license to operate a pharmacy. (V.A.C.S. Art. 4542a-1, Sec. 26(b) (part).)
Sec. 565.003. ADDITIONAL GROUNDS FOR DISCIPLINE REGARDING APPLICANT FOR OR HOLDER OF CLASS E PHARMACY LICENSE. (a) The board may discipline an applicant for or the holder of a Class E pharmacy license if the board finds that the applicant or license holder has:
(1) dispensed a drug, quantity of drug, or strength of drug other than as ordered for the patient by a practitioner;
(2) labeled a prescription with incorrect directions for use;
(3) violated Section 560.001, 560.051(a)(5), 560.052(c), 561.002, 562.101(f), 562.104, 562.105, or 562.106(a), (b), or (c); or
(4) engaged in conduct that caused serious bodily injury to a resident of this state.
(b) Unless compliance would violate the pharmacy or drug statutes or rules in the state in which the pharmacy is located the board may discipline an applicant for or the holder of a Class E pharmacy license if the board finds that the applicant or license holder has failed to comply with:
(1) Section 481.074 or 481.075, Health and Safety Code;
(2) Texas substitution requirements regarding:
(A) the practitioner's directions concerning generic substitution;
(B) the patient's right to refuse generic substitution; or
(C) notification to the patient of the patient's right to refuse substitution;
(3) any board rule relating to providing drug information to the patient or the patient's agent in written form or by telephone; or
(4) any board rule adopted under Section 554.051(a) and determined by the board to be applicable under Section 554.051(b). (V.A.C.S. Art. 4542a-1, Sec. 26B(a) (part).)
[Sections 565.004-565.050 reserved for expansion]
SUBCHAPTER B. DISCIPLINARY ACTIONS AND PROCEDURES
Sec. 565.051. DISCIPLINE AUTHORIZED. (a) On a determination that a ground for discipline exists under Subchapter A, or that a violation of this subtitle or, to the extent authorized by Subsection (b), a rule adopted under this subtitle, has been committed by a license holder or applicant for a license or renewal of a license, the board may:
(1) suspend the person's license;
(2) revoke the person's license;
(3) restrict the person's license to prohibit the person from performing certain acts or from practicing pharmacy or operating a pharmacy in a particular manner for a term and under conditions determined by the board;
(4) impose an administrative penalty under Chapter 566;
(5) refuse to issue or renew the person's license;
(6) place the offender's license on probation and supervision by the board for a period determined by the board and impose a requirement that the license holder:
(A) report regularly to the board on matters that are the basis of the probation;
(B) limit practice to the areas prescribed by the board;
(C) continue or review professional education until the license holder attains a degree of skill satisfactory to the board in each area that is the basis of the probation; or
(D) pay the board a probation fee to defray the costs of monitoring the license holder during the period of probation;
(7) reprimand the person;
(8) retire the person's license as provided by board rule; or
(9) impose more than one of the sanctions listed in this subsection.
(b) On a determination that a rule of the board has been violated, the board may impose only a sanction listed in Subsection (a)(1), (3), (4), (6), or (7). This subsection does not preclude imposition of any sanction for violation of a board rule regarding a controlled substance. (V.A.C.S. Art. 4542a-1, Secs. 26B(d), 28(a), (e).)
Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION. (a) In enforcing Section 565.001(a)(4), the board on probable cause shall request a pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant to submit to a mental or physical examination by a physician or other health care professional designated by the board.
(b) If the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant refuses to submit to the examination, the board shall issue an order requiring the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant to show cause why the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant will not submit to the examination and shall schedule a hearing on the order not later than the 30th day after the date notice is served on the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant. The pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant shall be notified by either personal service or certified mail with return receipt requested.
(c) At the hearing, the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant and an attorney are entitled to present testimony or other evidence to show why the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist intern-applicant should not be required to submit to the examination.
(d) After the hearing, the board shall by order require the pharmacist, pharmacist applicant, pharmacist-intern, or pharmacist-intern applicant to submit to the examination or withdraw the request for examination. (V.A.C.S. Art. 4542a-1, Secs. 20(b) (part), 26(a) (part), (b) (part), 26B(a) (part), 34(a) (part).)
Sec. 565.053. DISCIPLINE OF CLASS E PHARMACY. (a) Except in the case of an emergency that creates an immediate danger to the public health or safety, before initiating a disciplinary action against the holder of a Class E pharmacy license, the board must file a complaint against the license holder with the regulatory or licensing agency of the state in which the pharmacy is located.
(b) The board may initiate the board's own action to discipline the holder of a Class E pharmacy license if the regulatory or licensing agency of the state in which the pharmacy is located:
(1) fails to initiate an action before the 61st day after the date the board files a complaint under this section;
(2) fails to resolve the complaint on or before the 181st day after the date the complaint is filed; or
(3) lacks or fails to exercise jurisdiction. (V.A.C.S. Art. 4542a-1, Secs. 26B(b), (c).)
Sec. 565.054. SERVICE OF PROCESS ON CLASS E PHARMACY. (a) Service of process on a Class E pharmacy under Section 565.058 or 566.051 or for disciplinary action taken by the board under Section 565.061 shall be on the owner and pharmacist-in-charge of the pharmacy, as designated on the pharmacy's license application.
(b) The complaining party shall mail by certified mail, return receipt requested and postage prepaid, a copy of the process served to the license holder at the address of the license holder designated on the license application. (V.A.C.S. Art. 4542a-1, Sec. 26C.)
Sec. 565.055. INVESTIGATION; CONFIDENTIALITY OF INFORMATION. (a) The board or the board's authorized representative may investigate and gather evidence concerning any alleged violation of this subtitle or a board rule.
(b) Information or material compiled by the board in connection with an investigation, including an investigative file of the board, is confidential and not subject to:
(1) disclosure under Chapter 552, Government Code; or
(2) any means of legal compulsion for release, including disclosure, discovery, or subpoena, to anyone other than the board or a board employee or board agent involved in discipline of a license holder.
(c) Notwithstanding Subsection (b), information or material compiled by the board in connection with an investigation may be disclosed to:
(1) a person involved with the board in a disciplinary action against the license holder;
(2) an entity in another jurisdiction that licenses or disciplines pharmacists or pharmacies;
(3) a pharmaceutical peer review committee as described under Chapter 564;
(4) a law enforcement agency; or
(5) a person engaged in bona fide research, if all information identifying a specific individual has been deleted. (V.A.C.S. Art. 4542a-1, Secs. 17(i), (q).)
Sec. 565.056. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt a procedure governing:
(1) informal disposition of a contested case under Chapter 2001, Government Code; and
(2) an informal proceeding held in compliance with Chapter 2001, Government Code.
(b) A rule adopted under this section must:
(1) provide the complainant, if applicable and permitted by law, and the license holder an opportunity to be heard; and
(2) require the presence of an attorney to advise the board or a board employee.
(c) The attorney must be a member of the board's legal staff, if the board has a legal staff. If the board does not have a legal staff, the attorney must be an employee of the office of the attorney general. (V.A.C.S. Art. 4542a-1, Sec. 17D.)
Sec. 565.057. MONITORING OF LICENSE HOLDER. (a) The board shall develop a policy and procedure for monitoring a license holder's compliance with this subtitle.
(b) A policy or procedure adopted under this section must include a procedure to:
(1) monitor for compliance a license holder who is ordered by the board to perform a certain act; and
(2) identify and monitor a license holder who represents a risk to the public. (V.A.C.S. Art. 4542a-1, Sec. 17E.)
Sec. 565.058. SUBPOENA AUTHORITY. (a) The board or an officer of the board may:
(1) issue subpoenas ad testificandum or subpoenas duces tecum to compel the attendance of witnesses or the production of items, including books, records, or documents;
(2) administer oaths; and
(3) take testimony concerning matters in the board's or officer's jurisdiction.
(b) A person designated in the subpoena may serve the subpoena. (V.A.C.S. Art. 4542a-1, Sec. 17(j).)
Sec. 565.059. TEMPORARY SUSPENSION OF LICENSE. (a) If a majority of the board determines from evidence or information presented to the board that a pharmacist by continuation in practice would constitute a continuing threat to the public welfare, the board shall temporarily suspend the pharmacist's license.
(b) The board may temporarily suspend the license without notice or hearing if, at the time the suspension is ordered, a hearing before the board on whether disciplinary proceedings under this chapter should be initiated against the license holder is scheduled to be held not later than the 14th day after the date of the suspension.
(c) A second hearing on the suspended license shall be held by the State Office of Administrative Hearings not later than the 60th day after the date of the suspension. If the State Office of Administrative Hearings does not hold the second hearing in the time required by this subsection, the suspended license is automatically reinstated. (V.A.C.S. Art. 4542a-1, Sec. 28A.)
Sec. 565.060. APPLICANT FOR OR HOLDER OF LICENSE: CERTAIN FELONY DRUG CONVICTIONS. (a) In this section:
(1) "Final conviction" means the entry of an order by a state or federal court imposing a punishment of imprisonment or a fine.
(2) "Initial order" means an order by a state or federal court granting deferred adjudication or a suspended or probated sentence based either on a finding that a person is guilty or on the entry of a plea of nolo contendere or a plea of guilty by the person.
(b) On the entry of an initial order against an applicant for or holder of a license to practice pharmacy for a felony offense under Chapter 481 or 483, Health and Safety Code, Section 485.033, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.), the board may refuse to issue a license to the applicant or suspend the license holder's license. On final conviction of the license holder for the offense, the board may revoke the license holder's license.
(c) On the entry of an initial order against an applicant for or holder of a pharmacy license under this subtitle for a felony offense under Chapter 481 or 483, Health and Safety Code, Section 485.033, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.), or against a managing officer of the applicant or license holder if the applicant or license holder is an association, joint-stock company, partnership, or corporation, the board may refuse to issue the license or may suspend the license. On the license holder's final conviction for the offense, the board may revoke the license. (V.A.C.S. Art. 4542a-1, Secs. 26A(a), (b), (d).)
Sec. 565.061. ADMINISTRATIVE PROCEDURE. (a) Except as provided by Chapter 564, a disciplinary action taken by the board under Section 565.060 or on the basis of a ground for discipline under Subchapter A is governed by Chapter 2001, Government Code, and the rules of practice and procedure before the board.
(b) A final decision of the board under this chapter is subject to judicial review under Chapter 2001, Government Code. (V.A.C.S. Art. 4542a-1, Secs. 26A(c), 27, 28(d) (part).)
Sec. 565.062. BURDEN OF PROOF. (a) In a proceeding under this subtitle, including a trial or hearing, the state is not required to negate an exemption or exception set forth by this subtitle in a pleading, including in a complaint, information, or indictment.
(b) The burden of going forward with the evidence with respect to an exemption or exception is on the person claiming the benefit of the exemption or exception.
(c) In the absence of proof that a person is the authorized holder of an appropriate license issued under this subtitle, the person is presumed not to be the holder of the license. The presumption is subject to rebuttal by a person charged with an offense under this subtitle. (V.A.C.S. Art. 4542a-1, Secs. 38(a), (b).)
Sec. 565.063. LIABILITY. This subtitle does not impose liability on an authorized board employee or person acting under the supervision of a board employee, or on a state, county, or municipal officer, engaged in the lawful enforcement of this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 38(c).)
Sec. 565.064. CONSTRUCTION. This subtitle does not bar a criminal prosecution for a violation of this subtitle if the violation is a criminal offense under another law of this state or a law of the United States. (V.A.C.S. Art. 4542a-1, Sec. 28(c).)
[Sections 565.065-565.100 reserved for expansion]
SUBCHAPTER C. REINSTATEMENT OF LICENSE
Sec. 565.101. PETITION FOR REINSTATEMENT. (a) A person whose pharmacy license or license to practice pharmacy in this state has been revoked or restricted under this subtitle, whether voluntarily or by board action, may, after the first anniversary of the effective date of the revocation or restriction, petition the board for reinstatement or removal of the restriction of the license.
(b) The petition must be in writing and in the form prescribed by the board. (V.A.C.S. Art. 4542a-1, Sec. 28(b) (part).)
Sec. 565.102. ACTION BY BOARD. (a) On investigation and review of a petition for reinstatement, the board may grant or deny the petition or may modify the board's original finding to reflect a circumstance that has changed sufficiently to warrant the modification.
(b) If the board denies the petition, the board may not consider a subsequent petition from the petitioner until the first anniversary of the date of denial of the previous petition. (V.A.C.S. Art. 4542a-1, Sec. 28(b) (part).)
Sec. 565.103. CONDITION FOR REINSTATEMENT. The board may require a person to pass one or more examinations to reenter the practice of pharmacy. (V.A.C.S. Art. 4542a-1, Sec. 28(b) (part).)
CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
Sec. 566.001. IMPOSITION OF PENALTY
Sec. 566.002. AMOUNT OF PENALTY
Sec. 566.003. NOTICE OF VIOLATION
Sec. 566.004. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 566.005. COLLECTION OF PENALTY
Sec. 566.006. DETERMINATION BY COURT
Sec. 566.007. REMITTANCE OF PENALTY AND INTEREST
Sec. 566.008. EFFECT OF SUBCHAPTER
Sec. 566.009. ADMINISTRATIVE PROCEDURE
[Sections 566.010-566.050 reserved for expansion]
SUBCHAPTER B. INJUNCTIVE RELIEF
Sec. 566.051. INJUNCTIVE RELIEF
[Sections 566.052-566.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTY
Sec. 566.101. CIVIL PENALTY
Sec. 566.102. COLLECTION BY ATTORNEY GENERAL
Sec. 566.103. COLLECTION BY DISTRICT, COUNTY, OR CITY
ATTORNEY
Sec. 566.104. VENUE
[Sections 566.105-566.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL OFFENSES
Sec. 566.151. OFFENSES; CRIMINAL PENALTY
CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
Sec. 566.001. IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this subtitle who violates this subtitle or a rule or order adopted under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 28B(a).)
Sec. 566.002. AMOUNT OF PENALTY. (a) Except as provided by this subsection, the amount of the administrative penalty may not exceed $2,500 for each violation. The amount of the administrative penalty for a violation involving the diversion of a controlled substance may not exceed $5,000 for each violation.
(b) Each day a violation continues or occurs is a separate violation for purposes of imposing the penalty.
(c) The amount, to the extent possible, shall be based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited act, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 4542a-1, Secs. 28B(b), (c).)
Sec. 566.003. NOTICE OF VIOLATION. (a) If the board by order determines that a violation occurred and imposes an administrative penalty, the board shall give notice of the board's order to the person found to have committed the violation.
(b) The notice must include a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4542a-1, Sec. 28B(e).)
Sec. 566.004. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4542a-1, Secs. 28B(f), (g), (h).)
Sec. 566.005. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4542a-1, Sec. 28B(i).)
Sec. 566.006. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred on appeal, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4542a-1, Sec. 28B(j).)
Sec. 566.007. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or is not upheld by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not upheld or order the release of the bond after the person pays the penalty imposed if the person gave a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4542a-1, Sec. 28B(k).)
Sec. 566.008. EFFECT OF SUBCHAPTER. This subchapter does not limit the board's ability to impose an administrative penalty under a consent order entered in accordance with board rules and requirements adopted under Section 565.056. (V.A.C.S. Art. 4542a-1, Sec. 28B(n).)
Sec. 566.009. ADMINISTRATIVE PROCEDURE. (a) The board by rule shall prescribe procedures, consistent with provisions of Chapter 2001, Government Code, relating to contested cases, by which the board may impose an administrative penalty.
(b) Chapter 2001, Government Code, applies to a proceeding under this subchapter. (V.A.C.S. Art. 4542a-1, Secs. 28B(d), (m).)
[Sections 566.010-566.050 reserved for expansion]
SUBCHAPTER B. INJUNCTIVE RELIEF
Sec. 566.051. INJUNCTIVE RELIEF. (a) The board may petition a district court for an injunction to prohibit a person who is violating this subtitle from continuing the violation.
(b) Venue in a suit for injunctive relief is in Travis County.
(c) After application and a finding that a person is violating this subtitle, the district court shall grant the injunctive relief the facts warrant. (V.A.C.S. Art. 4542a-1, Sec. 17(k).)
[Sections 566.052-566.100 reserved for expansion]
SUBCHAPTER C. CIVIL PENALTY
Sec. 566.101. CIVIL PENALTY. (a) A person who violates the license requirements of this subtitle is liable to the state for a civil penalty not to exceed $1,000 for each day the violation continues.
(b) A person found by the board to have unlawfully engaged in the practice of pharmacy or unlawfully operated a pharmacy is subject to a civil penalty under this section. (V.A.C.S. Art. 4542a-1, Secs. 19(g) (part), 37A(a).)
Sec. 566.102. COLLECTION BY ATTORNEY GENERAL. At the request of the board, the attorney general shall institute an action to collect a civil penalty from a person who has violated this subtitle or any rule adopted under this subtitle. (V.A.C.S. Art. 4542a-1, Sec. 37A(b).)
Sec. 566.103. COLLECTION BY DISTRICT, COUNTY, OR CITY ATTORNEY. (a) If the attorney general fails to take action before the 31st day after the date of referral from the board under Section 566.102, the board shall refer the case to the local district attorney, county attorney, or city attorney.
(b) The district attorney, county attorney, or city attorney shall file suit in a district court to collect and retain the penalty. (V.A.C.S. Art. 4542a-1, Sec. 37A(c).)
Sec. 566.104. VENUE. Venue for a suit under this subchapter is in Travis County. (V.A.C.S. Art. 4542a-1, Sec. 37A(d).)
[Sections 566.105-566.150 reserved for expansion]
SUBCHAPTER D. CRIMINAL OFFENSES
Sec. 566.151. OFFENSES; CRIMINAL PENALTY. (a) A person commits an offense if the person violates this subtitle or any rule adopted under this subtitle relating to unlawfully engaging in the practice of pharmacy or unlawfully operating a pharmacy.
(b) A person commits an offense if the person knowingly violates the licensing requirements of this subtitle or Section 558.001, 558.002, or 560.002.
(c) A person commits an offense if the person violates Section 560.001 or 560.003.
(d) Each day of violation under Subsection (b) or (c) is a separate offense.
(e) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4542a-1, Secs. 19(g) (part), 37(a), (d), (e), (f).)
CHAPTER 567. LABELING REQUIREMENTS FOR CERTAIN PRESCRIPTION
DRUGS OR DRUG PRODUCTS
Sec. 567.001. CONTENTS OF PRESCRIPTION DRUG LABEL
Sec. 567.002. APPLICABILITY OF LABEL REQUIREMENT
Sec. 567.003. OFFENSE; CRIMINAL PENALTY
CHAPTER 567. LABELING REQUIREMENTS FOR CERTAIN PRESCRIPTION
DRUGS OR DRUG PRODUCTS
Sec. 567.001. CONTENTS OF PRESCRIPTION DRUG LABEL. (a) A prescription drug or drug product manufactured and either sold or distributed to a pharmacist in this state to be subsequently dispensed to the consumer of the drug or drug product must have affixed to the label of the drug or drug product:
(1) the name and business address of the original manufacturer of the finished dosage form; and
(2) except as provided by Subsection (b), the name and business address of each repackager or distributor of the prescription drug or drug product before delivery of the prescription drug or drug product to the pharmacist.
(b) The name and business address of a distributor is not required to be affixed as prescribed by Subsection (a) if the distributor acts only as a wholesaler or supplier and does not repackage the drug or in any way modify the individual drug package or container or the contents of the package or container as received from the manufacturer, repackager, or other distributor. (V.A.C.S. Art. 4542c, Subsec. (a) (part).)
Sec. 567.002. APPLICABILITY OF LABEL REQUIREMENT. The information required under Section 567.001 is not required to be affixed to the container delivered to the patient. (V.A.C.S. Art. 4542c, Subsec. (a) (part).)
Sec. 567.003. OFFENSE; CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this chapter is a Class C misdemeanor. (V.A.C.S. Art. 4542c, Subsec. (b).)
[Chapters 568-600 reserved for expansion]
SUBTITLE K. PROFESSIONS RELATED TO USE OF CERTAIN
MEDICAL EQUIPMENT
CHAPTER 601. MEDICAL RADIOLOGIC TECHNOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 601.001. SHORT TITLE
Sec. 601.002. DEFINITIONS
[Sections 601.003-601.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 601.051. CERTIFICATION PROGRAM
Sec. 601.052. RULES
Sec. 601.053. MINIMUM STANDARDS
Sec. 601.054. APPROVAL AND REVIEW OF CURRICULA AND TRAINING
PROGRAMS
Sec. 601.055. APPROVAL AND REVIEW OF INSTRUCTOR
APPROVAL
Sec. 601.056. DANGEROUS OR HAZARDOUS PROCEDURES
Sec. 601.057. FEES
[Sections 601.058-601.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATION REQUIREMENTS
Sec. 601.101. CERTIFICATION REQUIRED
Sec. 601.102. CLASSES OF CERTIFICATES
Sec. 601.103. APPLICATION; APPLICATION FEE
Sec. 601.104. EXAMINATION
Sec. 601.105. ISSUANCE OF CERTIFICATE
Sec. 601.106. TRANSFER OF CERTIFICATE PROHIBITED
Sec. 601.107. CERTIFICATION BY ENDORSEMENT
Sec. 601.108. CONTINUING EDUCATION AND OTHER GUIDELINES
[Sections 601.109-601.150 reserved for expansion]
SUBCHAPTER D. EXEMPTIONS FROM CERTIFICATION AND REGISTRATION
REQUIREMENTS
Sec. 601.151. PRACTITIONERS
Sec. 601.152. PERSON SUPERVISED BY PRACTITIONER
Sec. 601.153. PERSON SUPERVISED BY DENTIST
Sec. 601.154. HOSPITAL PROCEDURES
Sec. 601.155. STUDENTS
Sec. 601.156. PROCEDURE PERFORMED AS PART OF CONTINUING
EDUCATION PROGRAM
[Sections 601.157-601.200 reserved for expansion]
SUBCHAPTER E. MANDATORY TRAINING FOR CERTAIN AUTHORIZED PERSONS
Sec. 601.201. MANDATORY TRAINING
Sec. 601.202. REGISTRY
Sec. 601.203. HARDSHIP EXEMPTION
[Sections 601.204-601.250 reserved for expansion]
SUBCHAPTER F. OTHER LICENSING AGENCIES; RULEMAKING AND
REGISTRATION REQUIREMENTS
Sec. 601.251. APPLICABILITY
Sec. 601.252. REQUIREMENT TO ADOPT RULES
Sec. 601.253. BOARD OF NURSE EXAMINERS
[Sections 601.254-601.300 reserved for expansion]
SUBCHAPTER G. CERTIFICATE DENIAL AND DISCIPLINARY ACTION
Sec. 601.301. CERTIFICATE DENIAL AND DISCIPLINARY ACTION
Sec. 601.302. GROUNDS FOR CERTIFICATE DENIAL OR
DISCIPLINARY ACTION
Sec. 601.303. STUDENT PRACTICING WITHOUT DIRECT
SUPERVISION
Sec. 601.304. ADMINISTRATIVE PROCEDURE
Sec. 601.305. REINSTATEMENT
[Sections 601.306-601.350 reserved for expansion]
SUBCHAPTER H. ADMINISTRATIVE PENALTY
Sec. 601.351. IMPOSITION OF PENALTY
Sec. 601.352. AMOUNT OF PENALTY
Sec. 601.353. NOTICE OF VIOLATION AND PENALTY
Sec. 601.354. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 601.355. HEARING
Sec. 601.356. DECISION BY COMMISSIONER
Sec. 601.357. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 601.358. COLLECTION OF PENALTY
Sec. 601.359. DETERMINATION BY COURT
Sec. 601.360. REMITTANCE OF PENALTY AND INTEREST
Sec. 601.361. EXPENSES AND COSTS
Sec. 601.362. ADMINISTRATIVE PROCEDURE
[Sections 601.363-601.400 reserved for expansion]
SUBCHAPTER I. ENFORCEMENT AND OTHER PENALTY PROVISIONS
Sec. 601.401. INJUNCTION; CIVIL PENALTY
Sec. 601.402. CRIMINAL OFFENSES
CHAPTER 601. MEDICAL RADIOLOGIC TECHNOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 601.001. SHORT TITLE. This chapter may be cited as the Medical Radiologic Technologist Certification Act. (V.A.C.S. Art. 4512m, Sec. 2.01.)
Sec. 601.002. DEFINITIONS. In this chapter:
(1) "Authorized person" means a person who meets or exceeds the minimum educational standards of the board under Section 601.201.
(2) "Board" means the Texas Board of Health.
(3) "Department" means the Texas Department of Health.
(4) "Direct supervision" means supervision and control by a medical radiologic technologist or a practitioner who:
(A) assumes legal liability for a student employed to perform a radiologic procedure and enrolled in a program that meets the requirements adopted under Section 601.053; and
(B) is physically present during the performance of the radiologic procedure to provide consultation or direct the action of the student.
(5) "Education program" means clinical training or any other program offered by an organization approved by the board that:
(A) has a specified objective;
(B) includes planned activities for participants; and
(C) uses an approved method for measuring the progress of participants.
(6) "Medical radiologic technologist" means a person certified under this chapter who, under the direction of a practitioner, intentionally administers radiation to another for a medical purpose. The term does not include a practitioner.
(7) "Practitioner" means a person who:
(A) is licensed in this state as a doctor of:
(i) medicine;
(ii) osteopathy;
(iii) podiatry;
(iv) dentistry; or
(v) chiropractic; and
(B) prescribes radiologic procedures for other persons.
(8) "Radiation" means ionizing radiation:
(A) in amounts beyond normal background levels; and
(B) from a source such as a medical or dental radiologic procedure.
(9) "Radiologic procedure" means a procedure or article, including a diagnostic X-ray or a nuclear medicine procedure, that:
(A) is intended for use in:
(i) the diagnosis of disease or other medical or dental conditions in humans; or
(ii) the cure, mitigation, treatment, or prevention of disease in humans; and
(B) achieves its intended purpose through the emission of radiation.
(10) "Radiologic technology" means the administration of radiation to a person for a medical purpose.
(11) "Registered nurse" means a person licensed by the Board of Nurse Examiners to practice professional nursing. (V.A.C.S. Art. 4512m, Secs. 2.03(1), (2), (3), (4), (5), (6), (11), (12), (13), (14); New.)
[Sections 601.003-601.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 601.051. CERTIFICATION PROGRAM. The bureau of licensing and compliance of the department shall administer the certification program required by this chapter. (V.A.C.S. Art. 4512m, Sec. 2.06.)
Sec. 601.052. RULES. The board may adopt rules necessary to implement this chapter. (V.A.C.S. Art. 4512m, Sec. 2.05(e).)
Sec. 601.053. MINIMUM STANDARDS. The board by rule shall establish minimum standards for:
(1) issuing, renewing, suspending, or revoking a certificate issued under this chapter;
(2) approving curricula and education programs to train individuals, registered nurses, and physician assistants to perform radiologic procedures;
(3) approving instructors to teach approved curricula or education programs to train individuals to perform radiologic procedures; and
(4) rescinding an approval described by Subdivision (2) or (3). (V.A.C.S. Art. 4512m, Sec. 2.05(a) (part).)
Sec. 601.054. APPROVAL AND REVIEW OF CURRICULA AND TRAINING PROGRAMS. (a) An applicant for approval of a curriculum or training program must apply to the department on a form and under rules adopted by the board.
(b) The department shall approve a curriculum or training program that meets the minimum standards adopted under Section 601.053. The department may review the approval annually.
(c) The board may set a fee for approval of a curriculum or training program not to exceed the estimated amount that the department projects to be required for the evaluation of the curriculum or training program. (V.A.C.S. Art. 4512m, Sec. 2.09(b).)
Sec. 601.055. APPROVAL AND REVIEW OF INSTRUCTOR APPROVAL. (a) An applicant for approval of an instructor must apply to the department on a form and under rules adopted by the board.
(b) The department shall approve an instructor who meets the minimum standards adopted under Section 601.053. The department may review the approval annually. (V.A.C.S. Art. 4512m, Sec. 2.09(c).)
Sec. 601.056. DANGEROUS OR HAZARDOUS PROCEDURES. (a) The board with the assistance of other appropriate state agencies shall identify by rule radiologic procedures, other than radiologic procedures described by Subsection (c), that are dangerous or hazardous and that may be performed only by a practitioner or a medical radiologic technologist certified under this chapter.
(b) In adopting rules under Subsection (a), the board may consider whether the radiologic procedure will be performed by a registered nurse or a licensed physician assistant.
(c) Subsection (a) does not apply to a radiologic procedure involving a dental X-ray machine, including a panarex or other equipment designed and manufactured only for use in dental radiography. (V.A.C.S. Art. 4512m, Secs. 2.05(g), (h), (k).)
Sec. 601.057. FEES. The board may set fees for examination, certificate issuance, and certificate renewal in amounts that are reasonable to cover the costs of administering this chapter without the use of additional general revenue. (V.A.C.S. Art. 4512m, Sec. 2.09(d).)
[Sections 601.058-601.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATION REQUIREMENTS
Sec. 601.101. CERTIFICATION REQUIRED. A person may not perform a radiologic procedure unless the person holds a certificate issued under this chapter, except as otherwise provided by Subchapter D. (V.A.C.S. Art. 4512m, Sec. 2.07(a).)
Sec. 601.102. CLASSES OF CERTIFICATES. (a) The board shall establish classes of certificates to include all radiologic procedures used in the course and scope of the practice of practitioners licensed in this state.
(b) The board may issue to a person:
(1) a general certificate to perform radiologic procedures; or
(2) a limited certificate that authorizes the person to perform radiologic procedures only on specific parts of the human body.
(c) The board may issue to a person a temporary general certificate or a temporary limited certificate that authorizes the person to perform radiologic procedures for a period not to exceed one year. (V.A.C.S. Art. 4512m, Secs. 2.03(8), (9), (10); 2.05(b).)
Sec. 601.103. APPLICATION; APPLICATION FEE. An applicant for a certificate under this chapter must:
(1) apply to the department on a form and under rules adopted by the board; and
(2) submit with the application a nonrefundable application fee in an amount determined by the board. (V.A.C.S. Art. 4512m, Sec. 2.09(a) (part).)
Sec. 601.104. EXAMINATION. The board may prepare and conduct an examination for applicants for a certificate. (V.A.C.S. Art. 4512m, Sec. 2.05(d) (part).)
Sec. 601.105. ISSUANCE OF CERTIFICATE. (a) The department shall issue a certificate to an applicant who meets the minimum standards for certification established under Section 601.053.
(b) A certificate is valid for a period established by the board. (V.A.C.S. Art. 4512m, Sec. 2.09(a) (part).)
Sec. 601.106. TRANSFER OF CERTIFICATE PROHIBITED. A certificate issued under this chapter is not transferable. (V.A.C.S. Art. 4512m, Sec. 2.12.)
Sec. 601.107. CERTIFICATION BY ENDORSEMENT. In adopting minimum standards for certifying medical radiologic technologists, the board may establish criteria for issuing a certificate to a person licensed or otherwise registered as a medical radiologic technologist by the American Registry of Radiologic Technologists, the American Registry of Clinical Radiography Technologists, or another state whose requirements for licensure or registration were on the date of licensing or registration substantially equal to the requirements of this chapter. (V.A.C.S. Art. 4512m, Sec. 2.05(c).)
Sec. 601.108. CONTINUING EDUCATION AND OTHER GUIDELINES. The board may establish guidelines, including guidelines that require continuing education for medical radiologic technologists. (V.A.C.S. Art. 4512m, Sec. 2.05(d) (part).)
[Sections 601.109-601.150 reserved for expansion]
SUBCHAPTER D. EXEMPTIONS FROM CERTIFICATION AND REGISTRATION
REQUIREMENTS
Sec. 601.151. PRACTITIONERS. A person is not required to hold a certificate issued under this chapter to perform a radiologic procedure if the person is a practitioner and performs the procedure in the course and scope of the profession for which the person holds a license. (V.A.C.S. Art. 4512m, Sec. 2.07(b).)
Sec. 601.152. PERSON SUPERVISED BY PRACTITIONER. A person is not required to hold a certificate issued under this chapter to perform a radiologic procedure if:
(1) the person performs the procedure under the instruction or direction of a practitioner; and
(2) the person and the practitioner comply with rules adopted under Section 601.252. (V.A.C.S. Art. 4512m, Sec. 2.07(c).)
Sec. 601.153. PERSON SUPERVISED BY DENTIST. A person is not required to hold a certificate issued under this chapter to perform a radiologic procedure if:
(1) the procedure is performed under the supervision of a dentist; and
(2) the person:
(A) is registered with the State Board of Dental Examiners; and
(B) complies with rules adopted by that board under Section 601.252. (V.A.C.S. Art. 4512m, Sec. 2.07(g).)
Sec. 601.154. HOSPITAL PROCEDURES. A person is not required to hold a certificate issued under this chapter to perform a radiologic procedure in a hospital if:
(1) the hospital participates in the federal Medicare program or is accredited by the Joint Commission on Accreditation of Hospitals; and
(2) the person has completed a training program approved by the board under Section 601.201. (V.A.C.S. Art. 4512m, Sec. 2.07(d).)
Sec. 601.155. STUDENTS. A person is not required to hold a certificate issued under this chapter or to comply with the registration requirements adopted under Section 601.252 if the person:
(1) is a student enrolled in a training program that meets the minimum standards adopted under Section 601.201; and
(2) is performing a radiologic procedure in an academic or clinical setting as part of the training program. (V.A.C.S. Art. 4512m, Sec. 2.07(e).)
Sec. 601.156. PROCEDURE PERFORMED AS PART OF CONTINUING EDUCATION PROGRAM. A person is not required to hold a certificate issued under this chapter or to comply with the registration requirements adopted under Section 601.252 if the person is:
(1) licensed or otherwise registered as a medical radiologic technologist by another state, the American Registry of Radiologic Technologists, the American Registry of Clinical Radiography Technologists, or a professional organization or association recognized by the board;
(2) enrolled in a continuing education program that meets the requirements adopted under Section 601.108; and
(3) performing a radiologic procedure as part of the continuing education program for not more than 10 days. (V.A.C.S. Art. 4512m, Sec. 2.07(f).)
[Sections 601.157-601.200 reserved for expansion]
SUBCHAPTER E. MANDATORY TRAINING FOR CERTAIN AUTHORIZED PERSONS
Sec. 601.201. MANDATORY TRAINING. (a) The minimum standards of the board for approval of a curriculum or an education program under Section 601.053 must include mandatory training guidelines for a person, other than a practitioner or a medical radiologic technologist, who intentionally uses radiologic technology, including a person who does not hold a certificate issued under this chapter and who is performing a radiologic procedure at a hospital or under the direction of a practitioner, other than a dentist.
(b) The training program approved by the board must contain an appropriate number of hours of education that must be completed before the person may perform a radiologic procedure. (V.A.C.S. Art. 4512m, Sec. 2.05(f).)
Sec. 601.202. REGISTRY. The board by rule shall establish a registry of persons required to comply with this subchapter. (V.A.C.S. Art. 4512m, Sec. 2.05(a) (part).)
Sec. 601.203. HARDSHIP EXEMPTION. (a) On application to the department by a hospital, a federally qualified health center as defined by 42 U.S.C. Section 1396d, or a practitioner, the department shall exempt the applicant from the requirements of Section 601.201 in employing a person certified under this chapter or trained as required by Section 601.201 if the applicant shows a hardship in employing a person certified under this chapter or trained as required by Section 601.201.
(b) The following conditions are considered to be a hardship for the purposes of Subsection (a):
(1) that the applicant reports an inability to attract and retain medical radiologic technologists;
(2) that the applicant is located at a great distance from a school of medical radiologic technology;
(3) that there is a list of qualified persons who have applied to a school of medical radiologic technology whose admissions are pending because of a lack of faculty or space;
(4) that the school of medical radiologic technology produces an insufficient number of graduates in medical radiologic technology to meet the needs of the applicant; or
(5) any other criteria determined by department rule. (V.A.C.S. Art. 4512m, Secs. 2.05(i), (j).)
[Sections 601.204-601.250 reserved for expansion]
SUBCHAPTER F. OTHER LICENSING AGENCIES; RULEMAKING AND
REGISTRATION REQUIREMENTS
Sec. 601.251. APPLICABILITY. This subchapter applies to the:
(1) Board of Nurse Examiners;
(2) Texas Board of Chiropractic Examiners;
(3) State Board of Dental Examiners;
(4) Texas State Board of Medical Examiners; and
(5) Texas State Board of Podiatric Medical Examiners. (V.A.C.S. Art. 4512m, Sec. 2.08(a).)
Sec. 601.252. REQUIREMENT TO ADOPT RULES. (a) Each agency subject to this subchapter, other than the Board of Nurse Examiners, shall adopt rules to regulate the manner in which a person who holds a license issued by the agency may order, instruct, or direct another authorized person in the performance of a radiologic procedure.
(b) Rules adopted under Subsection (a) must allow a practitioner the right to delegate certain designated radiologic procedures to a person not certified under this chapter if the delegation is allowed by the regulatory board that licenses the practitioner.
(c) Rules adopted under this section must:
(1) require an authorized person, other than a registered nurse, to register with the agency that licenses the practitioner under whom the person performs radiologic procedures;
(2) establish reasonable and necessary fees to cover the administrative costs incurred by the agency in administering a registration program created under this subsection;
(3) establish grounds for the suspension, revocation, or nonrenewal of a registration issued under this subsection; and
(4) establish standards, in addition to those required by this chapter, for training and supervising the operators of the equipment.
(d) In adopting rules under Subsection (c), an agency may take into account whether the radiologic procedure will be performed by a registered nurse. (V.A.C.S. Art. 4512m, Secs. 2.08(b), (c), (d).)
Sec. 601.253. BOARD OF NURSE EXAMINERS. (a) The Board of Nurse Examiners may adopt rules governing registered nurses performing radiologic procedures under Section 601.151 or 601.154 and shall require registered nurses performing radiologic procedures under Section 601.151 to register with the Board of Nurse Examiners and to identify the practitioner ordering the procedures.
(b) The Board of Nurse Examiners shall notify the agency licensing the practitioner that the nurse has registered under this section. (V.A.C.S. Art. 4512m, Sec. 2.08(e).)
[Sections 601.254-601.300 reserved for expansion]
SUBCHAPTER G. CERTIFICATE DENIAL AND DISCIPLINARY ACTION
Sec. 601.301. CERTIFICATE DENIAL AND DISCIPLINARY ACTION. The department may, for a violation of this chapter or a rule adopted under this chapter:
(1) suspend, revoke, or refuse to renew a certificate;
(2) rescind approval of a curriculum, training program, or instructor;
(3) deny an application for certification or approval;
(4) issue a reprimand; or
(5) place the offender's certificate on probation and require compliance with a requirement of the department, including requiring the offender to:
(A) submit to medical or psychological treatment;
(B) meet additional education requirements;
(C) pass an examination; or
(D) work under the supervision of a medical radiologic technologist or other practitioner. (V.A.C.S. Art. 4512m, Sec. 2.11(a) (part).)
Sec. 601.302. GROUNDS FOR CERTIFICATE DENIAL OR DISCIPLINARY ACTION. The department may take action under Section 601.301 against a person subject to this chapter for:
(1) obtaining or attempting to obtain a certificate issued under this chapter by bribery or fraud;
(2) making or filing a false report or record made in the person's capacity as a medical radiologic technologist;
(3) intentionally or negligently failing to file a report or record required by law;
(4) intentionally obstructing or inducing another to intentionally obstruct the filing of a report or record required by law;
(5) engaging in unprofessional conduct, including the violation of the standards of practice of radiologic technology established by the board;
(6) developing an incapacity that prevents the practice of radiologic technology with reasonable skill, competence, and safety to the public as the result of:
(A) an illness;
(B) drug or alcohol dependency; or
(C) another physical or mental condition or illness;
(7) failing to report to the department the violation of this chapter by another person;
(8) employing, for the purpose of applying ionizing radiation to a person, a person who is not certified under or in compliance with this chapter;
(9) violating this chapter, a rule adopted under this chapter, an order of the department previously entered in a disciplinary proceeding, or an order to comply with a subpoena issued by the department;
(10) having a certificate revoked, suspended, or otherwise subjected to adverse action or being denied a certificate by another certification authority in another state, territory, or country; or
(11) being convicted of or pleading nolo contendere to a crime directly related to the practice of radiologic technology. (V.A.C.S. Art. 4512m, Sec. 2.11(c).)
Sec. 601.303. STUDENT PRACTICING WITHOUT DIRECT SUPERVISION. The department may take disciplinary action against a student for intentionally practicing radiologic technology without direct supervision. (V.A.C.S. Art. 4512m, Sec. 2.11(f).)
Sec. 601.304. ADMINISTRATIVE PROCEDURE. The procedure by which the department takes a disciplinary action and the procedure by which a disciplinary action is appealed are governed by:
(1) department rules for a contested case hearing; and
(2) Chapter 2001, Government Code. (V.A.C.S. Art. 4512m, Sec. 2.11(b).)
Sec. 601.305. REINSTATEMENT. (a) A person subject to disciplinary action under Section 601.302(6) shall, at reasonable intervals, be given an opportunity to demonstrate that the person is able to resume the practice of radiologic technology.
(b) The board may not reinstate a certificate to a holder or issue a certificate to an applicant previously denied a certificate unless the board is satisfied that the holder or applicant has complied with requirements set by the board and is capable of engaging in the practice of radiologic technology. (V.A.C.S. Art. 4512m, Secs. 2.11(d), (e).)
[Sections 601.306-601.350 reserved for expansion]
SUBCHAPTER H. ADMINISTRATIVE PENALTY
Sec. 601.351. IMPOSITION OF PENALTY. The department may impose an administrative penalty against a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512m, Sec. 2.15(a).)
Sec. 601.352. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day of a continuing violation is a separate violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 4512m, Secs. 2.15(b), (c), (e) (part).)
Sec. 601.353. NOTICE OF VIOLATION AND PENALTY. (a) If, after investigating a possible violation and the facts surrounding that possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person alleged to have committed the violation.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512m, Sec. 2.15(e) (part).)
Sec. 601.354. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the department's determination, including the proposed administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the department's determination, the commissioner of public health or that commissioner's designee by order shall approve the determination and impose the proposed penalty. (V.A.C.S. Art. 4512m, Secs. 2.15(f), (g).)
Sec. 601.355. HEARING. (a) If the person timely requests a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the commissioner of public health or that commissioner's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4512m, Secs. 2.15(h), (i).)
Sec. 601.356. DECISION BY COMMISSIONER. (a) Based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the commissioner of public health or the commissioner's designee by order may determine that:
(1) a violation has occurred and may impose an administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512m, Secs. 2.15(j), (k).)
Sec. 601.357. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date on which the order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail.
(c) If the department receives a copy of an affidavit as provided by Subsection (b)(2), the department may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512m, Secs. 2.15(l), (m), (n).)
Sec. 601.358. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection. (V.A.C.S. Art. 4512m, Sec. 2.15(o).)
Sec. 601.359. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512m, Sec. 2.15(q).)
Sec. 601.360. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person by the department if the person paid the penalty under Section 601.357(a)(2); or
(2) if the person paid the penalty under Section 601.357(b)(1)(A) or posted a supersedeas bond, order the department to:
(A) execute a complete release of the escrow account or bond, as appropriate, if the penalty is not imposed; or
(B) release the escrow account or bond, as appropriate, after the reduced penalty has been paid from the account or by the person.
(b) The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512m, Sec. 2.15(r).)
Sec. 601.361. EXPENSES AND COSTS. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(b) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the commissioner of public health or that commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of the expenses and costs.
(c) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs. (V.A.C.S. Art. 4512m, Secs. 2.15(t), (u), (v).)
Sec. 601.362. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512m, Sec. 2.15(d).)
[Sections 601.363-601.400 reserved for expansion]
SUBCHAPTER I. ENFORCEMENT AND OTHER PENALTY PROVISIONS
Sec. 601.401. INJUNCTION; CIVIL PENALTY. (a) If it appears that a person has violated, is violating, or is threatening to violate this chapter or a rule adopted under this chapter, the board or the department may bring an action to enjoin the continued or threatened violation.
(b) A person who violates this chapter or a rule adopted under this chapter is subject to a civil penalty in an amount not to exceed $1,000 for each day of violation.
(c) At the request of the board or the department, the attorney general shall bring an action in the name of the state for the injunctive relief, to recover the civil penalty, or both. (V.A.C.S. Art. 4512m, Sec. 2.14.)
Sec. 601.402. CRIMINAL OFFENSES. (a) A person who is required to be certified under this chapter commits an offense if the person:
(1) knowingly administers a radiologic procedure to another person without holding a valid certificate issued by the department;
(2) practices radiologic technology without holding a certificate under this chapter;
(3) uses or attempts to use a suspended or revoked certificate;
(4) knowingly allows a student enrolled in an education program to perform a radiologic procedure without direct supervision;
(5) obtains or attempts to obtain a certificate through bribery or fraudulent misrepresentation;
(6) uses the title or name "certified medical radiologic technologist" or any other name or title that implies the person is certified to practice radiologic technology, unless the person is certified under this chapter;
(7) knowingly conceals information relating to enforcement of this chapter or a rule adopted under this chapter; or
(8) employs a person not certified by or in compliance with this chapter for the purpose of applying ionizing radiation to a person.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4512m, Sec. 2.13.)
CHAPTER 602. MEDICAL PHYSICISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 602.001. SHORT TITLE
Sec. 602.002. DEFINITIONS
[Sections 602.003-602.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF LICENSURE FOR
PROFESSIONAL MEDICAL PHYSICISTS
Sec. 602.051. BOARD
Sec. 602.052. APPOINTMENT OF BOARD MEMBERS
Sec. 602.053. BOARD MEMBERSHIP; ELIGIBILITY
Sec. 602.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 602.055. TERMS; VACANCY
Sec. 602.056. GROUNDS FOR REMOVAL
Sec. 602.057. COMPENSATION
Sec. 602.058. BOARD OFFICERS; MEETINGS
[Sections 602.059-602.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND PERSONNEL
Sec. 602.101. EXECUTIVE SECRETARY
Sec. 602.102. EXECUTIVE SECRETARY POWERS AND DUTIES
Sec. 602.103. PERSONNEL AND FACILITIES
[Sections 602.104-602.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 602.151. GENERAL POWERS AND DUTIES
Sec. 602.152. CONSUMER INTEREST INFORMATION; COMPLAINTS
Sec. 602.153. CONTINUING EDUCATION
[Sections 602.154-602.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 602.201. LICENSE REQUIRED; SPECIALTY LICENSE
Sec. 602.202. EXEMPTIONS FROM LICENSE REQUIREMENT
Sec. 602.203. LICENSE APPLICATION
Sec. 602.204. BOARD CONSIDERATION OF APPLICATION
Sec. 602.205. TEMPORARY LICENSE
Sec. 602.206. EXAMINATION
Sec. 602.207. ELIGIBILITY FOR EXAMINATION
Sec. 602.208. EXAMINATION RESULTS; REEXAMINATION
Sec. 602.209. LICENSE ISSUANCE
Sec. 602.210. LICENSE TERM AND RENEWAL
Sec. 602.211. LICENSE BY ENDORSEMENT
Sec. 602.212. LICENSE HOLDER DUTIES
[Sections 602.213-602.250 reserved for expansion]
SUBCHAPTER F. LICENSE DENIAL AND DISCIPLINARY ACTION
Sec. 602.251. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY
ACTION
Sec. 602.252. ADMINISTRATIVE PROCEDURE
[Sections 602.253-602.300 reserved for expansion]
SUBCHAPTER G. ENFORCEMENT
Sec. 602.301. INJUNCTION
Sec. 602.302. OFFENSE
CHAPTER 602. MEDICAL PHYSICISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 602.001. SHORT TITLE. This chapter may be cited as the Medical Physics Practice Act. (V.A.C.S. Art. 4512n, Sec. 1.)
Sec. 602.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Licensure for Professional Medical Physicists in the Texas Department of Health.
(2) "Department" means the Texas Department of Health.
(3) "Diagnostic radiological physics" means the branch of medical physics that deals with:
(A) the diagnostic application of:
(i) roentgen rays;
(ii) gamma rays from sealed sources;
(iii) ultrasonic radiation; or
(iv) radiofrequency radiation; and
(B) the use of equipment associated with the production and use of those types of radiation.
(4) "License" means a certificate issued by the board that authorizes the holder to engage in the practice of medical physics.
(5) "Licensed medical physicist" means a person who holds a license.
(6) "Medical health physics" means the branch of medical physics that deals with the safe use of roentgen rays, gamma rays, electron or other charged particle beams, neutrons, radionuclides, and radiation from sealed radionuclide sources for both diagnostic and therapeutic purposes in humans and the use of equipment required to perform appropriate radiation tests and measurements.
(7) "Medical nuclear physics" means the branch of medical physics that deals with:
(A) the therapeutic and diagnostic application of radionuclides, except those used in sealed sources for therapeutic purposes; and
(B) the use of equipment associated with the production and use of radionuclides.
(8) "Medical physics" means the branch of physics that is associated with the practice of medicine, including the field of radiological physics.
(9) "Practice of medical radiological physics" means the use of principles and accepted protocols of physics to assure the correct quality, quantity, and placement of radiation during the performance of a radiological procedure prescribed by a practitioner that will protect the patient and others from harmful excessive radiation. The term includes:
(A) radiation beam calibration and characterization;
(B) quality assurance;
(C) instrument specification;
(D) acceptance testing;
(E) shielding design;
(F) protection analysis on radiation-emitting equipment and radiopharmaceuticals; and
(G) consultation with a physician to assure accurate radiation dosage to a specific patient.
(10) "Practitioner" means a person who:
(A) is licensed in this state as a doctor of:
(i) medicine;
(ii) osteopathy;
(iii) podiatry;
(iv) dentistry; or
(v) chiropractic; and
(B) prescribes radiologic procedures for other persons.
(11) "Radiation" means ionizing or nonionizing radiation above background levels used to perform a diagnostic or therapeutic medical or dental radiological procedure.
(12) "Radiological physics" means the branch of medical physics that includes:
(A) diagnostic radiological physics;
(B) medical health physics;
(C) medical nuclear physics; and
(D) therapeutic radiological physics.
(13) "Radiological procedure" means a test, measurement, calculation, or radiation exposure that:
(A) is used to diagnose or treat a disease or another human medical or dental condition; and
(B) includes the use of:
(i) diagnostic radiation;
(ii) nuclear magnetic resonance;
(iii) nuclear medicine procedures; or
(iv) therapeutic radiation.
(14) "Therapeutic radiological physics" means the branch of medical physics that deals with:
(A) the therapeutic application of:
(i) roentgen rays;
(ii) gamma rays;
(iii) electron and other charged particle beams;
(iv) neutrons; or
(v) radiation from a radionuclide source; and
(B) the use of equipment associated with the production and use of those types of radiation. (V.A.C.S. Art. 4512n, Sec. 3.)
[Sections 602.003-602.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF LICENSURE FOR
PROFESSIONAL MEDICAL PHYSICISTS
Sec. 602.051. BOARD. The Texas Board of Licensure for Professional Medical Physicists is the division of the department responsible for regulating the practice of medical physics. (V.A.C.S. Art. 4512n, Sec. 4.)
Sec. 602.052. APPOINTMENT OF BOARD MEMBERS. (a) The board consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) five licensed medical physicists, with at least one board certified representative of each of the following specialties:
(A) diagnostic radiological physics;
(B) medical health physics;
(C) medical nuclear physics; and
(D) therapeutic radiological physics;
(2) three physicians, with a board certified representative of each of the following specialties:
(A) diagnostic radiology;
(B) nuclear medicine; and
(C) radiation therapy; and
(3) one member who represents the public.
(b) The governor shall appoint the board's medical physicist members from lists of candidates who have practiced medical physics for the period prescribed by Section 602.053(b) submitted by specialty from the following groups on the governor's request:
(1) the Southwest Chapter of the American Association of Physicists in Medicine;
(2) Region VIII of the American College of Medical Physics;
(3) the South Texas Chapter of the Health Physics Society;
(4) the Southwestern Chapter of the Society of Nuclear Medicine; and
(5) the Texas Radiological Society.
(c) The governor shall appoint the board's physician members from lists of candidates who have practiced medicine in the designated specialties for the period prescribed by Section 602.053(c) submitted by specialty from the following groups on the governor's request:
(1) the Southwestern Chapter of the Society of Nuclear Medicine; and
(2) the Texas Radiological Society.
(d) Appointments to the board shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. (V.A.C.S. Art. 4512n, Secs. 5(a), (b), (c), (d).)
Sec. 602.053. BOARD MEMBERSHIP; ELIGIBILITY. (a) A board member must be a United States citizen.
(b) A medical physicist board member must be a resident of the state for a period of not less than four years before appointment and must have practiced medical physics for not less than six years preceding appointment.
(c) A physician board member must be licensed to practice medicine in the state and must have practiced a specialty listed by Section 602.052(a)(2) for not less than four years preceding appointment. The appropriate specialty boards for nuclear medicine are the American Board of Nuclear Medicine and the American Board of Radiology.
(d) The public board member must be a resident of the state for a period of not less than four years preceding appointment and may not have a financial interest in an endeavor related to the practice of medical physics. (V.A.C.S. Art. 4512n, Secs. 7(a), (b), (c), (d).)
Sec. 602.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. A person may not serve as a member of the board or act as general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code. (V.A.C.S. Art. 4512n, Sec. 7(e).)
Sec. 602.055. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms. The terms of three members expire on February 1 of each odd-numbered year.
(b) A person is not eligible to serve more than one consecutive six-year term. A person may serve consecutively one six-year term and a shorter term that arises because of filling an unexpired vacancy.
(c) If a vacancy occurs on the board, the governor shall appoint a person to serve for the unexpired term. (V.A.C.S. Art. 4512n, Secs. 5(e), (f); 6.)
Sec. 602.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member does not:
(1) have at the time of appointment the qualifications required by Section 602.053 for appointment to the board;
(2) maintain during service on the board the qualifications required by Section 602.053 for appointment to the board; or
(3) attend at least half of the regularly scheduled board meetings held in a calendar year, excluding meetings held while the person was not a board member.
(b) A board action taken while a ground for removal of a member of the board exists is not invalid for that reason. (V.A.C.S. Art. 4512n, Sec. 8.)
Sec. 602.057. COMPENSATION. A member of the board is entitled to a per diem in an amount set by the legislature for each day that the member engages in the business of the board. (V.A.C.S. Art. 4512n, Sec. 9.)
Sec. 602.058. BOARD OFFICERS; MEETINGS. (a) At the first regularly scheduled meeting of each calendar year, the board shall elect from its members a presiding officer and an assistant presiding officer.
(b) The board shall hold a meeting at least once a year and at other times in accordance with board rule. (V.A.C.S. Art. 4512n, Sec. 10.)
[Sections 602.059-602.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND PERSONNEL
Sec. 602.101. EXECUTIVE SECRETARY. The commissioner of health, after consulting with the board, shall designate an employee of the department to serve as the board's executive secretary. (V.A.C.S. Art. 4512n, Sec. 12(a) (part).)
Sec. 602.102. EXECUTIVE SECRETARY POWERS AND DUTIES. (a) The executive secretary shall:
(1) administer the board's licensing activities;
(2) keep full and accurate minutes of the board's transactions and procedures;
(3) act as custodian of the board's records;
(4) prepare and recommend to the board plans and procedures necessary to implement this chapter, including rules and proposals on administrative procedures consistent with this chapter;
(5) exercise general supervision over persons employed by the department in the administration of this chapter;
(6) be responsible for complaint investigations and for presentation of formal complaints;
(7) attend all board meetings;
(8) manage the board's correspondence;
(9) make or arrange for necessary inspections and investigations;
(10) obtain or prepare reports and information as directed or authorized by the board; and
(11) perform other duties prescribed by this chapter and the department.
(b) The executive secretary is not entitled to vote at board meetings. (V.A.C.S. Art. 4512n, Sec. 12(a) (part).)
Sec. 602.103. PERSONNEL AND FACILITIES. (a) The department shall provide the basic personnel and facilities required to administer this chapter. The department personnel administering this chapter act as agents of the board.
(b) The department by agreement may secure services the department considers necessary and may provide for compensation for those services.
(c) Within available appropriations, the department may employ and compensate, on a full-time or part-time basis, the professional consultants, technical assistants, and employees necessary to administer this chapter. (V.A.C.S. Art. 4512n, Sec. 12(b).)
[Sections 602.104-602.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 602.151. GENERAL POWERS AND DUTIES. The board shall:
(1) adopt and revise, with the department's approval, rules reasonably necessary to properly perform its duties under this chapter;
(2) adopt an official seal;
(3) determine the qualifications and fitness of each applicant for a license or license renewal;
(4) charge a fee, in an amount necessary to cover the costs incurred by the board in administering this chapter, for processing and issuing or renewing a license;
(5) conduct examinations for licensure;
(6) issue, deny, renew, revoke, and suspend licenses;
(7) adopt and publish a code of ethics; and
(8) conduct hearings on complaints concerning violations of this chapter or rules adopted under this chapter. (V.A.C.S. Art. 4512n, Sec. 11(a) (part).)
Sec. 602.152. CONSUMER INTEREST INFORMATION; COMPLAINTS. (a) The board shall prepare information of consumer interest describing the regulatory functions of the board and the procedures by which complaints are filed with and resolved by the board.
(b) The board shall maintain a file on each complaint filed showing the status and final disposition of the complaint. (V.A.C.S. Art. 4512n, Sec. 11(a) (part).)
Sec. 602.153. CONTINUING EDUCATION. The board may prepare and administer an optional continuing education program for persons licensed by the board. (V.A.C.S. Art. 4512n, Sec. 11(b).)
[Sections 602.154-602.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 602.201. LICENSE REQUIRED; SPECIALTY LICENSE. (a) A person may not practice medical physics without a license.
(b) A medical physicist may not practice the following specialties unless the person holds a license for that specialty:
(1) diagnostic radiological physics;
(2) medical health physics;
(3) medical nuclear physics; or
(4) therapeutic radiological physics. (V.A.C.S. Art. 4512n, Sec. 13.)
Sec. 602.202. EXEMPTIONS FROM LICENSE REQUIREMENT. This chapter does not apply to:
(1) a practitioner engaged in the performance of radiological procedures;
(2) a person certified as a medical radiological technologist practicing under Chapter 601;
(3) a person who performs radiological procedures under a practitioner's instruction or supervision;
(4) a person performing beam calibration and characterization, quality assurance, instrument specification, acceptance testing, shielding design, or protection analysis on radiation-emitting equipment or radiopharmaceuticals for procedures not involved with the diagnosis or treatment of a disease or another human medical or dental condition; or
(5) a person who is:
(A) employed by a state or federal regulatory agency; and
(B) performing duties in the scope of the person's employment. (V.A.C.S. Art. 4512n, Sec. 24.)
Sec. 602.203. LICENSE APPLICATION. (a) A person may apply for a license by filing an application with the board.
(b) An application must be on a form prescribed by the board and must include:
(1) evidence of relevant work experience, including a description of the duties performed;
(2) an official transcript from the college or university granting the applicant's degree;
(3) a statement of the medical physics specialty for which the application is submitted;
(4) three professional references; and
(5) any additional information required by board rule.
(c) The applicant must submit with the application the fee prescribed by the board.
(d) The board or the executive secretary may require an applicant to appear before the board or secretary to present additional information in support of the application. (V.A.C.S. Art. 4512n, Secs. 14(a), (b), (c).)
Sec. 602.204. BOARD CONSIDERATION OF APPLICATION. (a) The presiding officer of the board shall review each completed license application received by the board and shall prepare and circulate among board members a summary of the application and a recommendation for board action.
(b) The board may reject, approve, or withdraw, or suspend consideration of, the application until the board receives the results of an examination taken under Section 602.206.
(c) A license applicant may, before the board issues or renews a license, request in writing that the board withdraw its consideration of the application. The board shall retain the applicant's application and fee. To reapply, the applicant must submit a new application and fee.
(d) The board by rule shall establish procedures and requirements for an appeal to review the board's decision on a license application. (V.A.C.S. Art. 4512n, Secs. 14(d), (e), (f).)
Sec. 602.205. TEMPORARY LICENSE. The board may issue a temporary license to an applicant who has satisfied the educational requirements for a license but who has not yet completed the experience and examination requirements of Section 602.207. (V.A.C.S. Art. 4512n, Sec. 26.)
Sec. 602.206. EXAMINATION. (a) The board shall administer a written examination for a license to qualified applicants at least two times each year.
(b) Each applicant shall take the examination for the medical physics specialty requested by the applicant in the license application. (V.A.C.S. Art. 4512n, Sec. 16(a).)
Sec. 602.207. ELIGIBILITY FOR EXAMINATION. (a) To be eligible to take an examination for a license, an applicant must:
(1) have a master's or doctoral degree from an accredited college or university that signifies the completion of courses approved by the board in physics, medical physics, biophysics, radiological physics, medical health physics, or equivalent courses;
(2) have demonstrated, to the board's satisfaction, completion of at least two years of full-time work experience in the five years preceding the date of application in the medical physics specialty for which application is made; and
(3) submit a completed application as required by Section 602.203.
(b) Work experience in more than one specialty must include six additional months for each additional specialty. (V.A.C.S. Art. 4512n, Sec. 15.)
Sec. 602.208. EXAMINATION RESULTS; REEXAMINATION. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national or state testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the board learns that the notice of the examination results will be delayed for more than 90 days after the examination date, the board shall notify each examinee of the reason for the delay not later than the 90th day.
(c) If requested by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination.
(d) The board by rule shall establish procedures and requirements for reexamination of an applicant who fails the examination. (V.A.C.S. Art. 4512n, Secs. 16(b), (c), (d).)
Sec. 602.209. LICENSE ISSUANCE. (a) The board may issue a license to an eligible applicant who:
(1) passes the examination under Section 602.206; and
(2) meets all other license requirements.
(b) Not later than the 30th day after the date the board makes a decision on an application submitted under Section 602.203, the board shall notify the applicant of the decision.
(c) If the board approves the application, the board shall issue a license to the applicant. If the board denies the application, the board shall include in the notice of decision a description of the areas of deficiency.
(d) Each license issued under this chapter must be uniform, except that each license must indicate:
(1) the license holder's name;
(2) the serial number assigned to the license holder; and
(3) the medical physics specialty the license holder may practice.
(e) A license certificate is the board's property and must be surrendered on demand. (V.A.C.S. Art. 4512n, Secs. 17(a), (b), (c), (d).)
Sec. 602.210. LICENSE TERM AND RENEWAL. (a) A license is valid for one year from the date granted and may be renewed annually.
(b) The board by rule may adopt a system under which licenses expire on various dates during the year.
(c) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(d) If a person's license has been expired for 90 days or less, the person may renew the license by paying to the board the required renewal fee and a penalty fee in an amount equal to one-half of the amount of the renewal fee.
(e) If a person's license has been expired for longer than 90 days but less than two years, the person may renew the license by paying to the board the renewal fee that was due at expiration and a penalty fee in an amount equal to the amount of the renewal fee.
(f) If a person's license has been expired for two years or longer, the person may not renew the license. To obtain a new license, a person must comply with the application requirements of this chapter and must submit to the board:
(1) a supplemental experience record as required by the board;
(2) a description of professional activities undertaken during the expiration period;
(3) a list of current professional references; and
(4) a transcript for any degree or college credit earned since the person's previous license application. (V.A.C.S. Art. 4512n, Secs. 17(e), (f), (g), (h), (i), (j).)
Sec. 602.211. LICENSE BY ENDORSEMENT. On receipt of an application and fee under Section 602.203, the board may issue a license to a person who holds a license to practice medical or radiological physics in another state, territory, or jurisdiction acceptable to the board that has requirements for the licensing of medical or radiological physicists that are substantially the same as the requirements of this chapter. (V.A.C.S. Art. 4512n, Sec. 18 (part).)
Sec. 602.212. LICENSE HOLDER DUTIES. A license holder shall:
(1) publicly display the license holder's license in an appropriate manner; and
(2) report immediately to the board any change in the license holder's address. (V.A.C.S. Art. 4512n, Sec. 20.)
[Sections 602.213-602.250 reserved for expansion]
SUBCHAPTER F. LICENSE DENIAL AND DISCIPLINARY ACTION
Sec. 602.251. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. The board may refuse to issue or renew a license, suspend or revoke a license, reprimand a license holder, or place a license holder on probation for:
(1) obtaining or renewing a license by means of fraud, misrepresentation, or concealment of a material fact;
(2) having previously applied for or held a license issued by the licensing authority of another state, territory, or jurisdiction that was denied, suspended, or revoked by that licensing authority;
(3) engaging in unprofessional conduct that endangered or is likely to endanger the health, safety, or welfare of the public as defined by board rule;
(4) violating this chapter, a lawful order or rule of the board, or the board's code of ethics; or
(5) being convicted of:
(A) a felony; or
(B) a misdemeanor involving moral turpitude or that directly relates to the person's duties as a licensed medical physicist. (V.A.C.S. Art. 4512n, Sec. 21(a).)
Sec. 602.252. ADMINISTRATIVE PROCEDURE. Chapters 2001 and 2002, Government Code, and board rules for a contested hearing apply to a proceeding by the board under this subchapter. (V.A.C.S. Art. 4512n, Sec. 21(b).)
[Sections 602.253-602.300 reserved for expansion]
SUBCHAPTER G. ENFORCEMENT
Sec. 602.301. INJUNCTION. The board shall prosecute or file suit to enjoin a violation of this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512n, Sec. 11(a) (part).)
Sec. 602.302. OFFENSE. (a) A person commits an offense if the person knowingly:
(1) practices medical physics in violation of this chapter; or
(2) uses in any manner letters, terminology, symbols, or signs to indicate or imply that the person is qualified or licensed to practice medical physics in a manner for which the person is not licensed under this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4512n, Sec. 23.)
CHAPTER 603. PERFUSIONISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 603.001. SHORT TITLE
Sec. 603.002. DEFINITIONS
Sec. 603.003. PRACTICE OF PERFUSION
Sec. 603.004. APPLICATION OF CHAPTER
Sec. 603.005. APPLICATION OF SUNSET ACT
[Sections 603.006-603.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF
EXAMINERS OF PERFUSIONISTS
Sec. 603.051. BOARD MEMBERSHIP
Sec. 603.052. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 603.053. TERMS
Sec. 603.054. GROUNDS FOR REMOVAL
Sec. 603.055. PER DIEM; REIMBURSEMENT
Sec. 603.056. OFFICERS
Sec. 603.057. MEETINGS
Sec. 603.058. TRAINING
[Sections 603.059-603.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND OTHER PERSONNEL
Sec. 603.101. EXECUTIVE SECRETARY
Sec. 603.102. EXECUTIVE SECRETARY POWERS AND DUTIES
Sec. 603.103. OTHER PERSONNEL AND FACILITIES
Sec. 603.104. DIVISION OF RESPONSIBILITIES
Sec. 603.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 603.106. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 603.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 603.108-603.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 603.151. GENERAL POWERS AND DUTIES OF BOARD
Sec. 603.152. GENERAL RULEMAKING AUTHORITY
Sec. 603.153. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 603.154. FEES
Sec. 603.155. BOARD DUTIES REGARDING COMPLAINTS
Sec. 603.156. REGISTRY
Sec. 603.157. ANNUAL FISCAL REPORT
[Sections 603.158-603.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 603.201. PUBLIC INTEREST INFORMATION
Sec. 603.202. COMPLAINTS
Sec. 603.203. RECORDS OF COMPLAINTS
Sec. 603.204. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 603.205. PUBLIC PARTICIPATION
[Sections 603.206-603.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 603.251. LICENSE REQUIRED
Sec. 603.252. LICENSE APPLICATION
Sec. 603.253. EXAMINATION
Sec. 603.254. QUALIFICATION FOR EXAMINATION
Sec. 603.255. INVESTIGATION OF APPLICANT
Sec. 603.256. EXAMINATION RESULTS
Sec. 603.257. REEXAMINATION AND ALTERNATIVES TO
EXAMINATION
Sec. 603.258. ISSUANCE OF LICENSE
Sec. 603.259. PROVISIONAL LICENSE
[Sections 603.260-603.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 603.301. LICENSE RENEWAL
Sec. 603.302. PROVISIONAL LICENSE RENEWAL
Sec. 603.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 603.304. CONTINUING EDUCATION
[Sections 603.305-603.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 603.351. DISPLAY OF LICENSE
Sec. 603.352. LICENSE HOLDER INFORMATION
Sec. 603.353. SURRENDER OF LICENSE
Sec. 603.354. CERTIFICATION FROM AMERICAN BOARD OF
CARDIOVASCULAR PERFUSION
[Sections 603.355-603.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 603.401. GROUNDS FOR DISCIPLINARY ACTION
Sec. 603.402. HEARING
Sec. 603.403. ADMINISTRATIVE PROCEDURE
Sec. 603.404. SANCTIONS
Sec. 603.405. PROBATION
Sec. 603.406. MONITORING OF LICENSE HOLDER
Sec. 603.407. INFORMAL PROCEDURES
[Sections 603.408-603.450 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 603.451. INJUNCTION
Sec. 603.452. CRIMINAL PENALTY
CHAPTER 603. PERFUSIONISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 603.001. SHORT TITLE. This chapter may be cited as the Licensed Perfusionists Act. (V.A.C.S. Art. 4529e, Sec. 1.)
Sec. 603.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas State Board of Examiners of Perfusionists.
(2) "Commissioner" means the commissioner of public health.
(3) "Department" means the Texas Department of Health. (V.A.C.S. Art. 4529e, Secs. 3(1), (3), (4).)
Sec. 603.003. PRACTICE OF PERFUSION. (a) In this section:
(1) "Extracorporeal circulation" means the diversion of a patient's blood through a heart-lung machine or a similar device that assumes the functions of the patient's heart, lungs, or both.
(2) "Perfusion protocol" means a perfusion-related policy or protocol developed or approved by a licensed health facility or a physician through collaboration with administrators, licensed perfusionists, and other health professionals.
(b) A person practices perfusion under this chapter when the person performs activities necessary to:
(1) support, treat, measure, or supplement the cardiovascular, circulatory, or respiratory system, or a combination of those activities; or
(2) ensure the safe management of physiologic functions by monitoring the parameters of the systems under the order and supervision of a licensed physician.
(c) The practice of perfusion includes:
(1) using extracorporeal circulation, cardiopulmonary support techniques, and other therapeutic and diagnostic technologies;
(2) performing counterpulsation, ventricular assistance, autotransfusion, blood conservation techniques, administration of cardioplegia, and isolated limb perfusion;
(3) using techniques involving blood management, advanced life support, and other related functions; and
(4) in performing the acts described in this subdivision:
(A) administering:
(i) pharmacological and therapeutic agents; or
(ii) blood products or anesthetic agents through the extracorporeal circuit or through an intravenous line as ordered by a physician;
(B) performing and using anticoagulation analysis, physiologic analysis, blood gas and chemistry analysis, hematocrit analysis, hypothermia, hyperthermia, hemoconcentration, and hemodilution; and
(C) observing signs and symptoms related to perfusion services, determining whether the signs and symptoms exhibit abnormal characteristics, and implementing appropriate reporting, perfusion protocols, or changes in or the initiation of emergency procedures. (V.A.C.S. Art. 4529e, Secs. 3(5), (7), (8).)
Sec. 603.004. APPLICATION OF CHAPTER. This chapter does not apply to:
(1) a qualified perfusionist employed by the United States government while discharging official duties;
(2) a person who is not a resident of this state if the person:
(A) is authorized to perform perfusion services under the laws of the state of the person's residence;
(B) possesses educational and training qualifications the board determines are substantially similar to those required for practice in this state;
(C) notifies the board of the person's intent to perform perfusion services in this state for not more than 10 days in a year; and
(D) is approved by the board or the board's designated agent to perform perfusion services in this state for not more than 10 days in that year;
(3) a person licensed by another health professional licensing board if the person:
(A) does not directly or indirectly represent to the public that the person is licensed under this chapter and does not use a name, title, or other designation indicating that the person is licensed under this chapter; and
(B) confines the scope of the person's practice to that authorized by the law under which the person is licensed as a health professional;
(4) a student enrolled in an accredited perfusion education program if the perfusion services performed by the student:
(A) are an integral part of the student's course of study; and
(B) are directly supervised by a licensed perfusionist who:
(i) is assigned to supervise the student; and
(ii) is on duty and immediately available in the assigned patient care area;
(5) a person who successfully completes an approved perfusion education program but has not been issued a provisional license under Section 603.259 if the person:
(A) complies with Section 603.259(c); and
(B) receives a provisional license not later than the 180th day after the date the person successfully completes the program; or
(6) a person performing autotransfusion or blood conservation techniques under the supervision of a licensed physician. (V.A.C.S. Art. 4529e, Sec. 17.)
Sec. 603.005. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Perfusionists is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4529e, Sec. 24.)
[Sections 603.006-603.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF
EXAMINERS OF PERFUSIONISTS
Sec. 603.051. BOARD MEMBERSHIP. (a) The Texas State Board of Examiners of Perfusionists consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) five licensed perfusionist members who have been licensed under this chapter for at least three years before the date of appointment;
(2) one physician member licensed by the Texas State Board of Medical Examiners who is certified by that board in cardiovascular surgery; and
(3) three members who represent the public.
(b) Appointments to the board shall reflect the historical and cultural diversity of the inhabitants of this state.
(c) Appointments to the board shall be made without regard to the race, creed, sex, religion, national origin, or geographical distribution of the appointees. (V.A.C.S. Art. 4529e, Secs. 4(b), (c) (part), (d), (g).)
Sec. 603.052. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interests.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 4529e, Secs. 4(e), (f), (h).)
Sec. 603.053. TERMS. Members of the board serve staggered six-year terms. The terms of three members expire on February 1 of each odd-numbered year. (V.A.C.S. Art. 4529e, Sec. 4(c) (part).)
Sec. 603.054. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the board;
(2) does not maintain during service on the board the qualifications required for appointment to the board;
(3) violates a prohibition established by this chapter;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a member of the board exists.
(c) If the executive secretary has knowledge that a potential ground for removal exists, the executive secretary shall notify the presiding officer of the board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4529e, Sec. 5.)
Sec. 603.055. PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to receive a per diem set by the General Appropriations Act for each day the member engages in the business of the board.
(b) A member is entitled to reimbursement for travel expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4529e, Sec. 6(d).)
Sec. 603.056. OFFICERS. Not later than the 30th day after the date the governor appoints new board members, the board shall meet to elect a presiding officer and an assistant presiding officer, who hold office according to board rule. (V.A.C.S. Art. 4529e, Sec. 6(a).)
Sec. 603.057. MEETINGS. The board shall hold at least two regular meetings each year as provided by board rule. (V.A.C.S. Art. 4529e, Sec. 6(b) (part).)
Sec. 603.058. TRAINING. Each board member shall comply with the training requirements established by any state agency with authority to establish training requirements for the board. (V.A.C.S. Art. 4529e, Sec. 7(b) (part).)
[Sections 603.059-603.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND
OTHER PERSONNEL
Sec. 603.101. EXECUTIVE SECRETARY. The commissioner shall designate a department employee to serve as executive secretary of the board. (V.A.C.S. Art. 4529e, Sec. 8(b) (part).)
Sec. 603.102. EXECUTIVE SECRETARY POWERS AND DUTIES. In addition to performing other duties prescribed by this chapter and by the department, the executive secretary shall:
(1) administer licensing activity for the board;
(2) keep full and accurate minutes of the board's transactions and proceedings;
(3) serve as custodian of the board's files and other records;
(4) prepare and recommend to the board plans and procedures necessary to implement the objectives of this chapter, including rules and proposals on administrative procedure;
(5) exercise general supervision over persons employed by the department in the administration of this chapter;
(6) investigate complaints and present formal complaints;
(7) attend all board meetings as a nonvoting participant;
(8) handle the board's correspondence; and
(9) obtain, assemble, or prepare reports and other information as directed or authorized by the board. (V.A.C.S. Art. 4529e, Secs. 8(b) (part), (c) (part).)
Sec. 603.103. OTHER PERSONNEL AND FACILITIES. (a) The department shall provide department personnel and department facilities as the basic personnel and necessary facilities required to administer this chapter.
(b) Department personnel administer this chapter as agents of the board.
(c) If necessary to administer this chapter, the department by agreement may:
(1) obtain and provide compensation for services; and
(2) employ professional consultants, technical assistants, or other persons on a full-time or part-time basis. (V.A.C.S. Art. 4529e, Sec. 8(a).)
Sec. 603.104. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4529e, Sec. 7(b) (part).)
Sec. 603.105. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4529e, Sec. 7(b) (part).)
Sec. 603.106. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive secretary shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.
(b) The executive secretary shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4529e, Sec. 8(c) (part).)
Sec. 603.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive secretary shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor. (V.A.C.S. Art. 4529e, Sec. 8(c) (part).)
[Sections 603.108-603.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 603.151. GENERAL POWERS AND DUTIES OF BOARD. The board shall:
(1) establish the qualifications and fitness of applicants for licenses, including renewed and reciprocal licenses;
(2) revoke, suspend, or deny a license, probate a license suspension, or reprimand a license holder for a violation of this chapter, a board rule, or the code of ethics adopted by the board;
(3) spend money necessary to administer the board's duties;
(4) request and receive necessary assistance from another state agency, including a state educational institution;
(5) adopt an official seal; and
(6) adopt and publish a code of ethics. (V.A.C.S. Art. 4529e, Secs. 7(b) (part), 23 (part).)
Sec. 603.152. GENERAL RULEMAKING AUTHORITY. (a) The board may adopt rules necessary to:
(1) regulate the practice of perfusion;
(2) enforce this chapter;
(3) govern board proceedings; and
(4) perform board duties.
(b) In adopting rules, the board shall consider the rules and procedures of the Texas Board of Health and the department and shall adopt procedural rules consistent with rules and procedures of those entities. (V.A.C.S. Art. 4529e, Sec. 7(a).)
Sec. 603.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt a rule restricting advertising or competitive bidding by a person regulated by the board except to prohibit a false, misleading, or deceptive practice.
(b) The board may not include in rules to prohibit a false, misleading, or deceptive practice by a person regulated by the board a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of any advertisement by the person; or
(4) restricts the use by the person of a trade name in advertising. (V.A.C.S. Art. 4529e, Sec. 7(c).)
Sec. 603.154. FEES. After consulting the commissioner or the department, the board shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter. (V.A.C.S. Art. 4529e, Secs. 7(b) (part), 9(a).)
Sec. 603.155. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4529e, Secs. 18(c), (d).)
Sec. 603.156. REGISTRY. The board shall prepare a registry of licensed perfusionists and provisionally licensed perfusionists that is available to the public, license holders, and appropriate state agencies. (V.A.C.S. Art. 4529e, Sec. 23 (part).)
Sec. 603.157. ANNUAL FISCAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all money received and disbursed by the board or the department for the administration of this chapter during the preceding year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4529e, Sec. 9(e).)
[Sections 603.158-603.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 603.201. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of consumer interest describing the profession of perfusion, the regulatory functions of the board, and the procedures by which consumer complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4529e, Sec. 23 (part).)
Sec. 603.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each license form, application, or written contract for services of a person licensed under this chapter;
(2) on a sign prominently displayed in the place of business of each person licensed under this chapter; or
(3) in a bill for services provided by a person licensed under this chapter.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4529e, Secs. 7(d), (e).)
Sec. 603.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule established for the complaint under Section 603.204(b) and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4529e, Secs. 18(a), (b), 19(b) (part).)
Sec. 603.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules shall:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish, not later than the 30th day after the date the board receives a complaint, a schedule for conducting each phase of the complaint resolution process that is under the control of the board.
(c) Each party to the complaint shall be notified of the projected time requirements for pursuing the complaint. Each party shall be notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.
(d) The executive secretary shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4529e, Secs. 19(a), (b) (part), (c).)
Sec. 603.205. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4529e, Sec. 7(b) (part).)
[Sections 603.206-603.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 603.251. LICENSE REQUIRED. (a) A person may not engage or offer to engage in perfusion for compensation unless the person holds an appropriate license issued under this chapter.
(b) A person may not, unless the person holds an appropriate license issued under this chapter:
(1) use the title or represent or imply that the person has the title "licensed perfusionist" or "provisional licensed perfusionist" or use the letters "LP" or "PLP"; or
(2) use a facsimile of those titles to represent or imply that the person is a licensed perfusionist or provisionally licensed perfusionist. (V.A.C.S. Art. 4529e, Sec. 16(a).)
Sec. 603.252. LICENSE APPLICATION. (a) An applicant for a perfusionist license must submit a sworn application accompanied by the application fee.
(b) The board shall prescribe the application form and by rule may establish dates by which applications and fees must be received. (V.A.C.S. Art. 4529e, Secs. 10(a), (b) (part).)
Sec. 603.253. EXAMINATION. (a) An applicant must pass a competency examination to qualify for a license under this chapter.
(b) The board shall prepare or approve an examination. The board may prescribe an examination that consists of or includes a written or oral examination given by the American Board of Cardiovascular Perfusion or by a national or state testing service.
(c) The board shall have any written portion of the examination validated by an independent testing professional.
(d) The board shall administer an examination to qualified applicants at least once each calendar year.
(e) On receipt of an application and application fee, the board shall waive the examination requirement for an applicant who, at the time of application:
(1) is licensed or certified by another state that has licensing or certification requirements the board determines to be substantially equivalent to the requirements of this chapter; or
(2) holds a certificate as a certified clinical perfusionist issued by the American Board of Cardiovascular Perfusion before January 1, 1994, authorizing the holder to practice perfusion in a state that does not license or certify perfusionists. (V.A.C.S. Art. 4529e, Secs. 11(a), (b), 15.)
Sec. 603.254. QUALIFICATION FOR EXAMINATION. (a) To qualify for the licensing examination under this chapter, an applicant must have successfully completed a perfusion education program approved by the board.
(b) The board may approve a perfusion education program only if the program has educational standards that are:
(1) at least as stringent as those established by the Accreditation Committee for Perfusion Education of the American Medical Association or its successor; and
(2) approved by the Commission on Accreditation of the Allied Health Education Program of the American Medical Association or its successor. (V.A.C.S. Art. 4529e, Secs. 10(c), (d).)
Sec. 603.255. INVESTIGATION OF APPLICANT. (a) The department shall notify an applicant in writing of the receipt and investigation of the applicant's application and any other relevant evidence relating to qualifications established by board rule not later than:
(1) the 45th day after the date a properly submitted and timely application is received; and
(2) the 30th day before the next examination date.
(b) The notice must state whether the applicant has qualified for examination based on the application and other submitted evidence. If the applicant is not qualified, the notice must state the reasons for the applicant's failure to qualify. (V.A.C.S. Art. 4529e, Sec. 10(e).)
Sec. 603.256. EXAMINATION RESULTS. (a) The department shall notify each examinee of the examination results not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national or state testing service, the department shall notify each examinee of the examination results not later than the 14th day after the date the department receives the results from the testing service.
(b) If the notice of the results of an examination graded or reviewed by a national or state testing service will be delayed for longer than 90 days after the examination date, the department shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the department shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4529e, Secs. 11(c), (d).)
Sec. 603.257. REEXAMINATION AND ALTERNATIVES TO EXAMINATION. The board by rule shall establish:
(1) a limit on the number of times an applicant who fails an examination may retake the examination;
(2) requirements for retaking an examination; and
(3) alternative methods of examining competency. (V.A.C.S. Art. 4529e, Sec. 11(e).)
Sec. 603.258. ISSUANCE OF LICENSE. A person who meets the qualifications for a license under this chapter is entitled to a license. (V.A.C.S. Art. 4529e, Sec. 12(a).)
Sec. 603.259. PROVISIONAL LICENSE. (a) The board may issue a provisional license to an applicant who files an application, pays an application fee, and submits evidence satisfactory to the board of successful completion of the education requirement under Section 603.254.
(b) A person who meets the qualifications for a provisional license under this chapter is entitled to a provisional license.
(c) A provisionally licensed perfusionist must practice under the supervision and direction of a licensed perfusionist while performing perfusion. If the board finds that a licensed perfusionist is not reasonably available to provide supervision and direction and if the board approves an application submitted to the board by the provisionally licensed perfusionist, supervision and direction may be provided by a physician who is licensed by the Texas State Board of Medical Examiners and certified by the American Board of Thoracic Surgeons, Inc., or certified in cardiovascular surgery by the American Osteopathic Board of Surgery.
(d) The board may not adopt a rule governing supervision and direction that requires the immediate physical presence of the supervising person. (V.A.C.S. Art. 4529e, Secs. 14(a), (b), (c) (part).)
[Sections 603.260-603.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 603.301. LICENSE RENEWAL. (a) A license is valid for one year from the date of issuance and may be renewed annually.
(b) The Texas Board of Health by rule may adopt a system under which licenses expire on various dates during the year.
(c) A person may renew an unexpired license by paying the required renewal fee to the department before the license expiration date.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the department the required renewal fee and a fee that is equal to half the amount of the renewal fee for the license. If a license has been expired for more than 90 days but less than two years, the person may renew the license by paying to the department all unpaid renewal fees and a fee that is equal to the amount of the renewal fee for the license.
(e) Except as provided by Section 603.303, a person whose license has been expired for two years or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(f) Before the 30th day before a person's license expiration date, the department shall send written notice of the impending license expiration to the person at the person's last known address according to board records. (V.A.C.S. Art. 4529e, Secs. 13(a), (b), (c) (part), (d) (part), (e) (part), (f), (h).)
Sec. 603.302. PROVISIONAL LICENSE RENEWAL. A provisional license expires on the first anniversary of the date of issuance and, if the supervising licensed perfusionist or physician described by Section 603.259(c) signs the renewal application, the license may be renewed annually not more than five times by complying with the renewal procedures under this subchapter. (V.A.C.S. Art. 4529e, Sec. 14(d).)
Sec. 603.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed as a perfusionist in this state, moved to another state, and is licensed or certified and has been in practice in the other state for the two years preceding the date the person applies for renewal.
(b) The person must pay to the board a fee that is equal to the amount of the examination fee for the license. (V.A.C.S. Art. 4529e, Sec. 13(g).)
Sec. 603.304. CONTINUING EDUCATION. (a) To renew a license under this chapter, a person must submit proof satisfactory to the board that the person has complied with the continuing education requirements prescribed by the board.
(b) The board shall establish continuing education programs for licensed perfusionists and provisionally licensed perfusionists under this chapter. The standards of the programs must be at least as stringent as the standards of the American Board of Cardiovascular Perfusion or its successor.
(c) The board shall:
(1) establish a minimum number of hours of continuing education required for license renewal under this chapter; and
(2) develop a process to evaluate and approve continuing education courses.
(d) The board shall identify key factors for a license holder's competent performance of professional duties. The board shall adopt a procedure to assess a license holder's participation in continuing education programs. (V.A.C.S. Art. 4529e, Secs. 7(b) (part), 13(c) (part), (d) (part), (e) (part).)
[Sections 603.305-603.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 603.351. DISPLAY OF LICENSE. A person licensed under this chapter shall:
(1) display the person's license certificate in an appropriate and public manner; or
(2) maintain a copy of the person's license certificate in the appropriate records of any health care facility in which the license holder provides services. (V.A.C.S. Art. 4529e, Sec. 12(b) (part).)
Sec. 603.352. LICENSE HOLDER INFORMATION. A person licensed under this chapter shall keep the department informed of any change in the license holder's address. (V.A.C.S. Art. 4529e, Sec. 12(b) (part).)
Sec. 603.353. SURRENDER OF LICENSE. A license certificate issued by the board is the property of the board and shall be surrendered on demand. (V.A.C.S. Art. 4529e, Sec. 12(c).)
Sec. 603.354. CERTIFICATION FROM AMERICAN BOARD OF CARDIOVASCULAR PERFUSION. Unless a person holds a certificate as a certified clinical perfusionist issued by the American Board of Cardiovascular Perfusion, the person may not:
(1) use the title or represent or imply that the person has the title "certified clinical perfusionist" or use the letters "CCP"; or
(2) use a facsimile of that title to represent or imply that the person is a clinical perfusionist certified by that board. (V.A.C.S. Art. 4529e, Sec. 16(b).)
[Sections 603.355-603.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 603.401. GROUNDS FOR DISCIPLINARY ACTION. If a license holder violates this chapter or a rule or code of ethics adopted by the board, the board shall:
(1) revoke or suspend the license;
(2) place on probation the person if the person's license has been suspended; or
(3) reprimand the license holder. (V.A.C.S. Art. 4529e, Sec. 22(a).)
Sec. 603.402. HEARING. (a) If the board proposes to revoke or suspend a person's license, the person is entitled to a hearing before a hearings officer appointed by the State Office of Administrative Hearings.
(b) The board shall prescribe procedures for appealing to the board a decision to revoke or suspend a license. (V.A.C.S. Art. 4529e, Sec. 22(c).)
Sec. 603.403. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter to suspend or revoke a license is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4529e, Sec. 22(d).)
Sec. 603.404. SANCTIONS. (a) The board by rule shall adopt a broad schedule of sanctions for a violation of this chapter.
(b) The State Office of Administrative Hearings shall use the schedule of sanctions for a sanction imposed as the result of a hearing conducted by that office. (V.A.C.S. Art. 4529e, Sec. 22(e).)
Sec. 603.405. PROBATION. The board may require a person whose license suspension is probated to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to areas prescribed by the board; or
(3) continue the person's professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4529e, Sec. 22(b).)
Sec. 603.406. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system for monitoring a license holder's compliance with the requirements of this chapter.
(b) Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor license holders who represent a risk to the public. (V.A.C.S. Art. 4529e, Sec. 21.)
Sec. 603.407. INFORMAL PROCEDURES. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4529e, Sec. 20.)
[Sections 603.408-603.450 reserved for expansion]
SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 603.451. INJUNCTION. (a) The board may request the attorney general or the appropriate county or district attorney to commence an action to enjoin a violation of this chapter.
(b) The remedy provided by this section is in addition to any other action authorized by law. (V.A.C.S. Art. 4529e, Sec. 23 (part).)
Sec. 603.452. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 603.251 or 603.354.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4529e, Sec. 16(c).)
CHAPTER 604. RESPIRATORY CARE PRACTITIONERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 604.001. DEFINITIONS
Sec. 604.002. INTERPRETATION: PRACTICE OF MEDICINE
Sec. 604.003. EFFECT OF CHAPTER
[Sections 604.004-604.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 604.051. CERTIFICATION AND PERMITTING PROGRAM
Sec. 604.052. RULES
Sec. 604.053. FEES
Sec. 604.054. APPROVAL OF EDUCATION PROGRAMS
Sec. 604.055. PEER ASSISTANCE PROGRAM
Sec. 604.056. PERSONNEL
[Sections 604.057-604.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE AND TEMPORARY PERMIT REQUIREMENTS
Sec. 604.101. CERTIFICATE OR TEMPORARY PERMIT REQUIRED;
SUPERVISION
Sec. 604.102. USE OF TITLE
Sec. 604.103. APPLICATION; APPLICATION FEE
Sec. 604.104. REQUIREMENT FOR CERTIFICATE
Sec. 604.105. ISSUANCE OF CERTIFICATE
Sec. 604.106. ISSUANCE OF CERTIFICATE BY RECIPROCITY
Sec. 604.107. REQUIREMENTS FOR TEMPORARY PERMIT
Sec. 604.108. ISSUANCE OF TEMPORARY PERMIT
Sec. 604.109. TRANSFER OF CERTIFICATE OR TEMPORARY PERMIT
PROHIBITED
[Sections 604.110-604.150 reserved for expansion]
SUBCHAPTER D. RENEWAL OF CERTIFICATE OR TEMPORARY PERMIT
Sec. 604.151. ANNUAL OR BIENNIAL CERTIFICATE RENEWAL
Sec. 604.152. NOTICE OF CERTIFICATE RENEWAL
Sec. 604.153. ISSUANCE OF RENEWAL CERTIFICATE
Sec. 604.154. CONTINUING EDUCATION REQUIREMENTS
Sec. 604.155. REINSTATEMENT OF CERTIFICATE
Sec. 604.156. INACTIVE STATUS
Sec. 604.157. RENEWAL OF TEMPORARY PERMIT
[Sections 604.158-604.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES AND
DISCIPLINARY PROCEDURES
Sec. 604.201. DISCIPLINARY ACTION
Sec. 604.202. EMERGENCY SUSPENSION
Sec. 604.203. DISCIPLINARY PROCEDURE
Sec. 604.204. EFFECT OF DENIAL OF APPLICATION OR REVOCATION
OF CERTIFICATE OR TEMPORARY PERMIT
[Sections 604.205-604.300 reserved for expansion]
SUBCHAPTER F. ADMINISTRATIVE PENALTIES
Sec. 604.301. IMPOSITION OF PENALTY
Sec. 604.302. AMOUNT OF PENALTY
Sec. 604.303. NOTICE OF VIOLATION AND PENALTY
Sec. 604.304. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 604.305. HEARING
Sec. 604.306. DECISION BY COMMISSIONER OR DESIGNEE
Sec. 604.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 604.308. COLLECTION OF PENALTY
Sec. 604.309. DETERMINATION OF COURT
Sec. 604.310. REMITTANCE OF PENALTY AND INTEREST
Sec. 604.311. ADMINISTRATIVE PENALTY EXPENSES AND COSTS
Sec. 604.312. ADMINISTRATIVE PROCEDURES
[Sections 604.313-604.350 reserved for expansion]
SUBCHAPTER G. CRIMINAL PENALTIES
Sec. 604.351. GENERAL CRIMINAL PENALTY
Sec. 604.352. OTHER CRIMINAL OFFENSES
CHAPTER 604. RESPIRATORY CARE PRACTITIONERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 604.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Department" means the Texas Department of Health.
(3) "Respiratory care" means the treatment, management, control, diagnostic evaluation, or care of a patient who has a deficiency or abnormality associated with the cardiorespiratory system.
(4) "Respiratory care practitioner" means a person who holds a certificate or temporary permit under this chapter to practice respiratory care.
(5) "Respiratory care procedure" means respiratory care provided by the therapeutic and diagnostic use of medical gases, humidifiers, and aerosols, the administration of drugs and medications to the cardiorespiratory system, ventilatory assistance and ventilatory control, postural drainage, chest drainage, chest percussion or vibration, breathing exercises, respiratory rehabilitation, cardiopulmonary resuscitation, the maintenance of natural airways, and the insertion and maintenance of artificial airways. The term includes a technique used to assist in diagnosis, monitoring, treatment, and research, as ordered by a patient's physician, including:
(A) the measurement of ventilatory volumes, pressures, and flows;
(B) the specimen collection of blood and other materials;
(C) pulmonary function testing; and
(D) hemodynamic and other related physiological forms of monitoring or treating the cardiorespiratory system. (V.A.C.S. Art. 4512l, Sec. 1.)
Sec. 604.002. INTERPRETATION: PRACTICE OF MEDICINE. This chapter does not permit the practice of medicine, as defined by Subtitle B, by a respiratory care practitioner. (V.A.C.S. Art. 4512l, Sec. 10.)
Sec. 604.003. EFFECT OF CHAPTER. This chapter does not prohibit:
(1) the practice of respiratory care as an integral part of the program of study by a student enrolled in a respiratory care education program approved by the department;
(2) the employment by a health care facility of a person to deliver limited respiratory care support services under the supervision of another person who holds a certificate issued under this chapter, if the person delivering the services does not perform an invasive procedure related to critical respiratory care, including a therapeutic, diagnostic, or palliative procedure, as part of the person's employment and if that person:
(A) is enrolled for credit in the clinical portion of an approved respiratory care education program; or
(B) has completed all of the clinical portion of an approved respiratory care education program within the preceding 12 months and is actively pursuing a course of study leading to graduation from the program;
(3) the care of an ill person provided without charge by a friend or family member;
(4) care provided in an emergency by a person who does not claim to be a respiratory care practitioner;
(5) the performance by a respiratory care practitioner of an advance in the art and techniques of respiratory care learned through formal or specialized training;
(6) the practice of respiratory care by health care personnel who have been formally trained in the care used and who are:
(A) licensed under the law regulating their professions; or
(B) acting under the delegated authority of a licensed physician;
(7) the practice of a legally qualified respiratory care practitioner who is discharging the practitioner's official duties as an employee of the United States government; or
(8) the practice by a person of a profession or occupation for which the person is licensed, registered, or certified under another law of this state. (V.A.C.S. Art. 4512l, Sec. 9.)
[Sections 604.004-604.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 604.051. CERTIFICATION AND PERMITTING PROGRAM. (a) The department's bureau of licensing and compliance shall administer the certification and permitting program under this chapter.
(b) The department shall maintain a list of each person who holds a certificate or temporary permit under this chapter. (V.A.C.S. Art. 4512l, Secs. 3(f), (h).)
Sec. 604.052. RULES. (a) The board by rule shall establish minimum standards for issuing, denying, renewing, suspending, suspending on an emergency basis, or revoking a certificate or temporary permit under this chapter.
(b) The board by rule shall establish examination requirements for a certificate under this chapter. The board may use the entry level examination prepared by the National Board for Respiratory Care or an equivalent examination.
(c) The board may adopt rules necessary to implement this chapter.
(d) The board may adopt rules relating to certifying, examining, or disciplining a person under this chapter only if necessary to protect the public health by ensuring that only a qualified person practices respiratory care. (V.A.C.S. Art. 4512l, Secs. 3(a), (d), (e), (g).)
Sec. 604.053. FEES. (a) The board shall set fees for an application, examination, certificate, temporary permit, permit and certificate renewal, and certificate reinstatement.
(b) The board shall set fees in reasonable amounts that are sufficient to cover the costs of administering this chapter. (V.A.C.S. Art. 4512l, Secs. 6(a) (part), (c).)
Sec. 604.054. APPROVAL OF EDUCATION PROGRAMS. In determining whether to approve a respiratory care education program, the department shall consider relevant information about the quality of the program, including accreditation of the program by a professional medical association, such as the Commission on Accreditation of Allied Health Education Programs. (V.A.C.S. Art. 4512l, Sec. 6(b) (part).)
Sec. 604.055. PEER ASSISTANCE PROGRAM. The department may establish, approve, and fund a peer assistance program in accordance with Section 467.003, Health and Safety Code, and board rules. (V.A.C.S. Art. 4512l, Sec. 3(i).)
Sec. 604.056. PERSONNEL. The department shall employ personnel as necessary to administer this chapter. (V.A.C.S. Art. 4512l, Sec. 3(b).)
[Sections 604.057-604.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE AND TEMPORARY PERMIT REQUIREMENTS
Sec. 604.101. CERTIFICATE OR TEMPORARY PERMIT REQUIRED; SUPERVISION. (a) A person may not represent that the person is able to practice respiratory care or that the person is a respiratory care practitioner unless the person holds a certificate or temporary permit issued under this chapter.
(b) A person may not practice respiratory care other than under the direction of a qualified medical director or other physician licensed by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4512l, Secs. 4(a), (c).)
Sec. 604.102. USE OF TITLE. (a) A person who does not hold a certificate or temporary permit under this chapter as a respiratory care practitioner or whose certificate or permit has been suspended or revoked may not:
(1) use in connection with the person's practice:
(A) the words "respiratory care," "respiratory therapist," "respiratory care practitioner," "certified respiratory care practitioner," or "respiratory therapy technician";
(B) the letters "R.C.P."; or
(C) any other words, letters, abbreviations, or insignia indicating or implying that the person is a respiratory care practitioner; or
(2) directly or by implication represent in any way that the person is a respiratory care practitioner.
(b) A person who holds a certificate or temporary permit to practice respiratory care under this chapter may use the title "respiratory care practitioner" and the abbreviation "R.C.P." (V.A.C.S. Art. 4512l, Secs. 4(b), (d).)
Sec. 604.103. APPLICATION; APPLICATION FEE. An applicant for a certificate or temporary permit must:
(1) apply to the department on a form and under rules prescribed by the board; and
(2) submit a nonrefundable application fee with the application. (V.A.C.S. Art. 4512l, Sec. 6(a) (part).)
Sec. 604.104. REQUIREMENT FOR CERTIFICATE. An applicant for a certificate must submit to the department written evidence, verified by oath, that the applicant has completed:
(1) an approved four-year high school course of study or the equivalent as determined by the appropriate educational agency; and
(2) a respiratory care education program approved by the department. (V.A.C.S. Art. 4512l, Sec. 6(b) (part).)
Sec. 604.105. ISSUANCE OF CERTIFICATE. The department shall issue a certificate to an applicant who meets the minimum standards adopted under Section 604.052(a) and pays the certificate fee. (V.A.C.S. Art. 4512l, Sec. 6(a) (part).)
Sec. 604.106. ISSUANCE OF CERTIFICATE BY RECIPROCITY. The department may issue a certificate to a person who is licensed or certified to practice respiratory care by another state whose requirements for licensure or certification were on the date the license or certificate was issued substantially equal to the requirements of this chapter. (V.A.C.S. Art. 4512l, Sec. 3(c).)
Sec. 604.107. REQUIREMENTS FOR TEMPORARY PERMIT. An applicant for a temporary permit to practice respiratory care must submit to the department written evidence, verified by oath, that the applicant is:
(1) practicing or has within the 12-month period preceding the application date practiced respiratory care in another state or country and is licensed to practice respiratory care in that state or country;
(2) a student in an approved respiratory care education program who expects to graduate from the program not later than the 30th day after the date the temporary permit is issued; or
(3) a graduate of an approved respiratory care education program. (V.A.C.S. Art. 4512l, Sec. 5(a).)
Sec. 604.108. ISSUANCE OF TEMPORARY PERMIT. (a) The department shall issue a temporary permit to an applicant who meets the requirements of Sections 604.103 and 604.107 and pays the permit fee.
(b) A temporary permit is valid for the period set by board rule. The period may not be less than six months or more than 12 months. (V.A.C.S. Art. 4512l, Secs. 5(b) (part), 6(a) (part).)
Sec. 604.109. TRANSFER OF CERTIFICATE OR TEMPORARY PERMIT PROHIBITED. A certificate or temporary permit issued under this chapter may not be transferred. (V.A.C.S. Art. 4512l, Sec. 12.)
[Sections 604.110-604.150 reserved for expansion]
SUBCHAPTER D. RENEWAL OF CERTIFICATE OR TEMPORARY PERMIT
Sec. 604.151. ANNUAL OR BIENNIAL CERTIFICATE RENEWAL. Except as otherwise provided by this subchapter, a certificate to practice respiratory care must be renewed annually or biennially as determined by the board. (V.A.C.S. Art. 4512l, Sec. 7(a) (part).)
Sec. 604.152. NOTICE OF CERTIFICATE RENEWAL. (a) Not later than the 30th day before the expiration date of a person's certificate, the department shall mail a renewal notice to the person at the person's last known address.
(b) To renew a certificate, the certificate holder must complete the renewal notice and return the notice with the renewal fee to the department on or before the expiration date. (V.A.C.S. Art. 4512l, Sec. 7(a) (part).)
Sec. 604.153. ISSUANCE OF RENEWAL CERTIFICATE. (a) The department shall issue to the certificate holder a certificate for the renewal period on receipt of the completed renewal notice and payment of the renewal fee.
(b) The renewal is valid for the period stated on the renewal certificate. (V.A.C.S. Art. 4512l, Sec. 7(b) (part).)
Sec. 604.154. CONTINUING EDUCATION REQUIREMENTS. (a) The board shall establish for the renewal of a certificate uniform continuing education requirements of not less than six or more than 12 continuing education hours for each renewal period.
(b) The board may adopt rules relating to meeting the continuing education requirements in a hardship situation. (V.A.C.S. Art. 4512l, Sec. 7(b) (part).)
Sec. 604.155. REINSTATEMENT OF CERTIFICATE. A certificate holder who does not renew a certificate on or before the expiration date may reinstate the certificate within the time set by the board by paying the renewal fee and a reinstatement fee. (V.A.C.S. Art. 4512l, Sec. 7(c).)
Sec. 604.156. INACTIVE STATUS. (a) A respiratory care practitioner who does not practice respiratory care during a renewal period and who notifies the department that the practitioner is not practicing respiratory care is not required to pay the renewal fee until the practitioner resumes practice.
(b) To resume the practice of respiratory care, the practitioner must:
(1) notify the department;
(2) satisfy requirements adopted by the board; and
(3) pay the reinstatement fee and the renewal fee for the renewal period in which the practitioner will resume practice. (V.A.C.S. Art. 4512l, Sec. 7(d).)
Sec. 604.157. RENEWAL OF TEMPORARY PERMIT. (a) Before the expiration of a temporary permit, the permit holder may apply for renewal of the temporary permit.
(b) The department may renew a temporary permit for not more than one additional period, pending compliance with this chapter and board rules. The additional period may not be less than six months or more than 12 months. (V.A.C.S. Art. 4512l, Sec. 5(b) (part).)
[Sections 604.158-604.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES AND
DISCIPLINARY PROCEDURES
Sec. 604.201. DISCIPLINARY ACTION. (a) For a violation of this chapter or a rule adopted under this chapter, the department may:
(1) deny, suspend, suspend on an emergency basis, revoke, or refuse to renew a certificate or temporary permit;
(2) place the certificate or permit holder on probation under conditions set by the department; or
(3) reprimand the certificate or permit holder.
(b) The department shall take disciplinary action authorized under Subsection (a) if the department determines that a person who holds a certificate or temporary permit:
(1) is guilty of fraud or deceit in procuring, renewing, or attempting to procure a certificate or temporary permit;
(2) is unfit or incompetent because of negligence or another cause of incompetency;
(3) is addicted to or has improperly obtained, possessed, used, or distributed a habit-forming drug or narcotic or is habitually intemperate in the use of alcoholic beverages;
(4) is guilty of dishonest or unethical conduct as determined by the department;
(5) has practiced respiratory care after the person's certificate or temporary permit has expired;
(6) has practiced respiratory care under a certificate or temporary permit illegally or fraudulently obtained or issued;
(7) has practiced respiratory care without the direction of a qualified medical director or other licensed physician; or
(8) has violated this chapter or aided or abetted another in violating this chapter. (V.A.C.S. Art. 4512l, Secs. 11(a), (b).)
Sec. 604.202. EMERGENCY SUSPENSION. (a) The department may suspend a certificate or temporary permit issued under this chapter on a determination that the health and safety of a person is threatened and may make the suspension effective immediately.
(b) A person whose certificate or temporary permit is suspended under this section is entitled to a hearing before the department not later than the 10th day after the effective date of the emergency suspension. (V.A.C.S. Art. 4512l, Sec. 11(d).)
Sec. 604.203. DISCIPLINARY PROCEDURE. The procedure by which the department takes a disciplinary action and the procedure by which a disciplinary action is appealed are governed by:
(1) board rules for a contested case hearing; and
(2) Chapter 2001, Government Code. (V.A.C.S. Art. 4512l, Sec. 11(c).)
Sec. 604.204. EFFECT OF DENIAL OF APPLICATION OR REVOCATION OF CERTIFICATE OR TEMPORARY PERMIT. A person whose application for a certificate or temporary permit is denied or whose certificate or permit is revoked is ineligible for a certificate or permit under this chapter until the first anniversary of the date of the denial or revocation. (V.A.C.S. Art. 4512l, Sec. 11(e).)
[Sections 604.205-604.300 reserved for expansion]
SUBCHAPTER F. ADMINISTRATIVE PENALTIES
Sec. 604.301. IMPOSITION OF PENALTY. The department may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512l, Sec. 13A(a).)
Sec. 604.302. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues is a separate violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice requires. (V.A.C.S. Art. 4512l, Secs. 13A(b), (c).)
Sec. 604.303. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative penalty based on the factors set forth in Section 604.302(b); and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512l, Sec. 13A(e).)
Sec. 604.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 604.303, the person may:
(1) accept the department's determination and proposed administrative penalty; or
(2) make a written request for a hearing on that determination.
(b) If the person accepts the department's determination, the commissioner of public health or the commissioner's designee by order shall approve the determination and assess the proposed penalty. (V.A.C.S. Art. 4512l, Secs. 13A(f), (g).)
Sec. 604.305. HEARING. (a) If the person requests a hearing in a timely manner, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commissioner of public health or the commissioner's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4512l, Secs. 13A(h), (i).)
Sec. 604.306. DECISION BY COMMISSIONER OR DESIGNEE. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commissioner of public health or the commissioner's designee by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4512l, Secs. 13A(j), (k).)
Sec. 604.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail.
(c) If the department receives a copy of an affidavit under Subsection (b)(2), the department may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512l, Secs. 13A(l), (m), (n).)
Sec. 604.308. COLLECTION OF PENALTY. If the person does not pay the penalty and enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4512l, Sec. 13A(o).)
Sec. 604.309. DETERMINATION OF COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512l, Sec. 13A(q).)
Sec. 604.310. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty;
(2) order the release of the escrow account in full if the penalty is not imposed or order that the amount of a reduced penalty be paid from the escrow account and that the remainder of the account be released if the person paid the penalty into an escrow account; or
(3) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512l, Sec. 13A(r).)
Sec. 604.311. ADMINISTRATIVE PENALTY EXPENSES AND COSTS. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department or the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.
(b) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the commissioner of public health or the commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of the expenses and costs.
(c) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this subchapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs. (V.A.C.S. Art. 4512l, Secs. 13A(t), (u), (v).)
Sec. 604.312. ADMINISTRATIVE PROCEDURES. A proceeding relating to the assessment of an administrative penalty under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512l, Sec. 13A(d).)
[Sections 604.313-604.350 reserved for expansion]
SUBCHAPTER G. CRIMINAL PENALTIES
Sec. 604.351. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 604.101 or 604.102.
(b) An offense under this section is a Class B misdemeanor. V.A.C.S. Art. 4512l, Secs. 13(a), (c).)
Sec. 604.352. OTHER CRIMINAL OFFENSES. (a) A person commits an offense if the person knowingly:
(1) sells, fraudulently obtains, or furnishes a respiratory care diploma, certificate, temporary permit, or record;
(2) practices respiratory care under a respiratory care diploma, certificate, temporary permit, or record illegally or fraudulently obtained or issued;
(3) impersonates in any manner a respiratory care practitioner;
(4) practices respiratory care while the person's certificate or temporary permit is suspended, revoked, or expired;
(5) conducts a formal respiratory care education program to prepare respiratory care personnel other than a program approved by the department;
(6) employs a person as a respiratory care practitioner who does not hold a certificate or temporary permit in the practice of respiratory care; or
(7) otherwise practices medicine in violation of Section 604.002.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4512l, Secs. 13(b), (c).)
CHAPTER 605. ORTHOTISTS AND PROSTHETISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 605.001. SHORT TITLE
Sec. 605.002. DEFINITIONS
Sec. 605.003. APPLICATION OF SUNSET ACT
[Sections 605.004-605.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF ORTHOTICS AND PROSTHETICS
Sec. 605.051. TEXAS BOARD OF ORTHOTICS AND PROSTHETICS;
AFFILIATION WITH DEPARTMENT
Sec. 605.052. APPOINTMENT OF BOARD; MEMBERSHIP
Sec. 605.053. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 605.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 605.055. TERMS; VACANCY
Sec. 605.056. OFFICERS
Sec. 605.057. GROUNDS FOR REMOVAL
Sec. 605.058. COMPENSATION; REIMBURSEMENT
Sec. 605.059. MEETINGS
Sec. 605.060. CIVIL LIABILITY
Sec. 605.061. TRAINING
[Sections 605.062-605.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 605.101. EXECUTIVE DIRECTOR
Sec. 605.102. DIVISION OF RESPONSIBILITIES
Sec. 605.103. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 605.104. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 605.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
Sec. 605.106. RECORDS AND REGISTER
[Sections 605.107-605.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 605.151. GENERAL POWERS OF BOARD
Sec. 605.152. FEES
Sec. 605.153. FUNDS RECEIVED BY DEPARTMENT
Sec. 605.154. RULEMAKING
Sec. 605.155. EXAMINATIONS
Sec. 605.156. ANNUAL REPORT
[Sections 605.157-605.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 605.201. PUBLIC INTEREST INFORMATION
Sec. 605.202. COMPLAINTS
Sec. 605.203. PUBLIC PARTICIPATION
[Sections 605.204-605.250 reserved for expansion]
SUBCHAPTER F. LICENSE, REGISTRATION, AND
ACCREDITATION REQUIREMENTS
Sec. 605.251. LICENSE REQUIRED
Sec. 605.252. LICENSE ELIGIBILITY
Sec. 605.253. REVIEW OF LICENSE APPLICATIONS
Sec. 605.254. EXEMPTIONS FROM OR SUBSTITUTES FOR LICENSE
REQUIREMENTS
Sec. 605.255. ASSISTANT LICENSE
Sec. 605.256. ISSUANCE OF LICENSE OR REGISTRATION
CERTIFICATE; TERM
Sec. 605.257. TEMPORARY LICENSE
Sec. 605.258. STUDENT REGISTRATION CERTIFICATE
Sec. 605.259. ORTHOTIC OR PROSTHETIC TECHNICIAN
REGISTRATION CERTIFICATE
Sec. 605.260. ACCREDITATION OF FACILITIES
Sec. 605.261. CONTINUING EDUCATION
Sec. 605.262. ALTERNATIVE LICENSING
Sec. 605.263. PROVISIONAL LICENSE
Sec. 605.264. ALTERNATIVE STUDENT REGISTRATION
[Sections 605.265-605.300 reserved for expansion]
SUBCHAPTER G. EXEMPTIONS
Sec. 605.301. EXEMPTION FOR LICENSE HOLDERS OF OTHER STATE
AGENCIES
Sec. 605.302. EXEMPTION FOR STUDENTS IN ORTHOTICS OR
PROSTHETICS
Sec. 605.303. EXEMPTION FOR CERTAIN LICENSE HOLDERS
Sec. 605.304. EXEMPTION FOR PEDORTHISTS
Sec. 605.305. EXEMPTION FOR PHARMACISTS
[Sections 605.306-605.350 reserved for expansion]
SUBCHAPTER H. PROHIBITED PRACTICES, DISCIPLINARY PROCEDURES,
AND PENALTIES
Sec. 605.351. USE OF TITLE
Sec. 605.352. VIOLATION OF HEALTH AND SAFETY CODE
Sec. 605.353. DISCIPLINARY ACTIONS
Sec. 605.354. CIVIL PENALTY
Sec. 605.355. ASSISTANCE IN PROSECUTION
CHAPTER 605. ORTHOTISTS AND PROSTHETISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 605.001. SHORT TITLE. This chapter may be cited as the Orthotics and Prosthetics Act. (V.A.C.S. Art. 8920, Sec. 1.)
Sec. 605.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Orthotics and Prosthetics.
(2) "Commissioner" means the commissioner of public health.
(3) "Custom-fabricated" means an orthosis or prosthesis designed, prescribed, fabricated, fitted, and aligned for a specific individual in accordance with sound biomechanical principles.
(4) "Custom-fitted" means an orthosis or prosthesis adjusted, prescribed, fitted, and aligned for a specific individual in accordance with sound biomechanical principles.
(5) "Department" means the Texas Department of Health.
(6) "Licensed orthotist" or "LO" means a person licensed under this chapter who practices orthotics and represents the person to the public by a title or description of services that includes the term "orthotics," "orthotist," "brace," "orthoses," "orthotic," or a similar title or description of services.
(7) "Licensed orthotist assistant" or "LOA" means a person licensed under this chapter who assists at an orthotic or prosthetic facility and is under the supervision of a licensed orthotist responsible for the acts of the assistant.
(8) "Licensed prosthetist" or "LP" means a person licensed under this chapter who practices prosthetics and represents the person to the public by a title or description of services that includes the term "prosthetics," "prosthetist," "prostheses," "prosthetic," "artificial limb," or a similar title or description of services.
(9) "Licensed prosthetist assistant" or "LPA" means a person licensed under this chapter who assists at an orthotic or prosthetic facility and is under the supervision of a licensed prosthetist responsible for the acts of the assistant.
(10) "Licensed prosthetist orthotist" or "LPO" means a person licensed under this chapter who practices both orthotics and prosthetics and represents the person to the public by a title or description of services that includes the terms "prosthetics orthotics," "prosthetist orthotist," "prosthetic orthotic," "artificial limb," "brace," or a similar title or description of services.
(11) "Licensed prosthetist orthotist assistant" or "LPOA" means a person licensed under this chapter who assists at an orthotic or prosthetic facility and is under the supervision of a licensed prosthetist orthotist or a licensed prosthetist and licensed orthotist responsible for the acts of the assistant.
(12) "Orthosis" means a custom-fabricated or custom-fitted medical device designed to provide for the support, alignment, prevention, or correction of a neuromuscular or musculoskeletal disease, injury, or deformity. The term does not include a fabric or elastic support, corset, arch support, low-temperature plastic splint, truss, elastic hose, cane, crutch, soft cervical collar, orthosis for diagnostic or evaluation purposes, dental appliance, or any other similar device carried in stock and sold by a drugstore, department store, or corset shop.
(13) "Orthotic or prosthetic facility" means a location, including a building or office, where the profession and practice of orthotics or prosthetics normally takes place.
(14) "Orthotics" means the science and practice of measuring, designing, fabricating, assembling, fitting, adjusting, or servicing an orthosis under an order from a licensed physician, chiropractor, or podiatrist for the correction or alleviation of a neuromuscular or musculoskeletal dysfunction, disease, injury, or deformity.
(15) "Person" means an individual, corporation, partnership, association, or other organization.
(16) "Profession of orthotics or prosthetics" means allied health care medical services used to identify, prevent, correct, or alleviate acute or chronic neuromuscular or musculoskeletal dysfunctions of the human body that support and provide rehabilitative health care services concerned with the restoration of function, prevention, or progression of disabilities resulting from disease, injury, or congenital anomalies. Orthotic and prosthetic services include direct patient care, including consultation, evaluation, treatment, education, and advice to maximize the rehabilitation potential of disabled individuals.
(17) "Prosthesis" means a custom-fabricated or custom-fitted medical device used to replace a missing limb, appendage, or other external human body part but that is not surgically implanted. The term includes an artificial limb, hand, or foot. The term does not include:
(A) an artificial eye, ear, finger, or toe;
(B) a dental appliance;
(C) a cosmetic device, including an artificial breast, eyelash, or wig; or
(D) another device that does not have a significant impact on the musculoskeletal functions of the body.
(18) "Prosthetics" means the science and practice of measuring, designing, fabricating, assembling, fitting, adjusting, or servicing a prosthesis under an order from a licensed physician, chiropractor, or podiatrist.
(19) "Registered orthotic technician" means a person registered under this chapter who fabricates, assembles, or services orthoses under the direction of a licensed orthotist or licensed orthotist assistant responsible for the acts of the technician.
(20) "Registered prosthetic orthotic technician" means a person registered under this chapter who fabricates, assembles, or services prostheses and orthoses under the direction of a licensed orthotist and licensed prosthetist, a licensed prosthetist orthotist, or a licensed orthotist assistant, licensed prosthetist assistant, or licensed prosthetist orthotist assistant responsible for the acts of the technician.
(21) "Registered prosthetic technician" means a person registered under this chapter who fabricates, assembles, or services prostheses under the direction of a licensed prosthetist or licensed prosthetist assistant responsible for the acts of the technician. (V.A.C.S. Art. 8920, Sec. 2 (part).)
Sec. 605.003. APPLICATION OF SUNSET ACT. The Texas Board of Orthotics and Prosthetics is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2009. (V.A.C.S. Art. 8920, Sec. 3(g).)
[Sections 605.004-605.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF ORTHOTICS AND PROSTHETICS
Sec. 605.051. TEXAS BOARD OF ORTHOTICS AND PROSTHETICS; AFFILIATION WITH DEPARTMENT. The Texas Board of Orthotics and Prosthetics is part of the department and shall perform its duties as a board with the department. (V.A.C.S. Art. 8920, Sec. 3(a).)
Sec. 605.052. APPOINTMENT OF BOARD; MEMBERSHIP. (a) The board consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) one licensed orthotist member who has practiced orthotics for the five years preceding the date of appointment;
(2) one licensed prosthetist member who has practiced prosthetics for the five years preceding the date of appointment;
(3) one licensed prosthetist orthotist member who has practiced orthotics and prosthetics for the five years preceding the date of appointment;
(4) one member who is a representative of the public who uses an orthosis;
(5) one member who is a representative of the public who uses a prosthesis; and
(6) one member who is a representative of the public who does not use an orthosis or prosthesis.
(b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 8920, Secs. 3(b), (d), (e) (part).)
Sec. 605.053. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 8920, Sec. 14.)
Sec. 605.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 8920, Secs. 13, 15.)
Sec. 605.055. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms. The terms of two members expire on February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor shall appoint a person to serve for the remainder of the term. (V.A.C.S. Art. 8920, Secs. 3(c), (e) (part).)
Sec. 605.056. OFFICERS. The members of the board shall elect from the board's membership a presiding officer, a secretary, and other officers as required to conduct the board's business. (V.A.C.S. Art. 8920, Sec. 11(a) (part).)
Sec. 605.057. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the board;
(2) does not maintain during service on the board the qualifications required for appointment to the board;
(3) violates a prohibition established by this chapter;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 8920, Sec. 4.)
Sec. 605.058. COMPENSATION; REIMBURSEMENT. A board member is entitled to compensation and reimbursement of travel expenses incurred, as provided by the General Appropriations Act. (V.A.C.S. Art. 8920, Sec. 12.)
Sec. 605.059. MEETINGS. (a) The board may adopt rules necessary to govern its proceedings.
(b) A special meeting of the board shall be called by the presiding officer or on the written request of any three members. (V.A.C.S. Art. 8920, Sec. 11(a) (part).)
Sec. 605.060. CIVIL LIABILITY. A board member is not liable for damages in a civil action for an act performed in good faith while performing duties as a board member. (V.A.C.S. Art. 8920, Sec. 3(f).)
Sec. 605.061. TRAINING. Each board member shall comply with the board member training requirements established by any other state agency authorized to establish the requirements for the board. (V.A.C.S. Art. 8920, Sec. 9.)
[Sections 605.062-605.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
Sec. 605.101. EXECUTIVE DIRECTOR. With the advice of the board, the commissioner shall appoint an executive director to administer this chapter. (V.A.C.S. Art. 8920, Sec. 5(g) (part).)
Sec. 605.102. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the governing body of the board and the staff of the board. (V.A.C.S. Art. 8920, Sec. 5(m).)
Sec. 605.103. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 8920, Sec. 19.)
Sec. 605.104. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 8920, Secs. 5(h), (i).)
Sec. 605.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state laws, rules, and regulations and instructions adopted directly under those laws, rules, and regulations;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state laws, rules, and regulations and instructions adopted directly under those laws, rules, and regulations encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports made to the legislature. (V.A.C.S. Art. 8920, Sec. 18.)
Sec. 605.106. RECORDS AND REGISTER. (a) The executive director shall keep a record of each board meeting and maintain a register containing the name of each person holding a license under this chapter. The record and register shall be open at all times to public inspection.
(b) On March 1 of each year, the executive director shall send an official copy of the register of license holders to the secretary of state to be maintained as a permanent record.
(c) A certified copy of the register is admissible as evidence in any court of this state. (V.A.C.S. Art. 8920, Sec. 11(b).)
[Sections 605.107-605.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 605.151. GENERAL POWERS OF BOARD. The board may:
(1) investigate complaints;
(2) issue, suspend, deny, and revoke licenses;
(3) reprimand license holders and place license holders on probation;
(4) issue subpoenas;
(5) hold hearings; and
(6) use personnel, facilities, furniture, equipment, and other items supplied by the department to administer this chapter. (V.A.C.S. Art. 8920, Secs. 5(d), (g) (part).)
Sec. 605.152. FEES. (a) The board may collect license application fees, renewal fees, examination fees, and other fees for administrative expenses.
(b) If the General Appropriations Act does not set the amount of the fees, the board shall set the fees in amounts reasonable and necessary for the administration of this chapter. (V.A.C.S. Art. 8920, Sec. 5(b).)
Sec. 605.153. FUNDS RECEIVED BY DEPARTMENT. The department shall receive and account for funds obtained under this chapter. (V.A.C.S. Art. 8920, Sec. 20 (part).)
Sec. 605.154. RULEMAKING. (a) The board shall propose rules consistent with this chapter to carry out its duties in administering this chapter.
(b) The board shall submit the proposed rules to the attorney general for review and shall adopt rules consistent with the advice of the attorney general.
(c) In adopting rules, the board shall consider the applicable policies and procedures of the department. (V.A.C.S. Art. 8920, Sec. 5(f).)
Sec. 605.155. EXAMINATIONS. The board must approve any examination required for a license under this chapter. Each examination shall be offered at least once each year. (V.A.C.S. Art. 8920, Sec. 5(c).)
Sec. 605.156. ANNUAL REPORT. During January of each year, the board shall file with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year. (V.A.C.S. Art. 8920, Sec. 17.)
[Sections 605.157-605.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 605.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 8920, Secs. 5(j), 6(a).)
Sec. 605.202. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for service provided by a person regulated by the board.
(b) The board shall keep an information file about each complaint filed with the board relating to a person regulated by the board.
(c) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
(d) The board shall list with its regular telephone number any toll-free telephone number established under other state law for presenting a complaint about a person regulated or required to be regulated under this chapter. (V.A.C.S. Art. 8920, Secs. 5(e), 6(b), (c).)
Sec. 605.203. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 8920, Secs. 7, 8 (part).)
[Sections 605.204-605.250 reserved for expansion]
SUBCHAPTER F. LICENSE, REGISTRATION, AND
ACCREDITATION REQUIREMENTS
Sec. 605.251. LICENSE REQUIRED. A person may not practice, attempt to practice, or offer to practice orthotics or prosthetics, act as an assistant to a person who practices orthotics or prosthetics, or in any way hold the person out as being able to practice orthotics or prosthetics unless the person holds a license issued by the board under this chapter. (V.A.C.S. Art. 8920, Sec. 22(a).)
Sec. 605.252. LICENSE ELIGIBILITY. (a) To be eligible for a license to practice orthotics or prosthetics in this state, a person must:
(1) file a written application with the board on the form prescribed by the board;
(2) pay the nonrefundable application fee;
(3) be a resident of this state;
(4) have completed formal training, including the required hours of classroom education and clinical practice, in an area of study the board by rule determines to be necessary and appropriate;
(5) have completed a clinical residency in the professional area for which a license is sought that complies with the standards, guidelines, or procedures established by the board for a clinical residency that is offered in this state or another state; and
(6) have passed each written and practical examination approved and required by the board.
(b) The requirements for a license established by board rule must include the requirement that the applicant hold:
(1) a bachelor's degree in orthotics and prosthetics from:
(A) an education program recognized and accredited by the Commission on Accreditation of Allied Health Education Programs that is offered at an institution of higher education; or
(B) a practitioner education program that has education standards that are equivalent to or exceed the standards adopted by the Commission on Accreditation of Allied Health Education Programs; or
(2) a bachelor's degree in another subject and an orthotic or prosthetic certificate issued by a practitioner education program:
(A) recognized and accredited by the Commission on Accreditation of Allied Health Education Programs; or
(B) that has education standards that are equivalent to or exceed the standards adopted by the Commission on Accreditation of Allied Health Education Programs.
(c) To meet the clinical residency requirements for a license, the applicant must complete at least 1,900 hours of professional clinical residency under the direct supervision of a licensed orthotist, licensed prosthetist, or a licensed prosthetist orthotist in the discipline for which licensure is sought.
(d) The board may accept as a substitute for the examination requirement proof that the license applicant holds a license in a state that has licensing requirements that are equal to or exceed the requirements of this chapter. (V.A.C.S. Art. 8920, Secs. 23(a), (b); Sec. 31.)
Sec. 605.253. REVIEW OF LICENSE APPLICATIONS. The board shall review applications for a license at least once each year at reasonable times and places designated by the board. (V.A.C.S. Art. 8920, Sec. 5(a).)
Sec. 605.254. EXEMPTIONS FROM OR SUBSTITUTES FOR LICENSE REQUIREMENTS. (a) A person is entitled to an exemption from the license requirements established by the board under Section 605.252 if the person is a resident of this state who:
(1) applies for the exemption not later than the 181st day after the date on which the board's initial rules are finally adopted and:
(A) has provided comprehensive orthotic or prosthetic care for at least three years before the date of the application, including practicing orthotics or prosthetics in this state for the year preceding that date; or
(B) has provided comprehensive orthotic and prosthetic care for at least six years, including practicing orthotics and prosthetics in this state for the year preceding the application date; or
(2) presents evidence satisfactory to the board that the person possesses unique qualifications to practice orthotics, prosthetics, or orthotics and prosthetics.
(b) A person who has provided comprehensive orthotic, prosthetic, or orthotic and prosthetic care in this state for a term shorter than the number of years required by Subsection (a)(1) may obtain a license to practice in this state by passing each written and practical examination approved and required by the board. The person must:
(1) apply for examination on a form prescribed by the board not later than the 181st day after the date the board's initial rules are finally adopted; and
(2) pay the nonrefundable application fee.
(c) The board shall issue a license to a person who is determined to be eligible for a license under Subsection (a) or (b). A person to whom a license is issued under this subsection is entitled to the same license privileges as if the person met the educational and vocational requirements of Section 605.252. The license holder is subject to the license renewal requirements established by the board, other than the academic, clinical training, and examination requirements, which the board may not impose as a condition of the person's license. (V.A.C.S. Art. 8920, Secs. 23(d), (e), (f), (g).)
Sec. 605.255. ASSISTANT LICENSE. (a) An applicant for a license as an orthotist assistant or prosthetist assistant must:
(1) file a written application with the board on a form provided by the board;
(2) pay the nonrefundable application fee prescribed by the board; and
(3) present evidence satisfactory to the board that the applicant has completed an education program, including courses in the anatomical, biological, and physical sciences, and a clinical residency as prescribed and adopted by the board.
(b) An assistant licensed under this section may provide only ancillary patient care services, as defined by the board, in the discipline in which the assistant's supervisor is licensed under this chapter.
(c) A person is eligible for an exemption from the license requirements established by the board under this section if the person:
(1) applies for the exemption not later than the 181st day after the date on which the board's initial rules are finally adopted;
(2) is a resident of this state; and
(3) has practiced in this state within the scope of practice of an assistant, as defined by the board, for three consecutive years. (V.A.C.S. Art. 8920, Sec. 24.)
Sec. 605.256. ISSUANCE OF LICENSE OR REGISTRATION CERTIFICATE; TERM. (a) The board may issue a license or registration certificate under this chapter only to an individual.
(b) The board shall issue a license in orthotics or prosthetics to an applicant who meets the requirements provided under this chapter. A license may be granted in either orthotics or prosthetics, or in both, if the person meets the requirements established by the board.
(c) A license is valid for two years from the date issued and may be renewed before expiration. (V.A.C.S. Art. 8920, Secs. 27(a), (b) (part), (c).)
Sec. 605.257. TEMPORARY LICENSE. (a) The board may issue a temporary license to an individual who:
(1) has recently become a resident of this state;
(2) has applied for a license as an orthotist, prosthetist, or both; and
(3) has:
(A) practiced orthotics regularly since January 1, 1996; or
(B) been licensed by the state in which the person formerly resided if that state has license requirements that are equal to or exceed the requirements of this chapter.
(b) A temporary license is valid for one year from the date issued. A temporary license may be renewed for not more than one additional year if the applicant presents evidence sufficient to the board of good cause for renewal. (V.A.C.S. Art. 8920, Sec. 29.)
Sec. 605.258. STUDENT REGISTRATION CERTIFICATE. (a) The board may issue a student registration certificate to an individual who is working toward fulfilling the requirements for a license as an orthotist, prosthetist, or prosthetist orthotist and holds either:
(1) a bachelor's degree in orthotics and prosthetics from:
(A) an education program recognized and accredited by the Commission on Accreditation of Allied Health Education Programs that is offered at an institution of higher education; or
(B) a practitioner education program that has education standards that are equivalent to or exceed the standards adopted by the Commission on Accreditation of Allied Health Education Programs; or
(2) a bachelor's degree in another subject and an orthotic or prosthetic certificate issued by a practitioner education program:
(A) recognized and accredited by the Commission on Accreditation of Allied Health Education Programs; or
(B) that has education standards that are equivalent to or exceed the standards adopted by the Commission on Accreditation of Allied Health Education Programs.
(b) A student registrant may work only under the direct supervision of a licensed orthotist, licensed prosthetist, or licensed prosthetist orthotist who is responsible for the acts of the student registrant and licensed in the discipline of the student registrant's clinical residency.
(c) A student registration certificate is valid for two years from the date issued and may be renewed once for an additional two years. (V.A.C.S. Art. 8920, Secs. 30(a), (c), (d).)
Sec. 605.259. ORTHOTIC OR PROSTHETIC TECHNICIAN REGISTRATION CERTIFICATE. (a) The board may issue a registered orthotic technician or registered prosthetic technician certificate to an applicant who:
(1) files a written application with the board on a form provided by the board;
(2) pays the nonrefundable application fee; and
(3) presents evidence satisfactory to the board that the applicant has completed an education program and laboratory experience as prescribed by the board.
(b) A person is eligible for an exemption from the registration requirements adopted by the board under this section if the person:
(1) applies for the exemption not later than the 181st day after the date on which the board's initial rules under this chapter are finally adopted;
(2) is a resident of this state; and
(3) has practiced in this state as an orthotic or prosthetic technician for three consecutive years. (V.A.C.S. Art. 8920, Sec. 25.)
Sec. 605.260. ACCREDITATION OF FACILITIES. (a) The board by rule shall establish requirements for the accreditation and the renewal of an accreditation of an orthotic or prosthetic facility in which orthotics or prosthetics are conducted. The board may issue an accreditation only to an orthotic or prosthetic facility.
(b) If a person owns more than one facility, the board may require only one application for the accreditation of each of the person's facilities. Each orthotic or prosthetic facility must meet the requirements established by the board.
(c) An orthotic or prosthetic facility must be under the on-site direction of an orthotist or prosthetist licensed by the board in the discipline for which accreditation is sought.
(d) The rules adopted under this section may not prohibit a licensed individual from practicing in an orthotic or prosthetic facility within the scope of the individual's license.
(e) This section does not apply to a facility licensed under Subtitle B, Title 4, Health and Safety Code. (V.A.C.S. Art. 8920, Secs. 26, 27(b) (part).)
Sec. 605.261. CONTINUING EDUCATION. (a) The board shall:
(1) adopt rules that require a license holder to participate in an approved continuing education program to renew a license issued under this chapter; and
(2) prepare or approve continuing education programs for license holders.
(b) To renew a license under this chapter, an applicant must submit to the board evidence of satisfactory completion of the continuing education requirements required by the board.
(c) The board shall notify a license holder who has failed to comply with the board's continuing education requirements of the license holder's failure to comply and that failure to obtain the required continuing education before the expiration of three months after the date the notice is given constitutes grounds for the board to suspend or revoke the license holder's license. (V.A.C.S. Art. 8920, Secs. 5(l), 32.)
Sec. 605.262. ALTERNATIVE LICENSING. (a) As an alternative to the education requirements imposed under Section 605.252(b) and the clinical residency requirement imposed under Section 605.252(c), the board by rule shall provide that an applicant for a license under this section must:
(1) hold an associate's degree that includes courses in the anatomical, biological, and physical sciences; and
(2) have completed at least 4,500 hours of postgraduate clinical experience under the direct supervision of a licensed orthotist, licensed prosthetist, or licensed prosthetist orthotist in the discipline for which a license is sought.
(b) This section expires January 1, 2005. (V.A.C.S. Art. 8920, Secs. 23(c), 28(e).)
Sec. 605.263. PROVISIONAL LICENSE. (a) A person practicing comprehensive orthotic or prosthetic patient management who does not before October 1, 1998, meet the requirements of this chapter for licensing as an orthotist or prosthetist and is not exempt under this chapter may not continue the person's practice unless the person complies with the requirements of Section 605.252 not later than January 1, 2005.
(b) A person subject to this section may apply for a provisional orthotist or prosthetist license by:
(1) filing a written application with the board on a form provided by the board; and
(2) paying the nonrefundable application fee.
(c) A provisional license may only be issued to an individual who is actively engaged in complying with the education and clinical licensing requirements of Section 605.252.
(d) A provisional license may be revoked by the board if the board determines that the provisional license holder is not in compliance with this section.
(e) A provisional license is valid for two years from the date issued and may be renewed with documentation as required by board rule.
(f) This section expires January 1, 2005. (V.A.C.S. Art. 8920, Secs. 28(a), (b), (c), (d), (f), (g).)
Sec. 605.264. ALTERNATIVE STUDENT REGISTRATION. (a) As an alternative to the qualifications required by Section 605.258(a)(2), the board may issue a student registration certificate to an individual who holds an associate's degree that includes course work in the anatomical, biological, and physical sciences.
(b) This section expires January 1, 2005. (V.A.C.S. Art. 8920, Sec. 30(b).)
[Sections 605.265-605.300 reserved for expansion]
SUBCHAPTER G. EXEMPTIONS
Sec. 605.301. EXEMPTION FOR LICENSE HOLDERS OF OTHER STATE AGENCIES. This chapter does not restrict a person who holds a license issued by another state agency from performing health care services within the scope of the license holder's applicable licensing act if the license holder:
(1) practices in conformance with the applicable laws and rules relating to the person's license; and
(2) does not:
(A) violate Section 605.251;
(B) represent to others that the license holder practices orthotics or prosthetics; or
(C) use the terms "prosthetist," "prosthesis," "prosthetic," "artificial limb," "orthotist," "orthosis," "orthotic," or "brace" or the letters "LP," "LPA," "LO," "LOA," "LPO," or "LPOA" or any derivative of those terms or letters in connection with the license holder's name or practice. (V.A.C.S. Art. 8920, Sec. 21(a).)
Sec. 605.302. EXEMPTION FOR STUDENTS IN ORTHOTICS OR PROSTHETICS. This chapter does not apply to the activities and services of a student in orthotics or prosthetics who is:
(1) pursuing a course of study in:
(A) an orthotic or prosthetic program at a college or university recognized and accredited by the Commission on Accreditation of Allied Health Education Programs; or
(B) an orthotic or prosthetic education program having education standards that are equivalent to or exceed the standards adopted by the Commission on Accreditation of Allied Health Education Programs; or
(2) working in a recognized training center or research facility, if the activities and services provided by the person at the training center or research facility constitute a part of the person's course of study in the discipline in which the person's supervisor is licensed under this chapter. (V.A.C.S. Art. 8920, Sec. 21(b).)
Sec. 605.303. EXEMPTION FOR CERTAIN LICENSE HOLDERS. This chapter does not apply to:
(1) a podiatrist practicing under Chapter 202;
(2) a chiropractor practicing under Chapter 201;
(3) an occupational therapist practicing under Chapter 454; or
(4) a physical therapist practicing under Chapter 453. (V.A.C.S. Art. 8920, Sec. 21(c).)
Sec. 605.304. EXEMPTION FOR PEDORTHISTS. (a) In this section:
(1) "Certified pedorthist" means a person certified by the Board for Certification in Pedorthics in the design, manufacture, fit, and modification of shoes and related foot orthoses below the anatomical ankle joint as prescribed by a licensed doctor of medicine or a doctor of podiatry for the amelioration of a painful or disabling condition of the foot; and
(2) "Foot orthosis" includes prosthetic toe fillers or orthoses for use below the ankle.
(b) This chapter does not apply to a certified pedorthist. (V.A.C.S. Art. 8920, Sec. 21(d).)
Sec. 605.305. EXEMPTION FOR PHARMACISTS. A pharmacist licensed by the Texas State Board of Pharmacy or a person who is working under the direct supervision of a pharmacist may practice orthotics. This chapter does not preclude a pharmacist from being reimbursed by a state-funded program for providing orthotic services. (V.A.C.S. Art. 8920, Sec. 21(e).)
[Sections 605.306-605.350 reserved for expansion]
SUBCHAPTER H. PROHIBITED PRACTICES, DISCIPLINARY PROCEDURES,
AND PENALTIES
Sec. 605.351. USE OF TITLE. A person or an employee, agent, or representative of the person may not use in connection with the person's name or business activities the terms or a combination of the terms or letters described in Section 605.301(2), indicate orally or in writing, directly or by implication, that an orthotic or prosthetic service is provided or supplied, or extend or provide orthotic or prosthetic services unless the person is an orthotist or prosthetist or an assistant to an orthotist or prosthetist licensed under this chapter. (V.A.C.S. Art. 8920, Sec. 22(b).)
Sec. 605.352. VIOLATION OF HEALTH AND SAFETY CODE. A person licensed under this chapter is considered to have violated this chapter if the person violates Section 161.091, Health and Safety Code. (V.A.C.S. Art. 8920, Sec. 22(c).)
Sec. 605.353. DISCIPLINARY ACTIONS. (a) After notice and opportunity for a hearing, the board may revoke, suspend, or refuse to renew a license issued under this chapter on a finding that:
(1) the license was obtained by fraud, misrepresentation, or concealment of a material fact;
(2) the person engaged in fraud or deceit in connection with services provided by the person;
(3) the person engaged in unprofessional or unethical conduct;
(4) the person engaged in gross negligence or malpractice; or
(5) the person violated this chapter or a rule adopted under this chapter.
(b) The board may reinstate a license revoked under Subsection (a) after the first anniversary of the date of the revocation on terms the board determines to be necessary. (V.A.C.S. Art. 8920, Sec. 33.)
Sec. 605.354. CIVIL PENALTY. (a) A person who violates this chapter is subject to a civil penalty of $200 for the first violation and $500 for each subsequent violation.
(b) Each day a violation of Section 605.351 continues is a separate violation for the purpose of this section.
(c) The attorney general shall bring an action in the name of the state at the board's request to collect a civil penalty under this section. (V.A.C.S. Art. 8920, Sec. 34.)
Sec. 605.355. ASSISTANCE IN PROSECUTION. The board shall assist legal authorities in the prosecution of any person violating this chapter. (V.A.C.S. Art. 8920, Sec. 5(k).)
[Chapters 606-650 reserved for expansion]
SUBTITLE L. FUNERAL DIRECTING AND EMBALMING
CHAPTER 651. FUNERAL DIRECTING AND EMBALMING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 651.001. DEFINITIONS
Sec. 651.002. APPLICATION OF SUNSET ACT
Sec. 651.003. CONSTRUCTION WITH OTHER LAW
[Sections 651.004-651.050 reserved for expansion]
SUBCHAPTER B. TEXAS FUNERAL SERVICE COMMISSION
Sec. 651.051. COMMISSION MEMBERSHIP
Sec. 651.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 651.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 651.054. TERMS; VACANCY
Sec. 651.055. GROUNDS FOR REMOVAL
Sec. 651.056. REIMBURSEMENT; PER DIEM
Sec. 651.057. OFFICERS
Sec. 651.058. OFFICE LOCATION
Sec. 651.059. MEETINGS; NOTICE
[Sections 651.060-651.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 651.101. EXECUTIVE DIRECTOR; BOND
Sec. 651.102. PERSONNEL
Sec. 651.103. INVESTIGATORS
Sec. 651.104. DIVISION OF RESPONSIBILITIES
Sec. 651.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 651.106. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 651.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 651.108-651.150 reserved for expansion]
SUBCHAPTER D. COMMISSION POWERS AND DUTIES
Sec. 651.151. GENERAL POWERS AND DUTIES
Sec. 651.152. RULES; PROCEDURES; FORMS
Sec. 651.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 651.154. FEES
Sec. 651.155. FEE EXEMPTION FOR MILITARY SERVICE
Sec. 651.156. SUBPOENA
Sec. 651.157. INSPECTION OF FUNERAL ESTABLISHMENT
Sec. 651.158. INSPECTION OF CERTAIN FACILITIES
Sec. 651.159. MEMORANDUM OF UNDERSTANDING: PREPAID FUNERAL
SERVICES
Sec. 651.160. MEMORANDUM OF UNDERSTANDING: FUNERAL
ESTABLISHMENT REQUIREMENTS
Sec. 651.161. REGISTER
Sec. 651.162. ANNUAL REPORTS
[Sections 651.163-651.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST AND COMPLAINT INFORMATION
Sec. 651.201. PUBLIC INTEREST INFORMATION
Sec. 651.202. COMPLAINTS
Sec. 651.203. RECORD OF COMPLAINTS
Sec. 651.204. PUBLIC PARTICIPATION
[Sections 651.205-651.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS: FUNERAL DIRECTORS
AND EMBALMERS
Sec. 651.251. LICENSE REQUIRED
Sec. 651.252. LICENSE APPLICATION
Sec. 651.253. GENERAL LICENSE REQUIREMENTS
Sec. 651.254. LICENSE EXAMINATIONS; RESULTS
Sec. 651.255. EXAMINATIONS REQUIRED FOR FUNERAL DIRECTOR'S
LICENSE
Sec. 651.256. EXAMINATIONS REQUIRED FOR EMBALMER'S LICENSE
Sec. 651.257. FOREIGN STUDENTS; CERTIFICATE OF MERIT
Sec. 651.258. LICENSE ISSUANCE
Sec. 651.259. RECIPROCAL LICENSE
Sec. 651.260. DUPLICATE LICENSE
Sec. 651.261. POSTING OF LICENSE
Sec. 651.262. LICENSE EXPIRATION
Sec. 651.263. RENEWAL OR REINSTATEMENT OF LICENSE
Sec. 651.264. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 651.265. RENEWAL FOR CERTAIN RETIRED APPLICANTS;
INACTIVE STATUS
Sec. 651.266. CONTINUING EDUCATION
Sec. 651.267. REISSUANCE OF LICENSE
[Sections 651.268-651.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS: PROVISIONAL
LICENSE HOLDERS
Sec. 651.301. PROVISIONAL LICENSE REQUIRED
Sec. 651.302. APPLICATION; ISSUANCE OF PROVISIONAL LICENSE
Sec. 651.303. PROVISIONAL LICENSE PROGRAM
Sec. 651.304. EMPLOYMENT REPORTS
Sec. 651.305. RENEWAL OR REINSTATEMENT OF PROVISIONAL
LICENSE
Sec. 651.306. PERSONAL SUPERVISION
[Sections 651.307-651.350 reserved for expansion]
SUBCHAPTER H. LICENSE REQUIREMENTS: FUNERAL ESTABLISHMENTS
AND COMMERCIAL EMBALMER ESTABLISHMENTS
Sec. 651.351. FUNERAL ESTABLISHMENT LICENSE REQUIREMENTS
Sec. 651.352. COMMERCIAL EMBALMERS ESTABLISHMENT
LICENSE REQUIREMENTS
Sec. 651.353. LICENSE EXPIRATION
Sec. 651.354. RENEWAL OF FUNERAL ESTABLISHMENT LICENSE
[Sections 651.355-651.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 651.401. FIRST CALL
Sec. 651.402. RELATIONSHIP OF FUNERAL DIRECTOR TO FUNERAL
ESTABLISHMENT
Sec. 651.403. DESIGNATION OF FUNERAL DIRECTOR IN CHARGE;
EFFECT OF VIOLATION
Sec. 651.404. CONSUMER BROCHURE
Sec. 651.405. RETAIL PRICE LIST
Sec. 651.406. PURCHASE AGREEMENT
Sec. 651.407. USE OF BODY BY SCHOOL OF MORTUARY SCIENCE
[Sections 651.408-651.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES
Sec. 651.451. CERTAIN FRAUDULENT AND DECEPTIVE ACTS
Sec. 651.452. LACK OF FITNESS TO PRACTICE
Sec. 651.453. UNETHICAL ADVERTISING
Sec. 651.454. OTHER UNETHICAL CONDUCT IN SOLICITING
CUSTOMERS
Sec. 651.455. FALSE OR MISLEADING STATEMENTS REGARDING
FUNERAL MERCHANDISE OR FUNERAL SERVICES
Sec. 651.456. UNETHICAL CONDUCT REGARDING CUSTODY
OF DEAD HUMAN BODY
Sec. 651.457. UNETHICAL CONDUCT REGARDING EMBALMING
Sec. 651.458. UNETHICAL CONDUCT BY FUNERAL ESTABLISHMENT
Sec. 651.459. OTHER UNETHICAL CONDUCT IN PROVIDING FUNERAL
SERVICES
Sec. 651.460. PROHIBITED PRACTICES RELATED TO FAILURE TO COMPLY
WITH OTHER LEGAL REQUIREMENTS
[Sections 651.461-651.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES AND
LICENSE DENIALS
Sec. 651.501. GENERAL DISCIPLINARY POWERS OF COMMISSION
Sec. 651.502. LICENSE DENIAL; EFFECT OF CRIMINAL CONVICTION
Sec. 651.503. WARNING; REPORT BY LICENSE HOLDER
Sec. 651.504. REPRIMAND
Sec. 651.505. PROBATION
Sec. 651.506. DISCIPLINARY PROCEEDINGS; HEARING PROCEEDINGS
Sec. 651.507. EFFECT OF MULTIPLE VIOLATIONS
[Sections 651.508-651.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTIES
Sec. 651.551. ASSESSMENT OF ADMINISTRATIVE PENALTY
Sec. 651.552. AMOUNT OF PENALTY
Sec. 651.553. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 651.554. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 651.555. OPTIONS AFTER DECISION: PAY OR APPEAL
Sec. 651.556. COLLECTION OF PENALTY
Sec. 651.557. REMITTANCE OF PENALTY
Sec. 651.558. LICENSE SUSPENSION FOR FAILURE TO COMPLY
[Sections 651.559-651.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 651.601. INJUNCTION
Sec. 651.602. CRIMINAL PENALTY
CHAPTER 651. FUNERAL DIRECTING AND EMBALMING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 651.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Funeral Service Commission.
(2) "Embalmer" means a person licensed under this chapter who for compensation, wholly or partly, disinfects or preserves a dead human body by:
(A) using chemical substances, fluids, or gases, including by introducing those substances, fluids, or gases into the body by:
(i) vascular or hypodermic injection; or
(ii) direct application into the organs or cavities; or
(B) another method intended to disinfect or preserve a dead human body or to restore body tissues and structures.
(3) "First call" means the beginning of the relationship and duty of a funeral director to take charge of a dead human body and have the body prepared for burial or disposition by embalming, cremation, or another method. The term does not include an ambulance call if the person dispatching the ambulance does not know whether a dead human body is to be picked up.
(4) "Funeral director" means a person licensed under this chapter who engages in for compensation, or represents to the public as being engaged in for compensation, the preparation, other than by embalming, of a dead human body for burial or other disposition.
(5) "Funeral directing" means acts associated with or arranging for the disposition of a dead human body, performed by a person for compensation, from the time of first call until:
(A) interment or entombment services are complete; or
(B) the body is released:
(i) for transport to a crematorium; or
(ii) to a public carrier.
(6) "Funeral establishment" means:
(A) a place of business used in the care and preparation for burial or transportation of a dead human body; or
(B) any other place in which a person engages in, or represents the person to be engaged in, the business of embalming or funeral directing.
(7) "Funeral merchandise" means merchandise sold primarily for use in:
(A) a funeral ceremony;
(B) embalming; or
(C) the care and preparation of a dead human body for burial, cremation, or other disposition.
(8) "Funeral service" means a service performed incident to a funeral ceremony or for the care and preparation of a dead human body for burial, cremation, or other disposition. The term includes embalming.
(9) "Mortuary science" means the scientific, professional, and practical aspects, with consideration given to accepted practices, of the care, preparation for burial, or transportation of a dead human body. The term includes the preservation and sanitation of a dead human body and restorative art.
(10) "Outer enclosure" means an enclosure or container placed in a grave above or around the casket. The term includes a burial vault, grave box, or grave liner.
(11) "Prospective customer" means a consumer who enters a funeral establishment and inquires about a funeral service, cremation, or merchandise.
(12) "Provisional license holder" means a person who:
(A) is engaged in learning the practice of funeral directing or embalming under the instruction, direction, and personal supervision of a funeral director or embalmer; and
(B) holds a provisional license issued by the commission under this chapter.
(13) "Purchase agreement" means a written statement that itemizes the cost of funeral services or merchandise selected by a customer from the retail price list.
(14) "Solicitation" means a direct or indirect contact by a funeral director, embalmer, or employee, agent, or representative of a licensed funeral establishment or any other entity with a person near death or the family of, next of kin of, or person responsible for making funeral arrangements for a person who is deceased or near death, if the contact is not initiated by the person near death or the family, next of kin, or person responsible for making funeral arrangements and the contact is to secure the right to provide funeral services or merchandise or occurs in a situation that might influence the contacted person to choose a particular funeral establishment. The term does not include:
(A) except in the case of contact with a person near death or the person responsible for making funeral arrangements for a person near death, an attempt to secure funeral business under a permit issued under Chapter 154, Finance Code; or
(B) any method of advertising by publication or broadcasting.
(15) "Unit pricing" means a method of pricing that offers a discount to a purchaser who buys various funeral services and merchandise as a package. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. A, Subdiv. 1 (part), Subsecs. B, C (part), D (part), E (part), G (part), I, M, N, O, P, T (part), U, V (part), W.)
Sec. 651.002. APPLICATION OF SUNSET ACT. The Texas Funeral Service Commission is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2003. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. N.)
Sec. 651.003. CONSTRUCTION WITH OTHER LAW. (a) This chapter does not affect the authority of the Texas Department of Banking to enforce Chapter 154, Finance Code.
(b) The authority of the commission under Chapter 154, Finance Code, is limited to:
(1) imposing an administrative penalty;
(2) issuing a reprimand; or
(3) suspending, revoking, or probating a license issued by the commission. (V.A.C.S. Art. 4582b, Sec. 9.)
[Sections 651.004-651.050 reserved for expansion]
SUBCHAPTER B. TEXAS FUNERAL SERVICE COMMISSION
Sec. 651.051. COMMISSION MEMBERSHIP. (a) The Texas Funeral Service Commission consists of nine members appointed by the governor, with the advice and consent of the senate as follows:
(1) three members who are embalmers with embalming experience in this state for at least the five years preceding appointment to the commission;
(2) one member who is an embalmer or a funeral director with experience embalming or funeral directing, as applicable, in this state for at least the five years preceding appointment to the commission; and
(3) five members who represent the public and who:
(A) are not regulated under this chapter; and
(B) have consistently shown an interest in supporting consumer protection.
(b) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
(c) Each member of the commission must be a United States citizen.
(d) Before entering on the duties of office, each commissioner shall take and subscribe to the oath of office prescribed for other state officials. The oath shall be filed in the office of the secretary of state after having been administered under proper authority.
(e) Each person appointed to the commission shall be furnished with a certificate of appointment by the governor that evidences that the person took the official oath of office. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdivs. (1) (part), (2) (part), (8); Subsec. B.)
Sec. 651.052. ELIGIBILITY OF PUBLIC MEMBERS. (a) A person is not eligible for appointment as a public member of the commission if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of funeral services;
(2) is employed by or participates in the management of a business entity or other organization regulated by the commission or receiving funds from the commission;
(3) owns or controls, directly or indirectly, any interest in a business entity or other organization regulated by the commission or receiving funds from the commission; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the commission, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses.
(b) A public member of the commission may not, except as a consumer:
(1) have a financial interest in a funeral establishment; or
(2) be related to a person within the second degree by affinity or third degree by consanguinity, as determined under Subchapter B, Chapter 573, Government Code, who has a financial interest in a funeral establishment. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdiv. (1) (part); Subdiv. (4), as amended Acts 72nd Leg., R.S., Ch. 561.)
Sec. 651.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A commissioner or an employee of the commission who carries out the functions of the commission may not be related within the second degree by affinity or within the third degree by consanguinity, as determined under Subchapter B, Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the funeral industry.
(c) An officer, employee, or paid consultant of a Texas trade association in the field of funeral services may not be a commission member and may not be an employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of funeral services may not be a member of the commission and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(e) A person may not be appointed to the commission if:
(1) the person is an officer or employee of a corporation or other business entity directly or indirectly controlling or operating more than three funeral establishments; and
(2) a member of the commission is an officer or employee of the same corporation or entity.
(f) A person may not serve as a member of the commission or act as the general counsel to the commission 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 commission. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdiv. (3) (part), as amended Acts 72nd Leg., R.S., Ch. 561; Subdiv. (3), as amended Acts 72nd Leg., R.S., Ch. 573; Subdivs. (6), (7).)
Sec. 651.054. TERMS; VACANCY. (a) Members of the commission serve staggered six-year terms. A member may not be appointed for more than one full term.
(b) The governor shall appoint a person to fill a vacancy on the commission to serve for the remainder of the unexpired term. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdiv. (2) (part).)
Sec. 651.055. GROUNDS FOR REMOVAL. (a) The governor shall remove from the commission a commissioner whose license to practice funeral directing or embalming has been revoked or suspended.
(b) The governor may remove a commissioner for neglect of duty, incompetence, or fraudulent or dishonest conduct.
(c) It is a ground for removal from the commission that a member:
(1) does not have at the time of appointment the qualifications required by Sections 651.051(a) and (c) and 651.052(a);
(2) does not maintain during service on the commission the qualifications required by Sections 651.051(a) and (c) and 651.052(a);
(3) violates a prohibition established by Sections 651.053(a)-(e) or 651.506(h);
(4) cannot because of illness or disability discharge the member's duties for a substantial part of the term for which the member is appointed; or
(5) is absent for more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the commission.
(d) The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists.
(e) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the commission of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdivs. (2) (part), (9).)
Sec. 651.056. REIMBURSEMENT; PER DIEM. (a) A commissioner shall be reimbursed for necessary travel expenses incurred in performing the business of the commission.
(b) In addition to reimbursement under Subsection (a), a commissioner shall receive a per diem allowance for each day spent by the commissioner on business of the commission not to exceed 60 days in any calendar year. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. I (part).)
Sec. 651.057. OFFICERS. (a) The governor shall designate one commissioner as the presiding officer of the commission to serve in that capacity at the pleasure of the governor.
(b) After 30 days' written notice is given to the commissioners, the commission shall elect from its members an assistant presiding officer and secretary. The assistant presiding officer and the secretary serve in that capacity for one year.
(c) The presiding officer shall preside at all meetings of the commission, unless otherwise ordered, and shall exercise all duties and performances incident to the office of presiding officer. In the absence of the presiding officer, the assistant presiding officer shall preside. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. D (part).)
Sec. 651.058. OFFICE LOCATION. The commission's offices are located in Austin, Texas. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdiv. (1) (part).)
Sec. 651.059. MEETINGS; NOTICE. (a) The commission shall meet in regular session in Austin at least twice each year to transact business.
(b) The commission may hold a special meeting or hearing on the call of the presiding officer, assistant presiding officer, or three commissioners. The person calling the special meeting or hearing shall determine the time and place of the meeting or hearing.
(c) Notice of the time, place, and purpose of a regular meeting of the commission must be filed with the Texas Register at least seven days before the date of the meeting. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. H (part); Sec. 2, Subsec. C (part).)
[Sections 651.060-651.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 651.101. EXECUTIVE DIRECTOR; BOND. (a) The commission may employ an executive director as determined by the commission to be necessary to administer this chapter. The commission shall determine the terms and expenses of the executive director's employment. In the absence of an executive director, the commission may appoint an acting executive director.
(b) The commission shall require a bond of the executive director or acting executive director. The premium for the bond shall be paid from commission funds. The bond must:
(1) equal the maximum annual anticipated receipts of the commission; and
(2) be deposited with the comptroller. (V.A.C.S. Art. 4582b, Sec. 2, Subsecs. D (part), H (part).)
Sec. 651.102. PERSONNEL. The commission may employ inspectors, clerical and technical assistants, and legal counsel, other than the attorney general, as the commission determines to be necessary to administer this chapter. The commission shall determine the terms and expenses of its employees. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. H (part).)
Sec. 651.103. INVESTIGATORS. (a) The commission shall employ or contract for the services of one or more persons to investigate complaints received by the commission, including consumer interest complaints.
(b) An employee of the commission who serves as an investigator must:
(1) hold a private investigator license in this state;
(2) have previously held a license as a private investigator under state or federal law; or
(3) have previously been employed by a local, state, or federal law enforcement agency as an investigator.
(c) A person serving as an investigator in a contractual capacity must hold a private investigator license in this state.
(d) A person subject to regulation under this chapter may not serve as an investigator for the commission. (V.A.C.S. Art. 4582b, Sec. 6D, Subsec. (f).)
Sec. 651.104. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly define the responsibilities of the commission and the staff of the commission. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. P (part).)
Sec. 651.105. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The commission shall provide to its members and employees, as often as necessary, information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to the standards of conduct for state officers or employees. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. P (part).)
Sec. 651.106. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry-level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for commission employees must be based on the system established under this subsection. (V.A.C.S. Art. 4582b, Sec. 2A, Subsecs. (a), (b).)
Sec. 651.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the commission workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the commission workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must cover an annual period, be updated at least annually, and be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4582b, Sec. 2A, Subsecs. (c), (d), (e).)
[Sections 651.108-651.150 reserved for expansion]
SUBCHAPTER D. COMMISSION POWERS AND DUTIES
Sec. 651.151. GENERAL POWERS AND DUTIES. (a) The commission shall establish proficiency, professionalism, and qualification standards for funeral directors and embalmers.
(b) The commission shall examine each applicant for a funeral director's license, embalmer's license, or provisional license and shall issue the appropriate license to a person who meets the licensing requirements.
(c) The commission may appoint a committee from its members to consider and make a recommendation on a matter referred to the committee by the commission. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. S; Sec. 3, Subsec. A.)
Sec. 651.152. RULES; PROCEDURES; FORMS. The commission may adopt rules, establish procedures, and prescribe forms necessary to administer this chapter. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. M; Sec. 3, Subsec. I; Sec. 4, Subsec. F; Sec. 5, Subsec. A.)
Sec. 651.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commission may not adopt rules restricting advertising or competitive bidding by a person regulated by the commission except to prohibit false, misleading, or deceptive practices by the person.
(b) The commission may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the commission a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. R.)
Sec. 651.154. FEES. (a) The commission shall set the following fees in amounts reasonable and necessary to administer this chapter:
(1) the funeral director's and embalmer's application fee, license fee, duplicate license fee, and reciprocal license fee; and
(2) the funeral establishment license fee, renewal fee, and late renewal penalty.
(b) The commission shall set the provisional license fee, examination fee, renewal fee, and late renewal penalty in amounts reasonable and necessary to administer the provisional license program. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 1, Para. (d); Subdiv. 2, Para. (d); Subdiv. 3 (part); Sec. 3, Subsec. E, Subdiv. 3; Subsec. F (part); Sec. 4, Subsec. A (part).)
Sec. 651.155. FEE EXEMPTION FOR MILITARY SERVICE. (a) On presentation to the commission of evidence as prescribed by the commission, a license holder or provisional license holder actively engaged in the military service of the United States is exempt from the payment of license fees for the duration of the holder's military service or from the amount of fees and for the time the commission considers advisable.
(b) The commission may not consider the period of military service in determining whether a funeral director's license or embalmer's license is revoked, suspended, or lapsed. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 3 (part); Subsec. E, Subdiv. 4.)
Sec. 651.156. SUBPOENA. The commission may issue, or may delegate to the executive director the power to issue, a subpoena or subpoena duces tecum. The subpoena or subpoena duces tecum must be served by personal service or certified mail, return receipt requested. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. L.)
Sec. 651.157. INSPECTION OF FUNERAL ESTABLISHMENT. (a) Each licensed funeral establishment shall be inspected annually by an agent of the commission or by an agent of the state or a political subdivision authorized by the commission to make inspections on its behalf. A report of the annual inspection shall be filed with the commission. The commission by rule shall establish procedures for the inspection of a funeral establishment required by this section.
(b) A premises on which funeral directing or embalming is practiced shall be open at all times to inspection for any violation of this chapter or of Chapter 193 or 361, Health and Safety Code, by:
(1) an agent of the commission;
(2) an authorized agent of the state; or
(3) an authorized agent of the county or municipality in which the premises is located.
(c) Before a commission agent inspects a funeral establishment, the agent shall review the inspection reports filed with the commission on the establishment. During the inspection, the agent shall determine whether previously identified problems have been corrected and whether a pattern of violations exists. The commission shall consider the information from the inspection reports in determining whether a penalty should be imposed against an establishment. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. G.)
Sec. 651.158. INSPECTION OF CERTAIN FACILITIES. (a) The commission may require a funeral establishment that has solid waste disposal and sanitation facilities that have not been inspected by the Texas Department of Health to obtain inspection of those facilities by an entity other than the Texas Department of Health.
(b) The commission by rule shall establish procedures for an inspection required under this section. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. H.)
Sec. 651.159. MEMORANDUM OF UNDERSTANDING: PREPAID FUNERAL SERVICES. (a) The commission, the Texas Department of Insurance, and the Texas Department of Banking shall adopt a joint memorandum of understanding relating to prepaid funeral services and transactions. The memorandum must:
(1) outline the responsibilities of each agency in regulating prepaid funeral services and transactions;
(2) establish procedures to be used by each agency in:
(A) referring a complaint to one of the other agencies;
(B) investigating a complaint; and
(C) notifying the other agencies of a complaint or a complaint investigation;
(3) specify:
(A) an action the agencies regard as a deceptive trade practice; and
(B) the information the agencies provide consumers and when that information is to be provided; and
(4) set the administrative penalty each agency imposes for a violation.
(b) Not later than the last month of each state fiscal year, the commission and the other agencies shall review and update the memorandum of understanding.
(c) Each agency by rule shall adopt the memorandum of understanding and any revision to the memorandum. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. I.)
Sec. 651.160. MEMORANDUM OF UNDERSTANDING: FUNERAL ESTABLISHMENT REQUIREMENTS. (a) The commission and the Texas Department of Health shall adopt a joint memorandum of understanding that:
(1) outlines the responsibilities of each agency in enforcing requirements under Chapters 193 and 361, Health and Safety Code, that affect funeral establishments;
(2) establishes procedures by which each agency:
(A) may refer a complaint to the other; and
(B) will notify the other of a violation by a funeral establishment of Chapter 193 or 361, Health and Safety Code; and
(3) coordinates inspection and enforcement efforts by both agencies for measures that a funeral establishment is required to implement under Chapters 193 and 361, Health and Safety Code.
(b) Not later than the last month of each state fiscal year, the commission and the Texas Department of Health shall review and update the memorandum of understanding.
(c) Each agency by rule shall adopt the memorandum of understanding and any revision to the memorandum. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. J.)
Sec. 651.161. REGISTER. (a) The commission shall file annually with the governor a list of the names of all funeral directors, embalmers, and licensed funeral establishments. The commission shall file a copy of the list with the secretary of state for permanent record.
(b) A copy of the list, certified by the secretary of state and under the state seal, is admissible as evidence in all courts. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. E, Subdiv. (2).)
Sec. 651.162. ANNUAL REPORTS. (a) The commission shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year. The annual report must be in the form and reported in the time provided by the General Appropriations Act.
(b) The commission shall file annually with the governor a written description of the activities of the commission during the preceding fiscal year. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. E, Subdivs. (1), (3).)
[Sections 651.163-651.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST AND COMPLAINT INFORMATION
Sec. 651.201. PUBLIC INTEREST INFORMATION. (a) The commission shall prepare a brochure with information of public interest:
(1) explaining matters relating to funerals; and
(2) describing:
(A) the functions of the commission; and
(B) the commission's procedures for filing and resolving a public complaint.
(b) The commission shall:
(1) provide each licensed funeral establishment with the number of brochures the commission considers appropriate; and
(2) make the brochure available to the public and appropriate state agencies. (V.A.C.S. Art. 4582b, Sec. 6E, Subsec. (a).)
Sec. 651.202. COMPLAINTS. (a) The commission by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission. The commission may provide for that notice:
(1) on each license form, application, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for service provided by a person regulated under this chapter.
(b) The commission shall investigate each complaint received by the commission relating to a funeral director, embalmer, provisional license holder, or funeral establishment.
(c) If a person files a complaint with the commission relating to a funeral director, embalmer, provisional license holder, or licensed funeral establishment, the commission shall furnish to the person an explanation of the remedies that are available to the person under this chapter and information about other appropriate state or local agencies or officials with which the person may file a complaint.
(d) If a written complaint is filed with the commission that the commission has authority to resolve, the commission, at least quarterly until final disposition of the complaint and on final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
(e) The complainant is entitled to attend any proceeding resulting from the complaint. (V.A.C.S. Art. 4582b, Sec. 6D, Subsecs. (a) (part), (c), (e), (g); Sec. 6E, Subsec. (c).)
Sec. 651.203. RECORD OF COMPLAINTS. (a) The commission shall keep an information file about each complaint filed with the commission that the commission has authority to resolve. The commission shall include in each information file:
(1) a description of the complaint;
(2) the date the complaint is filed;
(3) the name of the complainant;
(4) a description of any information obtained by the commission after investigating the complaint;
(5) a description of and the date of any formal action taken by the commission relating to the complaint;
(6) a description of the current status of the complaint; and
(7) any other information the commission considers appropriate.
(b) Information in a file maintained under this section, other than information obtained by the commission after investigating the complaint, is public information. Information obtained after investigating the complaint is not public information. (V.A.C.S. Art. 4582b, Sec. 6D, Subsecs. (a) (part), (b), (d).)
Sec. 651.204. PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction.
(b) The commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the commission's programs. (V.A.C.S. Art. 4582b, Sec. 2, Subsecs. K (part), Q.)
[Sections 651.205-651.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS: FUNERAL DIRECTORS
AND EMBALMERS
Sec. 651.251. LICENSE REQUIRED. (a) Funeral directing may be performed only by a funeral director or a provisional license holder or qualified mortuary student under the supervision and direction of a funeral director. A person may not engage or profess to be engaged in the business of funeral directing or hold the person out to the public as a funeral director unless the person is licensed as a funeral director.
(b) Embalming may be performed only by an embalmer or a provisional license holder or qualified mortuary student under the supervision and direction of an embalmer. A person may not engage or profess to be engaged in the business of embalming or hold the person out to the public as an embalmer unless the person is licensed as an embalmer. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. A, Subdiv. 2 (part); Subsecs. D (part), G (part).)
Sec. 651.252. LICENSE APPLICATION. (a) An applicant for a funeral director's license or an embalmer's license must submit a written license application to the commission and pay the application fee.
(b) The commission may require an applicant to appear before at least one member of the commission for approval of the person's application. The approval is subject to review by the entire commission.
(c) The commission shall keep a permanent, alphabetical record of each license application and the action taken on the application. The record must indicate the current status of each application and license issued. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. G; Sec. 3, Subsec. D, Subdiv. 1, Para. (a-1) (part); Sec. 3, Subsec. D, Subdiv. 2, Para. (e) (part); Sec. 3, Subsec. E (part).)
Sec. 651.253. GENERAL LICENSE REQUIREMENTS. (a) To be eligible for a funeral director's license or an embalmer's license, an applicant must:
(1) be at least 18 years of age;
(2) have graduated from an accredited high school or passed an examination prescribed by the Texas Education Agency;
(3) have graduated from an accredited school or college of mortuary science;
(4) unless the applicant holds a reciprocal embalmer's license, have served as a provisional license holder for not less than one year under the personal supervision and instruction of a funeral director or embalmer, as applicable; and
(5) have successfully completed the applicable written examination described by Section 651.255 or 651.256.
(b) An applicant for a funeral director's license or an embalmer's license may not be considered for that license until the applicant:
(1) completes all of the requirements of the provisional license program; and
(2) attains a grade of at least 75 percent on the written examination given by the commission. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. B, Subdiv. (1); Subsec. C, Subdiv. (1); Subsec. D, Subdiv. 1 (part); Subsec. D, Subdiv. 1, Para. (a-1) (part); Subsec. D, Subdiv. 2, Para. (e) (part).)
Sec. 651.254. LICENSE EXAMINATIONS; RESULTS. (a) The examinations for a funeral director's license and an embalmer's license shall be held at least annually. The examinations shall be given at the time and place designated by the commission. The commission shall give notice of the examinations.
(b) Not later than the 30th day after the date on which a funeral director's or embalmer's licensing examination is administered under this chapter, the commission shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the commission shall notify each examinee of the results of the examination not later than the 14th day after the date on which the commission receives the results from the testing service.
(c) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the commission shall notify the examinee of the reason for the delay before the 90th day.
(d) If requested in writing by a person who fails a licensing examination, the commission shall furnish the person with an analysis of the person's performance on the examination.
(e) Notice of the time and place of an examination must be filed with the Texas Register at least seven days before the examination. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. H (part); Sec. 2, Subsec. C (part); Sec. 3, Subsec. B, Subdiv. (3); Sec. 3, Subsec. C, Subdiv. (3).)
Sec. 651.255. EXAMINATIONS REQUIRED FOR FUNERAL DIRECTOR'S LICENSE. The commission shall administer or arrange for the administration of:
(1) a written professionally prepared examination on:
(A) the art and technique of funeral directing;
(B) the signs of death;
(C) the manner by which death may be determined;
(D) sanitation and hygiene;
(E) mortuary management and mortuary law;
(F) business and professional ethics; and
(G) other subjects that may be taught in a recognized school or college of mortuary science; and
(2) a written examination developed by the commission or developed for the commission by contract on:
(A) laws applicable to vital statistics pertaining to dead human bodies; and
(B) local and state rules and laws relating to the preparation, transportation, care, and disposition of dead human bodies. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. B, Subdiv. (2).)
Sec. 651.256. EXAMINATIONS REQUIRED FOR EMBALMER'S LICENSE. The commission shall administer or arrange for the administration of:
(1) a written professionally prepared examination on:
(A) the anatomy of the human body, including:
(i) the cavities of the human body; and
(ii) the arterial and venous system of the human body;
(B) blood and discoloration;
(C) bacteriology and hygiene;
(D) pathology;
(E) chemistry and embalming;
(F) arterial and cavity embalming;
(G) restorative art;
(H) disinfecting;
(I) embalming special cases;
(J) contagious and infectious diseases;
(K) mortuary management;
(L) care, preservation, transportation, and disposition of dead human bodies;
(M) sanitary science; and
(N) other subjects that may be taught in a recognized school or college of mortuary science; and
(2) a written examination developed by the commission or developed for the commission by contract on:
(A) laws applicable to vital statistics pertaining to dead human bodies; and
(B) local and state rules and laws relating to the care and disposition of dead human bodies. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. C, Subdiv. (2).)
Sec. 651.257. FOREIGN STUDENTS; CERTIFICATE OF MERIT. (a) A citizen of a country other than the United States who has completed a full course of mortuary science at a commission-approved college in this state may take the commission examination in embalming, funeral directing, or both after:
(1) applying to the commission; and
(2) paying the examination fee required of other applicants.
(b) The commission may award the applicant a certificate of merit if the applicant successfully makes the minimum grades required of other applicants. The certificate of merit does not authorize the holder of the certificate to practice embalming or funeral directing in this state unless the holder is otherwise licensed as an embalmer or funeral director under this chapter. (V.A.C.S. Art. 4582b, Sec. 6B.)
Sec. 651.258. LICENSE ISSUANCE. On issuance of a funeral director's license or an embalmer's license under this chapter, a majority of the commission members shall sign the license. The license authorizes the license holder to practice embalming, funeral directing, or both. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.259. RECIPROCAL LICENSE. (a) The commission may waive any requirement for a funeral director's license or an embalmer's license for an applicant who holds a license issued by another state, country, or territory that has license requirements substantially equivalent to the requirements of this state. The applicant shall pay a reciprocal license fee in an amount set by the commission.
(b) Any applicant for a reciprocal license shall file a sworn application that includes:
(1) a statement that:
(A) the applicant is the person to whom the license was issued;
(B) no proceeding has been instituted against the applicant for the cancellation, suspension, or revocation of the license in the state, country, or territory that issued the license; and
(C) no prosecution is pending against the applicant in a state or federal court for an offense that, under the laws of this state, is a felony, or is a misdemeanor related to the practice of embalming or funeral directing; and
(2) an affidavit of a person described by Subsection (c) verifying that:
(A) the accompanying license has not been canceled, suspended, or revoked; and
(B) the statement of the qualifications made in the application for licensure in this state is correct.
(c) The affidavit must be made by:
(1) the presiding officer or secretary of the governmental entity that issued the license; or
(2) a registration officer of the state, country, or territory that issued the license.
(d) The applicant must affirm in the statement that the license under which the applicant practiced as a funeral director or embalmer in the state, country, or territory from which the applicant moved was, at the time the applicant left, in effect. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. F (part).)
Sec. 651.260. DUPLICATE LICENSE. (a) If a license issued under this chapter is lost or destroyed, the license holder may apply to the commission for a duplicate license.
(b) The license holder must submit the application on a form prescribed by the commission and must submit with the application an affidavit verifying:
(1) the loss or destruction of the license;
(2) that the license holder is the person to whom the license was issued; and
(3) any other information concerning the loss or destruction of the license the commission requires.
(c) The commission shall issue a duplicate license after receipt of the information and payment of the fee set by the commission for the duplicate license. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.261. POSTING OF LICENSE. A license holder shall conspicuously display the holder's license in each place of business at which the license holder practices funeral directing or embalming. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.262. LICENSE EXPIRATION. The commission by rule may adopt a system under which funeral director's and embalmer's licenses expire on various dates during the year. The commission shall adjust dates for sending notice regarding payment of fees and license suspension for nonpayment according to the system, if any, adopted under this subsection. For a year in which the license expiration date is changed, license fees are prorated on a monthly basis so that each license holder pays only that portion of the license fee allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E, Subdiv. 2.)
Sec. 651.263. RENEWAL OR REINSTATEMENT OF LICENSE. (a) A person may renew an unexpired license by paying the required renewal fee to the commission before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the commission the required renewal fee and a penalty fee equal to one-half the amount of the renewal fee for the license. If a person's license has been expired for more than 90 days but less than five years, the person may renew the license by paying to the commission all unpaid renewal fees and a penalty fee that is equal to one-half of the total amount of the unpaid renewal fees.
(c) If a person's license has been expired for five years or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
(d) At least 30 days before the expiration of a person's license, the commission shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the commission. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.264. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The commission may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is licensed and has been in practice in the other state for the two years before the person applied for a renewal license.
(b) The person must pay to the commission a fee equal to the renewal fee for the license. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.265. RENEWAL FOR CERTAIN RETIRED APPLICANTS; INACTIVE STATUS. (a) A license holder who is at least 65 years of age or who has a disability of 75 percent or greater at the time an application for renewal is submitted may apply for renewal of the license in the category of retired, inactive status, or the category of retired, active status.
(b) On application, the commission may renew the license of a retired license holder who does not provide funeral or embalming services in the category of retired, inactive status. The commission may not charge a fee for the renewal of a license for retired, inactive status.
(c) On application, the commission may renew in the category of retired, active status, the license of a retired license holder who participates in any manner, nominal or otherwise, in the provision of funeral or embalming services. The commission shall charge a fee equal to one-half of the amount of the license renewal fee charged other active license holders. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E, Subdiv. 5.)
Sec. 651.266. CONTINUING EDUCATION. The commission by rule may require continuing education as a condition for license renewal except for an applicant for renewal described by Section 651.155 or Section 651.265. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E (part).)
Sec. 651.267. REISSUANCE OF LICENSE. (a) On application, the commission may reissue a funeral director's or embalmer's license to a person whose license has been suspended or revoked. An application to reissue a license may not be made before the first anniversary of the date of the suspension or revocation.
(b) The application shall be made in the manner and form required by the commission.
(c) A hearing to determine whether to reissue a license shall be held before the commission unless the commission requires the hearing to be held before a hearings officer.
(d) A license that has been revoked or suspended for a period of five years or more may be reinstated only after the applicant passes the written embalming or funeral directing examination. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. E, Subdiv. 1; Sec. 6, Subsec. (d).)
[Sections 651.268-651.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS: PROVISIONAL
LICENSE HOLDERS
Sec. 651.301. PROVISIONAL LICENSE REQUIRED. A person must obtain a provisional license before the person may engage in learning the practice of funeral directing or embalming under the instruction, direction, and personal supervision in this state of a licensed funeral director or embalmer. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. E (part); Sec. 3, Subsec. D, Subdiv. 1, Para. (b) (part).)
Sec. 651.302. APPLICATION; ISSUANCE OF PROVISIONAL LICENSE. (a) The commission shall issue a provisional license to practice funeral directing to an applicant who:
(1) is at least 18 years of age;
(2) has completed the educational requirements of Section 651.253;
(3) takes the written examination given by the commission;
(4) files an application for a provisional license on a form provided by the commission and verified under oath by the applicant; and
(5) pays any required application or license fee.
(b) The commission shall issue a provisional license to practice embalming to an applicant who:
(1) is at least 18 years of age;
(2) has completed the educational requirements of Section 651.253;
(3) takes the written examination given by the commission;
(4) files an application for a provisional license;
(5) pays any required application or license fee; and
(6) complies with the requirements of this chapter and of the commission.
(c) An applicant who does not obtain a provisional license before the second anniversary of the date the applicant takes the examination must pass the examination again before being licensed as a provisional license holder. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 1, Paras. (a), (a-1) (part); Subdiv. 2 (part); Subdiv. 2, Para. (a).)
Sec. 651.303. PROVISIONAL LICENSE PROGRAM. (a) The commission shall prescribe and supervise the course of instruction received by a provisional license holder while participating in a provisional license program.
(b) The commission by rule shall define the terms of employment of a provisional license holder. The terms of employment must include service by the provisional license holder under actual working conditions and under the personal supervision of a funeral director or embalmer.
(c) The term of the provisional license program must be at least 12 consecutive months.
(d) The provisional license program must include assisting with at least 60 cases. Not more than two provisional license holders may receive credit for work done on any one body. The commission by rule shall:
(1) define the standards for a case;
(2) set the number of cases a provisional license holder is required to complete during the program; and
(3) establish guidelines for supervision under which a provisional license holder is granted increased responsibilities during the course of the provisional license program.
(e) The standards required for a complete case include:
(1) for an embalmer, all the duties and activities necessary for embalming; and
(2) for a funeral director, all the activities necessary from the time the body is obtained until final disposition.
(f) The funeral director provisional license program may be served concurrently with the embalmer provisional license program. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. F (part); Sec. 3, Subsec. D, Subdiv. 1 (part); Sec. 3, Subsec. D, Subdiv. 1, Para. (b) (part); Sec. 3, Subsec. D, Subdiv. 2 (part); Sec. 3, Subsec. D, Subdiv. 2, Para. (c).)
Sec. 651.304. EMPLOYMENT REPORTS. (a) On entering employment with a funeral director or embalmer, a provisional license holder shall immediately notify the commission of the name and place of business of the funeral director or embalmer under whom the provisional license holder will train. The funeral director or embalmer shall sign the notification.
(b) A provisional license holder shall report to the commission monthly. The report must:
(1) be made not later than the 10th day after the end of the month;
(2) identify each case that the provisional license holder:
(A) assisted in handling during that month if the provisional license holder is a funeral director applicant; or
(B) handled or assisted in handling during that month if the provisional license holder is an embalmer applicant; and
(3) be certified by the funeral director or embalmer under whom the provisional license holder performed the work.
(c) The provisional license holder shall make the monthly report required by Subsection (b) regardless of whether the provisional license holder performed an activity described by Subsection (b) during that month for which a report is required.
(d) If a provisional license holder leaves the employment of a funeral director or embalmer, the funeral director or embalmer shall prepare an affidavit showing the length of time the provisional license holder was employed and the number of cases handled while employed by the funeral director or embalmer. The original affidavit shall be filed with the commission and made a matter of record. A copy of the affidavit shall be furnished to the provisional license holder.
(e) The commission shall furnish report forms to be used by a provisional license holder. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 1, Para. (c); Subdiv. 2, Para. (b); Subdiv. 4.)
Sec. 651.305. RENEWAL OR REINSTATEMENT OF PROVISIONAL LICENSE. (a) A provisional license issued by the commission expires on January 1 of each year. The commission may renew a provisional license on payment of the renewal fee if the provisional license holder has observed commission rules.
(b) In December of each year, the commission shall mail a renewal notice that states the amount of the required renewal fee to each provisional license holder at the license holder's last known address.
(c) If a provisional license holder fails to timely pay the renewal fee, the commission shall:
(1) impose a late payment penalty equal to the amount of the license renewal fee;
(2) suspend the license for nonpayment; and
(3) notify the provisional license holder of the suspension.
(d) If the renewal fee and penalty are not paid before the 91st day after the date of the notice of suspension, the commission shall cancel the license. If the license is canceled under this subsection, the provisional license holder may apply for reinstatement not later than 18 months after the date of cancellation. The commission may reinstate the canceled license if:
(1) all other commission requirements are satisfied; and
(2) the license fee and a late payment penalty equal to the amount of the license fee for the period of the cancellation are paid.
(e) A provisional license may be renewed after the second anniversary of the date of its issuance only if the person requests and receives from the commission an extension based on hardship.
(f) A provisional license that has been canceled or suspended or has lapsed for a period of at least five years may be reinstated only if the applicant passes the written embalming or funeral directing examination.
(g) The commission may adopt rules relating to the reinstatement of a provisional license under this section. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 3 (part).)
Sec. 651.306. PERSONAL SUPERVISION. For the purposes of this chapter, personal supervision requires the physical presence of a funeral director or embalmer at the specified place and time a funeral service is provided. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. R.)
[Sections 651.307-651.350 reserved for expansion]
SUBCHAPTER H. LICENSE REQUIREMENTS: FUNERAL ESTABLISHMENTS
AND COMMERCIAL EMBALMER ESTABLISHMENTS
Sec. 651.351. FUNERAL ESTABLISHMENT LICENSE REQUIREMENTS. (a) A funeral establishment may not conduct a funeral business unless it is licensed by the commission.
(b) This chapter does not require a funeral establishment to be owned by a person licensed under this chapter.
(c) To obtain an initial funeral establishment license, an applicant must apply for a license and pay the licensing fee. The commission shall issue an initial funeral establishment license on determining that the applicant satisfies the requirements of this section.
(d) A funeral establishment must:
(1) meet the building, fire safety, and health standards and health ordinances of this state and of the municipality in which the establishment is located;
(2) be located at a fixed place that is not tax-exempt property or a cemetery;
(3) include facilities in which funeral services may be conducted;
(4) have access to rolling stock consisting of at least one motor hearse;
(5) include a preparation room containing:
(A) the facilities, equipment, and supplies required by commission rule to ensure the provision of adequate embalming services; and
(B) other facilities as necessary to comply with the sanitary codes of this state and of the municipality in which the room is located; and
(6) include a display containing sufficient merchandise to permit reasonable selection, including at least five adult caskets.
(e) Each funeral establishment must have sufficient licensed personnel to conduct the operation of the funeral establishment.
(f) The least expensive casket offered for sale by a funeral establishment must be visibly displayed without concealment and in the same general manner as other caskets are displayed. (V.A.C.S. Art. 4582b, Sec. 4, Subsecs. A (part), B (part), C (part); Sec. 8.)
Sec. 651.352. COMMERCIAL EMBALMERS ESTABLISHMENT LICENSE REQUIREMENTS. (a) In this section, "commercial embalmers establishment" means an establishment that:
(1) embalms for licensed funeral establishments;
(2) does not sell services or merchandise directly or at retail to the public; and
(3) meets the requirements for an embalmers license.
(b) An establishment that functions solely as a commercial embalmers establishment is required to hold a commercial embalmers establishment license but is not required to comply with the requirements for a funeral establishment license under Sections 651.351(d)(3), (d)(6), and (f).
(c) A commercial embalmers establishment may employ an embalmer only if the embalmer is licensed under this chapter. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. L; Sec. 4, Subsec. C (part).)
Sec. 651.353. LICENSE EXPIRATION. A funeral establishment license expires at midnight on September 30 of each year. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. A (part).)
Sec. 651.354. RENEWAL OF FUNERAL ESTABLISHMENT LICENSE. (a) The commission shall mail written notice to a funeral establishment of the impending expiration of the funeral establishment's license not later than the 30th day before the expiration date of the license. The notice must state that:
(1) to renew the license, the funeral establishment must pay the renewal fee not later than September 30; and
(2) the license is automatically renewed on receipt of the renewal fee.
(b) A funeral establishment that fails to pay the license renewal fee by the due date is subject to a late payment penalty equal to the amount charged for the license renewal fee.
(c) If the license is expired for longer than 30 days, the funeral establishment may not renew the license and may not operate as a funeral establishment until the establishment is issued a new license in the manner provided for issuing an original license. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. A (part).)
[Sections 651.355-651.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 651.401. FIRST CALL. (a) A funeral director or embalmer must direct and personally supervise the pickup of a dead human body on first call.
(b) A person other than a funeral director may transfer a dead human body from one funeral establishment to another and from a funeral establishment to and from a morgue in which an autopsy is performed.
(c) An unlicensed person may pick up or transfer a dead human body without the personal supervision of a funeral director or embalmer in circumstances in which there is no reasonable probability that the unlicensed person will encounter a family member or other person with whom funeral arrangements are normally made by a funeral director or embalmer.
(d) If an unlicensed person inadvertently encounters a family member or other person with whom funeral arrangements are normally made, the unlicensed person shall restrict communication with the family member or other person to:
(1) identifying the unlicensed person's employer;
(2) arranging an appointment with the unlicensed person's employer for a family member or other person who indicates a desire to make funeral arrangements for the deceased; and
(3) making any disclosure to the family member or other person that is required by federal or state law or regulation.
(e) A funeral director or embalmer who directs the removal or transfer of a dead human body without personally supervising the transfer is strictly accountable for compliance with the requirements of first call as provided by this section. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. C (part).)
Sec. 651.402. RELATIONSHIP OF FUNERAL DIRECTOR TO FUNERAL ESTABLISHMENT. A person may act as a funeral director in directly or indirectly providing funeral services for compensation only if the person:
(1) is acting as a licensed employee of a licensed funeral establishment that has contracted to provide those funeral services; or
(2) is a licensed agent, subcontractor, or assignee of the licensed funeral establishment that has contracted to provide those funeral services. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. A, Subdiv. 2 (part).)
Sec. 651.403. DESIGNATION OF FUNERAL DIRECTOR IN CHARGE; EFFECT OF VIOLATION. (a) A funeral establishment shall:
(1) designate to the commission a funeral director in charge; and
(2) promptly notify the commission of any change in that designation.
(b) The funeral director in charge is directly responsible for the funeral directing and embalming business of the funeral establishment.
(c) The funeral director in charge is ultimately responsible for compliance with the mortuary laws. The funeral director in charge may be charged with a violation of this chapter if a violation occurs in the funeral establishment. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. E.)
Sec. 651.404. CONSUMER BROCHURE. When funeral services are discussed, a funeral director or agent of the funeral establishment shall provide each prospective customer with a copy of the brochure prepared by the commission under Section 651.201. The funeral establishment shall print additional copies of the brochure if the commission is unable to provide the number of brochures needed by the funeral establishment. (V.A.C.S. Art. 4582b, Sec. 6E, Subsec. (b).)
Sec. 651.405. RETAIL PRICE LIST. (a) "Retail price list" means a printed or typewritten list of the retail price of items or services provided by a funeral establishment and must include the retail price of:
(1) transferring a deceased person to the funeral establishment;
(2) embalming;
(3) using a funeral establishment facility for viewing the deceased;
(4) using a funeral establishment facility for funeral services;
(5) using a hearse;
(6) using a limousine;
(7) caskets;
(8) outer enclosures; and
(9) other itemized services provided by the funeral establishment staff.
(b) A retail price list must contain the name, address, and telephone number of the funeral establishment, the effective date for the stated prices, and the following printed notice: "The goods and services shown below are those we can provide to our customers. You may choose only the items you desire. However, any funeral arrangements you select will include a charge for our basic services and overhead. If legal or other requirements mean you must buy any items you did not specifically ask for, we will explain the reason in writing on the statement we provide describing the funeral goods and services you selected." (V.A.C.S. Art. 4582b, Sec. 1, Subsec. S.)
Sec. 651.406. PURCHASE AGREEMENT. (a) A purchase agreement must state:
(1) the name, address, and telephone number of the funeral establishment;
(2) the amount paid or owed to another person by the funeral establishment on behalf of the customer and each fee charged the customer for the cost of advancing funds or becoming indebted to another person on behalf of the customer;
(3) the printed notice required by Subsection (b);
(4) the name, mailing address, and telephone number of the commission; and
(5) a statement that complaints may be directed to the commission.
(b) The purchase agreement must contain the following printed notice: "Charges are only for those items that you selected or that are required. If we are required by law or by a cemetery or crematory to use any items, we will explain the reasons in writing below."
(c) The purchase agreement shall be signed by the funeral director making the arrangements.
(d) If the customer selects a package arrangement based on unit pricing, the itemization requirement is satisfied by providing a purchase agreement that itemizes the discount provided by the package arrangement. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. T (part); Sec. 3, Subsec. H, Subdiv. 23 (part).)
Sec. 651.407. USE OF BODY BY SCHOOL OF MORTUARY SCIENCE. (a) A school or college of mortuary science may not use a dead human body for educational or instructional purposes without the written consent of a person authorized to consent to the use.
(b) A funeral director or embalmer may not release a dead human body for delivery to a school or college of mortuary science, and a school or college of mortuary science may not accept a dead human body, without possession of the written consent required by Subsection (a).
(c) The funeral establishment shall retain a copy of the written consent for at least two years and shall make the records of the funeral establishment reasonably available for inspection by:
(1) the commission;
(2) the person who provided the consent; and
(3) the next of kin of the deceased person.
(d) The school or college of mortuary science shall retain a copy of the written consent permanently and shall make the records of the school or college of mortuary science reasonably available for inspection by the commission.
(e) A written consent form used under this section must contain, in the same size print as the remainder of the form, the following statement immediately above the signature line for the form:
"The undersigned authorizes and directs the funeral establishment, including apprentices, and mortuary students under the direct supervision of a licensed embalmer, and the funeral establishment's employees, independent contractors, and agents to care for, embalm, and prepare the body of the decedent. The undersigned acknowledges that this authorization encompasses permission to embalm at the funeral establishment or at another facility equipped for embalming, including a school or college of mortuary science."
(f) This section does not apply to a dead human body obtained by a school or college of mortuary science under Chapter 691 or 692, Health and Safety Code. (V.A.C.S. Art. 4582b, Sec. 4A.)
[Sections 651.408-651.450 reserved for expansion]
SUBCHAPTER J. PROHIBITED PRACTICES
Sec. 651.451. CERTAIN FRAUDULENT AND DECEPTIVE ACTS. A person violates this chapter if the person:
(1) presents to the commission a license, certificate, or diploma that was illegally or fraudulently obtained;
(2) uses fraud or deception in passing the examination, including impersonating or acting as a proxy for another person in the examination;
(3) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a license, certificate, or transcript of a license or certificate in or incident to an application to the commission for a license to practice as a funeral director or embalmer;
(4) alters, with fraudulent intent, a funeral director's or embalmer's license or certificate or a transcript of a license or certificate;
(5) uses a funeral director's or embalmer's license, certificate, or diploma or a transcript of a funeral director's or embalmer's license, certificate, or diploma that has been fraudulently purchased, issued, counterfeited, or materially altered;
(6) impersonates a funeral director or embalmer;
(7) permits another to use the person's license to practice as a funeral director or embalmer in this state; or
(8) presents false certification of work done as a provisional license holder. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdivs. 1, 5, 6, 7, 8, 9, 14.)
Sec. 651.452. LACK OF FITNESS TO PRACTICE. A person violates this chapter if the person is:
(1) convicted of a misdemeanor related to the practice of embalming or funeral directing or a felony;
(2) unfit to practice as a funeral director or embalmer because of insanity and determined by a court to be of unsound mind; or
(3) unfit to practice because of current substance abuse. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdivs. 2, 3, 15.)
Sec. 651.453. UNETHICAL ADVERTISING. A person violates this chapter if the person uses an advertising statement of a character that misleads or deceives the public or uses, in connection with an advertisement, the name of a person who is falsely represented to be a license holder. (V.A.C.S. Art. 4582b, Sec. 4, Subsec. D, Subdiv. 1 (part).)
Sec. 651.454. OTHER UNETHICAL CONDUCT IN SOLICITING CUSTOMERS. (a) A person violates this chapter if the person, in arranging for funeral services or merchandise, fails to:
(1) provide a prospective customer at the beginning of the arrangement process with a copy of the brochure required by Section 651.404;
(2) provide to a prospective customer inquiring in person about any funeral service or merchandise a retail price list for the prospective customer to keep;
(3) explain to a prospective customer that a contractual agreement for funeral services or merchandise may not be entered into before a retail price list is provided to the prospective customer; or
(4) provide general price information by telephone within a reasonable time.
(b) A person violates this chapter if the person restricts, hinders, or attempts to restrict or hinder:
(1) advertising or disclosure of prices and other information regarding the availability of funeral services and funeral merchandise that is not unfair or deceptive to consumers; or
(2) an agreement for funeral services between a consumer and a funeral director or embalmer.
(c) A person associated with a funeral establishment violates this chapter if the person solicits business or offers an inducement to secure or attempt to secure business for the funeral establishment unless the solicitation is made under a permit issued under Chapter 154, Finance Code. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdivs. 16, 22, 24; Sec. 4, Subsec. D, Subdiv. 1 (part).)
Sec. 651.455. FALSE OR MISLEADING STATEMENTS REGARDING FUNERAL MERCHANDISE OR FUNERAL SERVICES. A person violates this chapter if the person uses a statement that misleads or deceives the public, including a false or misleading statement regarding:
(1) a legal, religious, or cemetery requirement for funeral merchandise or funeral services;
(2) the preservative qualities of funeral merchandise or funeral services in preventing or substantially delaying natural decomposition of human remains;
(3) the airtight or watertight properties of a casket or outer enclosure; or
(4) the licenses held by the personnel in the operation of the funeral establishment. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdiv. 4.)
Sec. 651.456. UNETHICAL CONDUCT REGARDING CUSTODY OF DEAD HUMAN BODY. A person violates this chapter if the person:
(1) takes custody of a dead human body without the permission of:
(A) the person or the agent of the person authorized to make funeral arrangements for the deceased; or
(B) a medical examiner or a justice of the peace who has jurisdiction over the body under Articles 49.02-49.05, Code of Criminal Procedure; or
(2) refuses to promptly surrender a dead human body to a person or agent authorized to make funeral arrangements for the deceased. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdiv. 11 (part).)
Sec. 651.457. UNETHICAL CONDUCT REGARDING EMBALMING. (a) A person violates this chapter if the person:
(1) embalms a body without:
(A) receiving the express written or oral permission of a person authorized to make funeral arrangements for the deceased; or
(B) making a documented reasonable effort over a period of at least three hours to obtain the permission;
(2) embalms or attempts to embalm a dead human body without proper authority, evidence of which includes making an incision on the body, raising a circulatory vessel of the body, or injecting a chemical into the body;
(3) allows the presence or participation of a student for credit or satisfaction of academic requirements during the embalming of a dead human body without complying with Section 651.407; or
(4) places a chemical or substance on or in a dead human body to disinfect or preserve the body or to restore body tissues and structures without holding an embalmer's license.
(b) Notwithstanding Subsection (a)(4), a provisional license holder does not violate this chapter if the provisional license holder places a chemical or substance on or in a dead human body to disinfect or preserve the body or to restore body tissues and structures under the supervision of an embalmer. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. D (part); Sec. 3, Subsec. H, Subdiv. 11 (part); Sec. 3, Subsec. H, Subdiv. 11A, Para. 30.)
Sec. 651.458. UNETHICAL CONDUCT BY FUNERAL ESTABLISHMENT. A person violates this chapter if the person makes a distinction in providing funeral information to a customer regardless of any affiliation of the customer or whether the customer has a present need for the services or merchandise. (V.A.C.S. Art. 4582b, Sec. 1, Subsec. V (part).)
Sec. 651.459. OTHER UNETHICAL CONDUCT IN PROVIDING FUNERAL SERVICES. (a) A person violates this chapter if the person:
(1) wilfully makes a false statement on a death certificate or a document required by this chapter or a rule adopted under this chapter;
(2) engages in fraudulent, unprofessional, or deceptive conduct in providing funeral services or merchandise to a customer;
(3) engages in dishonest conduct, wilful conduct, or negligence in the practice of embalming or funeral directing that is likely to or does deceive, defraud, or otherwise injure the public;
(4) causes the execution of a document by the use of fraud, deceit, or misrepresentation;
(5) directly or indirectly employs a person to solicit individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, embalmer, or funeral establishment;
(6) misappropriates funds held by a license holder, a funeral establishment, an employee or agent of the funeral establishment, or another depository, that create an obligation to provide a funeral service or merchandise, including retaining for an unreasonable time excess funds paid by or on behalf of the customer for which the customer is entitled to a refund; or
(7) performs acts of funeral directing or embalming that are outside the licensed scope and authority of the license holder, or performs acts of funeral directing or embalming in a capacity other than that of an employee, agent, subcontractor, or assignee of a licensed funeral establishment that has contracted to perform those acts.
(b) A funeral director or embalmer violates this chapter if the funeral director or embalmer states or implies that a customer's concern with the cost of any funeral service or funeral merchandise is improper or indicates a lack of respect for the deceased.
(c) A funeral director in charge violates this chapter if the funeral director in charge fails to provide a funeral director or an embalmer for direction or personal supervision for a first call. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdivs. 12, 13, 17, 18, 19, 20, 21, 27, 29; Sec. 4, Subsec. D, Subdiv. 1 (part).)
Sec. 651.460. PROHIBITED PRACTICES RELATED TO FAILURE TO COMPLY WITH OTHER LEGAL REQUIREMENTS. (a) A person violates this chapter if the person:
(1) arranges for funeral services or merchandise and fails to provide a customer with a purchase agreement as required by Section 651.406;
(2) fails to retain and make available to the commission, on request, copies of all price lists, written notices, embalming documents, and memoranda of agreement required by this chapter for two years after the date of distribution or signing;
(3) violates this chapter, a rule adopted under this chapter, an order by the commission revoking, suspending, or probating a license, an order assessing an administrative penalty, or an agreement to pay an administrative penalty regardless of whether the agreement is express or implied by Section 651.554;
(4) allows the use of a dead human body by an embalming establishment for research or educational purposes without complying with Section 651.407; or
(5) is associated with a funeral establishment, whether as an employee, agent, subcontractor, assignee, owner, or otherwise, and fails to comply with this chapter or a rule adopted under this chapter.
(b) A funeral establishment violates this chapter if:
(1) the funeral establishment fails to substantially comply with Section 651.351;
(2) the funeral establishment or a person acting on behalf of the funeral establishment violates Chapter 193 or 361, Health and Safety Code; or
(3) the funeral establishment, a person acting on behalf of the funeral establishment, or a person directly or indirectly connected with the funeral establishment violates Chapter 154, Finance Code, or a rule adopted under that chapter. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H, Subdivs. 10, 23 (part), 25, 26, 28; Sec. 4, Subsec. D, Subdiv. 1 (part).)
[Sections 651.461-651.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES
AND LICENSE DENIALS
Sec. 651.501. GENERAL DISCIPLINARY POWERS OF COMMISSION. (a) After a hearing as provided by this subchapter, the commission may issue a reprimand, assess an administrative penalty, revoke, suspend, or probate the suspension of a license or provisional license, or impose any combination of those penalties for a violation of this chapter or a rule adopted under this chapter.
(b) With respect to a violation of Section 651.453, 651.454(c), 651.459(c), 651.460(a)(5), 651.460(b)(2), or 651.460(b)(3), the commission may not initiate action against a funeral establishment if the complaint is based on the conduct of an employee, agent, or representative of the establishment:
(1) performed outside the scope and authority of employment; or
(2) contrary to the instructions of the funeral establishment. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. D, Subdiv. 5; Subsec. H (part); Sec. 4, Subsec. D, Subdivs. 1 (part), 2; Sec. 6H, Subsec. (a) (part).)
Sec. 651.502. LICENSE DENIAL; EFFECT OF CRIMINAL CONVICTION. (a) The commission may, without a hearing, refuse to issue:
(1) a license or provisional license to a person who has violated this chapter or a rule adopted under this chapter; or
(2) an establishment license to an individual, partnership, or corporation if the individual, a partner, or an officer or director of the corporation:
(A) has violated this chapter or a rule adopted under this chapter;
(B) previously held an establishment license that was suspended or revoked; or
(C) attempts to avoid a revocation, suspension, or license refusal by subterfuge or other evasive means.
(b) A person to whom the commission refuses to issue a license under Subsection (a) may appeal the decision by submitting a written request for a hearing in accordance with Chapter 2001, Government Code, not later than the 30th day after the date of the refusal.
(c) The commission and the person to whom the commission refuses to issue a license may agree to the issuance of a probationary license, or the commission may, after a hearing, order that a license be issued on a probationary basis.
(d) A person applying for a funeral director's or embalmer's license who has a criminal conviction described by Section 651.452 may request a hearing on whether the conviction prevents the commission from issuing a license or a provisional license. A hearing under this subsection must be requested before the person enters mortuary school and shall be conducted as required by Section 651.506. A decision made in a hearing under this subsection, unless modified on appeal, is binding on the commission and on the person who requests the hearing when the person applies to the commission for the license or provisional license. (V.A.C.S. Art. 4582b, Sec. 3, Subsec. H (part); Subsec. J; Sec. 4, Subsec. B (part); Subsec. D, Subdiv. 1 (part); Sec. 6C, Subsec. (a).)
Sec. 651.503. WARNING; REPORT BY LICENSE HOLDER. (a) The commission shall issue a written warning to a license holder if the commission:
(1) conducts an investigation that identifies a violation of this chapter by the license holder; and
(2) does not issue a reprimand, assess an administrative penalty, or impose any other penalty against the license holder.
(b) The warning must:
(1) describe the identified violation; and
(2) state the date by which the license holder must file with the commission a written report that describes:
(A) the measures implemented by the license holder to correct the violation; and
(B) the dates those measures were implemented.
(c) The commission shall assess an administrative penalty against a license holder who fails to timely file the report. (V.A.C.S. Art. 4582b, Sec. 6, Subsec. (c).)
Sec. 651.504. REPRIMAND. (a) The commission may, after a hearing as provided by this section or Section 651.506, reprimand a person regulated under this chapter if the commission determines that the person violated this chapter or a rule adopted under this chapter.
(b) If, after examining a possible violation and the facts relating to that violation, the commission concludes that a violation has occurred, the commission may issue a preliminary report that states the facts on which the conclusion is based and that a reprimand is to be issued. If the reprimand is to be issued in addition to the assessment of an administrative penalty under Subchapter L, the preliminary report required by this section may be combined with the preliminary report required by Section 651.553. Not later than the 10th day after the date the preliminary report is issued, the commission shall send a copy of the report to the person charged with the violation, with a statement of the right of the person to a hearing relating to the alleged violation.
(c) Not later than the 30th day after the date on which the preliminary report is sent, the person charged may request in writing a hearing. Failure to request a hearing within the time provided by this subsection waives the right to a hearing. If the right to a hearing is waived, the commission shall issue the reprimand and place a copy of the reprimand in the permanent records of the commission. If the person charged requests a hearing, the hearing shall be conducted in the manner provided by Section 651.506. If, after the hearing, the commission determines that the person committed the alleged violation, the commission, in addition to or instead of the issuance of a reprimand, may take any action authorized by this chapter. (V.A.C.S. Art. 4582b, Sec. 6H, Subsecs. (a) (part), (b), (c).)
Sec. 651.505. PROBATION. (a) If the commission places on probation a person whose license has been suspended, the commission may impose conditions on the probation that are reasonable and related to the violation for which the license was suspended. If the commission orders probation, the commission may require the license holder to:
(1) report regularly to the commission on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the commission; or
(3) continue or renew professional education until the license holder attains a degree of skill satisfactory to the commission in those areas that are the basis of the probation.
(b) The commission shall notify in writing a license holder placed on probation of the probation. The commission shall furnish the license holder with written probationary orders that detail the actions required by the commission of the license holder during the probation period.
(c) The commission shall develop and adopt a system to:
(1) monitor the actions of a license holder during the probation period; and
(2) determine whether the license holder has complied with the probationary orders. (V.A.C.S. Art. 4582b, Sec. 6, Subsecs. (a), (b).)
Sec. 651.506. DISCIPLINARY PROCEEDINGS; HEARING PROCEEDINGS. (a) A proceeding conducted by the commission relating to the denial of a license or provisional license, the suspension or revocation of a license, or the imposition of an administrative penalty assessed after a hearing as provided by Section 651.551 and judicial review of the proceeding are governed by Chapter 2001, Government Code.
(b) A proceeding brought under Subsection (a) may be held before a hearings officer. The executive director shall set a time and place for the hearing.
(c) The hearings officer must be an attorney licensed in this state. In the course of a proceeding the hearings officer may:
(1) administer an oath;
(2) take testimony;
(3) rule on a question of evidence;
(4) make a determination of fact; or
(5) order compliance with a proper discovery request.
(d) The commission shall provide the hearings officer with a written statement of all commission rules or policies that govern the proceeding.
(e) At the conclusion of the proceeding, the hearings officer shall make a ruling on the matter accompanied by written findings of fact and conclusions of law.
(f) The commission shall review the findings of fact, conclusions of law, and ruling of the hearings officer before making its final ruling in the proceeding. The commission may also review a transcript of the proceeding before making its final ruling. The commission shall adopt the ruling of the hearings officer as its ruling unless it finds good cause to issue a different ruling. The commission shall explain in writing the reasons for adopting a ruling other than the one issued by the hearings officer.
(g) The commission shall inform each interested person, including a person filing the complaint, of the right to obtain at that person's cost a tape or transcript of a hearing or proceeding under this section.
(h) A member or agent of the commission who carries out the functions of the commission and is assigned to make a decision, finding of fact, or conclusion of law in a proceeding pending before the commission may not communicate directly or indirectly with a party to the proceeding or a party's representative unless notice and an opportunity to participate is given to all parties to the proceeding.
(i) Before a hearing is conducted, two commissioners may participate in an informal conference relating to a matter to be considered in the hearing under this section. One of the two commissioners must be a licensed funeral director or embalmer, and one must be a public member of the commission. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. A, Subdiv. (3) as amended Acts 72nd Leg., R.S., Ch. 561 (part); Subdiv. (4) as amended Acts 72nd Leg., R.S., Ch. 573; Subdiv. (5); Sec. 6C, Subsecs. (b) (part), (c), (d).)
Sec. 651.507. EFFECT OF MULTIPLE VIOLATIONS. (a) The commission or a hearings officer shall review each disciplinary proceeding to determine whether the license holder has committed the same type of violation on one or more previous occasions. If it is determined that the license holder has previously committed the same type of violation, the commission or hearings officer shall impose a disciplinary action that is more severe than that imposed on the previous occasion.
(b) In a disciplinary proceeding involving multiple violations of this chapter, the commission or the hearings officer shall impose a disciplinary action that is more severe than the disciplinary action that would be imposed cumulatively for each of the individual violations. (V.A.C.S. Art. 4582b, Sec. 6I.)
[Sections 651.508-651.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTIES
Sec. 651.551. ASSESSMENT OF ADMINISTRATIVE PENALTY. (a) The commission may assess an administrative penalty against a person regulated under this chapter if the commission determines that the person has violated this chapter or a rule adopted under this chapter.
(b) The penalty may be assessed in the manner provided by this subchapter or after a hearing under Section 651.506. If an administrative penalty is assessed after a hearing under Section 651.506, the commission shall follow the procedures described in Sections 651.555 through 651.558. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (a).)
Sec. 651.552. AMOUNT OF PENALTY. The amount of the administrative penalty shall be not less than $100 or more than $5,000 for each violation. In determining the amount of the penalty, the commission shall employ guidelines established by commission rule. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (b).)
Sec. 651.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If, after examining a possible violation and the facts relating to that violation, the commission determines that a violation has occurred, the commission shall issue a preliminary report stating:
(1) the facts on which the determination is based;
(2) that an administrative penalty is to be imposed; and
(3) the amount of the penalty.
(b) Not later than the 10th day after the date the report is issued, the commission shall send to the person charged with the violation:
(1) a copy of the report;
(2) a statement of the right of the person to a hearing relating to the alleged violation; and
(3) a statement of the amount of the penalty. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (c).)
Sec. 651.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 30th day after the date the preliminary report is sent, the person charged may:
(1) make a written request for a hearing; or
(2) pay the administrative penalty to the commission.
(b) Failure to request a hearing or pay the penalty within the time provided by this section waives the right to a hearing under this chapter. If the right to a hearing is waived, the penalty is due not later than the 30th day after the date the preliminary report is sent.
(c) If the person fails to timely pay the penalty, the person's license is automatically suspended for six months.
(d) If the person requests a hearing, the hearing shall be conducted in the manner provided by Section 651.506. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (d).)
Sec. 651.555. OPTIONS AFTER DECISION: PAY OR APPEAL. (a) If an administrative penalty is assessed after a hearing conducted under Section 651.506, not later than the 30th day after the date the order is sent or a motion for rehearing is denied, the person charged shall:
(1) pay the penalty; or
(2) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Not later than the 30-day period, a person who acts under Subsection (a)(2) must:
(1) pay the penalty to the commission for placement in an escrow account; or
(2) post a supersedeas bond in a form approved by the commission for the amount of the penalty. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (e)(1).)
Sec. 651.556. COLLECTION OF PENALTY. On the commission's request, the attorney general shall bring a civil action to recover an administrative penalty owed under this chapter. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (g).)
Sec. 651.557. REMITTANCE OF PENALTY. If, after judicial review, the court determines that a violation did not occur or that the amount of the administrative penalty should be reduced, the commission shall remit the appropriate amount to the person charged with the violation not later than the 30th day after the date on which the judicial determination becomes final. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (e)(2).)
Sec. 651.558. LICENSE SUSPENSION FOR FAILURE TO COMPLY. (a) The commission shall suspend for six months the license of a person who fails to pay an administrative penalty or post a supersedeas bond within the time required by Section 651.555, or within a longer period agreed to by the commission.
(b) After notice and a hearing, the commission may extend the license suspension for a longer period or may revoke the license for failure to pay the penalty or post a supersedeas bond. (V.A.C.S. Art. 4582b, Sec. 6G, Subsec. (f) (part).)
[Sections 651.559-651.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 651.601. INJUNCTION. (a) The commission in its own name or an adversely affected party may bring an action for appropriate injunctive relief against a funeral establishment, an embalmer, or a funeral director who violates this chapter or a rule adopted under this chapter.
(b) In an action brought by the commission, the commission shall be represented by the attorney general, a county or district attorney, or counsel designated by the commission. (V.A.C.S. Art. 4582b, Sec. 2, Subsec. T (part); Sec. 7, Subsec. (b) (part).)
Sec. 651.602. CRIMINAL PENALTY. (a) A person commits an offense if the person:
(1) acts or holds the person out as a funeral director, embalmer, or provisional license holder without being licensed under this chapter;
(2) makes a first call in a manner that violates Section 651.401;
(3) is a funeral director, embalmer, or provisional license holder and engages in a funeral practice that violates this chapter or a rule adopted under this chapter; or
(4) violates Chapter 154, Finance Code, or a rule adopted under that chapter, regardless of whether the Texas Department of Banking or another governmental agency takes action relating to the violation.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4582b, Sec. 6A; Sec. 7, Subsec. (a).)
[Chapters 652-700 reserved for expansion]
SUBTITLE M. REGULATION OF OTHER HEALTH PROFESSIONS
CHAPTER 701. DIETITIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 701.001. SHORT TITLE
Sec. 701.002. DEFINITIONS
Sec. 701.003. APPLICATION OF SUNSET ACT
[Sections 701.004-701.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF
EXAMINERS OF DIETITIANS
Sec. 701.051. DIETITIANS BOARD MEMBERSHIP
Sec. 701.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 701.054. TERMS
Sec. 701.055. GROUNDS FOR REMOVAL
Sec. 701.056. PER DIEM; REIMBURSEMENT
Sec. 701.057. OFFICERS
Sec. 701.058. MEETINGS
Sec. 701.059. TRAINING
[Sections 701.060-701.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND PERSONNEL
Sec. 701.101. EXECUTIVE SECRETARY
Sec. 701.102. EXECUTIVE SECRETARY POWERS AND DUTIES
Sec. 701.103. PERSONNEL AND FACILITIES
Sec. 701.104. DIVISION OF RESPONSIBILITIES
Sec. 701.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 701.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 701.107-701.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 701.151. GENERAL POWERS AND DUTIES OF DIETITIANS
BOARD
Sec. 701.152. GENERAL RULEMAKING AUTHORITY
Sec. 701.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 701.154. FEES
Sec. 701.155. SEAL
Sec. 701.156. DIETITIANS BOARD DUTIES REGARDING COMPLAINTS
Sec. 701.157. POWERS AND DUTIES OF TEXAS BOARD OF
HEALTH
Sec. 701.158. ANNUAL REPORT REGARDING FUNDS
[Sections 701.159-701.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 701.201. PUBLIC INTEREST INFORMATION
Sec. 701.202. COMPLAINTS
Sec. 701.203. RECORDS OF COMPLAINTS
Sec. 701.204. GENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION
Sec. 701.205. PUBLIC PARTICIPATION
[Sections 701.206-701.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 701.251. LICENSE REQUIRED; COMMISSION REGISTRATION
Sec. 701.252. LICENSE APPLICATION
Sec. 701.253. EXAMINATION
Sec. 701.254. QUALIFICATIONS FOR EXAMINATION
Sec. 701.255. INVESTIGATION
Sec. 701.256. EXAMINATION RESULTS
Sec. 701.257. REEXAMINATION
Sec. 701.258. QUALIFIED PERSON ENTITLED TO LICENSE
Sec. 701.259. PROVISIONAL LICENSE
Sec. 701.260. TEMPORARY LICENSE
Sec. 701.261. INACTIVE STATUS
[Sections 701.262-701.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 701.301. LICENSE RENEWAL
Sec. 701.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 701.303. CONTINUING EDUCATION
[Sections 701.304-701.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 701.351. DISPLAY OF LICENSE CERTIFICATE
Sec. 701.352. LICENSE HOLDER INFORMATION
Sec. 701.353. PROHIBITED USE OF SEAL
[Sections 701.354-701.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 701.401. GROUNDS FOR DISCIPLINARY ACTION
Sec. 701.402. HEARING
Sec. 701.403. SANCTIONS
Sec. 701.404. PROBATION
Sec. 701.405. MONITORING OF LICENSE HOLDER
Sec. 701.406. INFORMAL PROCEDURES
Sec. 701.407. ADMINISTRATIVE PROCEDURE
[Sections 701.408-701.450 reserved for expansion]
SUBCHAPTER J. PENALTIES
Sec. 701.451. CRIMINAL PENALTY
CHAPTER 701. DIETITIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 701.001. SHORT TITLE. This chapter may be cited as the Licensed Dietitian Act. (V.A.C.S. Art. 4512h, Sec. 1.)
Sec. 701.002. DEFINITIONS. In this chapter:
(1) "Commissioner" means the commissioner of public health.
(2) "Department" means the Texas Department of Health.
(3) "Dietetics" means the professional discipline of applying and integrating scientific principles of food, nutrition, biochemistry, physiology, management, and behavioral and social sciences under different health, social, cultural, physical, psychological, and economic conditions for the proper nourishment, care, and education of an individual or group throughout the life cycle to achieve and maintain human health. The term includes the development, management, and provision of nutrition services.
(4) "Dietitians board" means the Texas State Board of Examiners of Dietitians.
(5) "Licensed dietitian" means a person licensed under this chapter.
(6) "Nutrition assessment" means evaluating the nutritional needs of an individual or group based on appropriate biochemical, anthropometric, physical, and dietary data to determine nutrient needs and recommend appropriate nutritional intake, including enteral and parenteral nutrition.
(7) "Nutrition counseling" means advising and assisting an individual or group on appropriate nutritional intake by integrating information from a nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status.
(8) "Nutrition services" means:
(A) assessing the nutritional needs of an individual or group and determining constraints and resources in the practice;
(B) establishing priorities and goals that meet nutritional needs and are consistent with constraints and available resources;
(C) providing nutrition counseling in health and disease;
(D) developing, implementing, and managing nutritional care systems; or
(E) evaluating, changing, and maintaining appropriate quality standards in food and nutritional care services.
(9) "Provisional licensed dietitian" means a person provisionally licensed under this chapter. (V.A.C.S. Art. 4512h, Secs. 2(2), (3), (4), (6), (7), (8), (10), (11), (12).)
Sec. 701.003. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Dietitians is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4512h, Sec. 19.)
[Sections 701.004-701.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF
EXAMINERS OF DIETITIANS
Sec. 701.051. DIETITIANS BOARD MEMBERSHIP. (a) The Texas State Board of Examiners of Dietitians consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six licensed dietitian members, each of whom has been licensed under this chapter for not less than three years before the member's date of appointment; and
(2) three members who represent the public.
(b) In appointing dietitian members to the dietitians board, the governor shall attempt to maintain balanced representation among the following primary areas of expertise included in the professional discipline of dietetics:
(1) clinical;
(2) educational;
(3) management;
(4) consultation; and
(5) community.
(c) Appointments to the dietitians board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512h, Secs. 3(b), (c) (part), (d), (f).)
Sec. 701.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the dietitians board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of dietetics;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512h, Sec. 3(e).)
Sec. 701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of dietetics may not be a dietitians board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of dietetics may not be a dietitians board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the dietitians board or act 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. (V.A.C.S. Art. 4512h, Secs. 3(g), (h), (i), (j).)
Sec. 701.054. TERMS. Members of the dietitians board serve staggered six-year terms. The terms of two members begin on September 1 of each odd-numbered year. (V.A.C.S. Art. 4512h, Sec. 3(c) (part).)
Sec. 701.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the dietitians board that a member:
(1) does not have at the time of appointment the qualifications required for appointment to the board;
(2) does not maintain during service on the board the qualifications required for appointment to the board;
(3) violates a prohibition established by this chapter;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) The validity of an action of the dietitians board is not affected by the fact that it is taken when a ground for removal of a member of the board exists.
(c) If the executive secretary has knowledge that a potential ground for removal exists, the executive secretary shall notify the presiding officer of the dietitians board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4512h, Sec. 4.)
Sec. 701.056. PER DIEM; REIMBURSEMENT. (a) Each member of the dietitians board is entitled to receive a per diem at the rate set by the legislature for state employees in the General Appropriations Act for each day the member engages in the business of the board.
(b) A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act.
(c) A member may not receive a fixed salary for services. (V.A.C.S. Art. 4512h, Sec. 5(d).)
Sec. 701.057. OFFICERS. Not later than the 30th day after the date the governor appoints new board members, the dietitians board shall meet to elect a presiding officer and assistant presiding officer, who hold office according to board rules. (V.A.C.S. Art. 4512h, Sec. 5(a).)
Sec. 701.058. MEETINGS. The dietitians board shall hold at least two regular meetings each year as provided by board rules. (V.A.C.S. Art. 4512h, Sec. 5(b) (part).)
Sec. 701.059. TRAINING. (a) Before a dietitians board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.
(b) The training program established by the dietitians board must provide information to a participant regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the dietitians board shall consult with the governor, the attorney general, and the Texas Ethics Commission.
(d) If another state agency or entity is authorized to establish the training requirements for board members, the dietitians board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4512h, Secs. 7C(a), 7G.)
[Sections 701.060-701.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE SECRETARY AND PERSONNEL
Sec. 701.101. EXECUTIVE SECRETARY. The commissioner shall designate a department employee to serve as executive secretary of the dietitians board. (V.A.C.S. Art. 4512h, Sec. 7(b) (part).)
Sec. 701.102. EXECUTIVE SECRETARY POWERS AND DUTIES. In addition to performing other duties prescribed by this chapter and by the department, the executive secretary of the dietitians board shall:
(1) administer licensing activities for the board;
(2) keep full and accurate minutes of the board's transactions and proceedings;
(3) serve as custodian of the board's files and records;
(4) prepare and recommend to the board plans and procedures necessary to implement the purposes and objectives of this chapter, including rules and proposals on administrative procedures;
(5) exercise general supervision over persons employed by the department in the administration of this chapter;
(6) investigate complaints and present formal complaints;
(7) attend all board meetings as a nonvoting participant;
(8) handle the board's correspondence; and
(9) obtain, assemble, or prepare reports and other information as directed or authorized by the board. (V.A.C.S. Art. 4512h, Sec. 7(b) (part).)
Sec. 701.103. PERSONNEL AND FACILITIES. (a) Department personnel shall administer this chapter as agents of the dietitians board.
(b) If necessary to administer this chapter, the department by agreement may:
(1) obtain and provide compensation for services; and
(2) employ professional consultants, technical assistants, or other persons on a full-time or part-time basis.
(c) Department facilities shall be used as necessary to administer this chapter. (V.A.C.S. Art. 4512h, Sec. 7(a).)
Sec. 701.104. DIVISION OF RESPONSIBILITIES. The dietitians board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512h, Sec. 7E.)
Sec. 701.105. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The dietitians board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4512h, Sec. 7C(b).)
Sec. 701.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive secretary or the executive secretary's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the dietitians board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4512h, Sec. 7B.)
[Sections 701.107-701.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 701.151. GENERAL POWERS AND DUTIES OF DIETITIANS BOARD. The dietitians board shall:
(1) adopt an official seal;
(2) adopt and publish a code of ethics;
(3) establish the qualifications and fitness of applicants for licenses, including renewed and reciprocal licenses;
(4) revoke, suspend, or deny a license, probate a license suspension, or reprimand a license holder for a violation of this chapter, a board rule, or the code of ethics;
(5) spend money necessary to properly administer the board's duties; and
(6) establish reasonable and necessary fees to administer this chapter. (V.A.C.S. Art. 4512h, Sec. 6(b) (part).)
Sec. 701.152. GENERAL RULEMAKING AUTHORITY. (a) The dietitians board may adopt rules consistent with this chapter.
(b) In adopting rules, the dietitians board shall consider the rules and procedures of the Texas Board of Health and the department and shall adopt procedural rules not inconsistent with similar rules and procedures of those entities. (V.A.C.S. Art. 4512h, Sec. 6(a).)
Sec. 701.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The dietitians board may not adopt a rule restricting advertising or competitive bidding by a person regulated by the board except to prohibit a false, misleading, or deceptive practice.
(b) The dietitians board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4512h, Sec. 6(c).)
Sec. 701.154. FEES. (a) After consulting the commissioner or the department, the dietitians board by rule shall set fees in amounts reasonable and necessary to cover the cost of administering this chapter.
(b) The dietitians board may not set a fee that existed on September 1, 1993, in an amount that is less than the amount of that fee on that date. (V.A.C.S. Art. 4512h, Sec. 8(a) (part).)
Sec. 701.155. SEAL. (a) The dietitians board by rule may require a license holder to:
(1) obtain a seal authorized by the board bearing the license holder's name and the legend "Licensed Dietitian"; and
(2) affix the seal to formal documentation of nutrition services provided by the license holder, as determined necessary and appropriate by the board.
(b) If the dietitians board adopts rules under Subsection (a), the rules must authorize a license holder to comply with Subsection (a)(2) by maintaining a facsimile of the license holder's seal on file at the location where services are provided if:
(1) the services are provided:
(A) in a facility licensed under the Health and Safety Code;
(B) on behalf of a local, state, or federal government agency; or
(C) under other circumstances determined reasonable and necessary by the board; and
(2) the facsimile is maintained on file at all times during which the services are provided. (V.A.C.S. Art. 4512h, Secs. 18A(a), (b), (c).)
Sec. 701.156. DIETITIANS BOARD DUTIES REGARDING COMPLAINTS. (a) The dietitians board by rule shall:
(1) adopt a form to standardize information concerning complaints made to the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The dietitians board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4512h, Secs. 16A(b), (c).)
Sec. 701.157. POWERS AND DUTIES OF TEXAS BOARD OF HEALTH. To implement this chapter, the Texas Board of Health:
(1) shall request and receive any necessary assistance from state educational institutions or other state agencies;
(2) shall prepare information of consumer interest describing the regulatory functions of the dietitians board, the procedures by which consumer complaints are filed and resolved, and the profession of dietetics;
(3) shall prepare a registry of licensed dietitians and provisional licensed dietitians and make the registry available to the public, license holders, and appropriate state agencies; and
(4) may request the attorney general or the appropriate county or district attorney to institute a suit to enjoin a violation of this chapter in addition to any other action, proceeding, or remedy authorized by law. (V.A.C.S. Art. 4512h, Sec. 18.)
Sec. 701.158. ANNUAL REPORT REGARDING FUNDS. (a) The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the dietitians board or the department for the administration of this chapter during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4512h, Sec. 8(c).)
[Sections 701.159-701.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 701.201. PUBLIC INTEREST INFORMATION. (a) The dietitians board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints are filed with and resolved by the board.
(b) The dietitians board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512h, Sec. 7A(a).)
Sec. 701.202. COMPLAINTS. (a) The dietitians board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign prominently displayed in the place of business of each person regulated by the board; or
(3) in a bill for services provided by a person regulated by the board.
(b) The dietitians board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512h, Secs. 7A(b), (c).)
Sec. 701.203. RECORDS OF COMPLAINTS. (a) The dietitians board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule established for the complaint under Section 701.204(b) and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the dietitians board that the board or department has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512h, Secs. 16, 16A(a), 16B(b) (part).)
Sec. 701.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The dietitians board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection shall:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(b) The dietitians board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) Each party to the complaint shall be notified of the projected time requirements for pursuing the complaint. Each party shall be notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.
(d) The executive secretary shall notify the dietitians board of a complaint that is not resolved in the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512h, Sec. 16B(a), (b) (part), (c).)
Sec. 701.205. PUBLIC PARTICIPATION. (a) The dietitians board shall 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 board's jurisdiction.
(b) The dietitians board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512h, Secs. 7D, 7F (part).)
[Sections 701.206-701.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 701.251. LICENSE REQUIRED; COMMISSION REGISTRATION. (a) In this section, "Commission on Dietetic Registration" means the commission that is a member of the National Commission on Health Certifying Agencies.
(b) Unless the person holds an appropriate license issued under this chapter, a person may not:
(1) use the title or represent or imply that the person has the title "licensed dietitian" or "provisional licensed dietitian" or use the letters "LD" or "PLD"; or
(2) use a facsimile of those titles to indicate or imply that the person is a licensed dietitian or provisional licensed dietitian.
(c) Unless the person is a dietitian registered by the Commission on Dietetic Registration, a person may not:
(1) use the title or represent or imply that the person has the title "registered dietitian" or use the letters "RD"; or
(2) use a facsimile of that title to indicate or imply that the person is a dietitian registered by the Commission on Dietetic Registration. (V.A.C.S. Art. 4512h, Secs. 2(5); 15(a), (b).)
Sec. 701.252. LICENSE APPLICATION. (a) Each applicant for a dietitian license must submit a sworn application accompanied by the application fee.
(b) The dietitians board shall prescribe the application form and may by rule establish dates by which applications and fees must be received. (V.A.C.S. Art. 4512h, Secs. 9(a), (b) (part).)
Sec. 701.253. EXAMINATION. (a) In this section, "Commission on Dietetic Registration" has the meaning assigned by Section 701.251(a).
(b) Except as provided by Subsection (f), an applicant must pass a competency examination to qualify for a license under this chapter.
(c) The dietitians board shall prepare or approve an examination. An examination prescribed by the board may be or may include an examination given by the Commission on Dietetic Registration or by a national or state testing service instead of an examination prepared by the board.
(d) Any written portion of the examination must be validated by an independent testing professional.
(e) The dietitians board shall administer an examination to qualified applicants at least twice each calendar year.
(f) The dietitians board shall waive the examination requirement for an applicant who, at the time of application, is a dietitian registered by the Commission on Dietetic Registration. (V.A.C.S. Art. 4512h, Secs. 2(5); 10(a), (b), (f).)
Sec. 701.254. QUALIFICATIONS FOR EXAMINATION. To qualify for the licensing examination under this chapter, an applicant must:
(1) possess a baccalaureate or postbaccalaureate degree, conferred by a college or university regionally accredited at the time of conferral, with:
(A) a major course of study in human nutrition, food and nutrition, nutrition education, dietetics, or food systems management; or
(B) an equivalent major course of study approved by the dietitians board; and
(2) have completed an internship or preplanned, documented, professional experience program in dietetics practice of not less than 900 hours under the supervision of a licensed dietitian or a registered dietitian approved by the board. (V.A.C.S. Art. 4512h, Secs. 2(9), 9(c).)
Sec. 701.255. INVESTIGATION. (a) Not later than the 45th day after the date a properly submitted and timely application is received and not later than the 30th day before the next examination date, the department shall notify an applicant in writing of the receipt and investigation of the applicant's application and any other relevant evidence relating to applicant qualifications established by dietitians board rule.
(b) The notice shall state whether the applicant has qualified for examination based on the application and other submitted evidence. If the applicant has not qualified, the notice shall state the reasons for the applicant's failure to qualify. (V.A.C.S. Art. 4512h, Sec. 9(d).)
Sec. 701.256. EXAMINATION RESULTS. (a) The department shall notify each examinee of the examination results not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national or state testing service, the department shall notify each examinee of the examination results not later than the 14th day after the date the department receives the results from the testing service.
(b) If the notice of the results of an examination graded or reviewed by a national or state testing service will be delayed for longer than 90 days after the examination date, the department shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the department shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4512h, Secs. 10(c), (d).)
Sec. 701.257. REEXAMINATION. An applicant who fails the examination three times must provide evidence to the dietitians board that the applicant has successfully completed credit hours in the applicant's areas of weakness before the applicant may apply for reexamination. (V.A.C.S. Art. 4512h, Sec. 10(e).)
Sec. 701.258. QUALIFIED PERSON ENTITLED TO LICENSE. The dietitians board shall issue a license certificate as a licensed dietitian to a person qualified for a license under this chapter. (V.A.C.S. Art. 4512h, Sec. 11(a).)
Sec. 701.259. PROVISIONAL LICENSE. (a) The dietitians board may issue a license to use the title "provisional licensed dietitian" to an applicant who files an application, pays an application fee, and submits evidence of successful completion of the education requirement under Section 701.254.
(b) A provisional licensed dietitian must practice under the supervision and direction of a licensed dietitian. The supervising licensed dietitian must sign the applicant's initial application for a provisional license.
(c) The dietitians board shall issue a license certificate as a provisional licensed dietitian to a person qualified for a provisional license under this chapter.
(d) A provisional license expires on the first anniversary of the date of issuance and, if the supervising licensed dietitian signs the renewal application, may be renewed annually not more than twice by complying with the renewal procedures under Section 701.301.
(e) A provisional licensed dietitian shall comply with Sections 701.351 and 701.352. (V.A.C.S. Art. 4512h, Sec. 13.)
Sec. 701.260. TEMPORARY LICENSE. (a) On receipt of an application and payment of an application fee, the dietitians board may grant a temporary license to an applicant who:
(1) is licensed in good standing as a dietitian in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;
(2) has passed a national or other examination that is recognized by the board and relates to dietetics; and
(3) is sponsored by a person licensed by the board under this chapter with whom the temporary license holder may practice.
(b) The dietitians board may waive the requirement of Subsection (a)(3) if the board determines that compliance with that provision is a hardship to an applicant.
(c) A temporary license is valid until the date the dietitians board approves or denies the temporary license holder's application for a license. The board shall issue a license under this chapter to the holder of a temporary license if:
(1) the temporary license holder passes the competency examination required by Section 701.253;
(2) the board verifies that the temporary license holder meets the academic and experience requirements for a license under this chapter; and
(3) the temporary license holder satisfies any other license requirements under this chapter.
(d) The dietitians board must complete the processing of a temporary license holder's application for a license not later than the 180th day after the date the board issues the temporary license. The board may extend this deadline to receive pending examination results. (V.A.C.S. Art. 4512h, Sec. 14.)
Sec. 701.261. INACTIVE STATUS. The dietitians board by rule may provide for a license holder to place the person's license on inactive status. The board by rule shall provide for a time limit for a license to remain on inactive status. (V.A.C.S. Art. 4512h, Sec. 12(h).)
[Sections 701.262-701.300 reserved for expansion]
SUBCHAPTER G. LICENSE RENEWAL
Sec. 701.301. LICENSE RENEWAL. (a) A license is valid for one year after the date of issuance and may be renewed annually.
(b) The Texas Board of Health by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, a license fee payable on the original expiration date shall be prorated on a monthly basis so that the license holder pays only that portion of the fee allocable to the number of months the license is valid. The license holder shall pay the total license renewal fee on renewal of the license on the new expiration date.
(c) A person may renew an unexpired license by paying the required renewal fee to the dietitians board before the license expiration date.
(d) A person whose license has been expired for 90 days or less may renew the license by paying to the dietitians board the required renewal fee and a fee that is equal to half the amount of the examination fee for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the renewal fee for the license.
(e) Except as provided by Section 701.302, a person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license.
(f) Not later than the 30th day before a person's license expiration date, the dietitians board shall send written notice of the impending license expiration to the person at the person's last known address according to board records. (V.A.C.S. Art. 4512h, Secs. 12(a), (b), (c), (d), (e), (f) (part), (g).)
Sec. 701.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. The dietitians board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applies for renewal. The person must pay to the board a fee that is equal to the amount of the examination fee for the license. (V.A.C.S. Art. 4512h, Sec. 12(f) (part).)
Sec. 701.303. CONTINUING EDUCATION. (a) The dietitians board by rule shall establish a minimum number of hours of continuing education required for license renewal under this chapter.
(b) The dietitians board may assess the continuing education needs of license holders and may require license holders to attend continuing education courses specified by the board. The board shall develop a process to evaluate and approve continuing education courses.
(c) The dietitians board shall identify key factors for a license holder's competent performance of professional duties. The board shall adopt a procedure to assess the license holder's participation in continuing education programs. (V.A.C.S. Art. 4512h, Sec. 12A.)
[Sections 701.304-701.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY LICENSE HOLDER
Sec. 701.351. DISPLAY OF LICENSE CERTIFICATE. (a) A license holder shall display the person's license certificate in an appropriate and public manner.
(b) A license certificate issued by the dietitians board is the property of the board and shall be surrendered on demand. (V.A.C.S. Art. 4512h, Secs. 11(b) (part), (c).)
Sec. 701.352. LICENSE HOLDER INFORMATION. A license holder shall keep the department informed of the license holder's current address. (V.A.C.S. Art. 4512h, Sec. 11(b) (part).)
Sec. 701.353. PROHIBITED USE OF SEAL. (a) A person may not use a seal authorized by the dietitians board unless the person holds a license issued under this chapter.
(b) A person may not affix a seal to a document if the license of the license holder named on the seal is expired, suspended, or revoked. (V.A.C.S. Art. 4512h, Secs. 18A(d), (f) (part).)
[Sections 701.354-701.400 reserved for expansion]
SUBCHAPTER I. DISCIPLINARY PROCEDURES
Sec. 701.401. GROUNDS FOR DISCIPLINARY ACTION. The dietitians board shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for a violation of this chapter or a rule or code of ethics adopted by the board. (V.A.C.S. Art. 4512h, Secs. 17(a), 18A(e).)
Sec. 701.402. HEARING. (a) If the dietitians board proposes to revoke or suspend a person's license, the person is entitled to a hearing before the board.
(b) A member or employee of the dietitians board or a department employee who carries out the functions of the board and proposes to make a decision, a finding of fact, or a conclusion of law in a proceeding pending before the board may communicate directly or indirectly with a party to the proceeding or with the party's representative only if notice and an opportunity to participate are given to each party. (V.A.C.S. Art. 4512h, Secs. 17(b), (d).)
Sec. 701.403. SANCTIONS. The State Office of Administrative Hearings shall use the schedule of sanctions adopted by dietitians board rule for a sanction imposed as the result of a hearing conducted by the office. (V.A.C.S. Art. 4512h, Sec. 17(f).)
Sec. 701.404. PROBATION. The dietitians board may require a license holder whose license suspension is probated to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 4512h, Sec. 17(e).)
Sec. 701.405. MONITORING OF LICENSE HOLDER. (a) The dietitians board by rule shall develop a system for monitoring a license holder's compliance with the requirements of this chapter.
(b) Rules adopted under this section must include procedures to:
(1) monitor for compliance a license holder who is ordered by the dietitians board to perform certain acts; and
(2) identify and monitor license holders who represent a risk to the public. (V.A.C.S. Art. 4512h, Sec. 16D.)
Sec. 701.406. INFORMAL PROCEDURES. (a) The dietitians board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the attorney general or the dietitians board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4512h, Sec. 16C.)
Sec. 701.407. ADMINISTRATIVE PROCEDURE. A proceeding to suspend or revoke a license under this subchapter is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512h, Sec. 17(c).)
[Sections 701.408-701.450 reserved for expansion]
SUBCHAPTER J. PENALTIES
Sec. 701.451. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 701.251.
(b) A person commits an offense if the person violates Section 701.353(a).
(c) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4512h, Secs. 15(c), 18A(f).)
CHAPTER 702. HEALTH SPAS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 702.001. SHORT TITLE
Sec. 702.002. PURPOSE AND CONSTRUCTION
Sec. 702.003. DEFINITIONS
[Sections 702.004-702.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF SECRETARY OF STATE
Sec. 702.051. ADMINISTRATIVE AND RULEMAKING AUTHORITY
Sec. 702.052. RULES RELATING TO SECURITY CLAIMS AND
PROCEEDS
Sec. 702.053. REGISTRATION AND RENEWAL FEES
[Sections 702.054-702.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 702.101. CERTIFICATE OF REGISTRATION REQUIRED
Sec. 702.102. APPLICATION REQUIREMENTS
Sec. 702.103. CERTIFICATE OF REGISTRATION NONTRANSFERABLE;
APPLICATION BY NEW OWNER
Sec. 702.104. TERM; RENEWAL
Sec. 702.105. CERTIFICATE POSTING
Sec. 702.106. CHANGE OF INFORMATION
[Sections 702.107-702.150 reserved for expansion]
SUBCHAPTER D. SECURITY REQUIREMENTS
Sec. 702.151. SECURITY REQUIRED
Sec. 702.152. SURETY BOND REQUIREMENTS
Sec. 702.153. REQUIREMENTS FOR SECURITY OTHER THAN
SURETY BOND
Sec. 702.154. BENEFICIARY OF SECURITY
Sec. 702.155. DURATION OF SECURITY
Sec. 702.156. CANCELLATION OF SECURITY
Sec. 702.157. LIMIT ON LIABILITY OF SURETY OR OBLIGOR
[Sections 702.158-702.200 reserved for expansion]
SUBCHAPTER E. EXEMPTION FROM SECURITY REQUIREMENTS
Sec. 702.201. APPLICATION FOR EXEMPTION
Sec. 702.202. QUALIFICATIONS FOR EXEMPTION
Sec. 702.203. PARTIAL INELIGIBILITY FOR EXEMPTION
Sec. 702.204. COMPLETE INELIGIBILITY FOR EXEMPTION
Sec. 702.205. ISSUANCE OF EXEMPTION
Sec. 702.206. NONTRANSFERABILITY OF EXEMPTION
Sec. 702.207. DENIAL AND REVOCATION OF EXEMPTION
[Sections 702.208-702.250 reserved for expansion]
SUBCHAPTER F. CLAIM ON SECURITY
Sec. 702.251. FILING OF SECURITY CLAIM
Sec. 702.252. COMPUTATION OF CLAIM
Sec. 702.253. ADJUDICATION ON PRO RATA BASIS
Sec. 702.254. CLAIM BARRED
[Sections 702.255-702.300 reserved for expansion]
SUBCHAPTER G. CONTRACT REQUIREMENTS
Sec. 702.301. GENERAL REQUIREMENTS
Sec. 702.302. DISCLOSURE REQUIREMENTS
Sec. 702.303. CONTRACT TERM
Sec. 702.304. CANCELLATION AND REFUND NOTICE
Sec. 702.305. PREPAYMENT REFUND NOTICE
Sec. 702.306. FINANCE CHARGE NOTICE
Sec. 702.307. CANCELLATION OF CONTRACT FOR FULL REFUND
Sec. 702.308. CANCELLATION OF CONTRACT FOR PARTIAL
REFUND
Sec. 702.309. PROOF OF PAYMENT
Sec. 702.310. EFFECT OF CONTRACT ON THIRD-PARTY
RIGHTS
Sec. 702.311. VOID CONTRACT
[Sections 702.312-702.350 reserved for expansion]
SUBCHAPTER H. PREPAYMENTS AND ESCROW
Sec. 702.351. MEMBERSHIP PREPAYMENT
Sec. 702.352. ESCROW DEPOSIT REQUIRED
Sec. 702.353. EXEMPTION FROM ESCROW REQUIREMENT
Sec. 702.354. DUTY OF FINANCIAL INSTITUTION
Sec. 702.355. REFUND OF ESCROWED PREPAYMENT
Sec. 702.356. WITHDRAWAL OF ESCROW FUNDS
[Sections 702.357-702.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES
Sec. 702.401. WAIVER PROHIBITED
Sec. 702.402. PROHIBITED ACTS
Sec. 702.403. APPLICATION OF DECEPTIVE TRADE PRACTICES
ACT
[Sections 702.404-702.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE ENFORCEMENT AND
DISCIPLINARY ACTIONS
Sec. 702.451. DISCIPLINARY ACTIONS
Sec. 702.452. NOTICE OF CLOSED HEALTH SPA
Sec. 702.453. EXPENSES RELATING TO NOTICE
[Sections 702.454-702.500 reserved for expansion]
SUBCHAPTER K. CIVIL REMEDY
Sec. 702.501. FILING OF SUIT; VENUE
Sec. 702.502. STATUTE OF LIMITATIONS
Sec. 702.503. RECOVERY
Sec. 702.504. TEMPORARY CLOSING
[Sections 702.505-702.550 reserved for expansion]
SUBCHAPTER L. ENFORCEMENT AND PENALTIES
Sec. 702.551. INVESTIGATIVE AND ENFORCEMENT AUTHORITY
Sec. 702.552. SUIT FOR ENFORCEMENT
Sec. 702.553. AMOUNT OF CIVIL PENALTY
Sec. 702.554. VIOLATION OF INJUNCTION
Sec. 702.555. DEPOSIT IN COUNTY FUND
Sec. 702.556. CRIMINAL OFFENSE: VIOLATION OF CHAPTER
Sec. 702.557. CRIMINAL OFFENSE: INTERFERENCE WITH
INVESTIGATION
Sec. 702.558. CRIMINAL OFFENSE: NONCOMPLIANCE WITH SUBPOENA
OR INVESTIGATIVE DEMAND
CHAPTER 702. HEALTH SPAS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 702.001. SHORT TITLE. This chapter may be cited as the Health Spa Act. (V.A.C.S. Art. 5221l, Sec. 1.)
Sec. 702.002. PURPOSE AND CONSTRUCTION. (a) The purpose of this chapter is to protect the public against fraud, deceit, imposition, and financial hardship and to foster and encourage competition, fair dealing, and prosperity in the field of health spa operations and services by prohibiting or restricting injurious practices involving:
(1) health spa contracts; and
(2) the marketing of health spa services.
(b) This chapter shall be liberally construed and applied to promote its purpose and to provide efficient and economical procedures to protect the public. (V.A.C.S. Art. 5221l, Secs. 2, 4.)
Sec. 702.003. DEFINITIONS. In this chapter:
(1) "Closed" means a condition in which:
(A) the facilities of a health spa are no longer available to the health spa's members and equivalent facilities located not more than 10 miles from the health spa have not been made available to the members;
(B) a certificate holder sells a registered location and the security filed or posted by the certificate holder under Subchapter D is:
(i) canceled;
(ii) withdrawn; or
(iii) otherwise unavailable to the members of the health spa; or
(C) a certificate holder sells a registered location and the buyer does not adopt or honor the contracts of existing members of the health spa.
(2) "Contract" means an agreement between a seller and purchaser by which the purchaser becomes a member of a health spa.
(3) "Facilities" means the equipment, physical structures, improvements, including improvements to leasehold premises, and other tangible property, including saunas, whirlpool baths, gymnasiums, running tracks, swimming pools, shower areas, racquetball courts, martial arts equipment, and exercise equipment, that are located at a health spa and used to conduct the business of the health spa.
(4) "Health spa" means a business that offers for sale, or sells, memberships that provide the members instruction in or the use of facilities for a physical exercise program. The term does not include:
(A) an organization that is tax exempt under Section 501 et seq., Internal Revenue Code (26 U.S.C. Section 501 et seq.);
(B) a private club owned and operated by its members;
(C) an entity operated exclusively to:
(i) teach dance or aerobic exercise; or
(ii) provide physical rehabilitation activity related to an individual's injury or disease;
(D) a person engaged in an activity authorized under a license issued by the state; or
(E) an activity conducted or sanctioned by a school under the Education Code.
(5) "Location" means the physical site of the facilities of a health spa.
(6) "Member" means a person who is entitled to the benefits of membership in a health spa.
(7) "Membership" means the status of a person under a contract that entitles the person to use a health spa's services or facilities.
(8) "Obligor" means a person, other than a surety, who is obligated to perform if a certificate holder defaults.
(9) "Open" means the date each service of a health spa that was advertised before the opening, or promised to be made available, are available for use by its members.
(10) "Prepayment" means consideration paid by a purchaser for membership in a health spa before the date the health spa opens.
(11) "Purchaser" means a person who purchases, or applies to purchase, the right to use a health spa's services or facilities.
(12) "Registered location" means a health spa location for which a health spa operator's certificate of registration is issued under this chapter.
(13) "Seller" means a person who:
(A) owns or operates a health spa; or
(B) offers for sale, or sells, the right to use a health spa's services or facilities.
(14) "Services" means the programs, plans, guidance, or instruction that a health spa provides for its members. The term includes diet planning, exercise instruction and programs, and instructional classes. (V.A.C.S. Art. 5221l, Secs. 6(a), (b), (c), (d), (e), (f), (g), (h), (i), (k), (l), (o), (p); New.)
[Sections 702.004-702.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF SECRETARY OF STATE
Sec. 702.051. ADMINISTRATIVE AND RULEMAKING AUTHORITY. (a) The secretary of state shall administer this chapter.
(b) In administering this chapter, the secretary of state shall:
(1) adopt rules;
(2) issue administrative orders; and
(3) take action necessary to ensure compliance with this chapter. (V.A.C.S. Art. 5221l, Sec. 26; New.)
Sec. 702.052. RULES RELATING TO SECURITY CLAIMS AND PROCEEDS. The secretary of state shall adopt rules necessary to:
(1) determine the disposition of a security claim filed under Section 702.251; and
(2) ensure the prompt and fair distribution of security proceeds. (V.A.C.S. Art. 5221l, Sec. 10A(d).)
Sec. 702.053. REGISTRATION AND RENEWAL FEES. The secretary of state may charge each applicant for a certificate of registration, or renewal of a certificate, a reasonable fee not to exceed $100 to cover the cost of issuance or renewal. (V.A.C.S. Art. 5221l, Sec. 8(g).)
[Sections 702.054-702.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 702.101. CERTIFICATE OF REGISTRATION REQUIRED. A person may not operate a health spa or offer for sale, or sell, a membership in a health spa unless the person holds a health spa operator's certificate of registration. (V.A.C.S. Art. 5221l, Sec. 8(a).)
Sec. 702.102. APPLICATION REQUIREMENTS. (a) An applicant for a health spa operator's certificate of registration must file with the secretary of state an application stating:
(1) the applicant's name, address, and telephone number;
(2) the applicant's business trade name;
(3) for an applicant whose business is incorporated:
(A) the applicant's business name registered with the secretary of state;
(B) the location of the applicant's registered business office; and
(C) the name and address of each person who directly or indirectly owns or controls 10 percent or more of the outstanding shares of stock in the applicant's business;
(4) the date the applicant became the owner and operator of the applicant's business;
(5) the address of the health spa; and
(6) the type of available or proposed facilities and services offered at the health spa location.
(b) An application for a certificate of registration must be accompanied by:
(1) a sample of each contract used to sell a membership in the applicant's health spa;
(2) proof of security filed or posted by the applicant under Subchapter D; and
(3) the required registration fee.
(c) An applicant must comply with the application requirements of this section for each location where the applicant operates a health spa. (V.A.C.S. Art. 5221l, Secs. 8(b), (c).)
Sec. 702.103. CERTIFICATE OF REGISTRATION NONTRANSFERABLE; APPLICATION BY NEW OWNER. (a) A health spa operator's certificate of registration is not transferable.
(b) A person who obtains ownership of a health spa by purchase or other transfer shall file an application for a certificate of registration under Section 702.102 not later than the fifth day after the date the person obtains ownership. (V.A.C.S. Art. 5221l, Sec. 8(f).)
Sec. 702.104. TERM; RENEWAL. (a) A health spa operator's certificate of registration expires on the first anniversary of the date of issuance.
(b) A certificate of registration may be renewed as provided by the secretary of state. (V.A.C.S. Art. 5221l, Sec. 8(d).)
Sec. 702.105. CERTIFICATE POSTING. A certificate holder shall post a health spa operator's certificate of registration in a conspicuous place at each registered location. (V.A.C.S. Art. 5221l, Sec. 8(i).)
Sec. 702.106. CHANGE OF INFORMATION. If the information provided in an application for a certificate of registration changes, the certificate holder shall amend the application not later than the 90th day after the date the change occurs. (V.A.C.S. Art. 5221l, Sec. 8(e).)
[Sections 702.107-702.150 reserved for expansion]
SUBCHAPTER D. SECURITY REQUIREMENTS
Sec. 702.151. SECURITY REQUIRED. Except as provided by Subchapter E, the secretary of state may not issue a health spa operator's certificate of registration to an applicant unless the applicant files a surety bond, or posts other security as prescribed by the secretary, in the amount of $20,000. (V.A.C.S. Art. 5221l, Secs. 10(a), (d) (part), (g).)
Sec. 702.152. SURETY BOND REQUIREMENTS. If a surety bond is filed under Section 702.151, the bond must:
(1) remain in effect until canceled by the surety company;
(2) be issued by a company authorized to do business in this state; and
(3) conform to the requirements of the Insurance Code. (V.A.C.S. Art. 5221l, Secs. 10(b) (part), (c).)
Sec. 702.153. REQUIREMENTS FOR SECURITY OTHER THAN SURETY BOND. An applicant who posts under Section 702.151 security other than a surety bond is:
(1) not required to post other security annually if the applicant maintains security in the amount of $20,000; and
(2) entitled to receive the interest that accumulates on the other security posted. (V.A.C.S. Art. 5221l, Sec. 10(d) (part).)
Sec. 702.154. BENEFICIARY OF SECURITY. The security filed or posted by a certificate holder under this subchapter must be payable to the state and held for the benefit of:
(1) the state; and
(2) each member of the certificate holder's health spa who has been administratively adjudicated to have suffered actual financial loss as a result of the closing of the certificate holder's health spa. (V.A.C.S. Art. 5221l, Sec. 10(e).)
Sec. 702.155. DURATION OF SECURITY. A certificate holder shall maintain the security filed or posted under Section 702.151 in effect until the later of:
(1) the second anniversary of the date the certificate holder's health spa closes; or
(2) the date the secretary of state determines that each claim filed against the security has been satisfied or foreclosed by law. (V.A.C.S. Art. 5221l, Sec. 10(h).)
Sec. 702.156. CANCELLATION OF SECURITY. (a) A surety or obligor of security filed or posted under this subchapter shall provide to the secretary of state, not later than the 60th day before the date the security is canceled, written notice of the cancellation.
(b) If the security filed or posted under this subchapter by a certificate holder is canceled, the secretary of state shall:
(1) suspend the certificate holder's certificate of registration on the date of cancellation; and
(2) maintain other security on file with the secretary until the later of:
(A) the second anniversary of the date the certificate holder's health spa closes; or
(B) the date the secretary determines that each claim filed against the security has been satisfied or foreclosed by law. (V.A.C.S. Art. 5221l, Secs. 10(b) (part), (j).)
Sec. 702.157. LIMIT ON LIABILITY OF SURETY OR OBLIGOR. (a) The limit of a surety's or obligor's liability stated in the security filed or posted under this subchapter may not be cumulative from year to year or period to period, regardless of the number of:
(1) years that the security continues in force; or
(2) premiums paid or payable.
(b) The liability of a surety or obligor is exclusively conditioned on a final administrative order issued by the secretary of state.
(c) Security filed or posted under this subchapter is subject to a claim only as provided by this subchapter. (V.A.C.S. Art. 5221l, Sec. 10(i).)
[Sections 702.158-702.200 reserved for expansion]
SUBCHAPTER E. EXEMPTION FROM SECURITY REQUIREMENTS
Sec. 702.201. APPLICATION FOR EXEMPTION. A certificate holder may apply for an exemption from the security requirements of Subchapter D by filing with the secretary of state a sworn application for the exemption on a form prescribed by the secretary of state. (V.A.C.S. Art. 5221l, Sec. 10B(a) (part).)
Sec. 702.202. QUALIFICATIONS FOR EXEMPTION. A certificate holder may apply for an exemption under Section 702.201 if:
(1) the certificate holder does not require, or solicit or offer a plan or program that requires, a health spa consumer to:
(A) execute a membership contract for a term that exceeds 31 days;
(B) execute a note or retail installment contract;
(C) authorize a draw or other recurring debit on a financial institution in favor of the certificate holder or the certificate holder's assignee;
(D) pay an initiation fee or other fee, not including monthly dues; or
(E) prepay for a term that exceeds 31 days; or
(2) the certificate holder:
(A) has continuously owned and operated a health spa in this state for not less than five years at the same location; and
(B) has not been the subject of a complaint relating to the closing of a health spa owned by the certificate holder or the failure of a health spa owned by the certificate holder to open that has been initiated or filed by a member of the health spa with a governmental authority in this state. (V.A.C.S. Art. 5221l, Secs. 10B(b), (c), (h) (part).)
Sec. 702.203. PARTIAL INELIGIBILITY FOR EXEMPTION. (a) Except as provided by Section 702.204(b) and Subsection (b), a certificate holder is not eligible to apply for an exemption under Section 702.202(2) if:
(1) the certificate holder previously claimed an exemption under Section 702.202(2);
(2) a health spa owned or operated by the certificate holder closes or fails to open; and
(3) a member of the health spa under Subdivision (2) initiates a complaint with a governmental authority in this state relating to the closing or failure to open.
(b) Subsection (a) does not preclude a certificate holder from claiming an exemption under Section 702.202(2) for another health spa operated by the certificate holder on the date the health spa under Subsection (a)(2) closed or failed to open. (V.A.C.S. Art. 5221l, Sec. 10B(d) (part).)
Sec. 702.204. COMPLETE INELIGIBILITY FOR EXEMPTION. (a) Except as provided by Subsection (b), a certificate holder is not eligible for an exemption under Section 702.202(2) if:
(1) the certificate holder previously claimed an exemption under Section 702.202(2);
(2) more than one health spa owned or operated by the certificate holder closes or fails to open; and
(3) a member of a health spa that closes or fails to open initiates a complaint with a governmental authority in this state relating to the closing or failure to open.
(b) A certificate holder who has previously claimed an exemption under Section 702.202(2) and who temporarily or permanently moves or temporarily closes a health spa is not precluded from applying for an exemption under Section 702.202(2) if:
(1) the move or closing was caused by a natural disaster or an act of a governmental agency beyond the certificate holder's control; and
(2) the health spa is not moved to a location more than 10 miles from the health spa's original location. (V.A.C.S. Art. 5221l, Secs. 10B(e), (f).)
Sec. 702.205. ISSUANCE OF EXEMPTION. (a) On approval of an application for an exemption under Section 702.201, the secretary of state shall issue a certificate of exemption.
(b) A certificate holder to whom a certificate of exemption is issued is not required to file a surety bond or post other security under Subchapter D. (V.A.C.S. Art. 5221l, Sec. 10B(a) (part).)
Sec. 702.206. NONTRANSFERABILITY OF EXEMPTION. (a) A certificate of exemption is not transferable.
(b) A person who by purchase or other transfer obtains ownership of a health spa for which a certificate of exemption has been issued shall, not later than the fifth day after the date the person obtains ownership:
(1) file a surety bond, or post other security, as required by Section 702.151; or
(2) file a new application for an exemption under Section 702.201. (V.A.C.S. Art. 5221l, Sec. 10B(g).)
Sec. 702.207. DENIAL AND REVOCATION OF EXEMPTION. After notice and hearing, the secretary of state may deny an application for an exemption or permanently revoke a certificate holder's certificate of exemption if the secretary finds that the applicant or certificate holder:
(1) provided false information on the application for an exemption; or
(2) is no longer eligible for an exemption. (V.A.C.S. Art. 5221l, Sec. 10B(i).)
[Sections 702.208-702.250 reserved for expansion]
SUBCHAPTER F. CLAIM ON SECURITY
Sec. 702.251. FILING OF SECURITY CLAIM. A member may file a claim against the security filed or posted under this subchapter by sending to the secretary of state by certified mail a copy of the contract between the member and certificate holder who filed or posted the security, accompanied by proof of payment made under the contract, if the certificate holder's health spa:
(1) closes and fails to provide alternative facilities not more than 10 miles from the location of the health spa; or
(2) relocates more than 10 miles from its location preceding the relocation. (New.)
Sec. 702.252. COMPUTATION OF CLAIM. (a) Recovery on a claim filed under Section 702.251 is limited to the amount of actual financial loss suffered by the member as a result of the closing or relocating of the certificate holder's health spa.
(b) For purposes of this section, actual financial loss is computed by:
(1) rounding the date of the health spa's closing or relocation and the contract's expiration date to the nearest full month;
(2) subtracting the date of closing or relocation determined under Subdivision (1) from the expiration date determined under that subdivision, with the result expressed in whole months and representing the number of months remaining on a contract;
(3) computing the gross monthly payment by adding all payments made under the contract, including any down payment and initiation fee, and dividing the resulting amount by the total number of months in the term of the contract; and
(4) multiplying the number of months remaining on the contract computed under Subdivision (2) by the gross monthly payment computed under Subdivision (3). (V.A.C.S. Art. 5221l, Secs. 10(e) (part), (f).)
Sec. 702.253. ADJUDICATION ON PRO RATA BASIS. (a) If the total amount of actual financial losses computed under Section 702.252 for all claims filed under Section 702.251 exceeds the amount of available security, the secretary of state shall reduce the amount of each recovery under Section 702.252 on a pro rata basis and shall compute the amount of each recovery by:
(1) dividing the amount of available security by the total amount of actual financial losses computed under Section 702.252 for all claims; and
(2) multiplying the results computed under Subdivision (1) by the amount of the recovery.
(b) For purposes of this section, the amount of available security is computed by subtracting the costs incurred in publishing notice under Section 702.452 from the amount of the security filed or posted for the health spa. (V.A.C.S. Art. 5221l, Sec. 10A(c) (part).)
Sec. 702.254. CLAIM BARRED. The secretary of state may not consider a claim filed under Section 702.251 if the claim is received later than the 90th day after the first date notice is published under Section 702.452. (V.A.C.S. Art. 5221l, Sec. 10A(c) (part).)
[Sections 702.255-702.300 reserved for expansion]
SUBCHAPTER G. CONTRACT REQUIREMENTS
Sec. 702.301. GENERAL REQUIREMENTS. (a) A contract:
(1) must be:
(A) in writing; and
(B) signed by the purchaser; and
(2) must state the proposed opening date of the health spa that is the subject of the contract, if the health spa is not open on the contract date.
(b) A contract under Subsection (a) constitutes the entire agreement between the seller and purchaser. (V.A.C.S. Art. 5221l, Sec. 12(a) (part).)
Sec. 702.302. DISCLOSURE REQUIREMENTS. (a) A health spa shall prepare a comprehensive list that includes each membership plan the health spa offers for sale. The health spa shall disclose the list to a prospective purchaser on request.
(b) A certificate holder who is not exempt under Section 702.202 from the security requirements of Subchapter D must deliver to a purchaser a complete copy of the contract, accompanied by a written receipt for any payment made by the purchaser under the contract before entering into the contract with the purchaser. (V.A.C.S. Art. 5221l, Secs. 12(a) (part), 16.)
Sec. 702.303. CONTRACT TERM. (a) Except as provided by Subsection (b), the term of a contract may not exceed three years.
(b) A contract that is financed through a retail installment contract or note may not require the purchaser to make payments or finance the contract for more than five years after the contract date.
(c) If, after a health spa opens, the health spa is rendered unusable for 30 consecutive days or longer because of an event beyond the control of the owner or operator of the health spa, including a natural disaster, the health spa shall extend the term of each affected member's contract for a period equal to the time that the health spa is rendered unusable.
(d) If the term of a contract overlaps the term of another contract between the same seller and purchaser, the contracts are considered to be one contract. (V.A.C.S. Art. 5221l, Secs. 12(b), (c), (d); 24.)
Sec. 702.304. CANCELLATION AND REFUND NOTICE. A contract must state in at least 10-point type that is boldfaced, capitalized, underlined, or otherwise conspicuously distinguished from surrounding written material:
(1) "NOTICE TO PURCHASER: DO NOT SIGN THIS CONTRACT UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES."
(2) "IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
(Address of the health spa home office)."
(3) "IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE FACILITIES WITHIN 10 MILES OF THE FACILITY IN WHICH YOU ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN 10 MILES FROM THE FACILITY IN WHICH YOU ARE ENROLLED, YOU MAY CANCEL THIS CONTRACT BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
(Address of the health spa home office)."
"YOU MAY ALSO BE ENTITLED TO FILE A CLAIM FOR A REFUND OF YOUR UNUSED MEMBERSHIP FEES AGAINST THE BOND OR OTHER SECURITY POSTED BY THE HEALTH SPA WITH THE TEXAS SECRETARY OF STATE. TO MAKE A CLAIM AGAINST THE SECURITY SEND A COPY OF YOUR CONTRACT TOGETHER WITH PROOF OF PAYMENTS MADE ON THE CONTRACT TO THE TEXAS SECRETARY OF STATE. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
OFFICE OF THE SECRETARY OF STATE
STATUTORY DOCUMENTS SECTION
P.O. BOX 12887
AUSTIN, TEXAS 78711-2887."
(4) "IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND OF YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
(Address of the health spa home office)." (V.A.C.S. Art. 5221l, Sec. 12(f).)
Sec. 702.305. PREPAYMENT REFUND NOTICE. If a certificate holder offers for sale, or sells, memberships in a health spa before the date the health spa opens, the contract for the health spa must state in at least 10-point type that is boldfaced, capitalized, underlined, or otherwise conspicuously distinguished from surrounding written material:
"IF THE HEALTH SPA DOES NOT OPEN BEFORE (insert: the date that is the 181st day after the date the membership is prepaid) OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR THIRTY DAYS, YOU ARE ENTITLED TO A FULL REFUND OF THE MONEY YOU PREPAID. HOWEVER, IF ANOTHER HEALTH SPA, OPERATED BY (insert: the name of the health spa registration holder), IS LOCATED WITHIN 10 MILES OF (insert: the address of the proposed location of the new spa) AND IF YOU ARE AUTHORIZED TO USE THE OTHER FACILITIES, YOU ARE ENTITLED TO RECEIVE A FULL REFUND OF YOUR MEMBERSHIP FEES ONLY IF THIS LOCATION DOES NOT FULLY OPEN FOR BUSINESS BEFORE (insert: the date that is the 361st day after the date the new spa first sells memberships) OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR 30 DAYS." (V.A.C.S. Art. 5221l, Sec. 12(g).)
Sec. 702.306. FINANCE CHARGE NOTICE. A contract that contains a finance charge as defined by the Truth in Lending Act (15 U.S.C. Section 1601 et seq.) or Regulation Z (12 C.F.R. Part 226) must state in at least 10-point type that is boldfaced, capitalized, underlined, or otherwise conspicuously distinguished from surrounding written material:
"ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER." (V.A.C.S. Art. 5221l, Sec. 12(h).)
Sec. 702.307. CANCELLATION OF CONTRACT FOR FULL REFUND. (a) A member may cancel a contract and receive a full refund of the payments made under the contract by sending, not later than midnight of the third business day after the contract date, written notice of cancellation, accompanied by proof of payment made under the contract, by certified mail to the certificate holder's home office.
(b) A certificate holder who receives notice under Subsection (a) shall refund the payments made under the contract not later than the 30th day after the date notice is received. (V.A.C.S. Art. 5221l, Secs. 13(a), (e) (part).)
Sec. 702.308. CANCELLATION OF CONTRACT FOR PARTIAL REFUND. (a) A member may cancel a contract and receive a refund of unearned payments made under the contract by sending written notice of cancellation, accompanied by proof of payment made under the contract, by certified mail to the certificate holder's home office if the certificate holder:
(1) closes the health spa and fails to provide alternative facilities not more than 10 miles from the location of the health spa;
(2) relocates the health spa more than 10 miles from its location preceding the relocation; or
(3) fails to provide advertised services.
(b) A member who dies or becomes totally and permanently disabled after the date a contract is entered into, or the member's estate, may cancel the contract and receive a refund of the unearned payments made under the contract by sending written notice of cancellation by certified mail to the certificate holder's home office. The certificate holder may require the member, or the member's estate, to provide reasonable proof of the member's death or disability.
(c) A certificate holder who receives notice under Subsection (a) or (b) shall refund the unearned payments made under the contract to the member, or the member's estate, as appropriate, not later that the 30th day after the date notice is received.
(d) In this section, the unearned payments are computed in the same manner as a member's actual financial loss is computed under Section 702.252, except that the date a contract is canceled is substituted for the date a health spa closes or relocates. (V.A.C.S. Art. 5221l, Secs. 12(f) (part), 13(b), (c), (d), (e) (part).)
Sec. 702.309. PROOF OF PAYMENT. A receipt given to a purchaser by a health spa when the purchaser makes a payment under a contract constitutes proof of the payment. (V.A.C.S. Art. 5221l, Sec. 13(e) (part).)
Sec. 702.310. EFFECT OF CONTRACT ON THIRD-PARTY RIGHTS. A contract may not require the purchaser to execute a note or series of notes if separate negotiation of the notes cuts off as to third parties a right of action or defense that the purchaser may assert against the seller. (V.A.C.S. Art. 5221l, Sec. 12(e).)
Sec. 702.311. VOID CONTRACT. A contract is void if:
(1) the contract or an assignment of the contract does not comply with this chapter;
(2) the seller does not hold a certificate of registration issued under this chapter at the time of contract; or
(3) the purchaser enters into the contract in reliance on false, fraudulent, or misleading information wilfully provided by, or a false, fraudulent, or misleading representation, notice, or advertisement wilfully made by, the seller or the health spa owner or operator. (V.A.C.S. Art. 5221l, Sec. 15.)
[Sections 702.312-702.350 reserved for expansion]
SUBCHAPTER H. PREPAYMENTS AND ESCROW
Sec. 702.351. MEMBERSHIP PREPAYMENT. A certificate holder may offer for sale, or sell, a membership in a health spa before the date the health spa opens. (V.A.C.S. Art. 5221l, Sec. 11(a).)
Sec. 702.352. ESCROW DEPOSIT REQUIRED. (a) A certificate holder or an assignee or agent of a certificate holder who accepts a prepayment for a membership in the certificate holder's health spa shall deposit the prepayment in an escrow account established with a financial institution insured by the Federal Deposit Insurance Corporation.
(b) A person required to make a deposit under Subsection (a) shall:
(1) not later than the 14th day after the date the person first accepts a prepayment:
(A) deposit the prepayments received; and
(B) submit to the secretary of state:
(i) a notarized statement that identifies the financial institution and the name in which the escrow account is held; and
(ii) a signed statement on a form approved by the secretary of state that authorizes the secretary to direct inquiries to the financial institution regarding the escrow account; and
(2) after the first deposit is made under this section, deposit subsequent prepayments not less frequently than biweekly.
(c) A certificate holder shall maintain an escrow account under this section until the 30th day after the date the certificate holder's health spa opens. (V.A.C.S. Art. 5221l, Sec. 9(a) (part).)
Sec. 702.353. EXEMPTION FROM ESCROW REQUIREMENT. (a) A certificate holder is not required to deposit prepayments in an escrow account under Section 702.352 if:
(1) the certificate holder has operated at least one health spa in the state for not less than two years before the date the certificate holder first sells a membership in the health spa that is the subject of the exemption; and
(2) except as provided by Subsection (b):
(A) litigation has not been initiated against the certificate holder by a member of a health spa owned or operated by the certificate holder relating to the closing of the health spa or the failure of the health spa to open; and
(B) a member of a health spa has not filed a complaint with a governmental authority in this state against the certificate holder, or an owner, officer, or director of a health spa owned or operated by the certificate holder, relating to the closing of the health spa or the failure of the health spa to open.
(b) The initiation of litigation or filing of a complaint against a certificate holder, or an owner, officer, or director of a health spa owned or operated by the certificate holder, does not preclude the certificate holder from claiming an exemption under Subsection (a) if the basis of the litigation or complaint is that the certificate holder's health spa closed:
(1) as a result of a natural disaster and the closing did not exceed one month; or
(2) to relocate the health spa to a location not more than 10 miles from its location preceding the relocation and the closing did not exceed one month.
(c) The number of exemptions that a certificate holder may claim under Subsection (a) during a two-year period may not exceed twice the number of health spas operated by the certificate holder on the first day of that two-year period. (V.A.C.S. Art. 5221l, Secs. 9(e), (f).)
Sec. 702.354. DUTY OF FINANCIAL INSTITUTION. A financial institution in which an escrow account is established under Section 702.352 shall hold each prepayment in the account as escrow agent for the benefit of the member who made the prepayments. (V.A.C.S. Art. 5221l, Sec. 9(a) (part).)
Sec. 702.355. REFUND OF ESCROWED PREPAYMENT. (a) Except as provided by Subsection (b), a member is entitled to receive a full refund of the prepayment made under a contract if the health spa that is the subject of the contract does not open before the 181st day after the date the health spa first sells a membership in the health spa or does not remain open for at least 30 days unless:
(1) an alternative health spa operated by the seller is located not more than 10 miles from the location of the health spa that is the subject of the contract; and
(2) the member is authorized to use the facilities of the alternative health spa.
(b) A member who is authorized to use the facilities of an alternative health spa under Subsection (a) is entitled to receive a full refund of the prepayment made under the contract if the health spa that is the subject of the contract does not open before the 361st day after the date the health spa first sells a membership in the health spa or does not remain open for at least 30 days.
(c) For purposes of this section, the date a health spa opens does not depend on whether the services of the health spa that were advertised before the opening, or promised to be made available, are included in the contract. (V.A.C.S. Art. 5221l, Secs. 9(b), (c), (g); 11(b), (c).)
Sec. 702.356. WITHDRAWAL OF ESCROW FUNDS. A certificate holder may withdraw prepayments deposited in an escrow account under Section 702.352 if:
(1) the health spa for which the prepayments are made remains open for not less than 30 days;
(2) the certificate holder files with the secretary of state an affidavit certifying that all obligations of the health spa for which a lien may be claimed under Chapter 53, Property Code, have been paid; and
(3) no person is eligible to claim a lien under Chapter 53, Property Code, during the period the certificate holder or an assignee or agent of the certificate holder accepts prepayments for memberships in the certificate holder's health spa. (V.A.C.S. Art. 5221l, Sec. 9(d).)
[Sections 702.357-702.400 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES
Sec. 702.401. WAIVER PROHIBITED. A person, including a person who buys a health spa membership from a former member, may not waive a provision of this chapter by contract or other means. A purported waiver of this chapter is void. (V.A.C.S. Art. 5221l, Sec. 5.)
Sec. 702.402. PROHIBITED ACTS. (a) A seller or certificate holder may not:
(1) offer a special offer or discount to fewer than all prospective members of the health spa, except that a seller or certificate holder may offer a special group price or discount; or
(2) make a material misrepresentation to a member, prospective member, or purchaser regarding:
(A) the qualifications of the health spa staff;
(B) the availability, quality, or extent of the facilities or services of the health spa;
(C) the results obtained through exercise, diet, weight control, or physical fitness conditioning programs;
(D) membership rights; or
(E) the period during which a special offer or discount will be available.
(b) A certificate holder may not:
(1) fail or refuse to:
(A) file or amend an application for registration as required by Subchapter C;
(B) file or post, or maintain, the security required by Subchapter D; or
(C) deposit prepayments in an escrow account as required by Subchapter H;
(2) advertise that the certificate holder is bonded by the state; or
(3) sell a membership plan that is not included in the list required by Section 702.302(a). (V.A.C.S. Art. 5221l, Sec. 17.)
Sec. 702.403. APPLICATION OF DECEPTIVE TRADE PRACTICES ACT. (a) A person who violates this chapter commits a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code.
(b) A public or private right or remedy under Chapter 17, Business & Commerce Code, may be used to enforce this chapter. (V.A.C.S. Art. 5221l, Sec. 21.)
[Sections 702.404-702.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE ENFORCEMENT AND
DISCIPLINARY ACTIONS
Sec. 702.451. DISCIPLINARY ACTIONS. After notice and hearing, the secretary of state may deny an application for a certificate of registration, or permanently revoke or suspend for a definite period a health spa operator's certificate of registration, on a finding by the secretary that the applicant or certificate holder:
(1) provided false information on an application or other document filed with the secretary;
(2) failed to file or post, or maintain, the security for each health spa location as required by Subchapter D; or
(3) failed to provide the contract disclosure language required by Subchapter G. (V.A.C.S. Art. 5221l, Sec. 8(h).)
Sec. 702.452. NOTICE OF CLOSED HEALTH SPA. Not later than the 45th day after the date the secretary of state discovers that a health spa is closed, the secretary shall contemporaneously:
(1) publish for two consecutive Saturdays and Sundays in a newspaper of general circulation in the county in which the health spa is located, or the county nearest to the location of the health spa, a notice stating:
(A) that the health spa is closed;
(B) that a member of the health spa may, not later than the 90th day after the date the first notice is published, file with the secretary of state a claim to recover actual financial loss suffered by the member as a result of the health spa closing; and
(C) the procedures for perfecting a security claim; and
(2) notify the appropriate surety company or obligor of the administrative proceedings pending under Subdivision (1). (V.A.C.S. Art. 5221l, Secs. 10A(a), (b) (part).)
Sec. 702.453. EXPENSES RELATING TO NOTICE. The secretary of state may claim reasonable expenses incurred in publishing notice under Section 702.452 against the security filed or posted by the certificate holder under Subchapter D. A claim under this section may not exceed $3,000. (V.A.C.S. Art. 5221l, Sec. 10A(b) (part).)
[Sections 702.454-702.500 reserved for expansion]
SUBCHAPTER K. CIVIL REMEDY
Sec. 702.501. FILING OF SUIT; VENUE. (a) A member may file suit against a seller if:
(1) the seller violates this chapter; and
(2) the seller's violation causes injury to the member.
(b) Venue for a suit filed under Subsection (a) is in a court located in:
(1) Travis County; or
(2) the county in which:
(A) the seller resides;
(B) the seller's principal place of business is located;
(C) the seller is doing business;
(D) the member resides; or
(E) the transaction that is the subject of the suit occurred. (V.A.C.S. Art. 5221l, Sec. 19(a) (part).)
Sec. 702.502. STATUTE OF LIMITATIONS. A member must file a suit under Section 702.501 not later than the later of:
(1) the first anniversary of the date the attorney general or district or county attorney concludes a suit filed under Section 702.552; or
(2) the second anniversary of the date the seller's violation of this chapter is discovered. (V.A.C.S. Art. 5221l, Sec. 19(c).)
Sec. 702.503. RECOVERY. In a suit filed under Section 702.501, a court may award:
(1) actual damages;
(2) equitable relief;
(3) punitive damages; or
(4) reasonable attorney's fees and court costs to the prevailing party. (V.A.C.S. Art. 5221l, Secs. 19(a) (part), (b).)
Sec. 702.504. TEMPORARY CLOSING. For purposes of this subchapter, the closing of a health spa is not a violation of this chapter if the closing does not exceed one month and:
(1) is a result of a natural disaster; or
(2) is to relocate the health spa not more than 10 miles from its location preceding the relocation. (V.A.C.S. Art. 5221l, Sec. 19(d).)
[Sections 702.505-702.550 reserved for expansion]
SUBCHAPTER L. ENFORCEMENT AND PENALTIES
Sec. 702.551. INVESTIGATIVE AND ENFORCEMENT AUTHORITY. (a) The attorney general or a district or county attorney may:
(1) investigate an alleged violation of this chapter; and
(2) enforce any penalty or remedy authorized by this chapter.
(b) The attorney general, a district or county attorney, or the secretary of state may recover reasonable expenses, including court costs, attorney's fees, investigative costs, witness fees, and deposition expenses, incurred in obtaining an injunction or recovering a civil penalty under this subchapter. (V.A.C.S. Art. 5221l, Secs. 20(c), 23.)
Sec. 702.552. SUIT FOR ENFORCEMENT. (a) The attorney general or a district or county attorney may file suit against a person who violates, or threatens to violate, this chapter to:
(1) obtain an injunction to enjoin the person from violating this chapter; or
(2) recover a civil penalty under Section 702.553.
(b) Venue for a suit filed under this section is in a district court located in:
(1) Travis County; or
(2) the county in which the defendant resides. (V.A.C.S. Art. 5221l, Sec. 18.)
Sec. 702.553. AMOUNT OF CIVIL PENALTY. (a) Except as provided by Subsection (b) and Section 702.554, a person who violates this chapter is subject to a civil penalty in an amount not to exceed $1,000 for a single violation.
(b) If more than one civil penalty is assessed against the same person, the total amount of civil penalties assessed may not exceed $25,000. (V.A.C.S. Art. 5221l, Sec. 20(a).)
Sec. 702.554. VIOLATION OF INJUNCTION. (a) The attorney general or a district or county attorney may file suit to recover a civil penalty against a person who violates an injunction issued under this subchapter in an amount not to exceed $25,000 for a single violation. If more than one civil penalty is assessed against the same person, the total amount of civil penalties assessed under this section may not exceed $50,000.
(b) Venue for a suit filed under this section is in the district court that issued the injunction that is the subject of the civil penalty. (V.A.C.S. Art. 5221l, Sec. 20(b).)
Sec. 702.555. DEPOSIT IN COUNTY FUND. A civil penalty collected under this subchapter by a district or county attorney shall be deposited to the credit of the general fund of the county. (V.A.C.S. Art. 5221l, Sec. 20(d) (part).)
Sec. 702.556. CRIMINAL OFFENSE: VIOLATION OF CHAPTER. (a) A person commits an offense if the person knowingly operates, or attempts to operate, a health spa in violation of Subchapter C, D, or H.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 5221l, Sec. 22(a).)
Sec. 702.557. CRIMINAL OFFENSE: INTERFERENCE WITH INVESTIGATION. (a) A person commits an offense if with actual notice that the attorney general, or a district or county attorney, has initiated, or plans to initiate, an investigation under this chapter the person intentionally conceals, alters, destroys, or falsifies a document or record that is relevant or material to the investigation.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 5221l, Secs. 22(b), 23 (part).)
Sec. 702.558. CRIMINAL OFFENSE: NONCOMPLIANCE WITH SUBPOENA OR INVESTIGATIVE DEMAND. (a) A person commits an offense if, after receiving a subpoena or civil investigative demand issued under Section 17.61, Business & Commerce Code, the person intentionally falsifies or withholds relevant material, including a document or record, that is not privileged.
(b) An offense under this section is a misdemeanor punishable by a fine not to exceed $2,000. (V.A.C.S. Art. 5221l, Sec. 22(c).)
[Chapters 703-800 reserved for expansion]
TITLE 4. PROFESSIONS RELATED TO ANIMAL HEALTH
CHAPTER 801. VETERINARIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 801.001. SHORT TITLE
Sec. 801.002. DEFINITIONS
Sec. 801.003. APPLICATION OF SUNSET ACT
Sec. 801.004. APPLICATION OF CHAPTER
[Sections 801.005-801.050 reserved for expansion]
SUBCHAPTER B. STATE BOARD OF VETERINARY MEDICAL EXAMINERS
Sec. 801.051. BOARD; MEMBERSHIP
Sec. 801.052. MEMBERSHIP ELIGIBILITY
Sec. 801.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 801.054. TERMS; VACANCY
Sec. 801.055. OFFICERS
Sec. 801.056. GROUNDS FOR REMOVAL
Sec. 801.057. TRAINING
Sec. 801.058. PER DIEM; REIMBURSEMENT
Sec. 801.059. OATH OF OFFICE
[Sections 801.060-801.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 801.101. EXECUTIVE DIRECTOR
Sec. 801.102. CERTAIN DUTIES OF EXECUTIVE DIRECTOR; SURETY
BOND
Sec. 801.103. PERSONNEL
Sec. 801.104. DIVISION OF RESPONSIBILITIES
Sec. 801.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 801.106. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 801.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 801.108-801.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 801.151. RULES
Sec. 801.152. EXCEPTIONS TO RULE
Sec. 801.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 801.154. FEES
Sec. 801.155. PAYMENT OF ADMINISTRATIVE COSTS
Sec. 801.156. REGISTRY
Sec. 801.157. PEER ASSISTANCE PROGRAM
Sec. 801.158. SUBPOENA
Sec. 801.159. BOARD DUTIES REGARDING COMPLAINTS
Sec. 801.160. ANNUAL REPORT
[Sections 801.161-801.200 reserved for expansion]
SUBCHAPTER E. PUBLIC ACCESS AND INFORMATION;
COMPLAINT PROCEDURES
Sec. 801.201. PUBLIC INTEREST INFORMATION
Sec. 801.202. PUBLIC PARTICIPATION
Sec. 801.203. COMPLAINTS
Sec. 801.204. RECORDS OF COMPLAINTS
Sec. 801.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
AND DISPOSITION
Sec. 801.206. DISPOSITION OF COMPLAINT
Sec. 801.207. PUBLIC RECORD; EXCEPTION
[Sections 801.208-801.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 801.251. LICENSE REQUIRED
Sec. 801.252. ELIGIBILITY REQUIREMENTS
Sec. 801.253. LICENSING EXAMINATIONS
Sec. 801.254. CONTENT AND CONDUCT OF EXAMINATION
Sec. 801.255. EXAMINATION RESULTS
Sec. 801.256. SPECIAL LICENSE
Sec. 801.257. PROVISIONAL LICENSE
Sec. 801.258. TEMPORARY LICENSE
[Sections 801.259-801.300 reserved for expansion]
SUBCHAPTER G. LICENSE EXPIRATION AND RENEWAL
Sec. 801.301. ANNUAL RENEWAL REQUIRED
Sec. 801.302. NOTICE OF LICENSE EXPIRATION
Sec. 801.303. PROCEDURE FOR RENEWAL
Sec. 801.304. FEE EXEMPTION
Sec. 801.305. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 801.306. INACTIVE STATUS
Sec. 801.307. CONTINUING EDUCATION
[Sections 801.308-801.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY VETERINARIAN
Sec. 801.351. EXISTENCE OF VETERINARIAN-CLIENT-PATIENT
RELATIONSHIP
Sec. 801.352. PROHIBITION AGAINST INTERFERENCE OR
INTERVENTION
Sec. 801.353. CONFIDENTIALITY; WAIVER
Sec. 801.354. AUTHORIZED BUSINESS PRACTICES
Sec. 801.355. LEASING SPACE FROM MERCANTILE ESTABLISHMENT
Sec. 801.356. EXEMPTIONS FROM REQUIREMENTS RELATED TO
MERCANTILE ESTABLISHMENT
Sec. 801.357. RESPONSIBILITY OF VETERINARIAN TOWARD ABANDONED
ANIMALS
Sec. 801.358. LIABILITY OF VETERINARIAN FOR EMERGENCY
TREATMENT; EUTHANASIA PRESUMPTION
Sec. 801.359. CONTROLLED SUBSTANCES RECORDS
Sec. 801.360. DEATH OF VETERINARIAN
[Sections 801.361-801.400 reserved for expansion]
SUBCHAPTER I. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 801.401. DISCIPLINARY POWERS OF BOARD
Sec. 801.402. GENERAL GROUNDS FOR LICENSE DENIAL OR
DISCIPLINARY ACTION
Sec. 801.403. FAILURE TO REPORT DISEASE
Sec. 801.404. FAILURE TO MAINTAIN RECORDS
Sec. 801.405. MENTAL INCOMPETENCE
Sec. 801.406. REQUIRED DISCIPLINARY ACTION FOR CERTAIN FELONY
CONVICTIONS
Sec. 801.407. RIGHT TO HEARING; SCHEDULE OF SANCTIONS
Sec. 801.408. INFORMAL PROCEEDINGS
Sec. 801.409. TEMPORARY LICENSE SUSPENSION
Sec. 801.410. VENUE FOR APPEAL
[Sections 801.411-801.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 801.451. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 801.452. AMOUNT OF PENALTY
Sec. 801.453. SUBCOMMITTEE RECOMMENDATIONS
Sec. 801.454. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 801.455. HEARING ON SUBCOMMITTEE'S RECOMMENDATIONS
Sec. 801.456. DECISION BY BOARD
Sec. 801.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 801.458. COLLECTION OF PENALTY
Sec. 801.459. DETERMINATION BY COURT
Sec. 801.460. REMITTANCE OF PENALTY AND INTEREST
Sec. 801.461. ADMINISTRATIVE PROCEDURE
[Sections 801.462-801.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 801.501. MONITORING LICENSE HOLDER
Sec. 801.502. INJUNCTIVE RELIEF
Sec. 801.503. ASSESSMENT OF CIVIL PENALTY AGAINST PERSON NOT
LICENSED
Sec. 801.504. GENERAL CRIMINAL PENALTY
Sec. 801.505. BOARD MEMBER OR EMPLOYEE; FINE
Sec. 801.506. PROHIBITED PRACTICES RELATING TO CERTAIN
ENTITIES
Sec. 801.507. NONAPPLICABILITY OF DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT
CHAPTER 801. VETERINARIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 801.001. SHORT TITLE. This chapter may be cited as the Veterinary Licensing Act. (V.A.C.S. Art. 8890, Sec. 1.)
Sec. 801.002. DEFINITIONS. In this chapter:
(1) "Board" means the State Board of Veterinary Medical Examiners.
(2) "Compensation" includes a fee, monetary reward, discount, or emolument, whether received directly or indirectly.
(3) "Direct supervision" means supervision of a person by a responsible veterinarian who is physically present on the premises.
(4) "General supervision" means supervision of a person by a responsible veterinarian who is readily available to communicate with the person.
(5) "Practice of veterinary medicine" means:
(A) the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique;
(B) the representation of an ability and willingness to perform an act listed in Paragraph (A);
(C) the use of a title, a word, or letters to induce the belief that a person is legally authorized and qualified to perform an act listed in Paragraph (A); or
(D) the receipt of compensation for performing an act listed in Paragraph (A).
(6) "Veterinarian" means a person licensed by the board under this chapter to practice veterinary medicine.
(7) "Veterinary medicine" includes veterinary surgery, reproduction and obstetrics, dentistry, ophthalmology, dermatology, cardiology, and any other discipline or specialty of veterinary medicine. (V.A.C.S. Art. 8890, Secs. 2(1), (2), (3), (7), (8), (9), (11).)
Sec. 801.003. APPLICATION OF SUNSET ACT. The State Board of Veterinary Medical Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 8890, Sec. 5(i).)
Sec. 801.004. APPLICATION OF CHAPTER. This chapter does not apply to:
(1) the treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal, unless the ownership, employment, or designation is established with the intent to violate this chapter;
(2) a person who performs an act prescribed by the board as an accepted livestock management practice, including:
(A) castrating a male animal raised for human consumption;
(B) docking or earmarking an animal raised for human consumption;
(C) dehorning cattle;
(D) aiding in the nonsurgical birth process of a large animal, as defined by board rule;
(E) treating an animal for disease prevention with a nonprescription medicine or vaccine;
(F) branding or identifying an animal in any manner;
(G) artificially inseminating an animal, including training, inseminating, and compensating for services related to artificial insemination; and
(H) shoeing a horse;
(3) the performance of a cosmetic or production technique to reduce injury in poultry intended for human consumption;
(4) the performance of a duty by a veterinarian's employee if:
(A) the duty involves food production animals;
(B) the duty does not involve diagnosis, prescription, or surgery;
(C) the employee is under the direction and general supervision of the veterinarian; and
(D) the veterinarian is responsible for the employee's performance;
(5) the performance of an act by a person who is a full-time student of an accredited college of veterinary medicine or is a foreign graduate of a board-approved equivalent competency program for foreign veterinary graduates and who is participating in a board-approved extern or preceptor program if the act is performed under the direct supervision of a veterinarian employing the person;
(6) an animal shelter employee who performs euthanasia in the course and scope of the person's employment if the person has successfully completed training offered by the Texas Department of Health under Section 823.004, Health and Safety Code;
(7) a person who is engaged in a recognized state-federal cooperative disease eradication or control program or an external parasite control program while the person is performing official duties required by the program;
(8) a person who, without expectation of compensation, provides emergency care in an emergency or disaster; or
(9) a consultation given to a veterinarian in this state by a person who:
(A) resides in another state; and
(B) is lawfully qualified to practice veterinary medicine under the laws of that state. (V.A.C.S. Art. 8890, Sec. 3.)
[Sections 801.005-801.050 reserved for expansion]
SUBCHAPTER B. STATE BOARD OF VETERINARY MEDICAL EXAMINERS
Sec. 801.051. BOARD; MEMBERSHIP. (a) The State Board of Veterinary Medical Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) six veterinarian members; and
(2) three members who represent the public.
(b) The board may include not more than one veterinarian member who is a faculty member of a college of veterinary medicine.
(c) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 8890, Secs. 5(a) (part), (b).)
Sec. 801.052. MEMBERSHIP ELIGIBILITY. (a) A person is eligible for appointment as a veterinarian member of the board if the person:
(1) has resided and practiced veterinary medicine in this state for the six years preceding the date of appointment;
(2) is of good repute; and
(3) is not the holder of a special license issued under Section 801.256.
(b) A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management of a business entity or other organization that:
(A) provides health care services;
(B) sells, manufactures, or distributes health care supplies or equipment; or
(C) is regulated by or receives funds from the board;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization that:
(A) provides health care services;
(B) sells, manufactures, or distributes health care supplies or equipment; or
(C) is regulated by or receives funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 8890, Secs. 5(c), (d).)
Sec. 801.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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. (V.A.C.S. Art. 8890, Secs. 5(k), (l), (m), (n).)
Sec. 801.054. TERMS; VACANCY. (a) Members of the board are appointed for staggered six-year terms.
(b) If a vacancy occurs because of the death or resignation of a board member, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 8890, Secs. 5(a) (part), (f).)
Sec. 801.055. OFFICERS. At the first meeting of the board each year, the board shall elect from its members a president and any other officer the board considers necessary or convenient. (V.A.C.S. Art. 8890, Sec. 5(g) (part).)
Sec. 801.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Section 801.052;
(2) does not maintain during service on the board the qualifications required by Section 801.052;
(3) violates a prohibition established by Section 801.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 8890, Secs. 5(o), (p), (q).)
Sec. 801.057. TRAINING. (a) Before a board member may assume the member's duties, the member must complete at least one course of the training program established by the board under this section. Before the member may be confirmed by the senate, the member must pass an examination given in conjunction with the attorney general on the subjects described by Subsections (b)(7), (8), and (9).
(b) The training program shall provide information regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the board;
(7) the requirements of Chapters 551, 552, 2001, and 2002, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the board or the Texas Ethics Commission.
(c) In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.
(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 8890, Sec. 5C.)
Sec. 801.058. PER DIEM; REIMBURSEMENT. A board member is entitled to receive:
(1) a per diem, as set by legislative appropriation, for each day that the member engages in board business; and
(2) reimbursement for travel expenses, as prescribed by the General Appropriations Act, including expenses for meals and lodging. (V.A.C.S. Art. 8890, Sec. 5(h).)
Sec. 801.059. OATH OF OFFICE. Before assuming the duties of office, each board member shall file with the secretary of state a signed copy of the constitutional oath of office taken by the member. (V.A.C.S. Art. 8890, Sec. 5(e).)
[Sections 801.060-801.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 801.101. EXECUTIVE DIRECTOR. The board may employ an executive director. (V.A.C.S. Art. 8890, Sec. 6(a) (part).)
Sec. 801.102. CERTAIN DUTIES OF EXECUTIVE DIRECTOR; SURETY BOND. (a) The executive director is responsible for:
(1) safekeeping the money collected under this chapter; and
(2) properly disbursing the veterinary fund account established by this chapter.
(b) The board shall require the executive director to file with the board a surety bond in an amount of not less than $5,000 conditioned on the faithful performance of the duties of the office. (V.A.C.S. Art. 8890, Sec. 6(a) (part).)
Sec. 801.103. PERSONNEL. The board may employ personnel to administer this chapter. (V.A.C.S. Art. 8890, Sec. 6(a) (part).)
Sec. 801.104. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 8890, Sec. 5B.)
Sec. 801.105. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide as often as necessary to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 8890, Sec. 5A(b).)
Sec. 801.106. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay authorized by the executive director must be based on the system established under this subsection. (V.A.C.S. Art. 8890, Secs. 6(b), (c).)
Sec. 801.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of the significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must be:
(1) prepared to cover an annual period;
(2) updated annually;
(3) reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 8890, Sec. 6A.)
[Sections 801.108-801.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 801.151. RULES. (a) The board may adopt rules as necessary to administer this chapter.
(b) The board may adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity, skills, and practice in the veterinary medicine profession.
(c) The board shall adopt rules to:
(1) protect the public; and
(2) ensure that alternate therapies, including ultrasound diagnosis and therapy, magnetic field therapy, holistic medicine, homeopathy, chiropractic treatment, acupuncture, and laser therapy, are performed only by a veterinarian or under the supervision of a veterinarian.
(d) The board may adopt rules regarding the work of a person who:
(1) works under the supervision of a veterinarian; and
(2) fulfills the requirements established by a board-approved organization for registered veterinary technicians. (V.A.C.S. Art. 8890, Secs. 2(10); 7(a), (b), (c); 8(a).)
Sec. 801.152. EXCEPTIONS TO RULE. (a) The board may consider an exception to a rule adopted by the board on the request of a person subject to board regulation.
(b) After notice and hearing, the board may approve an exception to a board rule. (V.A.C.S. Art. 8890, Sec. 7(e).)
Sec. 801.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt a rule restricting advertising or competitive bidding by a person regulated by the board except to prohibit a false, misleading, or deceptive practice by that person.
(b) In its rules to prohibit a false, misleading, or deceptive practice, the board may not include a rule that:
(1) restricts the person's use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 8890, Sec. 8(b).)
Sec. 801.154. FEES. (a) The board by rule shall set fees in amounts that are reasonable and necessary so that the fees, in the aggregate, cover the costs of administering this chapter. The board may not set a fee that existed on September 1, 1993, in an amount that is less than the fee on that date.
(b) The license renewal fee set by the board under this chapter is the amount set by the board under Subsection (a) and an additional fee of $200.
(c) Of each additional fee collected under Subsection (b), $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
(d) The additional fee under Subsection (b) does not apply to a license holder who is:
(1) exempt from paying the renewal fee under Section 801.304; or
(2) placed on inactive status as provided by Section 801.306. (V.A.C.S. Art. 8890, Secs. 19; 25(a), (b) (part), (c).)
Sec. 801.155. PAYMENT OF ADMINISTRATIVE COSTS. Costs incurred by the board in administrating this chapter, including the compensation and expenses of board members and employees, may be paid only from fees collected under this chapter. (V.A.C.S. Art. 8890, Sec. 21.)
Sec. 801.156. REGISTRY. (a) The board shall maintain a record of each veterinarian's:
(1) name;
(2) residence address; and
(3) business address.
(b) A veterinarian shall notify the board of a change of business address or employer not later than the 60th day after the date the change takes effect. (V.A.C.S. Art. 8890, Secs. 9(a) (part), (b).)
Sec. 801.157. PEER ASSISTANCE PROGRAM. The board shall establish or approve a peer assistance program for veterinarians. The peer assistance program must comply with Chapter 467, Health and Safety Code. (V.A.C.S. Art. 8890, Secs. 8A(a), (b).)
Sec. 801.158. SUBPOENA. (a) The board may request and, if necessary, compel by subpoena:
(1) the attendance of witnesses for examination under oath; and
(2) the production for inspection or copying of books, accounts, records, papers, correspondence, documents, and other evidence relevant to an investigation of an alleged violation of this chapter.
(b) The board, acting through the attorney general, may bring an action to enforce a subpoena issued under Subsection (a) against a person who fails to comply with the subpoena.
(c) Venue for an action brought under Subsection (b) is in a district court in:
(1) Travis County; or
(2) any county in which the board may hold a hearing.
(d) The court shall order compliance with the subpoena if the court finds that good cause exists to issue the subpoena. (V.A.C.S. Art. 8890, Sec. 13B.)
Sec. 801.159. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:
(1) adopt a form to standardize information relating to complaints filed with the board; and
(2) prescribe information to be provided to a person when the person files a complaint with the board.
(b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 8890, Secs. 18B(c), (d).)
Sec. 801.160. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 8890, Sec. 20(c).)
[Sections 801.161-801.200 reserved for expansion]
SUBCHAPTER E. PUBLIC ACCESS AND INFORMATION;
COMPLAINT PROCEDURES
Sec. 801.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 8890, Sec. 18A(a).)
Sec. 801.202. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 8890, Secs. 6B(a), (b) (part).)
Sec. 801.203. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board.
(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law for presenting a complaint about a veterinarian. (V.A.C.S. Art. 8890, Secs. 18A(b), (c).)
Sec. 801.204. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:
(1) each person contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed;
(4) the schedule established for the complaint under Section 801.206(a) and a notation of any change in the schedule; and
(5) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 8890, Secs. 18B(a), (b), 18D(b) (part).)
Sec. 801.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. The board shall adopt rules relating to the investigation of complaints filed with the board. The rules must:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised of a complaint that is dismissed and that a written explanation be given to the person who filed the complaint explaining the action taken on the dismissed complaint;
(4) ensure that the person who filed the complaint has the opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator. (V.A.C.S. Art. 8890, Sec. 18D(a).)
Sec. 801.206. DISPOSITION OF COMPLAINT. (a) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of the complaint process that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(b) Each party to the complaint shall be notified of the projected time requirements for the complaint. Each party shall be notified of a change in the schedule not later than the seventh day after the date the change is made.
(c) The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 8890, Secs. 18D(b) (part), (c).)
Sec. 801.207. PUBLIC RECORD; EXCEPTION. (a) Except as provided by Subsection (b), a board record is a public record and is available for public inspection during normal business hours.
(b) An investigation record of the board, including a record relating to a complaint that is found to be groundless, is confidential. (V.A.C.S. Art. 8890, Secs. 9(c), (d).)
[Sections 801.208-801.250 reserved for expansion]
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 801.251. LICENSE REQUIRED. Except as provided by Section 801.004, a person may not practice, or offer or attempt to practice, veterinary medicine unless the person holds a license issued under this chapter. (V.A.C.S. Art. 8890, Sec. 4(a).)
Sec. 801.252. ELIGIBILITY REQUIREMENTS. The board shall issue a license to a person who is qualified to be licensed under this chapter. A person is qualified to be licensed if:
(1) the person has attained the age of majority;
(2) the person is a graduate of a board-approved school or college of veterinary medicine;
(3) the person successfully completes the licensing examination conducted by the board; and
(4) the board does not refuse to issue a license to the person under Section 801.401. (V.A.C.S. Art. 8890, Secs. 9(a) (part); 10(a).)
Sec. 801.253. LICENSING EXAMINATIONS. (a) The board shall hold a regular meeting at least twice each year to conduct licensing examinations as provided by board rule. The board shall conduct the examination at a time and place the board determines is convenient for applicants.
(b) The board shall provide notice of a licensing examination by publication in a newspaper or periodical.
(c) The board shall examine each qualified applicant who attends the examination. (V.A.C.S. Art. 8890, Sec. 12(a).)
Sec. 801.254. CONTENT AND CONDUCT OF EXAMINATION. (a) The board shall conduct the licensing examination on subjects relating to veterinary medicine, including anatomy, pathology, chemistry, obstetrics, public health, veterinary practice, veterinary jurisprudence, physiology and bacteriology, and other subjects regularly taught in reputable schools of veterinary medicine.
(b) The board may conduct a licensing examination orally, in writing, by a practical demonstration of the applicant's skill, or by a combination of those methods. The board shall arrange for the written portion of the examination, if any, to be validated by an independent testing professional.
(c) To pass the licensing examination, an applicant must demonstrate the standard of proficiency the board determines is essential for a qualified veterinarian. (V.A.C.S. Art. 8890, Secs. 12(b), (c), (d).)
Sec. 801.255. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify the examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the examination results graded or reviewed by a national testing service will be delayed longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 8890, Secs. 12(e), (f).)
Sec. 801.256. SPECIAL LICENSE. (a) The board may issue a special license to an applicant who is:
(1) a member of the faculty or staff of a board-approved veterinary program at an institution of higher education;
(2) a veterinarian employee of the Texas Animal Health Commission;
(3) a veterinarian employee of the Texas Veterinary Medical Diagnostic Laboratory; or
(4) a person licensed to practice veterinary medicine in another jurisdiction, if the board determines that the person's specialty practice is unrepresented or underrepresented in this state.
(b) An applicant is eligible for a special license if:
(1) the applicant is:
(A) at least 21 years of age; and
(B) a graduate of a board-approved veterinary medicine program at an institution of higher education; and
(2) the applicant passes the jurisprudence section of the licensing examination.
(c) The board shall adopt rules relating to the issuance of a special license.
(d) A special license is valid only for the performance of duties within the scope of the special license holder's employment or practice.
(e) The board may suspend or revoke a special license if:
(1) the special license holder's employment is terminated; or
(2) the special license holder practices outside of the scope of the license. (V.A.C.S. Art. 8890, Sec. 10A.)
Sec. 801.257. PROVISIONAL LICENSE. (a) The board may grant a provisional license to an applicant who presents proof that the applicant:
(1) is licensed in good standing as a veterinarian in another state that:
(A) has licensing requirements substantially equivalent to the requirements of this chapter; and
(B) maintains professional standards the board considers equivalent to the professional standards of this chapter;
(2) has passed a national or other examination recognized by the board relating to veterinary medicine; and
(3) is sponsored by a person licensed by the board under this chapter with whom the provisional license holder may practice veterinary medicine.
(b) The board may excuse an applicant from the requirement established by Subsection (a)(3) if the board determines that compliance with the requirement is a hardship on the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to a provisional license holder if:
(1) the provisional license holder passes the licensing examination under Section 801.253;
(2) the board verifies that the provisional license holder has the academic and experience requirements to qualify for a license; and
(3) the provisional license holder satisfies any other license requirement under this chapter.
(d) The board shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. (V.A.C.S. Art. 8890, Secs. 10(b), (c), (d), (e).)
Sec. 801.258. TEMPORARY LICENSE. The board by rule may provide for the issuance of a temporary license. (V.A.C.S. Art. 8890, Sec. 10B(a).)
[Sections 801.259-801.300 reserved for expansion]
SUBCHAPTER G. LICENSE EXPIRATION AND RENEWAL
Sec. 801.301. ANNUAL RENEWAL REQUIRED. (a) The board shall provide for the annual renewal of a license.
(b) The board by rule may adopt a system under which licenses expire on various dates during the year.
(c) For a year in which the license expiration date is changed, license fees payable on March 1 shall be prorated on a monthly basis so that each license holder pays only that portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 8890, Sec. 13A.)
Sec. 801.302. NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the expiration date of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records. (V.A.C.S. Art. 8890, Sec. 13(e).)
Sec. 801.303. PROCEDURE FOR RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to one-half of the amount of the examination fee for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the examination fee for the license.
(c) A person may not renew a license that has been expired for one year or more. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license under this chapter. (V.A.C.S. Art. 8890, Secs. 13(a), (b), (c), (d) (part).)
Sec. 801.304. FEE EXEMPTION. A license holder is exempt from the fee requirements imposed under Section 801.303 if the license holder:
(1) is on active duty with the Armed Forces of the United States and does not engage in private or civilian practice; or
(2) is permanently and totally retired. (V.A.C.S. Art. 8890, Sec. 13(f).)
Sec. 801.305. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
(b) The person must pay to the board a fee equal to the amount of the examination fee for the license. (V.A.C.S. Art. 8890, Sec. 13(d) (part).)
Sec. 801.306. INACTIVE STATUS. The board by rule may provide for the placement of a veterinarian on inactive status. The rules adopted under this section must include a limit on the time a veterinarian may remain on inactive status. (V.A.C.S. Art. 8890, Sec. 10B(b).)
Sec. 801.307. CONTINUING EDUCATION. (a) The board by rule shall establish a minimum number of hours of continuing education required to renew a license.
(b) The board may:
(1) establish general categories of continuing education that meet the needs of veterinarians; and
(2) require a veterinarian to successfully complete continuing education courses. (V.A.C.S. Art. 8890, Sec. 13(g).)
[Sections 801.308-801.350 reserved for expansion]
SUBCHAPTER H. PRACTICE BY VETERINARIAN
Sec. 801.351. EXISTENCE OF VETERINARIAN-CLIENT-PATIENT RELATIONSHIP. (a) A veterinarian-client-patient relationship exists if the veterinarian:
(1) assumes responsibility for medical judgments regarding the health of an animal and a client, who is the owner or other caretaker of the animal, agrees to follow the veterinarian's instructions;
(2) possesses sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal's medical condition; and
(3) is readily available to provide, or has provided, follow-up medical care in the event of an adverse reaction to, or a failure of, the regimen of therapy provided by the veterinarian.
(b) A veterinarian possesses sufficient knowledge of the animal for purposes of Subsection (a)(2) if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by:
(1) examining the animal; or
(2) making medically appropriate and timely visits to the premises on which the animal is kept. (V.A.C.S. Art. 8890, Sec. 2A(a).)
Sec. 801.352. PROHIBITION AGAINST INTERFERENCE OR INTERVENTION. (a) The professional services of a veterinarian may not be controlled or exploited by a person who:
(1) is not a veterinarian; and
(2) intervenes between the veterinarian and the veterinarian's client.
(b) A veterinarian may not:
(1) allow a person who does not hold a license issued under this chapter to interfere with or intervene in the veterinarian's practice of veterinary medicine; or
(2) submit to interference or intervention by a person who does not hold a license issued under this chapter.
(c) A veterinarian shall avoid a relationship that may result in interference with or intervention in the veterinarian's practice of veterinary medicine by a person who does not hold a license issued under this chapter.
(d) A veterinarian is responsible for the veterinarian's actions. The veterinarian is directly responsible to the client and for the care and treatment of the patient. (V.A.C.S. Art. 8890, Sec. 2A(b).)
Sec. 801.353. CONFIDENTIALITY; WAIVER. (a) A veterinarian may not violate the confidential relationship between the veterinarian and the veterinarian's client.
(b) A veterinarian may not be required to release information concerning the veterinarian's care of an animal, except on the veterinarian's receipt of:
(1) a written authorization or other form of waiver executed by the client; or
(2) an appropriate court order or subpoena.
(c) A veterinarian who releases information as required under Subsection (b) is not liable to any person, including the client, for an action resulting from the disclosure.
(d) The privilege provided by this section is waived by the client or the owner of an animal treated by the veterinarian to the extent the client or owner places at issue in a civil or criminal proceeding:
(1) the nature and extent of the animal's injuries; or
(2) the care and treatment of the animal provided by the veterinarian.
(e) This section does not apply to an inspection or investigation conducted by the board or an agent of the board. (V.A.C.S. Art. 8890, Sec. 18E.)
Sec. 801.354. AUTHORIZED BUSINESS PRACTICES. It is not a violation of this chapter for a veterinarian, or a business entity authorized under this chapter to render veterinary services, to:
(1) lease space for the purpose of providing veterinary services;
(2) pay for franchise fees or other services on a percentage-of-receipts basis; or
(3) sell, transfer, or assign accounts receivable. (V.A.C.S. Art. 8890, Sec. 23(c).)
Sec. 801.355. LEASING SPACE FROM MERCANTILE ESTABLISHMENT. (a) The practice of a veterinarian who leases space from a mercantile establishment and practices veterinary medicine on the premises of the mercantile establishment must be owned by a veterinarian. The practice and the leased space must be under the exclusive control of a veterinarian.
(b) The leased space must be definite and apart from the space occupied by other occupants of the premises. The leased space must be separated from the space used by other occupants by solid and opaque partitions or walls that extend from the floor to the ceiling. The requirement of this subsection is not satisfied by the use of railings, curtains, or other similar arrangements.
(c) The leased space must have a patient's entrance that:
(1) opens to a public street, hall, lobby, corridor, or other public thoroughfare other than the aisle of a mercantile establishment; and
(2) is actually used as an entrance by the veterinarian's patients.
(d) The leased space may have an additional patient's entrance, that may be nonopaque, that opens from the inside of the mercantile establishment directly into the leased space.
(e) The practice of the veterinarian may not be conducted in any part as a department or concession of the mercantile establishment. A legend or sign that states "Veterinary Department," or that contains other words implying that the practice is not an independent veterinary practice, may not be displayed on the premises or in an advertisement for the premises. The use of the veterinarian's name must clearly indicate that the practice is independent and not under the ownership or control of the mercantile establishment.
(f) The patient and business records of the practice of the veterinarian are the sole property of the veterinarian. The mercantile establishment or a person who is not a veterinarian may not control the records, except that:
(1) business records that are essential to the initiation or continuation of a percentage of gross receipts lease of space may be inspected by the lessor; and
(2) a veterinarian may enter into a management agreement that permits an employee or agent of the management company to access or copy patient records as necessary to perform management functions. (V.A.C.S. Art. 8890, Secs. 23(a) (part), (b).)
Sec. 801.356. EXEMPTIONS FROM REQUIREMENTS RELATED TO MERCANTILE ESTABLISHMENT. (a) Section 801.355(c) does not apply to the practice of a veterinarian, or the legal successor of the practice, if the practice is operating in space that was open and operating before January 1, 1993.
(b) Section 801.355 does not prohibit the delivery of temporary limited-service veterinary activities, including preventive veterinary services such as vaccinations and testing, at a mercantile establishment that is not owned or under the exclusive control of a veterinarian if the services are periodic and delivered by a veterinarian. The board by rule may establish the conditions under which a veterinarian may provide the services described by this subsection. (V.A.C.S. Art. 8890, Secs. 23(a) (part), (d).)
Sec. 801.357. RESPONSIBILITY OF VETERINARIAN TOWARD ABANDONED ANIMALS. (a) A veterinarian may dispose of an animal that is abandoned in the veterinarian's care if the veterinarian:
(1) gives the client, by certified mail to the client's last known address, notice of the veterinarian's intention to dispose of the animal; and
(2) allows the client to retrieve the animal during the 12 days after the date the veterinarian mails the notice.
(b) A veterinarian may not dispose of an animal under Subsection (a) if:
(1) a contract between the veterinarian and client provides otherwise; or
(2) after notice is given under Subsection (a), the veterinarian and client agree to extend the veterinarian's care of the animal.
(c) The client's contact of the veterinarian by mail, telephone, or personal communication does not extend the veterinarian's obligation to treat, board, or care for an animal unless the veterinarian and client agree to extend the veterinarian's care of the animal.
(d) An animal is considered abandoned on the 13th day after the date the veterinarian mails the notice under Subsection (a) unless an agreement is made to extend the care for the animal.
(e) Notice given by a veterinarian under Subsection (a) does not relieve a client of liability to pay for treatment, boarding, or care provided by the veterinarian. (V.A.C.S. Art. 8891, Sec. 1.)
Sec. 801.358. LIABILITY OF VETERINARIAN FOR EMERGENCY TREATMENT; EUTHANASIA PRESUMPTION. (a) A veterinarian who provides emergency treatment to an ill or injured animal on the veterinarian's own initiative, or at the request of a person other than the animal's owner, is not liable to the owner for damages to the animal unless the veterinarian commits gross negligence.
(b) If the veterinarian performs euthanasia on the animal, the veterinarian is presumed to have performed a humane act necessary to relieve the animal's pain and suffering. (V.A.C.S. Art. 8891, Sec. 2.)
Sec. 801.359. CONTROLLED SUBSTANCES RECORDS. (a) The board shall require each veterinarian to maintain a recordkeeping system for controlled substances as required by Chapter 481, Health and Safety Code.
(b) The records are subject to review by a law enforcement agency or board representative. (V.A.C.S. Art. 8890, Sec. 7(d) (part).)
Sec. 801.360. DEATH OF VETERINARIAN. On the death of a veterinarian, the veterinarian's practice ownership and patient records become the property of the veterinarian's heirs to dispose of as necessary not later than the second anniversary of the date of the veterinarian's death. (V.A.C.S. Art. 8890, Sec. 24.)
[Sections 801.361-801.400 reserved for expansion]
SUBCHAPTER I. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 801.401. DISCIPLINARY POWERS OF BOARD. (a) If an applicant or license holder is subject to denial of a license or to disciplinary action under Section 801.402, the board may:
(1) refuse to examine an applicant or to issue or renew a license;
(2) revoke or suspend a license;
(3) place on probation a license holder or person whose license has been suspended;
(4) reprimand a license holder; or
(5) impose a civil penalty.
(b) The board may take action under Subsection (a) after notice and hearing under Section 801.407 or as provided by board rule.
(c) The board may require a license holder whose license suspension is probated to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.
(d) In addition to other disciplinary actions authorized by this subchapter, the board may require a license holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education programs that the license holder may attend and the number of hours that the license holder must complete. A continuing education program specified by the board must be relevant to the violation committed by the license holder. The hours required by the board under this subsection are not in addition to the hours required to renew a license under this chapter. (V.A.C.S. Art. 8890, Secs. 14(a) (part), (e), (f).)
Sec. 801.402. GENERAL GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. A person is subject to denial of a license or to disciplinary action under Section 801.401 if the person:
(1) presents to the board dishonest or fraudulent evidence of the person's qualifications;
(2) commits fraud or deception in the examination process or to obtain a license;
(3) is chronically or habitually intoxicated, chemically dependent, or addicted to drugs;
(4) engages in dishonest or illegal practices in, or connected with, the practice of veterinary medicine;
(5) is convicted of a felony under the laws of this state, another state, or the United States;
(6) engages in practices or conduct that violates the board's rules of professional conduct;
(7) permits another to use the person's license to practice veterinary medicine in this state;
(8) fraudulently issues a health certificate, vaccination certificate, test chart, or other form used in the practice of veterinary medicine that relates to the presence or absence of animal disease;
(9) issues a false certificate relating to the sale for human consumption of inedible animal products;
(10) commits fraud in connection with the application or reporting of a test of animal disease;
(11) pays or receives a kickback, rebate, bonus, or other remuneration for treating an animal or for referring a client to another provider of veterinary services or goods;
(12) performs or prescribes unnecessary or unauthorized treatment;
(13) orders a prescription drug or controlled substance for the treatment of an animal without first establishing a veterinarian-client-patient relationship;
(14) refuses to admit a board representative to inspect the person's client and patient records and business premises during regular business hours;
(15) fails to keep the person's equipment and business premises in a sanitary condition;
(16) commits gross malpractice or a pattern of acts that indicate consistent malpractice, negligence, or incompetence in the practice of veterinary medicine; or
(17) is subject to disciplinary action in another jurisdiction, including the suspension, probation, or revocation of a license to practice veterinary medicine issued by another jurisdiction. (V.A.C.S. Art. 8890, Sec. 14(a) (part).)
Sec. 801.403. FAILURE TO REPORT DISEASE. The board may suspend or revoke a license, place a license holder on probation, or reprimand a license holder if the license holder knowingly fails to report a disease to the Texas Animal Health Commission as required by Section 161.101, Agriculture Code. (V.A.C.S. Art. 8890, Sec. 14A.)
Sec. 801.404. FAILURE TO MAINTAIN RECORDS. The board may suspend or revoke a license issued under this chapter or place on probation a license holder if the license holder fails to maintain records as required by Section 801.359. (V.A.C.S. Art. 8890, Sec. 7(d) (part).)
Sec. 801.405. MENTAL INCOMPETENCE. (a) The board may suspend or revoke a license if a court finds that the license holder is mentally incompetent.
(b) If a court determines that a person whose license is suspended or revoked under this section is mentally competent, the board may reinstate the person's license. (V.A.C.S. Art. 8890, Sec. 14(b).)
Sec. 801.406. REQUIRED DISCIPLINARY ACTION FOR CERTAIN FELONY CONVICTIONS. (a) On conviction of a license holder of a felony under Section 485.033, Health and Safety Code, or Chapter 481 or 483 of that code, the board shall, after conducting an administrative hearing in which the fact of conviction is determined, suspend the person's license.
(b) The board shall revoke a license suspended under Subsection (a) on final conviction of the license holder.
(c) The board may reinstate or reissue a license suspended or revoked under this section only on an express determination based on substantial evidence contained in an investigative report indicating that reinstatement or reissuance of the license is in the best interests of:
(1) the public; and
(2) the person whose license has been suspended or revoked. (V.A.C.S. Art. 8890, Secs. 14(a) (part), (c).)
Sec. 801.407. RIGHT TO HEARING; SCHEDULE OF SANCTIONS. (a) A person is entitled to a hearing before the State Office of Administrative Hearings if the board:
(1) refuses to examine the person;
(2) denies the person's application for a license;
(3) revokes or suspends the person's license;
(4) places the person on probation;
(5) reprimands the person; or
(6) assesses a civil penalty against the person.
(b) A hearing conducted under this section is governed by Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall use the schedule of sanctions adopted by board rule for any sanction imposed as the result of a hearing conducted by that office.
(d) The board may conduct deliberations relating to a disciplinary action during executive session. At the conclusion of those deliberations, the board shall vote and announce its decision to the license holder in open session. (V.A.C.S. Art. 8890, Sec. 15.)
Sec. 801.408. INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an opportunity to be heard; and
(2) require the presence of a representative of the attorney general during an informal proceeding to advise the board or the board's employees. (V.A.C.S. Art. 8890, Sec. 18F.)
Sec. 801.409. TEMPORARY LICENSE SUSPENSION. (a) An executive committee of the board consisting of the president and two other board members appointed by the president may temporarily suspend the license of a license holder if the executive committee determines from the evidence or information presented to the committee that continued practice by the license holder constitutes a continuing or imminent threat to the public welfare. A temporary suspension may also be ordered on a majority vote of the board.
(b) The board by rule shall adopt procedures for the temporary suspension of a license under this section.
(c) A license temporarily suspended under this section may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings under this chapter should be initiated against the license holder is scheduled to be held not later than the 14th day after the date of the suspension.
(d) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time required by this subsection, the suspended license is automatically reinstated. (V.A.C.S. Art. 8890, Sec. 14C.)
Sec. 801.410. VENUE FOR APPEAL. An appeal of an action of the board must be filed in a district court in Travis County. (V.A.C.S. Art. 8890, Sec. 16.)
[Sections 801.411-801.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 801.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person who violates this chapter or a rule adopted or order issued under this chapter. (V.A.C.S. Art. 8890, Sec. 14B(a).)
Sec. 801.452. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed:
(1) $2,500 for each violation not related to a controlled substance; and
(2) $5,000 for each violation related to a controlled substance.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(c) A board subcommittee with at least one public member of the board shall recommend the amount of the administrative penalty based on a standardized penalty schedule. The board by rule shall develop the standardized penalty schedule based on the criteria listed in Subsection (b). (V.A.C.S. Art. 8890, Secs. 14B(b), (c), (d).)
Sec. 801.453. SUBCOMMITTEE RECOMMENDATIONS. (a) On a determination by the board subcommittee described by Section 801.452(c) that a violation of this chapter or a rule adopted or order issued under this chapter occurred, the subcommittee may issue a report to the board stating:
(1) the facts on which the determination is based; and
(2) the subcommittee's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the subcommittee's report to the person on whom the penalty may be imposed. The notice may be given by certified mail.
(c) The notice given under this section must:
(1) include a notice of each alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 8890, Secs. 14B(e), (f).)
Sec. 801.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date a person receives the notice, the person may in writing:
(1) accept the subcommittee's determination and recommended administrative penalty; or
(2) request a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the subcommittee's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 8890, Secs. 14B(g), (h).)
Sec. 801.455. HEARING ON SUBCOMMITTEE'S RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) A hearing set by the executive director under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings.
(c) The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 8890, Sec. 14B(i) (part).)
Sec. 801.456. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision under Section 801.455(c), the board by order may determine that:
(1) a violation has occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 8890, Secs. 14B(i) (part), (j).)
Sec. 801.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving the court a supersedeas bond that is approved by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give the supersedeas bond. (V.A.C.S. Art. 8890, Secs. 14B(k), (l), (m).)
Sec. 801.458. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 8890, Sec. 14B(n).)
Sec. 801.459. DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount.
(b) If the court does not sustain the determination that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S. Art. 8890, Sec. 14B(p).)
Sec. 801.460. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not upheld by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 8890, Sec. 14B(q).)
Sec. 801.461. ADMINISTRATIVE PROCEDURE. (a) A proceeding under this subchapter is subject to Chapter 2001, Government Code.
(b) This subchapter does not prohibit the board from assessing an administrative penalty by using an informal proceeding under Section 801.408. (V.A.C.S. Art. 8890, Secs. 14B(s), (t).)
[Sections 801.462-801.500 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 801.501. MONITORING LICENSE HOLDER. The board by rule shall develop a system for monitoring a license holder's compliance with the requirements of this chapter. The rules must include procedures to:
(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and
(2) identify and monitor a license holder who represents a risk to the public. (V.A.C.S. Art. 8890, Sec. 18G.)
Sec. 801.502. INJUNCTIVE RELIEF. (a) The board, through the attorney general or a district or county attorney, may bring an action for an injunction, or a proceeding incident to an injunction, to:
(1) enforce this chapter; or
(2) enjoin a person from practicing veterinary medicine in violation of this chapter.
(b) Venue for an action under this section is in:
(1) the county in which the person against whom the action is brought resides, if the person resides in this state; or
(2) Travis County, if the person does not reside in this state. (V.A.C.S. Art. 8890, Sec. 17.)
Sec. 801.503. ASSESSMENT OF CIVIL PENALTY AGAINST PERSON NOT LICENSED. (a) A person not licensed under this chapter who violates this chapter or a rule adopted by the board under this chapter is subject to a civil penalty of $1,000 for each day of violation.
(b) At the request of the board, the attorney general shall bring an action to recover a civil penalty authorized by this section. (V.A.C.S. Art. 8890, Sec. 14(d).)
Sec. 801.504. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 8890, Secs. 4(b), 18(b).)
Sec. 801.505. BOARD MEMBER OR EMPLOYEE; FINE. A board member or employee shall pay a fine of not less than $1,000 or more than $5,000 if the member or employee:
(1) issues a license other than as provided by this chapter; or
(2) provides to an applicant for examination a list of questions to be propounded at the examination. (V.A.C.S. Art. 8890, Sec. 18(a).)
Sec. 801.506. PROHIBITED PRACTICES RELATING TO CERTAIN ENTITIES. (a) A sole proprietorship, partnership, or corporation may not engage in veterinary medicine unless the owner, each partner, or each shareholder, as appropriate, holds a license issued under this chapter.
(b) A veterinarian may not form or continue a partnership with a member of another profession or a person who is not a member of a profession if a part of the partnership employment consists of the practice of veterinary medicine. (V.A.C.S. Art. 8890, Sec. 22.)
Sec. 801.507. NONAPPLICABILITY OF DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT. Subchapter E, Chapter 17, Business & Commerce Code, does not apply to a claim against a veterinarian for damages alleged to have resulted from veterinary malpractice or negligence. (V.A.C.S. Art. 8890, Sec. 18C.)
[Chapters 802-900 reserved for expansion]
TITLE 5. REGULATION OF FINANCIAL AND LEGAL SERVICES
SUBTITLE A. FINANCIAL SERVICES
CHAPTER 901. ACCOUNTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 901.001. SHORT TITLE
Sec. 901.002. GENERAL DEFINITIONS
Sec. 901.003. PRACTICE OF PUBLIC ACCOUNTANCY
Sec. 901.004. CONSTRUCTION; LIMITATIONS
Sec. 901.005. PUBLIC POLICY; PURPOSE
Sec. 901.006. APPLICATION OF SUNSET ACT
[Sections 901.007-901.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY
Sec. 901.051. BOARD MEMBERSHIP
Sec. 901.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 901.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 901.054. TERMS
Sec. 901.055. OFFICERS; EXECUTIVE COMMITTEE
Sec. 901.056. GROUNDS FOR REMOVAL
Sec. 901.057. PER DIEM; REIMBURSEMENT
Sec. 901.058. MEMBER EQUALITY
[Sections 901.059-901.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER
BOARD PERSONNEL
Sec. 901.101. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 901.102. DIVISION OF RESPONSIBILITIES
Sec. 901.103. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 901.104. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 901.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 901.106-901.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 901.151. GENERAL POWERS AND DUTIES OF BOARD
Sec. 901.152. ADVISORY COMMITTEES
Sec. 901.153. ENFORCEMENT COMMITTEES
Sec. 901.154. FEES
Sec. 901.155. SCHOLARSHIP FUND ACCOUNT FOR FIFTH-YEAR
ACCOUNTING STUDENTS
Sec. 901.156. RULES OF PROFESSIONAL CONDUCT
Sec. 901.157. RULES FOR SPECIALIZATION
Sec. 901.158. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 901.159. QUALITY REVIEW
Sec. 901.160. AVAILABILITY AND CONFIDENTIALITY OF
CERTAIN BOARD FILES
Sec. 901.161. PRIVILEGE FOR CERTAIN INFORMATION
Sec. 901.162. IMMUNITY FROM LIABILITY
Sec. 901.163. STATISTICAL ANALYSIS OF COMPLAINTS
Sec. 901.164. ANNUAL FISCAL REPORT
[Sections 901.165-901.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 901.201. PUBLIC INTEREST INFORMATION
Sec. 901.202. COMPLAINTS
Sec. 901.203. COMPLAINT INFORMATION
Sec. 901.204. PUBLIC PARTICIPATION
[Sections 901.205-901.250 reserved for expansion]
SUBCHAPTER F. CERTIFICATE REQUIREMENTS
Sec. 901.251. CERTIFICATE REQUIRED
Sec. 901.252. ELIGIBILITY REQUIREMENTS
Sec. 901.253. CHARACTER INVESTIGATION
Sec. 901.254. EDUCATION REQUIREMENTS
Sec. 901.255. SPECIAL EDUCATION REQUIREMENTS FOR
PART-TIME STUDENT
Sec. 901.256. WORK EXPERIENCE REQUIREMENTS
Sec. 901.257. OATH AND CERTIFICATE FEE
Sec. 901.258. TRANSFER OF COMPLETE EXAMINATION CREDIT
BETWEEN STATES
Sec. 901.259. CERTIFICATION BASED ON RECIPROCITY
[Sections 901.260-901.300 reserved for expansion]
SUBCHAPTER G. UNIFORM CPA EXAMINATION
Sec. 901.301. ADMINISTRATION; BOARD RULES
Sec. 901.302. APPLICATION OF INTENT
Sec. 901.303. FILING FEE
Sec. 901.304. EXAMINATION FEE
Sec. 901.305. FREQUENCY OF EXAMINATION
Sec. 901.306. CONTENT AND SECURITY OF EXAMINATION
Sec. 901.307. MINIMUM PASSING GRADE
Sec. 901.308. EXAMINATION RESULTS
Sec. 901.309. REEXAMINATION
Sec. 901.310. CONDITIONAL EXAMINATION CREDIT
Sec. 901.311. RESTRUCTURE OF EXAMINATION
Sec. 901.312. TRANSFER OF PARTIAL EXAMINATION CREDIT BETWEEN
STATES
[Sections 901.313-901.350 reserved for expansion]
SUBCHAPTER H. REGISTRATION REQUIREMENTS
Sec. 901.351. REGISTRATION REQUIRED
Sec. 901.352. APPLICATION FOR REGISTRATION
Sec. 901.353. RESIDENT MANAGER
Sec. 901.354. REGISTRATION INFORMATION AND ELIGIBILITY
Sec. 901.355. REGISTRATION FOR CERTAIN OUT-OF-STATE OR
FOREIGN APPLICANTS
Sec. 901.356. TEMPORARY PRACTICE PERMIT FOR CERTAIN
OUT-OF-STATE OR FOREIGN APPLICANTS
[Sections 901.357-901.400 reserved for expansion]
SUBCHAPTER I. LICENSE REQUIREMENTS,
ISSUANCE, AND RENEWAL
Sec. 901.401. LICENSE REQUIRED
Sec. 901.402. ELIGIBILITY REQUIREMENTS; GENERAL
PROHIBITION
Sec. 901.403. RENEWAL REQUIRED
Sec. 901.404. NOTICE OF LICENSE EXPIRATION
Sec. 901.405. PROCEDURE FOR RENEWAL
Sec. 901.406. FEE INCREASE
Sec. 901.407. ADDITIONAL FEE
Sec. 901.408. CONSEQUENCE OF FAILURE TO PAY CERTAIN FEES
Sec. 901.409. FEE REDUCTION FOR RETIRED OR DISABLED PERSONS
Sec. 901.410. FEE EXEMPTION FOR CERTAIN LICENSE HOLDERS
Sec. 901.411. CONTINUING PROFESSIONAL EDUCATION
[Sections 901.412-901.450 reserved for expansion]
SUBCHAPTER J. PRACTICE BY LICENSE HOLDER
Sec. 901.451. USE OF TITLE OR ABBREVIATION FOR "CERTIFIED
PUBLIC ACCOUNTANT"
Sec. 901.452. USE OF TITLE OR ABBREVIATION FOR "PUBLIC
ACCOUNTANT"
Sec. 901.453. USE OF OTHER TITLES OR ABBREVIATIONS
Sec. 901.454. TITLE USED BY CERTAIN OUT-OF-STATE OR FOREIGN
ACCOUNTANTS
Sec. 901.455. NAME REQUIREMENTS AND RESTRICTIONS
Sec. 901.456. USE OF NAME OR SIGNATURE ON CERTAIN
DOCUMENTS
Sec. 901.457. ACCOUNTANT-CLIENT PRIVILEGE
Sec. 901.458. LOSS OF INDEPENDENCE
Sec. 901.459. APPLICABILITY OF PARTNERSHIP REQUIREMENTS TO
PARTNER
[Sections 901.460-901.500 reserved for expansion]
SUBCHAPTER K. PROHIBITED PRACTICES AND
DISCIPLINARY PROCEDURES
Sec. 901.501. DISCIPLINARY POWERS OF BOARD
Sec. 901.502. GROUNDS FOR DISCIPLINARY ACTION
Sec. 901.503. BOARD ACTION INVOLVING APPLICANT
Sec. 901.504. LICENSE REVOCATION BASED ON VIOLATION OF
CHAPTER
Sec. 901.505. PROCEDURE PENDING FINAL CONVICTION OF CERTAIN
OFFENSES
Sec. 901.506. VOLUNTARY SURRENDER OF CERTIFICATE OR
REGISTRATION
Sec. 901.507. REINSTATEMENT
Sec. 901.508. RIGHT TO HEARING
Sec. 901.509. NOTICE OF HEARING
Sec. 901.510. LEGAL REPRESENTATION AT HEARING
[Sections 901.511-901.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 901.551. IMPOSITION OF ADMINISTRATIVE PENALTY
Sec. 901.552. AMOUNT OF PENALTY
Sec. 901.553. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 901.554. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 901.555. HEARING
Sec. 901.556. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 901.557. COLLECTION OF PENALTY
Sec. 901.558. REMITTANCE OF PENALTY AND INTEREST
[Sections 901.559-901.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES
AND ENFORCEMENT PROVISIONS
Sec. 901.601. INJUNCTION
Sec. 901.602. CRIMINAL PENALTY
CHAPTER 901. ACCOUNTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 901.001. SHORT TITLE. (a) This chapter may be cited as the Public Accountancy Act.
(b) A reference in law to the Public Accountancy Act of 1979 or the Public Accountancy Act of 1991 means this chapter. (V.A.C.S. Art. 41a-1, Secs. 1A, 29(b).)
Sec. 901.002. GENERAL DEFINITIONS. (a) In this chapter:
(1) "Board" means the Texas State Board of Public Accountancy.
(2) "Certificate" means a certificate issued to a certified public accountant.
(3) "Certified public accountant" means a person who holds a certificate issued under this chapter.
(4) "Corporation" means a corporation authorized by a statute applicable to this state or by an equivalent law of another state or a foreign country, including a professional public accounting corporation organized under The Texas Professional Corporation Act (Article 1528e, Vernon's Texas Civil Statutes).
(5) "Firm" means a sole proprietorship, partnership, corporation, or other business entity engaged in the practice of public accountancy.
(6) "Practice unit" means an office of a firm that is required to be registered with the board to practice public accountancy.
(7) "Public accountant" means a person authorized to practice public accountancy under the Public Accountancy Act of 1945 (Article 41a, Vernon's Texas Civil Statutes).
(8) "Sole proprietorship" means an unincorporated firm that is owned and controlled by one person engaged in the practice of public accountancy.
(b) The board by rule may define "financial statement" to comply with the standards adopted by generally recognized bodies responsible for setting accounting standards. (V.A.C.S. Art. 41a-1, Secs. 2(a)(1), (3), (5), (7), (8), (b); 10(a) (part); New.)
Sec. 901.003. PRACTICE OF PUBLIC ACCOUNTANCY. (a) In this chapter, "practice of public accountancy" means:
(1) the performance for a client by a person who is certified or registered under this chapter of a service that involves the use of accounting, attesting, or auditing skills;
(2) the performance or offer of performance for a client or potential client by a person who represents to the public that the person is certified or registered under this chapter of a service that involves the use of accounting, attesting, or auditing skills;
(3) the performance of activities of a person or practice unit licensed under this chapter in:
(A) preparing or reporting on a financial statement or report that is to be used by an investor, unless the report is prepared for internal use by the management of an organization, a third party, or a financial institution; or
(B) preparing a tax return that is filed with a taxing authority; or
(4) the supervision of an activity described by Subdivision (3).
(b) For purposes of this section, a service that involves the use of accounting, attesting, or auditing skills includes:
(1) issuing a report on or preparing a financial statement;
(2) providing management or financial advisory or consulting services; and
(3) preparing a tax return or advising or consulting on a tax matter.
(c) For purposes of this section, a person represents to the public that the person is certified or registered under this chapter if the person makes an oral or written representation that the person is certified or registered. A written representation includes a representation communicated by office sign, business card, letterhead, or advertisement. A representation does not include:
(1) the display of an original certificate or registration unless a license is also displayed;
(2) a representation made by a faculty member of an educational institution solely in connection with the duties of the person as a faculty member; or
(3) a representation in a book, article, or other publication, or a representation made in connection with the promotion of the publication, unless the representation includes an offer to perform a service or to sell a product other than the publication. (V.A.C.S. Art. 41a-1, Secs. 2(a)(6), (c).)
Sec. 901.004. CONSTRUCTION; LIMITATIONS. (a) This chapter does not:
(1) restrict an official act of a person acting in the person's capacity as:
(A) an officer of the state or of a county, municipality, or other political subdivision, including a county auditor;
(B) an officer of a federal department or agency; or
(C) an assistant, deputy, or employee of a person described by Paragraph (A) or (B);
(2) prohibit a person who is not a certified public accountant or public accountant from serving as an employee of:
(A) a certified public accountant or public accountant licensed by the board; or
(B) a firm composed of certified public accountants or public accountants licensed by the board; or
(3) prohibit a person licensed by the federal government as an enrolled agent from performing an act or using a designation authorized by federal law.
(b) A person who serves as an employee as described by Subsection (a)(2) may not issue an accounting or financial statement over the employee's name. (V.A.C.S. Art. 41a-1, Secs. 3, 8(e) (part).)
Sec. 901.005. PUBLIC POLICY; PURPOSE. (a) The practice of public accountancy is a learned profession that requires specialized education and experience. The terms "accountant" and "auditor," and derivations of those terms, have an implication of competence in the profession of public accountancy on which the public relies in personal, business, and public activities and enterprises.
(b) The policy of this state and the purpose of this chapter are to provide that:
(1) the admission of persons to the practice of public accountancy require education and experience commensurate with the requirements of the profession;
(2) a person who represents that the person practices public accountancy be qualified to do so;
(3) a person engaged in the practice of public accountancy maintain high standards of professional competence, integrity, and learning;
(4) areas of specialized practice require special training; and
(5) the activities and competitive practices of persons practicing public accountancy be regulated to be free of commercial exploitation to provide the public with a high level of professional competence at reasonable fees by independent, qualified persons. (V.A.C.S. Art. 41a-1, Sec. 1.)
Sec. 901.006. APPLICATION OF SUNSET ACT. The Texas State Board of Public Accountancy is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2003. (V.A.C.S. Art. 41a-1, Sec. 28.)
[Sections 901.007-901.050 reserved for expansion]
SUBCHAPTER B. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY
Sec. 901.051. BOARD MEMBERSHIP. (a) The Texas State Board of Public Accountancy consists of 15 members appointed by the governor with the advice and consent of the senate as follows:
(1) 10 certified public accountant members, at least eight of whom are, on the date of appointment:
(A) a sole practitioner; or
(B) an owner or employee of a firm engaged in public practice; and
(2) five public members who are not:
(A) licensed under this chapter; or
(B) financially involved in an organization subject to board regulation.
(b) Each member of the board must be a United States citizen.
(c) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 41a-1, Secs. 4(a) (part), (f).)
Sec. 901.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of public accountancy;
(2) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds 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 the board or receiving funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 41a-1, Sec. 4(a-1).)
Sec. 901.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of public accountancy may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of public accountancy may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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.
(e) A member or employee of the board may not be related within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association of persons governed by this chapter. (V.A.C.S. Art. 41a-1, Secs. 4(b); (c), as amended Acts 72nd Leg., R.S., Chs. 533, 561; (c-1); (h).)
Sec. 901.054. TERMS. (a) Board members serve staggered six-year terms.
(b) A board member who has served all or part of six consecutive years is not eligible for reappointment until the second anniversary of the expiration date of the member's most recent term. (V.A.C.S. Art. 41a-1, Secs. 4(a) (part), (d).)
Sec. 901.055. OFFICERS; EXECUTIVE COMMITTEE. (a) The governor shall designate a member of the board as presiding officer. The presiding officer serves in that capacity at the will of the governor.
(b) The board shall annually elect from its members an assistant presiding officer, secretary, treasurer, and other officers the board considers necessary to serve with the presiding officer on the executive committee. (V.A.C.S. Art. 41a-1, Secs. 4(i), 5(a) (part).)
Sec. 901.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of the appointment the qualifications required by Section 901.051;
(2) does not maintain during service on the board the qualifications required by Section 901.051 or 901.052;
(3) violates a prohibition established by Section 901.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled meetings of the board and a committee of the board that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal of a board member exists, the executive director shall notify the executive committee of the board of the ground. The presiding officer shall notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 41a-1, Secs. 4(g), (g-1).)
Sec. 901.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to receive:
(1) $100 for each day that the member conducts board business; and
(2) reimbursement for actual and necessary expenses incurred in performing board functions.
(b) The board by rule may determine the activities that constitute board business. (V.A.C.S. Art. 41a-1, Sec. 4(e).)
Sec. 901.058. MEMBER EQUALITY. A board member who is not a certified public accountant has the same authority, responsibility, and duties as any other board member. (V.A.C.S. Art. 41a-1, Sec. 5(c).)
[Sections 901.059-901.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER
BOARD PERSONNEL
Sec. 901.101. EXECUTIVE DIRECTOR AND PERSONNEL. The board shall employ an executive director, independent contractors, and personnel selected by the executive director as necessary to assist the board in performing its duties. (V.A.C.S. Art. 41a-1, Sec. 5(a) (part).)
Sec. 901.102. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 41a-1, Sec. 5(h).)
Sec. 901.103. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 41a-1, Sec. 5(f).)
Sec. 901.104. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 41a-1, Secs. 5A(a), (b).)
Sec. 901.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated at least annually; and
(3) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 41a-1, Secs. 5A(c), (d), (e).)
[Sections 901.106-901.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 901.151. GENERAL POWERS AND DUTIES OF BOARD. (a) The board shall:
(1) administer this chapter;
(2) adopt rules the board determines are necessary or advisable to administer this chapter;
(3) keep a record of each proceeding conducted before or action taken by the board; and
(4) keep an official seal.
(b) On its own motion or on the complaint of any person, the board may initiate:
(1) proceedings to determine the eligibility of a person for examination, certification, registration, or licensing under this chapter; or
(2) disciplinary proceedings under Subchapter K.
(c) The board may solicit, contract for, and accept money and other assistance from any source to administer this chapter. (V.A.C.S. Art. 41a-1, Secs. 5(a) (part), 6(a) (part), 7(c), 22(a), (b) (part).)
Sec. 901.152. ADVISORY COMMITTEES. (a) The board may appoint advisory committees to perform the advisory functions assigned to the committees by the board.
(b) A member of an advisory committee who is not a member of the board may not receive compensation for service on the committee. The member may receive reimbursement for actual and necessary expenses incurred in performing committee functions as provided by Section 2110.004, Government Code.
(c) A member of an advisory committee serves at the will of the board. (V.A.C.S. Art. 41a-1, Sec. 24.)
Sec. 901.153. ENFORCEMENT COMMITTEES. (a) The board may appoint enforcement committees from its membership. The membership of each enforcement committee must include at least one public member of the board.
(b) An enforcement committee shall consider and make recommendations to the board on matters relating to the enforcement of this chapter and board rules.
(c) The board may adopt rules necessary for the performance of each enforcement committee's duties. (V.A.C.S. Art. 41a-1, Sec. 22A(a).)
Sec. 901.154. FEES. (a) The board shall set the fee for the issuance of a certificate under this chapter and the fee for the issuance or renewal of a license under this chapter in an amount not to exceed $250.
(b) The board may increase the fee for the issuance or renewal of a license as necessary to cover the costs of enforcing this chapter.
(c) The board may not waive the collection of any fee or penalty provided by this chapter. (V.A.C.S. Art. 41a-1, Secs. 9(b) (part), (c) (part), (g) (part); 9A(b) (part); 13(c).)
Sec. 901.155. SCHOLARSHIP FUND ACCOUNT FOR FIFTH-YEAR ACCOUNTING STUDENTS. (a) The fee for the issuance or renewal of a license under this chapter is the amount of the fee set by the board under Section 901.154 together with the fee increase imposed under Section 901.406 and an additional $20 fee to be deposited to the credit of the scholarship fund account for fifth-year accounting students in the general revenue fund.
(b) The scholarship fund account for fifth-year accounting students may be used only to:
(1) provide scholarships under Subchapter N, Chapter 61, Education Code, to accounting students in the fifth year of a program designed to qualify each student to apply for certification as a certified public accountant; and
(2) pay administrative costs under Subsection (c).
(c) The administrative costs incurred to collect the fee imposed under Subsection (a) and to disburse the money may not exceed 15 percent of the total money collected, with 10 percent of the money allocated to the Texas Higher Education Coordinating Board and five percent of the money allocated to the board.
(d) Notwithstanding Section 404.071, Government Code, interest earned on amounts in the scholarship fund account for fifth-year accounting students shall be credited to that account. (V.A.C.S. Art. 41a-1, Secs. 32(b), (c), (d), (e).)
Sec. 901.156. RULES OF PROFESSIONAL CONDUCT. The board shall adopt rules of professional conduct to:
(1) establish and maintain high standards of competence and integrity in the practice of public accountancy; and
(2) ensure that the conduct and competitive practices of license holders serve the purposes of this chapter and the best interest of the public. (V.A.C.S. Art. 41a-1, Sec. 6(a) (part).)
Sec. 901.157. RULES FOR SPECIALIZATION. The board by rule may recognize an area of specialization in the practice of public accountancy if the area of specialization is generally recognized by other bodies that regulate or issue authoritative pronouncements in the field of public accountancy. (V.A.C.S. Art. 41a-1, Sec. 6(b).)
Sec. 901.158. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. The board in its rules of professional conduct may not restrict advertising or competitive bidding by a license holder except as necessary to ensure that:
(1) the license holder's communications, including advertising and price information, are informative, free of deception, and consistent with the professionalism expected and deserved by the public from a person engaged in the practice of public accountancy;
(2) the license holder's conduct is free from fraud, undue influence, deception, intimidation, overreaching, and harassment;
(3) the license holder does not engage in an uninvited solicitation, by use of a means other than mass media advertisement, to perform professional accounting services;
(4) a contract between a license holder and a state agency, publicly owned utility, or political subdivision, including a county, municipality, district, or authority, for the performance of professional accounting services is not solicited or awarded on the basis of competitive bids submitted in violation of law;
(5) a contract for the preparation of a financial statement or an opinion on a financial statement includes information necessary to protect the public if:
(A) the financial statement or opinion can be used by or given to a person other than a party to the contract to induce reliance on the statement or opinion; and
(B) the contract is entered into on the basis of competitive bids; or
(6) a license holder does not engage in a competitive practice that:
(A) impairs the independence or quality of a service provided by a license holder;
(B) impairs or restricts the public's opportunity to obtain professional accounting services of high quality at a reasonable price; or
(C) unreasonably restricts competition among license holders. (V.A.C.S. Art. 41a-1, Sec. 6(a) (part).)
Sec. 901.159. QUALITY REVIEW. (a) The board by rule shall provide for a quality review program to review the work product of a license holder or of the practice unit, in lieu of a license holder, to the extent necessary to comply with any applicable standards adopted by generally recognized bodies responsible for setting accounting standards.
(b) The board by rule shall establish a fee in an amount not to exceed $200 to be paid by a practice unit, or by a license holder who is not a member of a practice unit, for each quality review required by the board under this section. (V.A.C.S. Art. 41a-1, Secs. 15B(a), (b) (part), (d).)
Sec. 901.160. AVAILABILITY AND CONFIDENTIALITY OF CERTAIN BOARD FILES. (a) The board shall make available at the board's offices in Austin any file maintained or information gathered or received by the board from a third party regarding a license applicant or current or former license holder for inspection by the applicant or license holder during normal business hours.
(b) A license applicant or current or former license holder may authorize the board in writing to make available for inspection by a designated person or by the public any information gathered or received by the board from a third party regarding the applicant or license holder.
(c) Except on written authorization as provided by Subsection (b), the following information gathered or received by the board is confidential and not subject to disclosure under Chapter 552, Government Code:
(1) information regarding the qualifications of an applicant or license holder to be certified or registered as a certified public accountant; and
(2) information regarding a disciplinary action under Subchapter K against a license holder or an applicant to take the uniform CPA examination, before a public hearing on the matter.
(d) A final order of the board relating to a disciplinary action against a license holder, including a reprimand, that results from an informal proceeding or a formal public hearing is subject to disclosure to the public and is available on request. (V.A.C.S. Art. 41a-1, Sec. 25.)
Sec. 901.161. PRIVILEGE FOR CERTAIN INFORMATION. (a) Any statement or record prepared or an opinion formed in connection with a positive enforcement, quality review, or peer review is privileged and is not:
(1) subject to discovery, subpoena, or other means of legal compulsion for release to a person other than the board; or
(2) admissible as evidence in a judicial or administrative proceeding other than a board hearing.
(b) The privilege provided by Subsection (a) does not apply to information involved in a dispute between a reviewer and the person, including an entity, who is the subject of the review. (V.A.C.S. Art. 41a-1, Sec. 15B(c).)
Sec. 901.162. IMMUNITY FROM LIABILITY. (a) Each board member and each officer, director, or employee of a state agency, board, or commission is immune from liability arising out of a disclosure made to the board in connection with a complaint filed with the board.
(b) The board and each board member is immune from liability to a person for damages incident to:
(1) the board's investigation of the person; or
(2) any complaint, charge, or proceeding that results from the investigation. (V.A.C.S. Art. 41a-1, Secs. 21C, 22(f)(3) (part).)
Sec. 901.163. STATISTICAL ANALYSIS OF COMPLAINTS. (a) The board shall develop and maintain a system for tracking a complaint filed with the board against a person registered under this chapter.
(b) At the time the board files an annual report under Section 901.164, the board shall also report a statistical analysis of the disciplinary actions taken by the board during the preceding year. The report must contain a statistical analysis of:
(1) the number of complaints received;
(2) the number of complaints resolved and the manner in which they were resolved;
(3) a categorization of complaints received and the number of complaints in each category;
(4) the average length of time required to resolve a complaint for each category of complaints; and
(5) other information the board determines necessary.
(c) If the board does not receive any complaint in a category during a reporting period, the board shall report that a complaint was not received in that category. (V.A.C.S. Art. 41a-1, Secs. 22B(a), (b).)
Sec. 901.164. ANNUAL FISCAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed report accounting for all funds received and disbursed by the board during the preceding calendar year.
(b) The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 41a-1, Sec. 7(b), as amended Acts 72nd Leg., R.S., Ch. 533; Sec. 7(b) (part), as amended Acts 72nd Leg., R.S., Ch. 599.)
[Sections 901.165-901.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 901.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 41a-1, Sec. 5(d).)
Sec. 901.202. COMPLAINTS. The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing a complaint to the board. The board may require that notice:
(1) on each registration form, application, or written contract for services of a person regulated under this chapter; or
(2) in a bill for service provided by a person regulated under this chapter. (V.A.C.S. Art. 41a-1, Sec. 5(e).)
Sec. 901.203. COMPLAINT INFORMATION. (a) The board shall maintain an information file about each complaint filed with the board for a period not to exceed the 10th anniversary of the date of the complaint's final disposition.
(b) If a written complaint is filed with the board relating to a person regulated under this chapter, the board shall notify the parties to the complaint of each change in the status of the complaint, including the final disposition, unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 41a-1, Sec. 22B(c).)
Sec. 901.204. PUBLIC PARTICIPATION. (a) The board shall 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 board's jurisdiction.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the board's programs. (V.A.C.S. Art. 41a-1, Secs. 5(g), (i).)
[Sections 901.205-901.250 reserved for expansion]
SUBCHAPTER F. CERTIFICATE REQUIREMENTS
Sec. 901.251. CERTIFICATE REQUIRED. (a) A person who is an individual may not engage in the practice of public accountancy unless the person holds a certificate issued under this chapter.
(b) The board shall issue a certificate to a person who meets the applicable requirements of this chapter. (V.A.C.S. Art. 41a-1, Secs. 8(a) (part), 12(a) (part).)
Sec. 901.252. ELIGIBILITY REQUIREMENTS. To be eligible to receive a certificate, a person must:
(1) be of good moral character as determined under Section 901.253;
(2) meet the education requirements established under Section 901.254 or 901.255;
(3) pass the uniform CPA examination;
(4) meet the work experience requirements established under Section 901.256; and
(5) pass an examination on the rules of professional conduct as determined by board rule. (V.A.C.S. Art. 41a-1, Secs. 12(a) (part), (c).)
Sec. 901.253. CHARACTER INVESTIGATION. (a) The board shall ensure that an applicant to take the uniform CPA examination or to receive a certificate is of good moral character as demonstrated by a lack of history of dishonest or felonious acts.
(b) The board by rule may adopt a system to investigate an applicant's background.
(c) The board may obtain criminal history record information maintained by a law enforcement agency, including the Department of Public Safety and the Federal Bureau of Investigation identification division, to investigate the qualifications of an individual who applies to take the uniform CPA examination or to be certified or registered under this chapter.
(d) The board may require the applicant to submit a complete set of fingerprints. If an applicant does not provide a complete set of fingerprints on request of the board, the board may:
(1) deny the applicant's application to take the uniform CPA examination; or
(2) refuse to issue a certificate to the applicant. (V.A.C.S. 41a-1, Secs. 12(d), 21B.)
Sec. 901.254. EDUCATION REQUIREMENTS. (a) To be eligible to take the uniform CPA examination, an applicant must:
(1) hold a baccalaureate or graduate degree, or its equivalent as determined by board rule, conferred by a board-recognized institution of higher education; and
(2) complete at least:
(A) 150 semester hours or quarter-hour equivalents in board-recognized courses;
(B) 30 semester hours or quarter-hour equivalents in board-recognized accounting courses, as defined by board rule, including at least 20 semester hours or quarter-hour equivalents in core accounting courses, as defined by board rule; and
(C) 20 semester hours or quarter-hour equivalents in board-recognized college or university accounting-related courses in other areas of business administration.
(b) An applicant who holds a baccalaureate degree may take the uniform CPA examination even though the applicant has not completed the other requirements established by this chapter. The applicant may not receive a certificate until those other requirements are complete. This subsection expires January 1, 2000. (V.A.C.S. Art. 41a-1, Secs. 12(e) (part), (g).)
Sec. 901.255. SPECIAL EDUCATION REQUIREMENTS FOR PART-TIME STUDENT. (a) This section applies only to an applicant to take the uniform CPA examination who:
(1) was enrolled in an accounting program on September 1, 1994;
(2) notified the board not later than September 1, 1997, of the applicant's intent to take the examination;
(3) is enrolled in fewer than 12 semester hours in each semester that the applicant attends a college or university; and
(4) completes the accounting program not later than September 1, 2002.
(b) To be eligible to take the uniform CPA examination, an applicant subject to this section must:
(1) hold a baccalaureate or graduate degree, or its equivalent as determined by board rule, conferred by a board-recognized institution of higher education; and
(2) complete at least:
(A) 30 semester hours or quarter-hour equivalents in board-recognized accounting courses, as defined by board rule; and
(B) 20 semester hours or quarter-hour equivalents in board-recognized accounting-related courses in other areas of business administration. (V.A.C.S. Art. 41a-1, Secs. 12(e) (part), (f).)
Sec. 901.256. WORK EXPERIENCE REQUIREMENTS. (a) To be eligible to receive a certificate, a person must complete:
(1) at least two years of work experience under the supervision of a certified public accountant; or
(2) at least one year of work experience under the supervision of a certified public accountant, if the person:
(A) has completed at least 150 semester hours of college credits; or
(B) holds a graduate degree.
(b) The board by rule shall define the work experience that is acceptable for purposes of this section.
(c) The board is the final authority regarding work experience. The board may not consider a petition from another entity in resolving a dispute under this section. (V.A.C.S. Art. 41a-1, Sec. 12(h).)
Sec. 901.257. OATH AND CERTIFICATE FEE. Before the board issues a certificate to a person, the person must:
(1) take an oath, administered by a board member or by another person authorized to administer oaths, to support:
(A) the constitution and laws of this state and the United States; and
(B) the board's rules; and
(2) pay a fee for the certificate in an amount set by board rule not to exceed $50. (V.A.C.S. Art. 41a-1, Sec. 12(a) (part).)
Sec. 901.258. TRANSFER OF COMPLETE EXAMINATION CREDIT BETWEEN STATES. (a) The board may accept the completion of the uniform CPA examination given by the licensing authority of another state if:
(1) the examination was prepared and graded by the American Institute of Certified Public Accountants or, if doing so would result in a greater degree of reciprocity with the examination results of other states, the National Association of State Boards of Accountancy; and
(2) the applicant met the requirements in effect in this state at the time the credit was earned.
(b) The board may transfer to the licensing authority of another state active credits earned as a result of completing the uniform CPA examination in this state.
(c) The board by rule shall establish:
(1) a fee in an amount not to exceed $100 to receive credits from another licensing authority; and
(2) a fee in an amount not to exceed $50 to transfer credits to another licensing authority. (V.A.C.S. Art. 41a-1, Sec. 12(b).)
Sec. 901.259. CERTIFICATION BASED ON RECIPROCITY. (a) The board shall issue a certificate to a person who holds a certificate issued by another state if the person:
(1) has passed the uniform CPA examination with grades that were passing grades in this state on the date the person took the examination;
(2) satisfies at least one of the following:
(A) meets the requirements for issuance of a certificate in this state other than the requirement providing the grades necessary to pass the uniform CPA examination;
(B) met the requirements in effect for issuance of a certificate in this state on the date the person was issued a certificate by the other state; or
(C) has completed at least four years of experience practicing public accountancy, if the experience:
(i) occurred after the person passed the uniform CPA examination and within the 10 years preceding the date of application; and
(ii) satisfies requirements established by board rule; and
(3) has met the continuing professional education requirements that apply to a license holder under this chapter for the three-year period preceding the date of application.
(b) The board shall issue a certificate by reciprocity to the extent required by a United States treaty. (V.A.C.S. Art. 41a-1, Secs. 13(a), (b).)
[Sections 901.260-901.300 reserved for expansion]
SUBCHAPTER G. UNIFORM CPA EXAMINATION
Sec. 901.301. ADMINISTRATION; BOARD RULES. (a) The board shall conduct each uniform CPA examination administered under this chapter.
(b) The board by rule may establish the:
(1) manner in which a person may apply for the examination;
(2) time, date, and place for the examination;
(3) manner in which the examination is conducted;
(4) method used to grade the examination;
(5) criteria used to determine a passing score on the examination; and
(6) manner in which a person's examination score is reported to the person. (V.A.C.S. Art. 41a-1, Secs. 15(a) (part), (c).)
Sec. 901.302. APPLICATION OF INTENT. (a) The board may establish an application of intent for a person pursuing a certificate.
(b) The board shall maintain an application of intent filed under this section as an active application until the second anniversary of the date the application is filed. (V.A.C.S. Art. 41a-1, Sec. 15(b).)
Sec. 901.303. FILING FEE. The board by rule may set a filing fee in an amount not to exceed $100 to be paid by an applicant at the time the applicant files an initial application to take the uniform CPA examination. (V.A.C.S. Art. 41a-1, Sec. 15(k) (part).)
Sec. 901.304. EXAMINATION FEE. (a) For each examination or reexamination, the board by rule shall apportion an amount of the total examination fee among the parts of the examination that an applicant is eligible to take on a particular examination date. The total examination fee may not exceed $250.
(b) An applicant must pay the examination fee at the time the applicant files an application for examination or reexamination.
(c) The board by rule may provide for a refund of the examination fee paid by an applicant who:
(1) fails to attend the examination; and
(2) presents the board with a satisfactory reason for that failure. (V.A.C.S. Art. 41a-1, Sec. 15(k) (part).)
Sec. 901.305. FREQUENCY OF EXAMINATION. The board shall administer a uniform CPA examination as often as necessary but at least once each year. (V.A.C.S. Art. 41a-1, Sec. 15(a) (part).)
Sec. 901.306. CONTENT AND SECURITY OF EXAMINATION. (a) The board may use all or part of the uniform CPA examination and any related service available from:
(1) the American Institute of Certified Public Accountants; or
(2) the National Association of State Boards of Accountancy, if doing so would result in a greater degree of reciprocity with the examination results of other states.
(b) The examination must test the person's knowledge of accounting, auditing, and any other subject the board determines is appropriate.
(c) If the examination is secured by the preparer, the board may not release a copy of any question or answer to any person.
(d) The board by rule may adopt a system to maintain the security and integrity of the examination process. (V.A.C.S. Art. 41a-1, Secs. 12(a) (part), 15(a) (part).)
Sec. 901.307. MINIMUM PASSING GRADE. A person must attain a grade of at least 75 percent on each subject of the examination to pass the examination. (V.A.C.S. Art. 41a-1, Sec. 15(d).)
Sec. 901.308. EXAMINATION RESULTS. (a) The board shall send to each examinee the examinee's results not later than the 30th day after the date the board receives the results.
(b) The board may withhold delivery of the examination results if:
(1) board action is pending; and
(2) the examinee is precluded from receiving the results until the action is resolved.
(c) If the notice of the examination results graded or reviewed by a national testing service will be delayed for more than 120 days after the examination date, the board shall notify the examinee of the reason for the delay before the 120th day.
(d) A person who fails an examination is entitled to inspect the examination questions and the person's answers not later than the 91st day after the date the board receives the results. An inspection must be by appointment at the board's offices during regular office hours. The person's grade must be clearly shown on the examination. A copy of the examination questions or answers may not be made.
(e) If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 41a-1, Secs. 15(e), (l), (m), (n).)
Sec. 901.309. REEXAMINATION. A person who fails all or part of an examination may apply for a subsequent examination, subject to the board's satisfaction that the person meets the requirements of this chapter relating to the person's moral character and education. (V.A.C.S. Art. 41a-1, Sec. 15(f).)
Sec. 901.310. CONDITIONAL EXAMINATION CREDIT. (a) The board by rule shall award conditional credit to a person who:
(1) passes two or more subjects in a single examination;
(2) takes each part of the examination the person is eligible to take; and
(3) attains a minimum grade of 50 percent on each part of the examination the person does not pass.
(b) The board shall award credit to a person who attains a passing score on a subsequent examination if the person:
(1) takes each part of the examination the person is eligible to take; and
(2) attains a minimum grade of 50 percent on each part of the examination that the person does not pass.
(c) The board shall consider a person to have passed an examination if the person receives credit for each subject by receiving conditional credit after September 1, 1989, and passing the remaining subjects within the six consecutive examinations following the examination for which the person receives conditional credit. (V.A.C.S. Art. 41a-1, Sec. 15(g) (part).)
Sec. 901.311. RESTRUCTURE OF EXAMINATION. If the uniform CPA examination is restructured, the board by rule shall determine the manner in which credit for a subject is integrated into the new structure. (V.A.C.S. Art. 41a-1, Sec. 15(h).)
Sec. 901.312. TRANSFER OF PARTIAL EXAMINATION CREDIT BETWEEN STATES. (a) The board may accept the partial completion of the uniform CPA examination given by the licensing authority of another state if:
(1) the examination was prepared and graded by the American Institute of Certified Public Accountants or, if doing so would result in a greater degree of reciprocity with the examination results of other states, the National Association of State Boards of Accountancy;
(2) the credit is active in the other state; and
(3) at the time the credit was earned, the applicant met the requirements in effect in the other state and the other state's standards are equal to or higher than the standards prescribed by this chapter.
(b) The board may transfer to the licensing authority of another state active credits earned as a result of partially completing the uniform CPA examination in this state.
(c) The board by rule shall establish:
(1) a fee in an amount not to exceed $100 to receive credits from another licensing authority; and
(2) a fee in an amount not to exceed $50 to transfer credits to another licensing authority. (V.A.C.S. Art. 41a-1, Secs. 15(i), (j).)
[Sections 901.313-901.350 reserved for expansion]
SUBCHAPTER H. REGISTRATION REQUIREMENTS
Sec. 901.351. REGISTRATION REQUIRED. A certified public accountant, a public accountant, a firm of certified public accountants or public accountants, and each office of that firm in this state, including a practice unit, and a person described by Section 901.355 and each office of that person in this state may not engage in the practice of public accountancy unless the person is registered with the board. (V.A.C.S. Art. 41a-1, Secs. 10(a) (part); 11(a) (part), (c) (part); 15B(b) (part); 17(a) (part), (h) (part); 19(a) (part), (h) (part); 20 (part).)
Sec. 901.352. APPLICATION FOR REGISTRATION. (a) An applicant for registration must provide the board with satisfactory evidence of eligibility for registration.
(b) The board may examine an application and may refuse to register an applicant who does not meet the standards imposed under this chapter. (V.A.C.S. Art. 41a-1, Sec. 10(b).)
Sec. 901.353. RESIDENT MANAGER. (a) An office established or maintained in this state for the practice of public accountancy in this state by a firm of certified public accountants, a firm of public accountants, or a person described by Section 901.355 must be under the direct supervision of a resident manager who:
(1) is an owner, partner, shareholder, or employee of the firm or person that occupies the office; and
(2) is licensed under this chapter.
(b) A resident manager may serve in that capacity in only one office at a time except as authorized by board rule. The board by rule shall establish a registration procedure under which a person may serve as resident manager of more than one office at a time. (V.A.C.S. Art. 41a-1, Sec. 10(a) (part).)
Sec. 901.354. REGISTRATION INFORMATION AND ELIGIBILITY. (a) An application for registration under this chapter must be made on an affidavit of the owner, an officer, or the general partner of the firm, as applicable, stating:
(1) the name of the firm;
(2) the firm's post office address in this state;
(3) the address of the firm's principal office;
(4) if the firm is a partnership or corporation, the address of each office of the firm in this state;
(5) the name of the resident manager of each office of the firm in this state; and
(6) if the firm is a partnership, the name, residence, and post office address of:
(A) each partner; and
(B) each shareholder of a partner that is a corporation.
(b) A sole proprietorship is eligible for registration if the sole proprietor and each resident manager of an office of the sole proprietorship in this state are certified public accountants in good standing.
(c) A partnership is eligible for registration as a partnership that includes a certified public accountant if:
(1) at least one general partner is a certified public accountant or corporation of certified public accountants licensed in this state in good standing;
(2) each partner engaged in the practice of public accountancy in this state is a certified public accountant or corporation of certified public accountants licensed in this state in good standing;
(3) each partner not engaged in the practice of public accountancy in this state is a certified public accountant or corporation of certified public accountants licensed in another state in good standing; and
(4) each resident manager of an office of the partnership in this state is a certified public accountant licensed in this state in good standing.
(d) A partnership is eligible for registration as a partnership that includes a public accountant if:
(1) at least one general partner is a certified public accountant, public accountant, or corporation of certified public accountants or public accountants licensed in this state in good standing;
(2) each partner engaged in the practice of public accountancy in this state is a certified public accountant, public accountant, or corporation of certified public accountants or public accountants licensed in this state in good standing;
(3) each partner not engaged in the practice of public accountancy in this state is a certified public accountant, public accountant, or corporation of certified public accountants or public accountants licensed in another state in good standing; and
(4) each resident manager of an office of the partnership in this state is a certified public accountant or public accountant licensed in this state in good standing.
(e) A corporation is eligible for registration as a corporation engaged in the practice of public accountancy if the corporation meets the requirements applicable to partnerships under this chapter.
(f) The board shall determine whether an applicant is eligible for registration under this section. The board by rule shall define "good standing" for purposes of this section.
(g) A sole proprietorship shall notify the board not later than the 31st day after the date on which information in the affidavit is changed, including information regarding the admission or withdrawal of a resident manager. A partnership shall notify the board within one month after the date on which information in the affidavit is changed, including information regarding the admission or withdrawal of a partner. (V.A.C.S. Art. 41a-1, Secs. 11(a) (part), (b), (d), (f), (g), 17(a) (part), (b), (c), (e), (f), 19(a) (part), (b), (c), (e), (f), 20 (part).)
Sec. 901.355. REGISTRATION FOR CERTAIN OUT-OF-STATE OR FOREIGN APPLICANTS. (a) A certified public accountant of another state or the holder of a certificate, license, or degree authorizing the person to practice public accountancy in a foreign country may register with the board as a certified public accountant of the other state or as the holder of a certificate, license, or degree issued by the foreign country, if the board determines that the standards under which the applicant was certified or otherwise authorized to practice public accountancy were at least as high as the standards of this state at the time that authority was granted.
(b) To register with the board under this section, the person must pay:
(1) the fee for issuance of a license as provided by Section 901.154; and
(2) a processing fee in an amount set by the board not to exceed $250.
(c) A person registered under this section may renew the registration in the manner provided for renewal of a license under Subchapter I.
(d) A person's registration under this section is automatically revoked and may not be renewed if the person does not maintain the authority to practice public accountancy in the other state or country. The board shall adopt rules to ensure that the person maintains that authority. (V.A.C.S. Art. 41a-1, Secs. 14(a) (part), (b), (c), (d).)
Sec. 901.356. TEMPORARY PRACTICE PERMIT FOR CERTAIN OUT-OF-STATE OR FOREIGN APPLICANTS. A certified public accountant of another state, a partnership or professional corporation composed entirely of certified public accountants of another state, or the holder of a certificate, license, or degree authorizing the person to practice public accountancy in a foreign country may temporarily practice in this state on professional business incident to the person's regular practice outside this state if the person:
(1) submits an application for a permit accompanied by a fee in an amount not to exceed $100, as provided by board rule; and
(2) conducts the temporary practice according to the laws of this state and the board's rules of professional conduct. (V.A.C.S. Art. 41a-1, Sec. 10(c).)
[Sections 901.357-901.400 reserved for expansion]
SUBCHAPTER I. LICENSE REQUIREMENTS,
ISSUANCE, AND RENEWAL
Sec. 901.401. LICENSE REQUIRED. (a) A person may not practice public accountancy unless the person holds a license issued under this chapter.
(b) Each office of a firm of certified public accountants or public accountants must hold a license issued under this chapter to engage in the practice of public accountancy. (V.A.C.S. Art. 41a-1, Secs. 8(a) (part), (b) (part), (c) (part), (d) (part); 11(c) (part); 17(h) (part); 19(h) (part); 20 (part).)
Sec. 901.402. ELIGIBILITY REQUIREMENTS; GENERAL PROHIBITION. (a) On payment of the required fees, the board shall issue a license to an applicant who:
(1) holds a certificate issued under this chapter; or
(2) is registered with the board under this chapter.
(b) The board may not issue a license to or renew the license of a person who does not meet the licensing requirements of:
(1) this chapter; or
(2) the rules adopted under this chapter. (V.A.C.S. Art. 41a-1, Secs. 9(a), (f) (part).)
Sec. 901.403. RENEWAL REQUIRED. (a) The board shall provide for the renewal of a license. A person licensed under this chapter must pay to the board a biennial license fee. On payment of the required fee, the board shall renew the person's license for a period of two years.
(b) A license expires on December 31 of the applicable year or on another date as set by the board under Subsection (c). The board shall provide that half of the licenses issued by the board expire in each even-numbered year and that the other half expire in each odd-numbered year. The board shall prorate the license fee for a person whose license term is for less than two years as a result of the board's providing for half of the licenses to expire in consecutive years.
(c) The board by rule may adopt a system under which licenses expire on a date other than December 31. For the biennium in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 41a-1, Secs. 9(b) (part), (d).)
Sec. 901.404. NOTICE OF LICENSE EXPIRATION. (a) Not later than the 31st day before the expiration date of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.
(b) The board shall determine the amount of the renewal fee and shall mail notice of that amount to the person within the time provided by Subsection (a). (V.A.C.S. Art. 41a-1, Secs. 9(b) (part), (c) (part).)
Sec. 901.405. PROCEDURE FOR RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a late fee that is equal to half of the amount of the initial examination fee for the license.
(c) If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a late fee that is equal to the amount of the initial examination fee for the license. (V.A.C.S. Art. 41a-1, Sec. 9(c) (part).)
Sec. 901.406. FEE INCREASE. (a) The fee for the issuance of a certificate under this chapter and the fee for the issuance or renewal of a license under this chapter is the amount of the fee set by the board under Section 901.154 and a fee increase of $200.
(b) For each fee increase collected under this section, $50 shall be deposited to the credit of the foundation school fund and $150 shall be deposited in the general revenue fund. (V.A.C.S. Art. 41a-1, Secs. 9A(a), (c) (part).)
Sec. 901.407. ADDITIONAL FEE. (a) Each license holder shall pay to the board a biennial fee of $200 in each year that the license holder is not required to pay a fee for the issuance or renewal of a license. The fee provided for by this section is due not later than the first anniversary of the date the license holder was last required to pay a fee for the issuance or renewal of the license.
(b) Not later than the 31st day before the date the additional fee is due, the board shall send written notice that the fee is due to the license holder at the license holder's last known address according to the board's records.
(c) The board shall impose a late fee in an amount not less than $50 on a license holder who does not pay the additional fee on or before the date the fee is due. The board by rule may impose additional late fees.
(d) Each additional fee collected under this section shall be deposited as provided by Section 901.406(b). (V.A.C.S. Art. 41a-1, Sec. 9A(b) (part).)
Sec. 901.408. CONSEQUENCE OF FAILURE TO PAY CERTAIN FEES. (a) A person who fails to pay the license renewal fee or the additional fee imposed under Section 901.407, as applicable, and any late fee before the first anniversary of the due date of the renewal fee or additional fee may renew the person's license only by submitting to the board an application for renewal accompanied by payment of:
(1) all accrued fees, including late fees; and
(2) the direct administrative costs incurred by the board in renewing the person's license.
(b) The board by rule shall prescribe the information to be included in an application for renewal under this section. (V.A.C.S. Art. 41a-1, Secs. 9(c) (part), 9A(b) (part).)
Sec. 901.409. FEE REDUCTION FOR RETIRED OR DISABLED PERSONS. The board by rule may establish a reduced fee to issue or renew the license of a person who does not engage in the practice of public accountancy because of retirement or permanent disability. (V.A.C.S. Art. 41a-1, Sec. 9(e).)
Sec. 901.410. FEE EXEMPTION FOR CERTAIN LICENSE HOLDERS. The fee increase imposed under Section 901.406 and the additional fee imposed under Section 901.407 do not apply to a license holder who is:
(1) an employee of the federal government restricted by virtue of that employment from engaging in the practice of public accountancy outside the scope of employment; or
(2) an employee of a state agency that has authorized the payment of the fee increase and additional fee for the license holder. (V.A.C.S. Art. 41a-1, Secs. 9A(d), (e).)
Sec. 901.411. CONTINUING PROFESSIONAL EDUCATION. (a) A license holder who is an individual shall complete at least 120 hours of continuing professional education in each three-year period, 20 hours of which must be completed in each one-year period.
(b) The board may recognize a continuing professional education course only if the course directly contributes to the license holder's professional competence.
(c) The board by rule shall provide for the biennial reporting of continuing professional education by a license holder to coincide with the person's license renewal date.
(d) The board by rule may exempt certain license holders, including license holders who are disabled, retired, or not associated with accounting, as defined by board rule, from all or part of the requirements of this section. (V.A.C.S. Art. 41a-1, Sec. 15A.)
[Sections 901.412-901.450 reserved for expansion]
SUBCHAPTER J. PRACTICE BY LICENSE HOLDER
Sec. 901.451. USE OF TITLE OR ABBREVIATION FOR "CERTIFIED PUBLIC ACCOUNTANT." (a) A person may not assume or use the title or designation "certified public accountant," the abbreviation "CPA," or any other title, designation, word, letter, abbreviation, sign, card, or device tending to indicate that the person is a certified public accountant, or a firm composed of certified public accountants, unless:
(1) the person is certified or registered, as appropriate, and licensed under this chapter; and
(2) each of the person's offices in this state for the practice of public accounting is maintained and registered as required under Subchapter H.
(b) The title or designation "certified public accountant" and the abbreviation "CPA" may not be used in connection with an office that is required to be under the supervision of a resident manager under Section 901.353 unless the resident manager holds a certificate and a license issued under this chapter. (V.A.C.S. Art. 41a-1, Secs. 8(a) (part), (b) (part); 10(a) (part); 11(e); 16; 17(d).)
Sec. 901.452. USE OF TITLE OR ABBREVIATION FOR "PUBLIC ACCOUNTANT." A person may not assume or use the title or designation "public accountant" or any other title, designation, word, letter, abbreviation, sign, card, or device tending to indicate that the person is a public accountant, or a firm composed of public accountants, unless:
(1) the person is certified or registered, as appropriate, and licensed under this chapter; and
(2) each of the person's offices in this state for the practice of public accounting is maintained and registered as required under Subchapter H. (V.A.C.S. Art. 41a-1, Secs. 8(c) (part), (d) (part); 18; 19(d).)
Sec. 901.453. USE OF OTHER TITLES OR ABBREVIATIONS. (a) Except as provided by Subsection (b), a person may not assume or use:
(1) a title or designation likely to be confused with "certified public accountant" or "public accountant," including "certified accountant," "chartered accountant," "enrolled accountant," or "licensed accountant"; or
(2) an abbreviation likely to be confused with "CPA," including "CA," "PA," "EA," "RA," or "LA."
(b) A person may hold the person out to the public as an "accountant," "auditor," or any combination of those terms if:
(1) the person holds a license issued under this chapter; and
(2) each of the person's offices in this state for the practice of public accounting is maintained and registered as required under Subchapter H. (V.A.C.S. Art. 41a-1, Sec. 8(e) (part).)
Sec. 901.454. TITLE USED BY CERTAIN OUT-OF-STATE OR FOREIGN ACCOUNTANTS. (a) A person who is an accountant of another state or foreign country may use the title under which the accountant is generally known in the state or country from which the accountant received a certificate, license, or degree, followed by the name of that state or country, if:
(1) the person is registered and holds a license issued under this chapter; and
(2) each of the person's offices in this state for the practice of public accountancy is maintained and registered as required under Subchapter H.
(b) A person registered under Section 901.355 shall represent to the public that the person is a certified public accountant of the state that issued the certificate or use the title held in the country from which the person received a certificate, license, or degree, and shall indicate the name of the state or country. (V.A.C.S. Art. 41a-1, Secs. 8(a) (part), (e) (part); 14(a) (part).)
Sec. 901.455. NAME REQUIREMENTS AND RESTRICTIONS. (a) The name or designation assumed or used by a license holder must include:
(1) the individual's name, if the license holder is an individual;
(2) the name of at least one current or former partner, if the license holder is a partnership; or
(3) the name of at least one current or former shareholder, if the license holder is a corporation.
(b) A license holder may not assume or use a name that is misleading as to the legal form of the license holder's firm or as to the persons who are partners, officers, or shareholders of the firm. A firm licensed under this chapter may assume or use the designation "and company" or "and associates," or any abbreviation of those terms, only if at least two persons licensed under this chapter are involved in the practice of the firm.
(c) A corporation registered and licensed under this chapter may practice public accountancy under a corporate name indicating that it is engaged in that practice.
(d) A license holder may not use a trade name or descriptive words indicating the character or grade of service offered, except as authorized by board rule. (V.A.C.S. Art. 41a-1, Secs. 8(g), (h); 20 (part).)
Sec. 901.456. USE OF NAME OR SIGNATURE ON CERTAIN DOCUMENTS. (a) Unless a person is in compliance with this chapter, the person may not sign on or affix to an accounting or financial statement, or an opinion on, report on, or certificate to an accounting or financial statement, the person's name or a trade or assumed name used by the person in the person's profession or business with any wording indicating that the person:
(1) is an accountant or auditor; or
(2) has expert knowledge in accounting or auditing.
(b) This section does not prohibit:
(1) a partner, officer, employee, or principal of an organization from signing a statement or report regarding the financial affairs of the organization with wording that designates the position, office, or title held by the person in the organization; or
(2) any act of a public official or public employee in the performance of the person's duties as a public official or public employee. (V.A.C.S. Art. 41a-1, Sec. 8(f).)
Sec. 901.457. ACCOUNTANT-CLIENT PRIVILEGE. (a) A license holder or a partner, officer, shareholder, or employee of a license holder may not voluntarily disclose information communicated to the license holder by a client in connection with services provided to the client in the practice of public accountancy, except with the permission of the client or the client's representative.
(b) This section does not prohibit a license holder from disclosing information that is required to be disclosed:
(1) by the professional standards for reporting on the examination of a financial statement;
(2) in a court proceeding;
(3) in an investigation or proceeding conducted by the board;
(4) in an ethical investigation conducted by a professional organization of certified public accountants; or
(5) in the course of a quality review under Section 901.159. (V.A.C.S. Art. 41a-1, Sec. 26.)
Sec. 901.458. LOSS OF INDEPENDENCE. (a) In this section, "direct labor cost" means:
(1) the total compensation paid to a person who performs services; and
(2) the employer payroll expenses related to that compensation, including workers' compensation insurance premiums, social security contributions, and unemployment taxes.
(b) A person creates a presumption of loss of independence if the person:
(1) holds a certificate issued under this chapter or is registered under this chapter; and
(2) performs or offers to perform a service involving auditing skills for compensation that is less than the direct labor cost reasonably expected to be incurred in performing the service.
(c) This section does not apply to the donation of services to a charitable organization as defined by board rule. (V.A.C.S. Art. 41a-1, Sec. 20A.)
Sec. 901.459. APPLICABILITY OF PARTNERSHIP REQUIREMENTS TO PARTNER. Each partner in a partnership governed by this chapter is subject to the statutory requirements and rules that apply to the partnership. (V.A.C.S. Art. 41a-1, Secs. 17(g), 19(g).)
[Sections 901.460-901.500 reserved for expansion]
SUBCHAPTER K. PROHIBITED PRACTICES AND
DISCIPLINARY PROCEDURES
Sec. 901.501. DISCIPLINARY POWERS OF BOARD. (a) On a determination that a ground for discipline exists under Section 901.502, after notice and hearing as provided by Section 901.509, the board may:
(1) revoke a certificate or registration issued under this chapter;
(2) suspend under any terms a certificate, registration, or license issued under this chapter for a period not to exceed five years;
(3) refuse to renew a license;
(4) place a license holder on probation;
(5) reprimand a license holder;
(6) limit the scope of a license holder's practice;
(7) impose on a license holder the direct administrative costs incurred by the board in taking action under Subdivisions (1) through (6); or
(8) impose an administrative penalty under Subchapter L.
(b) If an individual's license suspension is probated, the board may require the individual to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the board; or
(3) continue or renew professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (V.A.C.S. Art. 41a-1, Secs. 21(b), (f), (h).)
Sec. 901.502. GROUNDS FOR DISCIPLINARY ACTION. The board may discipline a person under Section 901.501 for:
(1) fraud or deceit in obtaining a certificate, registration, or license under this chapter;
(2) fraud, dishonesty, or gross negligence in the practice of public accountancy, including knowingly participating in the preparation of a false or misleading financial statement or tax return;
(3) the failure of a person who is certified or registered under this chapter to obtain a license not later than the third anniversary of the date on which the person was certified or registered;
(4) the failure of a person who is licensed under this chapter to renew the license not later than the third anniversary of the date on which the person most recently obtained or renewed the license;
(5) a violation of Subchapter J, other than Section 901.457 or 901.459;
(6) a violation of a rule of professional conduct adopted by the board;
(7) a revocation or suspension of the certificate or registration or a revocation, suspension, or refusal to renew the license of the person's partner or shareholder;
(8) a revocation, cancellation, or suspension by another state, or a refusal of renewal by another state, of the authority issued by that state to the person, or to the person's partner or shareholder, to engage in the practice of public accountancy for a reason other than the failure to pay the appropriate registration fee;
(9) a revocation or suspension of, or a voluntary consent decree concerning, the right of the person, or of the person's partner or shareholder, to practice before a state or federal agency for a reason the board determines warrants its action;
(10) a final conviction of or the imposition of deferred adjudication for an offense under the laws of any state or the United States that:
(A) is a felony; or
(B) includes fraud or dishonesty as an element of the offense; or
(11) conduct indicating lack of fitness to serve the public as a professional accountant. (V.A.C.S. Art. 41a-1, Secs. 21(c), (g).)
Sec. 901.503. BOARD ACTION INVOLVING APPLICANT. (a) On a determination that a ground for discipline exists under Subsection (b), after notice and hearing as provided by Section 901.509, the board may:
(1) deny an individual's application to take the uniform CPA examination;
(2) prohibit an individual from taking the uniform CPA examination for a period not to exceed five years; or
(3) void an individual's uniform CPA examination grades.
(b) The board may discipline an individual under Subsection (a) for:
(1) fraud or deceit on an application for the uniform CPA examination;
(2) cheating on the uniform CPA examination;
(3) a final conviction of or the imposition of deferred adjudication for an offense under the laws of any state or the United States that:
(A) is a felony; or
(B) includes fraud or dishonesty as an element of the offense; or
(4) conduct indicating lack of fitness to serve the public as a professional accountant.
(c) The board shall refund the examination fee submitted by a person whose application for examination is denied under this section. (V.A.C.S. Art. 41a-1, Sec. 21A.)
Sec. 901.504. LICENSE REVOCATION BASED ON VIOLATION OF CHAPTER. After notice and hearing as provided by Section 901.509, the board:
(1) may revoke a license that was issued or renewed in violation of this chapter or a rule adopted under this chapter; and
(2) shall revoke the registration and license of a sole proprietorship, partnership, or corporation that does not meet each qualification for registration prescribed by this chapter. (V.A.C.S. Art. 41a-1, Secs. 9(f) (part), 21(e).)
Sec. 901.505. PROCEDURE PENDING FINAL CONVICTION OF CERTAIN OFFENSES. (a) On conviction of a person of an offense under the laws of any state or the United States that is a felony or that includes fraud or dishonesty as an element of the offense, after notice and hearing as provided by Section 901.509, the board may:
(1) suspend a certificate or registration issued under this chapter; or
(2) suspend or refuse to renew a license issued under this chapter.
(b) The period of the suspension or refusal to renew begins on the date of conviction and ends on the date the conviction becomes final or is reversed, set aside, or modified as provided by Subsection (d).
(c) If the conviction becomes final, the board may, without further notice and hearing, take disciplinary action under Section 901.501.
(d) If the conviction is reversed, set aside, or modified so that the underlying offense is not a felony or an offense that includes fraud or dishonesty as an element of the offense, the board shall reinstate the certificate, registration, or license suspended under this section. A reinstatement under this subsection does not limit the board's right to take other disciplinary action authorized by this subchapter. (V.A.C.S. Art. 41a-1, Sec. 21(d).)
Sec. 901.506. VOLUNTARY SURRENDER OF CERTIFICATE OR REGISTRATION. (a) Subject to board approval, an individual who holds a certificate or registration issued under this chapter may resign and surrender the certificate or registration to the board at any time and for any reason.
(b) An individual who resigns and surrenders a certificate or registration may not apply for reinstatement of the certificate or registration. The individual may be issued a new certificate or registration on completion of all requirements for the issuance of an original certificate or registration. The board may not issue a certificate to an individual who previously resigned a certificate unless:
(1) after the date of resignation, the individual completes the examination requirement for a new certificate; or
(2) on application, the board waives the examination requirement.
(c) An individual who applies for a new certificate or registration must, if applicable, disclose in the application the fact that the individual previously resigned and surrendered a certificate or registration during the course of a disciplinary investigation or proceeding conducted by the board. The board shall consider that fact in determining whether to issue a new certificate or registration to the individual. (V.A.C.S. Art. 41a-1, Sec. 21(a).)
Sec. 901.507. REINSTATEMENT. On receipt of a written application, and after notice and hearing, the board may:
(1) issue a new certificate to an individual whose certificate was revoked;
(2) reregister a person whose registration was revoked;
(3) reinstate a suspended license or modify the terms of the suspension;
(4) approve a previously denied application to take the uniform CPA examination; or
(5) reinstate an individual's previously voided uniform CPA examination grades. (V.A.C.S. Art. 41a-1, Sec. 22(g).)
Sec. 901.508. RIGHT TO HEARING. (a) If the board proposes to take disciplinary action against a person under this subchapter, the person is entitled to a hearing before the board or a hearings officer appointed by the board.
(b) The board shall establish procedures by which a decision to take disciplinary action under this subchapter is made by or is appealable to the board. (V.A.C.S. Art. 41a-1, Sec. 22(b) (part).)
Sec. 901.509. NOTICE OF HEARING. (a) The board shall provide written notice of a hearing under this subchapter to the person who is the subject of the proposed disciplinary action not later than the 21st day before the date of the hearing.
(b) The notice must state:
(1) the time and place of the hearing; and
(2) the nature of each charge against the person.
(c) The notice may be served in person or by registered or certified mail to the person's last known address. (V.A.C.S. Art. 41a-1, Sec. 22(b) (part).)
Sec. 901.510. LEGAL REPRESENTATION AT HEARING. The attorney general or an attorney employed by the board shall represent the board at each hearing under this subchapter. (V.A.C.S. Art. 41a-1, Sec. 22(d).)
[Sections 901.511-901.550 reserved for expansion]
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 901.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person regulated under this chapter who violates this chapter or a rule or order adopted under this chapter in a manner that constitutes a ground for disciplinary action. (V.A.C.S. Art. 41a-1, Sec. 21D(a).)
Sec. 901.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 for each violation.
(b) In determining the amount of the penalty, the board shall consider:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any prohibited act; and
(B) the hazard or potential hazard to the public;
(2) the economic damage to property caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 41a-1, Sec. 21D(b).)
Sec. 901.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If, after examination of a possible violation and the facts relating to that violation, the board determines that a violation has occurred, the board shall issue a preliminary report stating:
(1) the facts on which the determination is based;
(2) the fact that an administrative penalty is to be imposed; and
(3) the amount of the penalty.
(b) Not later than the 10th day after the date the report is issued, the board shall send a copy of the report by certified mail to the person charged with the violation, together with a statement of the person's right to a hearing relating to the alleged violation and the amount of the penalty. (V.A.C.S. Art. 41a-1, Secs. 21D(c), (d) (part).)
Sec. 901.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the report, the person may:
(1) make a written request for a hearing; or
(2) pay the administrative penalty to the board.
(b) Failure to request a hearing or pay the penalty within the time provided by this section waives the right to a hearing under this chapter.
(c) If the board determines without a hearing that the person committed a violation and a penalty is to be imposed, the board shall:
(1) provide written notice to the person of the board's findings; and
(2) enter an order requiring the person to pay the penalty. (V.A.C.S. Art. 41a-1, Sec. 21D(d) (part).)
Sec. 901.555. HEARING. (a) If the person requests a hearing, the board shall conduct a hearing in the manner provided for a contested case hearing under Chapter 2001, Government Code.
(b) If the board determines after a hearing that the person committed the alleged violation, the board shall:
(1) provide written notice to the person of the findings established by the hearing and the amount of the administrative penalty imposed; and
(2) enter an order requiring the person to pay any penalty. (V.A.C.S. Art. 41a-1, Sec. 21D(d) (part).)
Sec. 901.556. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final as provided by Section 2001.144, Government Code, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(2) may stay enforcement of the penalty by:
(1) paying the penalty to the board for placement in an escrow account;
(2) giving to the board a supersedeas bond in a form approved by the board that:
(A) is for the amount of the penalty; and
(B) is effective until judicial review of the board's order is final; or
(3) filing with the board an affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond.
(c) A person who fails to take action as provided by this section waives the right to judicial review of the board's order. (V.A.C.S. Art. 41a-1, Secs. 21D(e), (f), (g) (part).)
Sec. 901.557. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the board may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 41a-1, Sec. 21D(g) (part).)
Sec. 901.558. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or is not upheld by the court, the board shall:
(1) remit the appropriate amount, plus accrued interest, to the person if the person paid the penalty; or
(2) execute a release of the bond if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a) is paid at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 41a-1, Sec. 21D(i).)
[Sections 901.559-901.600 reserved for expansion]
SUBCHAPTER M. OTHER PENALTIES
AND ENFORCEMENT PROVISIONS
Sec. 901.601. INJUNCTION. (a) The board may bring an action to enjoin a person from:
(1) using a title, designation, or abbreviation in violation of Subchapter J; or
(2) engaging in an act or practice that constitutes the practice of public accountancy, unless the person is licensed under this chapter.
(b) An action under Subsection (a)(1) must be brought in district court in:
(1) Travis County, if the person is licensed under this chapter; or
(2) the county in which the person resides, if the person is not licensed under this chapter.
(c) An action under Subsection (a)(2) must be brought in district court in a county in which the person resides or has an office. The board is not required to post a bond as a condition to the issuance of the injunction. (V.A.C.S. Art. 41a-1, Secs. 8(i), 23(a).)
Sec. 901.602. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter. Each violation is a separate offense.
(b) An offense under this section is a Class B misdemeanor.
(c) A complaint filed under this section must be filed in a district court in:
(1) Travis County, if the complaint is filed against a person who is registered or licensed under this chapter; or
(2) the county in which the person resides, if the complaint is filed against a person who is not registered or licensed under this chapter. (V.A.C.S. Art. 41a-1, Sec. 23(b).)
[Chapters 902-950 reserved for expansion]
SUBTITLE B. LEGAL SERVICES
CHAPTER 951. PREPAID LEGAL SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 951.001. SHORT TITLE
Sec. 951.002. DEFINITIONS
Sec. 951.003. APPLICABILITY OF CHAPTER
Sec. 951.004. SUPPLEMENTARY BYLAWS; RULES
[Sections 951.005-951.050 reserved for expansion]
SUBCHAPTER B. REGULATION OF PILOT PROGRAM
Sec. 951.051. APPROVAL OF PILOT PROGRAM
Sec. 951.052. APPLICATION
Sec. 951.053. APPLICATION FEE
Sec. 951.054. REVOCATION OF PROGRAM APPROVAL
CHAPTER 951. PREPAID LEGAL SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 951.001. SHORT TITLE. This chapter may be cited as the Prepaid Legal Services Act. (V.A.C.S. Art. 320b, Sec. 1.)
Sec. 951.002. DEFINITIONS. In this chapter:
(1) "Board of directors" means the board of directors of the state bar.
(2) "Client" means an eligible member or beneficiary of a sponsoring organization.
(3) "Organization" means a nonprofit organization or combination of persons, incorporated or otherwise, including a professional association, trade association, or labor union.
(4) "Prepaid legal services program" means a plan under which:
(A) a sponsoring organization offers legal services benefits to its members or beneficiaries; and
(B) the services are financed by direct financial charge in advance of need.
(5) "State bar" means the State Bar of Texas. (V.A.C.S. Art. 320b, Sec. 3; New.)
Sec. 951.003. APPLICABILITY OF CHAPTER. (a) This chapter does not apply to:
(1) the employment of counsel by an organization to represent its members free of direct financial charge to those members; or
(2) legal services made available incidental to a contract of insurance in which the insurer has contracted to pay all or a substantial part of a judgment, if any, and the legal services are free of direct financial charge to the insured.
(b) A law pertaining to insurance does not apply to a program under this chapter. (V.A.C.S. Art. 320b, Secs. 4, 9.)
Sec. 951.004. SUPPLEMENTARY BYLAWS; RULES. (a) The board of directors may adopt supplementary bylaws as necessary to administer and enforce this chapter.
(b) The state bar may:
(1) adopt rules regulating the participation of a state bar member in group legal services programs; and
(2) require periodic reporting on that participation. (V.A.C.S. Art. 320b, Sec. 10.)
[Sections 951.005-951.050 reserved for expansion]
SUBCHAPTER B. REGULATION OF PILOT PROGRAM
Sec. 951.051. APPROVAL OF PILOT PROGRAM. (a) The board may approve not more than five prepaid legal services pilot programs between classroom teachers associations and the state bar.
(b) A member of the state bar may provide legal services to a prepaid legal services program only if the organization sponsoring the program is approved by the board of directors. (V.A.C.S. Art. 320b, Secs. 5(a), (c).)
Sec. 951.052. APPLICATION. (a) An applicant for approval of a prepaid legal services program must show that:
(1) the program money held by the organization sponsoring the program is secure, as evidenced by a fidelity bond for the officers of the organization authorized to manage the money;
(2) the program complies with the Disciplinary Rules of Professional Conduct;
(3) a client may obtain the services from any lawyer the client chooses; and
(4) each client is given, before entering into the program, full written information concerning:
(A) the services offered by the program;
(B) the total annual cost of the program to an individual client; and
(C) the required compliance of the program with this subsection.
(b) If the board of directors determines that an organization's application complies with this section, the board of directors shall approve the application. If the board of directors determines that the application does not substantially comply with this section, the board of directors shall disapprove the application and provide the organization with written notice of the reasons for the disapproval.
(c) The board of directors shall approve or disapprove an application not later than the 60th day after the date the application is filed. (V.A.C.S. Art. 320b, Secs. 6, 7.)
Sec. 951.053. APPLICATION FEE. The board of directors may set a fee, in an amount reasonable and necessary to enforce this chapter, for an organization applying for approval of a prepaid legal services program. (V.A.C.S. Art. 320b, Sec. 11.)
Sec. 951.054. REVOCATION OF PROGRAM APPROVAL. (a) On written notice to an organization of the reasons for revocation, the board of directors may revoke the approval of a program sponsored by the organization for failure to:
(1) provide the services offered; or
(2) comply with Section 951.052(a).
(b) On receipt of notice of revocation, the organization shall:
(1) return to its clients the unspent money of the prepaid legal services program, including any available bond proceeds; and
(2) certify to the board of directors the manner and amount of the redistribution of the money.
(c) If necessary, the board of directors shall supervise the redistribution of money under Subsection (b). (V.A.C.S. Art. 320b, Sec. 8.)
CHAPTER 952. LAWYER REFERRAL SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 952.001. SHORT TITLE
Sec. 952.002. DEFINITIONS
Sec. 952.003. APPLICABILITY OF CHAPTER
[Sections 952.004-952.050 reserved for expansion]
SUBCHAPTER B. STATE BAR POWERS AND DUTIES
Sec. 952.051. RULES; ENFORCEMENT
Sec. 952.052. FEES
[Sections 952.053-952.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATION
Sec. 952.101. CERTIFICATE REQUIRED
Sec. 952.102. APPLICATION REQUIREMENTS; RENEWAL
[Sections 952.103-952.150 reserved for expansion]
SUBCHAPTER D. REFERRAL SERVICE REQUIREMENTS
Sec. 952.151. NOTICE REQUIREMENT
Sec. 952.152. LAWYER PARTICIPATION
Sec. 952.153. PROOF OF FINANCIAL RESPONSIBILITY
Sec. 952.154. SUBJECT MATTER AND OTHER PANELS
Sec. 952.155. LIMITATIONS ON CLIENT FEES
[Sections 952.156-952.200 reserved for expansion]
SUBCHAPTER E. COMPLAINT PROCEDURES AND ENFORCEMENT
Sec. 952.201. EVALUATION AND COMPLAINT PROCEDURES
Sec. 952.202. SUSPENSION OR REMOVAL FROM LAWYER REFERRAL
SERVICE
Sec. 952.203. INJUNCTIVE RELIEF
CHAPTER 952. LAWYER REFERRAL SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 952.001. SHORT TITLE. This chapter may be cited as the Texas Lawyer Referral Service Quality Assurance Act. (V.A.C.S. Art. 320d, Sec. 1.)
Sec. 952.002. DEFINITIONS. In this chapter:
(1) "Lawyer referral service" means a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term "referral service" to describe the service provided.
(2) "State bar" means the State Bar of Texas. (V.A.C.S. Art. 320d, Secs. 3(2) (part), (3).)
Sec. 952.003. APPLICABILITY OF CHAPTER. A lawyer referral service does not include:
(1) an organization that recommends, furnishes, or pays for legal services for its members or beneficiaries and that satisfies the conditions of the Disciplinary Rules of Professional Conduct or other rules adopted by the supreme court;
(2) a plan of prepaid legal services insurance;
(3) a referral made by one lawyer to another lawyer that conforms with the Disciplinary Rules of Professional Conduct or other rules adopted by the supreme court;
(4) lawyers who jointly advertise their services in a manner that clearly shows that the advertising is intended solely to solicit clients for those lawyers; or
(5) a service of a pro bono publico legal assistance program that does not accept a fee from either the lawyer or the client. (V.A.C.S. Art. 320d, Sec. 3(2) (part).)
[Sections 952.004-952.050 reserved for expansion]
SUBCHAPTER B. STATE BAR POWERS AND DUTIES
Sec. 952.051. RULES; ENFORCEMENT. (a) The state bar shall adopt reasonable rules subject to the approval of the supreme court to administer this chapter.
(b) The state bar may enforce this chapter and the rules adopted under this chapter. (V.A.C.S. Art. 320d, Sec. 13.)
Sec. 952.052. FEES. The state bar may set fees, in amounts that are reasonable and necessary to cover the costs of administering this chapter, for the issuance and renewal of a certificate under this chapter. (V.A.C.S. Art. 320d, Sec. 4(b).)
[Sections 952.053-952.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATION
Sec. 952.101. CERTIFICATE REQUIRED. A person may not operate a lawyer referral service in this state unless the person holds a certificate issued under this chapter. (V.A.C.S. Art. 320d, Sec. 4(a).)
Sec. 952.102. APPLICATION REQUIREMENTS; RENEWAL. (a) An applicant for a certificate or the renewal of a certificate issued under this chapter must:
(1) be operated by:
(A) a governmental entity; or
(B) a nonprofit entity exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 and its subsequent amendments by being listed as an exempt entity under Section 501(c)(3), 501(c)(4), or 501(c)(6) of that code;
(2) certify on the application provided by the state bar that the applicant operates primarily for the benefit of the public; and
(3) provide the state bar with a list containing the name, firm name, address, and business telephone number of at least 25 lawyers, each from different law firms, who have contracted with the applicant to receive referral services.
(b) The list required under Subsection (a)(3) must include each lawyer or firm that is a subscriber or potential subscriber to the applicant's services.
(c) A certificate is valid for one year from the date issued and may be renewed annually on the payment of the required renewal fee. (V.A.C.S. Art. 320d, Secs. 4(c); 5.)
[Sections 952.103-952.150 reserved for expansion]
SUBCHAPTER D. REFERRAL SERVICE REQUIREMENTS
Sec. 952.151. NOTICE REQUIREMENT. (a) A lawyer referral service shall include the following statement in any advertising or other promotional effort: "This service is certified as a lawyer referral service as required by the State of Texas under Chapter 952, Occupations Code."
(b) Advertising or other promotional materials of a lawyer referral service prepared before September 1, 1999, that comply with Section 12, Texas Lawyer Referral Service Quality Assurance Act (Article 320d, Vernon's Texas Civil Statutes), as that section existed on August 31, 1999, are not required to comply with Subsection (a). (V.A.C.S. Art. 320d, Sec. 12; New.)
Sec. 952.152. LAWYER PARTICIPATION. A lawyer who is licensed and in good standing in this state and who maintains an office in the geographical area served by a lawyer referral service may receive referrals of potential clients from the service if the lawyer:
(1) complies with Section 952.155; and
(2) pays a reasonable registration and membership fee not to exceed the amount set by state bar rules. (V.A.C.S. Art. 320d, Sec. 6.)
Sec. 952.153. PROOF OF FINANCIAL RESPONSIBILITY. A lawyer referral service may require a member, as a condition of membership, to:
(1) obtain a policy of errors and omissions insurance; or
(2) establish other proof of financial responsibility in an amount determined by the service. (V.A.C.S. Art. 320d, Sec. 8.)
Sec. 952.154. SUBJECT MATTER AND OTHER PANELS. (a) A lawyer referral service shall establish specific subject matter panels.
(b) A lawyer referral service may establish:
(1) moderate-fee and no-fee panels;
(2) alternative dispute resolution panels; and
(3) other special panels that respond to the referral needs of the public. (V.A.C.S. Art. 320d, Sec. 9.)
Sec. 952.155. LIMITATIONS ON CLIENT FEES. (a) A lawyer may not charge a potential client referred to the lawyer by a referral service an amount that exceeds the total cost the client would have been required to pay, including legal fees and expenses, if a referral service had not referred the client.
(b) The combined amounts of any fee charged to a potential client by the lawyer or the referral service may not exceed $20 for the first 30 minutes of the initial office visit with the lawyer.
(c) An agreement between a lawyer and a referral service to eliminate or restrict the fee for the first 30 minutes of an initial office visit with the lawyer does not violate any statute or rule, including Chapter 15, Business & Commerce Code.
(d) A fee charged under Subsection (b) may be used only to pay:
(1) the reasonable operating expenses of the referral service; or
(2) the expenses of a public service program, including a pro bono publico legal program. (V.A.C.S. Art. 320d, Sec. 7.)
[Sections 952.156-952.200 reserved for expansion]
SUBCHAPTER E. COMPLAINT PROCEDURES AND ENFORCEMENT
Sec. 952.201. EVALUATION AND COMPLAINT PROCEDURES. A lawyer referral service shall establish policies and procedures to:
(1) evaluate client satisfaction with its services; and
(2) address client complaints with regard to the referral service or the lawyers and firms that subscribe to the referral service. (V.A.C.S. Art. 320d, Sec. 10.)
Sec. 952.202. SUSPENSION OR REMOVAL FROM LAWYER REFERRAL SERVICE. (a) A lawyer referral service shall establish written policies and procedures to suspend or remove a lawyer or firm from the referral service's list of subscribers.
(b) The policies and procedures established under Subsection (a) must include the suspension and removal of a lawyer who fails to handle referred clients in a diligent and responsible manner. (V.A.C.S. Art. 320d, Sec. 11.)
Sec. 952.203. INJUNCTIVE RELIEF. (a) The state bar or a lawyer referral service certified under this chapter may bring an action to enjoin a violation of this chapter and may recover costs and attorney's fees related to obtaining the injunction.
(b) Bond or other security may not be required of the state bar or a referral service as a condition for the issuance of an injunction under this section. (V.A.C.S. Art. 320d, Sec. 14.)
[Titles 6-8 reserved for expansion]
TITLE 9. REGULATION OF BARBERS, COSMETOLOGISTS,
AND RELATED OCCUPATIONS
CHAPTER 1601. BARBERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1601.001. GENERAL DEFINITIONS
Sec. 1601.002. DEFINITION OF BARBERING
Sec. 1601.003. APPLICATION OF CHAPTER
Sec. 1601.004. APPLICATION OF SUNSET ACT
[Sections 1601.005-1601.050 reserved for expansion]
SUBCHAPTER B. STATE BOARD OF BARBER EXAMINERS
Sec. 1601.051. BOARD; MEMBERSHIP
Sec. 1601.052. PUBLIC MEMBER ELIGIBILITY
Sec. 1601.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 1601.054. OFFICIAL OATH
Sec. 1601.055. TERMS; VACANCY
Sec. 1601.056. GROUNDS FOR REMOVAL
Sec. 1601.057. PER DIEM; REIMBURSEMENT
Sec. 1601.058. PRESIDING OFFICER
[Sections 1601.059-1601.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1601.101. EXECUTIVE DIRECTOR AND OTHER PERSONNEL
Sec. 1601.102. EXECUTIVE DIRECTOR POWERS AND DUTIES;
SURETY BOND
Sec. 1601.103. DIVISION OF RESPONSIBILITIES
Sec. 1601.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 1601.105. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 1601.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 1601.107-1601.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 1601.151. GENERAL POWERS AND DUTIES OF BOARD
Sec. 1601.152. SANITATION RULES
Sec. 1601.153. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING
Sec. 1601.154. INSPECTION BY BOARD AND HEALTH DEPARTMENT
Sec. 1601.155. AUTHORITY TO SET FEES
Sec. 1601.156. BOARD RECORDS
Sec. 1601.157. ANNUAL REPORT
[Sections 1601.158-1601.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 1601.201. PUBLIC INTEREST INFORMATION
Sec. 1601.202. COMPLAINTS
Sec. 1601.203. RECORDS OF COMPLAINTS
Sec. 1601.204. PUBLIC PARTICIPATION
[Sections 1601.205-1601.250 reserved for expansion]
SUBCHAPTER F. GENERAL CERTIFICATE, LICENSE,
AND PERMIT REQUIREMENTS
Sec. 1601.251. CERTIFICATE, LICENSE, OR PERMIT REQUIRED
Sec. 1601.252. APPLICATION PROCESS
Sec. 1601.253. ELIGIBILITY FOR CLASS A BARBER
CERTIFICATE
Sec. 1601.254. ELIGIBILITY FOR TEACHER'S CERTIFICATE
Sec. 1601.255. ELIGIBILITY FOR JOURNEYMAN BARBER PERMIT
Sec. 1601.256. ELIGIBILITY FOR BARBER TECHNICIAN LICENSE
Sec. 1601.257. ELIGIBILITY FOR MANICURIST LICENSE
Sec. 1601.258. ELIGIBILITY FOR WIG SPECIALIST LICENSE
Sec. 1601.259. ELIGIBILITY FOR WIG INSTRUCTOR LICENSE
Sec. 1601.260. ELIGIBILITY FOR STUDENT PERMIT
Sec. 1601.261. EXAMINATION APPLICATION
Sec. 1601.262. EXAMINATION FOR CLASS A BARBER AND
TEACHER'S CERTIFICATES
Sec. 1601.263. EXAMINATION RESULTS
Sec. 1601.264. HEALTH CERTIFICATE REQUIREMENT
Sec. 1601.265. WAIVER OF LICENSE REQUIREMENTS; PERSONAL
INTERVIEW
Sec. 1601.266. DUPLICATE CERTIFICATE
[Sections 1601.267-1601.300 reserved for expansion]
SUBCHAPTER G. PERMITTING OF BARBERSHOPS AND SPECIALTY SHOPS
Sec. 1601.301. PERMIT REQUIRED
Sec. 1601.302. TEMPORARY BARBERSHOP PERMIT
Sec. 1601.303. ISSUANCE OF BARBERSHOP PERMIT
Sec. 1601.304. MANICURIST SPECIALTY SHOP PERMIT
Sec. 1601.305. ISSUANCE OF MANICURIST SPECIALTY SHOP
PERMIT
Sec. 1601.306. WIG SPECIALTY SHOP PERMIT
Sec. 1601.307. ISSUANCE OF WIG SPECIALTY SHOP PERMIT
Sec. 1601.308. TRANSFER OF BARBERSHOP OR SPECIALTY SHOP
PERMIT
Sec. 1601.309. PRACTICE BY COSMETOLOGIST AT SPECIALTY SHOP
PROHIBITED
Sec. 1601.310. RELOCATION OF SPECIALTY SHOP
Sec. 1601.311. DISPLAY OF SPECIALTY SHOP PERMIT
[Sections 1601.312-1601.350 reserved for expansion]
SUBCHAPTER H. PERMITTING OF BARBER SCHOOLS AND WIG SCHOOLS
Sec. 1601.351. PERMIT REQUIRED
Sec. 1601.352. APPLICATION FOR BARBER SCHOOL PERMIT
Sec. 1601.353. REQUIRED FACILITIES AND EQUIPMENT
Sec. 1601.354. PREREQUISITES FOR GRADUATION
Sec. 1601.355. SUPERVISION AND TEACHING REQUIREMENTS
Sec. 1601.356. INSPECTION BEFORE OPERATION
Sec. 1601.357. SURETY BOND
Sec. 1601.358. WIG SCHOOL PERMIT
[Sections 1601.359-1601.400 reserved for expansion]
SUBCHAPTER I. CERTIFICATE, LICENSE, AND PERMIT RENEWAL
Sec. 1601.401. EXPIRATION OF CERTIFICATE OR LICENSE
Sec. 1601.402. RENEWAL OF CERTIFICATE OR LICENSE
Sec. 1601.403. RENEWAL OF TEACHER'S CERTIFICATE
Sec. 1601.404. RENEWAL OR REINSTATEMENT OF EXPIRED
CERTIFICATE OR LICENSE
Sec. 1601.405. RENEWAL WHILE IN ARMED FORCES
Sec. 1601.406. RENEWAL OF BARBERSHOP OR SPECIALTY SHOP
PERMIT
Sec. 1601.407. RENEWAL OF BARBER SCHOOL PERMIT
Sec. 1601.408. RENEWAL OF EXPIRED PERMIT
[Sections 1601.409-1601.450 reserved for expansion]
SUBCHAPTER J. PRACTICE BY INDIVIDUAL
CERTIFICATE OR LICENSE HOLDER
Sec. 1601.451. DISPLAY OF CERTIFICATE OR LICENSE
Sec. 1601.452. DISPLAY OF SANITATION RULES
Sec. 1601.453. LOCATION OF PRACTICE
Sec. 1601.454. PRACTICE AT FACILITY LICENSED OR
PERMITTED BY BOARD AND TEXAS COSMETOLOGY
COMMISSION
[Sections 1601.455-1601.500 reserved for expansion]
SUBCHAPTER K. OPERATION OF BARBERSHOP AND SPECIALTY SHOP
Sec. 1601.501. DISPLAY OF BARBERSHOP PERMIT
Sec. 1601.502. SUPERVISION OF BARBERSHOP
Sec. 1601.503. NOTIFICATION OF CHANGE OF LOCATION
Sec. 1601.504. NECESSARY EQUIPMENT
Sec. 1601.505. EMPLOYEE WITH DISEASE
Sec. 1601.506. CLEANLINESS
Sec. 1601.507. USE OF SHOP AS SLEEPING QUARTERS
[Sections 1601.508-1601.550 reserved for expansion]
SUBCHAPTER L. OPERATION OF BARBER SCHOOL
Sec. 1601.551. DISPLAY OF PERMIT
Sec. 1601.552. DISPLAY OF SANITATION RULES
Sec. 1601.553. SIGN REQUIRED
Sec. 1601.554. CHANGE OF BARBER SCHOOL OWNERSHIP OR
LOCATION
Sec. 1601.555. COMPLIANCE WITH CERTAIN REQUIREMENTS
Sec. 1601.556. INFORMATION PROVIDED TO PROSPECTIVE
STUDENT
Sec. 1601.557. COURSE LENGTH AND CURRICULUM CONTENT
Sec. 1601.558. REQUIRED COURSES
Sec. 1601.559. DAILY ATTENDANCE REPORTS
Sec. 1601.560. QUALIFIED INSTRUCTOR
Sec. 1601.561. REPORTS TO BOARD
Sec. 1601.562. CANCELLATION AND SETTLEMENT POLICY
Sec. 1601.563. REFUND POLICY
Sec. 1601.564. WITHDRAWAL OR TERMINATION OF STUDENT
Sec. 1601.565. EFFECT OF STUDENT WITHDRAWAL
Sec. 1601.566. PAYMENT OF REFUND
[Sections 1601.567-1601.600 reserved for expansion]
SUBCHAPTER M. DENIAL AND DISCIPLINARY PROCEEDINGS
Sec. 1601.601. DENIAL, SUSPENSION, OR REVOCATION
Sec. 1601.602. REVOCATION OF STUDENT TEACHER'S BARBER
CERTIFICATE
Sec. 1601.603. DENIAL OF PERMIT; SUIT
Sec. 1601.604. SUSPENSION OR REVOCATION OF BARBER
SCHOOL PERMIT
Sec. 1601.605. PROBATION FOR ALTERING COURSE LENGTH
Sec. 1601.606. PEER REVIEW
Sec. 1601.607. ADMINISTRATIVE PROCEDURE
[Sections 1601.608-1601.650 reserved for expansion]
SUBCHAPTER N. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1601.651. INJUNCTION; CIVIL PENALTY
Sec. 1601.652. OFFENSE; PENALTY
Sec. 1601.653. INSPECTORS; SALE OF SUPPLIES OR ENGAGING IN
OTHER BUSINESS
Sec. 1601.654. ENFORCEMENT BY ATTORNEY GENERAL
CHAPTER 1601. BARBERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1601.001. GENERAL DEFINITIONS. (a) In this chapter:
(1) "Barber" means a person who:
(A) performs or offers or attempts to perform any act of barbering;
(B) claims to be engaged in the practice of barbering; or
(C) directly or indirectly advertises or represents the person to be a barber or to be authorized to practice barbering.
(2) "Barbershop" means a place, other than a barber school that holds a permit under this chapter, in which barbering is practiced or is offered or attempted to be practiced. The term includes a barber salon.
(3) "Board" means the State Board of Barber Examiners.
(4) "Certificate" means a certificate of registration issued by the board.
(5) "License" means a license issued by the board.
(6) "Manager" means the person who controls or directs the business of a barbershop or directs the work of a person employed in a barbershop.
(7) "Manicurist specialty shop" means a place in which only the practice of barbering defined by Sections 1601.002(1)(E) and (F) is performed for compensation.
(8) "Permit" means a permit issued by the board.
(9) "Specialty shop" means a manicurist specialty shop or a wig specialty shop.
(10) "Wig specialty shop" means a place in which only the practice of barbering defined by Section 1601.002(1)(J) is performed for compensation.
(b) The term "barber school" includes a barber college. (V.A.C.S. Art. 8407a, Sec. 4 (part).)
Sec. 1601.002. DEFINITION OF BARBERING. In this chapter, "barbering," "practicing barbering," or the "practice of barbering" means:
(1) performing or offering or attempting to perform for compensation or the promise of compensation any of the following services:
(A) treating a person's mustache or beard by arranging, beautifying, coloring, processing, shaving, styling, or trimming;
(B) treating a person's hair by:
(i) arranging, beautifying, bleaching, cleansing, coloring, curling, dressing, dyeing, processing, shampooing, shaping, singeing, straightening, styling, tinting, or waving;
(ii) providing a necessary service that is preparatory or ancillary to a service under Subparagraph (i), including bobbing, clipping, cutting, or trimming; or
(iii) cutting the person's hair as a separate and independent service for which a charge is directly or indirectly made separately from a charge for any other service;
(C) cleansing, stimulating, or massaging a person's scalp, face, neck, arms, or shoulders:
(i) by hand or by using a device, apparatus, or appliance; and
(ii) with or without the use of any cosmetic preparation, antiseptic, tonic, lotion, or cream;
(D) beautifying a person's face, neck, arms, or shoulders using a cosmetic preparation, antiseptic, tonic, lotion, powder, oil, clay, cream, or appliance;
(E) treating a person's nails by:
(i) cutting, trimming, polishing, tinting, coloring, cleansing, manicuring, or pedicuring; or
(ii) attaching false nails;
(F) massaging, cleansing, treating, or beautifying a person's hands;
(G) administering facial treatments;
(H) weaving a person's hair;
(I) shampooing or conditioning a person's hair; or
(J) servicing in any manner listed in Paragraph (B) a person's wig, toupee, or artificial hairpiece on a person's head or on a block after the initial retail sale;
(2) advertising or representing to the public in any manner that a person is a barber or is authorized to practice barbering; or
(3) advertising or representing to the public in any manner that a location or place of business is a barbershop, specialty shop, or barber school. (V.A.C.S. Art. 8407a, Sec. 4 (part).)
Sec. 1601.003. APPLICATION OF CHAPTER. This chapter does not apply to a person who:
(1) does not represent or advertise to the public directly or indirectly that the person is authorized by the board to practice barbering; and
(2) is:
(A) a physician or registered nurse licensed in this state and operating within the scope of the person's license;
(B) a commissioned or authorized medical or surgical officer of the United States armed forces;
(C) a person regulated under Chapter 1602, if the person practices within the scope of a license or certificate issued by the Texas Cosmetology Commission; or
(D) an inmate in the institutional division of the Texas Department of Criminal Justice who performs barbering during the person's incarceration. (V.A.C.S. Art. 8407a, Sec. 6.)
Sec. 1601.004. APPLICATION OF SUNSET ACT. The State Board of Barber Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2003. (V.A.C.S. Art. 8407a, Sec. 26a.)
[Sections 1601.005-1601.050 reserved for expansion]
SUBCHAPTER B. STATE BOARD OF BARBER EXAMINERS
Sec. 1601.051. BOARD; MEMBERSHIP. (a) The State Board of Barber Examiners consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) two members, each of whom:
(A) is engaged in the practice of barbering as a Class A barber and has been for at least five years before being appointed; and
(B) does not hold a barbershop permit;
(2) one member who:
(A) is a barbershop owner who holds a barbershop permit; and
(B) is engaged in the practice of barbering and has been for at least five years before being appointed;
(3) one member who holds a permit to conduct or operate a barber school; and
(4) two members who represent the public.
(b) One member appointed under Subsection (a)(1) must be a resident of a county with a population of 25,000 or less.
(c) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 8407a, Secs. 26(a), (b) (part), (g).)
Sec. 1601.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of barbering;
(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds 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 funds from the board; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 8407a, Sec. 26(b) (part).)
Sec. 1601.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of barbering may not be a board member and may not be a board employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of barbering may not be a board member and may not be a board employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the board or act 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.
(e) An employee who violates this section is subject to dismissal. (V.A.C.S. Art. 8407a, Sec. 29B(c) (part), as amended Acts 72nd Leg., R.S., Ch. 561; Sec. 29B, as amended Acts 72nd Leg., R.S., Ch. 629; Sec. 29D.)
Sec. 1601.054. OFFICIAL OATH. Before entering the duties of office, a board member shall file the constitutional oath of office with the secretary of state. (V.A.C.S. Art. 8407a, Sec. 26(c) (part).)
Sec. 1601.055. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms, with the terms of two members expiring on the same date every two years.
(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 8407a, Sec. 26(c) (part).)
Sec. 1601.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 1601.051 and 1601.052;
(2) does not maintain during service on the board the qualifications required by Sections 1601.051 and 1601.052;
(3) violates a prohibition established by Section 1601.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor that a potential ground for removal exists.
(d) A board member may be removed from office for cause in the manner provided by state law for public officials who are not subject to impeachment. (V.A.C.S. Art. 8407a, Secs. 26(c) (part), (d), (e), (f); Sec. 29B(c) (part), as amended Acts 72nd Leg., R.S., Ch. 561.)
Sec. 1601.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to the per diem set by the General Appropriations Act.
(b) A board member is entitled to reimbursement for travel expenses in accordance with the General Appropriations Act.
(c) A board member who seeks reimbursement for expenses shall present a sworn, complete itemized statement of the number of days engaged in the board's business and the amount of expenses incurred by the member. (V.A.C.S. Art. 8407a, Sec. 27(c).)
Sec. 1601.058. PRESIDING OFFICER. The governor shall designate a board member as presiding officer to serve in that capacity at the will of the governor. (V.A.C.S. Art. 8407a, Sec. 26(h).)
[Sections 1601.059-1601.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1601.101. EXECUTIVE DIRECTOR AND OTHER PERSONNEL. (a) The board shall employ an executive director and other employees as necessary to implement this chapter.
(b) The board shall set the compensation of the executive director and other employees. (V.A.C.S. Art. 8407a, Sec. 27(a) (part).)
Sec. 1601.102. EXECUTIVE DIRECTOR POWERS AND DUTIES; SURETY BOND. (a) The executive director shall:
(1) maintain a record of the board's proceedings;
(2) be the custodian of the board's records; and
(3) receive and give a receipt for all money collected by the board.
(b) The executive director shall give a $5,000 surety bond that is payable to the state and conditioned on the faithful performance of the duties as executive director. After approval of the bond, the board shall file the bond with the comptroller. (V.A.C.S. Art. 8407a, Secs. 27(a) (part), (b) (part).)
Sec. 1601.103. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 8407a, Sec. 26b(b).)
Sec. 1601.104. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 8407a, Sec. 26b(a).)
Sec. 1601.105. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 8407a, Secs. 26c(a), (b).)
Sec. 1601.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) A policy statement prepared under Subsection (a) must cover an annual period, be updated at least annually, and be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports to the legislature. (V.A.C.S. Art. 8407a, Secs. 26c(c), (d), (e).)
[Sections 1601.107-1601.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 1601.151. GENERAL POWERS AND DUTIES OF BOARD. (a) The board shall maintain an office in Austin.
(b) The board shall adopt rules for the transaction of the board's business.
(c) The board shall adopt a seal for the authentication of its orders, certificates, and records.
(d) Subject to the authority of the Texas Board of Health under Section 1601.152, the board may:
(1) adopt and enforce all rules necessary for the performance of its duties;
(2) establish standards of conduct and ethics for persons practicing under this chapter; and
(3) regulate any area of the practice or teaching of barbering to implement the purposes and intent of this chapter, or to ensure strict compliance with and enforcement of this chapter.
(e) The board by rule may define any term necessary to administer or enforce this chapter. (V.A.C.S. Art. 8407a, Secs. 4(m), 27(a) (part), 28(a) (part).)
Sec. 1601.152. SANITATION RULES. (a) The Texas Board of Health shall adopt reasonable rules on sanitation for the operation of barbershops, specialty shops, and barber schools.
(b) A copy of the board of health's rules shall be furnished to the executive director of the board, who shall send a copy of the rules to each barber, barber school, or license holder. (V.A.C.S. Art. 8407a, Sec. 28(a) (part).)
Sec. 1601.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 8407a, Sec. 28(d).)
Sec. 1601.154. INSPECTION BY BOARD AND HEALTH DEPARTMENT. (a) The board, by and through the Texas Department of Health, may enter and inspect at any time during business hours:
(1) any barbershop, specialty shop, or barber school; or
(2) any place in which the board has probable cause to believe that any certificate, license, or permit holder is practicing illegally.
(b) The board may inspect the premises of a certificate, license, or permit holder to investigate a complaint at any time during business hours on receipt of a formal written complaint that a person holding a certificate, license, or permit has violated this chapter. (V.A.C.S. Art. 8407a, Sec. 28(a) (part).)
Sec. 1601.155. AUTHORITY TO SET FEES. The board by rule shall set fees required by this chapter in amounts necessary to cover the costs of administering the programs to which the fees relate. (V.A.C.S. Art. 8407a, Sec. 23(a).)
Sec. 1601.156. BOARD RECORDS. (a) The board shall keep a record of its proceedings relating to the issuance, refusal, renewal, suspension, and revocation of certificates, licenses, or permits.
(b) The board shall include in the record the name, residence address, and business address of each Class A barber and license or permit holder and the date and number of the certificate, license, or permit.
(c) The record is open to public inspection at all reasonable times. (V.A.C.S. Art. 8407a, Sec. 29(a).)
Sec. 1601.157. ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.
(b) The annual report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 8407a, Sec. 27(a) (part).)
[Sections 1601.158-1601.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 1601.201. PUBLIC INTEREST INFORMATION. (a) The board shall 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.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 8407a, Sec. 29(b).)
Sec. 1601.202. COMPLAINTS. The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated by the board;
(2) on a sign, in letters no smaller than one inch in height, prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for service provided by each person regulated by the board. (V.A.C.S. Art. 8402, Subsec. (d); Art. 8407a, Sec. 29(c).)
Sec. 1601.203. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board that the board has authority to resolve.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 8407a, Sec. 29A.)
Sec. 1601.204. PUBLIC PARTICIPATION. (a) The board shall 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.
(b) The board shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the board's programs. (V.A.C.S. Art. 8407a, Secs. 29(d), (e).)
[Sections 1601.205-1601.250 reserved for expansion]
SUBCHAPTER F. GENERAL CERTIFICATE, LICENSE,
AND PERMIT REQUIREMENTS
Sec. 1601.251. CERTIFICATE, LICENSE, OR PERMIT REQUIRED. (a) A person may not perform or offer or attempt to perform any act of barbering unless the person holds an appropriate certificate, license, or permit.
(b) Unless the person holds an appropriate certificate, license, or permit, a person may not directly or indirectly use or cause to be used any of the following terms, or any combination, variation, or abbreviation of the terms, as a professional or business identification, title, name, representation, asset, or means of advantage or benefit:
(1) "barber" or "barbering";
(2) "barber school" or "barber college"; or
(3) "barbershop," "barber salon," or "specialty shop."
(c) Unless the person holds an appropriate certificate, license, or permit, a person may not directly or indirectly use or cause to be used a symbol, or a combination, variation, or abbreviation of symbols, that in any manner creates an impression with the public that the person is qualified or authorized to practice barbering or own or manage a barbershop, specialty shop, or barber school. (V.A.C.S. Art. 8407a, Secs. 1, 2.)
Sec. 1601.252. APPLICATION PROCESS. (a) An application for a certificate, license, or permit must be made on a form prescribed and provided by the board.
(b) The application must contain sworn statements relating to the applicant's education and providing other information required by the board. (V.A.C.S. Art. 8407a, Secs. 8, 9(k) (part), 10(a) (part), 14(c) (part), 15(c) (part), 16(c) (part), 17(c) (part), 18.1(b).)
Sec. 1601.253. ELIGIBILITY FOR CLASS A BARBER CERTIFICATE. (a) An applicant for a Class A barber certificate must:
(1) be at least 16 years of age; and
(2) pass a written and practical examination demonstrating to the board's satisfaction the applicant's fitness and competence to practice barbering.
(b) The board shall issue a Class A barber certificate to an applicant who:
(1) complies with the application requirements of this chapter;
(2) passes the examination with an average grade of at least 75 percent;
(3) pays a fee not to exceed $100; and
(4) possesses the other qualifications required by this chapter. (V.A.C.S. Art. 8407a, Secs. 7, 12, 23(c) (part).)
Sec. 1601.254. ELIGIBILITY FOR TEACHER'S CERTIFICATE. (a) An applicant for a teacher's certificate must:
(1) be a Class A barber;
(2) have at least five years' experience as a practicing barber in a barbershop, two years of which occurred in the two years preceding the application date; and
(3) submit an examination fee not to exceed $100 with the application.
(b) An applicant must submit a new application and fee for each examination taken by the applicant. Fees paid are not refundable.
(c) The board shall issue a teacher's certificate to an applicant who:
(1) passes the appropriate examination; and
(2) pays a certificate fee not to exceed:
(A) $100, if the applicant fulfills the certificate requirements during the period beginning November 1 of an odd-numbered year and extending through October 31 of the following year; or
(B) $50, if the applicant fulfills the certificate requirements during the period beginning November 1 of an even-numbered year and extending through October 31 of the following year. (V.A.C.S. Art. 8407a, Sec. 9(k) (part).)
Sec. 1601.255. ELIGIBILITY FOR JOURNEYMAN BARBER PERMIT. (a) An applicant for a journeyman barber permit must possess the qualifications required by this chapter and:
(1) be at least 16-1/2 years of age and have completed:
(A) the seventh grade; or
(B) the equivalent of the seventh grade, as determined by an examination conducted by the board; and
(2) hold:
(A) a barber license or certificate of registration from another state or country that has substantially the same requirements for licensing or registering barbers as required by this chapter; or
(B) a personal affidavit stating that the person has practiced as a barber in another state for the two years preceding the date the person applied in this state; and
(3) pay the required fee.
(b) A journeyman barber permit holder may practice as a journeyman barber until the person is called by the board to determine the person's fitness to be a Class A barber.
(c) A permit holder who fails the required examination may continue to practice as a journeyman barber until the date of the next examination. A permit holder who fails the second examination may not practice barbering. (V.A.C.S. Art. 8407a, Sec. 13.)
Sec. 1601.256. ELIGIBILITY FOR BARBER TECHNICIAN LICENSE. (a) A person holding a barber technician license may:
(1) perform only barbering as defined by Sections 1601.002(1)(C), (D), (F), (G), and (I); and
(2) practice only at a location that has been issued a barbershop permit.
(b) An applicant for a barber technician license must:
(1) be at least 16 years of age;
(2) have completed the seventh grade or the equivalent of the seventh grade;
(3) have completed a course of instruction in a board-approved training program consisting of not less than 300 hours in a period of not less than eight weeks; and
(4) submit a $10 administration fee with the application.
(c) The course of instruction described by Subsection (b)(3) must include the theory and practice of:
(1) laws governing the practice of barbering in this state;
(2) hygienic bacteriology;
(3) histology of the skin, muscles, and nerves;
(4) the structure of the head, neck, and face;
(5) elementary chemistry relating to sterilization and antiseptics;
(6) common disorders of the skin;
(7) massage and manipulation of the muscles of the scalp, face, and neck;
(8) shampooing;
(9) the administration of facial treatments;
(10) the preparation of patrons and making of appointments; and
(11) any other services within the scope of barbering under Subsection (a).
(d) The board shall issue a barber technician license to an applicant who:
(1) possesses the qualifications described by Subsection (b);
(2) passes the appropriate examination;
(3) pays a license fee not to exceed $100; and
(4) has not committed an act that is a ground for denial of a license. (V.A.C.S. Art. 8407a, Secs. 14(a), (b), (c) (part), (d), 23(c) (part).)
Sec. 1601.257. ELIGIBILITY FOR MANICURIST LICENSE. (a) A person holding a manicurist license may perform only barbering as defined by Sections 1601.002(1)(E) and (F).
(b) An applicant for a manicurist license must:
(1) be at least 16 years of age;
(2) have completed the seventh grade or the equivalent of the seventh grade;
(3) have completed a board-approved training program consisting of 300 hours of instruction in manicuring; and
(4) submit a $10 administration fee with the application.
(c) The board shall issue a manicurist license to an applicant who:
(1) possesses the qualifications described by Subsection (b);
(2) passes the appropriate examination;
(3) pays a license fee not to exceed $30; and
(4) has not committed an act that is a ground for denial of a license. (V.A.C.S. Art. 8407a, Secs. 15(a), (b), (c) (part), (d).)
Sec. 1601.258. ELIGIBILITY FOR WIG SPECIALIST LICENSE. (a) A person holding a wig specialist license may perform only barbering as defined by Section 1601.002(1)(J).
(b) An applicant for a wig specialist license must:
(1) be at least 16 years of age;
(2) have completed the seventh grade or the equivalent of the seventh grade;
(3) have completed a board-approved training program consisting of 300 hours of instruction in the care and treatment of wigs; and
(4) submit a $10 administration fee with the application.
(c) The board shall issue a wig specialist license to an applicant who:
(1) possesses the qualifications described by Subsection (b);
(2) passes the appropriate examination;
(3) pays a license fee not to exceed $30; and
(4) has not committed an act that is a ground for revocation of a license. (V.A.C.S. Art. 8407a, Secs. 16(a), (b), (c) (part), (d).)
Sec. 1601.259. ELIGIBILITY FOR WIG INSTRUCTOR LICENSE. (a) A person holding a wig instructor license may:
(1) perform only barbering as defined by Section 1601.002(1)(J); and
(2) instruct a person only in barbering as defined by Section 1601.002(1)(J).
(b) An applicant for a wig instructor license must:
(1) hold a wig specialist license;
(2) have completed a board-approved training program consisting of 200 hours of instruction in advanced wig courses and methods of teaching; and
(3) submit a $5 administration fee with the application.
(c) The board shall issue a wig instructor license to an applicant who:
(1) possesses the qualifications described by Subsection (b);
(2) passes the appropriate examination;
(3) pays a license fee not to exceed $100; and
(4) has not committed an act that is a ground for revocation of a license. (V.A.C.S. Art. 8407a, Secs. 17(a), (b), (c) (part), (d).)
Sec. 1601.260. ELIGIBILITY FOR STUDENT PERMIT. (a) An applicant for a permit to be a student in a barber school must:
(1) submit an enrollment application to the board in the form prescribed by the board;
(2) have completed the seventh grade;
(3) satisfy other requirements specified by the board; and
(4) submit with the application a nonrefundable application fee in an amount not to exceed $25.
(b) A separate application is required for each enrollment, reenrollment, or transfer enrollment. The application fee applies only to the first enrollment. The board may not charge the application fee for any later enrollment, reenrollment, or transfer enrollment. (V.A.C.S. Art. 8407a, Sec. 9(b).)
Sec. 1601.261. EXAMINATION APPLICATION. (a) An applicant for an examination must submit to the board a sworn application on a form prescribed and provided by the board accompanied by:
(1) two photographs of the applicant, one of which accompanies the application and one of which is to be returned to the applicant to be presented at the examination; and
(2) the appropriate fee required under this chapter.
(b) The fee for an examination necessary to receive a certificate to practice barbering or to practice as a barber technician is $10. (V.A.C.S. Art. 8407a, Secs. 10(a) (part), 23(b).)
Sec. 1601.262. EXAMINATION FOR CLASS A BARBER AND TEACHER'S CERTIFICATES. (a) The board shall examine applicants for a Class A barber certificate and a teacher's certificate at least four times annually, at times and places designated by the board.
(b) The certification examination must include a practical examination and a written examination selected by the board. The written examination must be:
(1) validated by an independent testing professional; or
(2) purchased from a national testing service.
(c) The board, on written request by a student, may provide for the early written examination of an applicant for a Class A barber certificate or a teacher's certificate who has completed at least 1,000 hours of instruction in a board-approved training program. A board inspector may administer an examination under this subsection at barber schools throughout the state.
(d) An examination may not be held at a barber school or barbershop owned, managed, or operated by a board member. (V.A.C.S. Art. 8407a, Sec. 11.)
Sec. 1601.263. EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date an examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the board shall furnish the person with an analysis of the person's performance on the examination. (V.A.C.S. Art. 8407a, Sec. 10(b).)
Sec. 1601.264. HEALTH CERTIFICATE REQUIREMENT. The board may not issue a certificate or license until an applicant presents a health certificate from a physician stating that the applicant does not have an infectious or contagious disease. (V.A.C.S. Art. 8407a, Sec. 21(b) (part).)
Sec. 1601.265. WAIVER OF LICENSE REQUIREMENTS; PERSONAL INTERVIEW. (a) The board may waive any license requirement for an applicant holding a license from another state or country that has license requirements substantially equivalent to those of this state.
(b) The board may not require a personal interview as part of the application process. (V.A.C.S. Art. 8407a, Sec. 10(c).)
Sec. 1601.266. DUPLICATE CERTIFICATE. The board may issue a duplicate certificate on written application of the certificate holder and payment of a fee not to exceed $10. (V.A.C.S. Art. 8407a, Sec. 23a.)
[Sections 1601.267-1601.300 reserved for expansion]
SUBCHAPTER G. PERMITTING OF BARBERSHOPS AND SPECIALTY SHOPS
Sec. 1601.301. PERMIT REQUIRED. (a) A person may not own, operate, or manage a barbershop or specialty shop unless the person holds the appropriate permit.
(b) A person who owns, operates, or manages a barbershop or specialty shop must:
(1) submit an application to the board for an appropriate permit for each shop; and
(2) register with the board the person's full name and the location of each shop. (V.A.C.S. Art. 8402, Subsec. (a); Art. 8407a, Secs. 3(a), 15A(a) (part), 18(a) (part).)
Sec. 1601.302. TEMPORARY BARBERSHOP PERMIT. (a) A person who opens a new barbershop shall submit, not later than the third day after the date the shop opens, an application to the board for a temporary barbershop permit accompanied by an inspection fee not to exceed $70.
(b) The application must provide:
(1) the permanent address of the barbershop;
(2) the legal description of the premises to be licensed; and
(3) other information required by the board. (V.A.C.S. Art. 8407a, Sec. 3(b).)
Sec. 1601.303. ISSUANCE OF BARBERSHOP PERMIT. The board shall issue a barbershop permit to an applicant if:
(1) the applicant holds a Class A barber certificate; and
(2) the shop meets the minimum health standards for barbershops set by the Texas Department of Health and the rules of the board. (V.A.C.S. Art. 8407a, Sec. 3(c).)
Sec. 1601.304. MANICURIST SPECIALTY SHOP PERMIT. (a) A person who holds a manicurist specialty shop permit may maintain an establishment in which only barbering as defined by Sections 1601.002(1)(E) and (F) is performed. A manicurist specialty shop may be operated only under the direction of a person who holds a manicurist license.
(b) An applicant for a manicurist specialty shop permit must submit:
(1) an application that includes:
(A) the shop's address;
(B) the legal description of the premises for which the permit is sought; and
(C) any other information required by the board; and
(2) an inspection fee in an amount not to exceed $50.
(c) As soon as practicable after receipt of the application and fee, the board shall issue a temporary manicurist specialty shop permit to the applicant. The applicant may operate the applicant's shop under the temporary permit until a permanent permit is issued. (V.A.C.S. Art. 8407a, Secs. 15A(a) (part), (b), (d).)
Sec. 1601.305. ISSUANCE OF MANICURIST SPECIALTY SHOP PERMIT. The board shall issue a permanent manicurist specialty shop permit to an applicant if:
(1) the applicant holds a manicurist license; and
(2) the shop meets the minimum health standards for manicurist specialty shops set by the Texas Department of Health, as determined by a board inspection, and any other requirements imposed by board rule. (V.A.C.S. Art. 8407a, Sec. 15A(c).)
Sec. 1601.306. WIG SPECIALTY SHOP PERMIT. (a) A person who holds a wig specialty shop permit may maintain an establishment in which only barbering as defined by Section 1601.002(1)(J) is performed. A wig specialty shop may be operated only under the direction of a person who holds a wig specialist license.
(b) An applicant for a wig specialty shop permit must submit:
(1) an application that includes:
(A) the shop's address;
(B) the legal description of the premises for which the permit is sought; and
(C) any other information required by the board; and
(2) an inspection fee set by the board in an amount not to exceed $50.
(c) As soon as practicable after receipt of the application and fee, the board shall issue a temporary wig specialty shop permit to the applicant. The applicant may operate the applicant's shop under the temporary permit until a permanent permit is issued. (V.A.C.S. Art. 8407a, Secs. 18(a) (part), (b), (d).)
Sec. 1601.307. ISSUANCE OF WIG SPECIALTY SHOP PERMIT. The board shall issue a permanent wig specialty shop permit to an applicant if:
(1) the applicant holds a wig specialist license; and
(2) the shop meets the minimum health standards for wig specialty shops set by the Texas Department of Health, as determined by a board inspection, and any additional requirements imposed by board rule. (V.A.C.S. Art. 8407a, Sec. 18(c).)
Sec. 1601.308. TRANSFER OF BARBERSHOP OR SPECIALTY SHOP PERMIT. (a) A permit issued under this subchapter is not transferable.
(b) If the ownership of a barbershop or specialty shop is transferred, the new owner of the shop may continue to operate the shop if the new owner applies for and obtains a new permit not later than the 30th day after the date of the transfer. (V.A.C.S. Art. 8407a, Secs. 3(e), 15A(e) (part), 18(e) (part).)
Sec. 1601.309. PRACTICE BY COSMETOLOGIST AT SPECIALTY SHOP PROHIBITED. A person who holds a license, permit, or certificate issued by the Texas Cosmetology Commission may not practice under that authority at a specialty shop regulated under this chapter. (V.A.C.S. Art. 8407a, Secs. 15A(f), 18(f).)
Sec. 1601.310. RELOCATION OF SPECIALTY SHOP. (a) The holder of a specialty shop permit may move the person's specialty shop to a different location if the person receives board approval for the new location.
(b) The permit holder must notify the board of the move not later than the 10th day before the date the move is scheduled to occur. (V.A.C.S. Art. 8407a, Secs. 15A(h), 18(h).)
Sec. 1601.311. DISPLAY OF SPECIALTY SHOP PERMIT. The holder of a specialty shop permit shall display the permit in a conspicuous place in the shop for which the permit is issued. (V.A.C.S. Art. 8407a, Secs. 15A(e) (part), 18(e) (part).)
[Sections 1601.312-1601.350 reserved for expansion]
SUBCHAPTER H. PERMITTING OF BARBER SCHOOLS AND WIG SCHOOLS
Sec. 1601.351. PERMIT REQUIRED. A person may not operate a barber school unless the person holds a barber school permit. (V.A.C.S. Art. 8407a, Sec. 9(a) (part).)
Sec. 1601.352. APPLICATION FOR BARBER SCHOOL PERMIT. (a) An applicant for a barber school permit must demonstrate to the board that the school meets the requirements of this subchapter for issuance of a permit.
(b) Before issuing a barber school permit, the board must determine that the applicant is financially sound and capable of fulfilling the applicant's commitments for training. (V.A.C.S. Art. 8407a, Sec. 9(a) (part).)
Sec. 1601.353. REQUIRED FACILITIES AND EQUIPMENT. (a) The board may not approve an application for a permit for a barber school that provides training leading to issuance of a Class A barber certificate unless the school has:
(1) an adequate school site housed in a substantial building of permanent construction containing at least 2,800 square feet of floor space, divided into:
(A) a senior department;
(B) a junior department;
(C) a class theory room;
(D) a supply room;
(E) an office space;
(F) a dressing and cloak room; and
(G) two sanitary, modern, separate restrooms, each equipped with one commode and one of which is also equipped with a urinal;
(2) a hard-surface floor-covering of tile or other suitable material;
(3) at least 20 modern barber chairs, including a cabinet and mirror for each chair;
(4) a lavatory behind every two barber chairs;
(5) a liquid sterilizer for each barber chair;
(6) an adequate number of latherers, vibrators, and hair dryers for student use;
(7) adequate lighting for each room;
(8) at least 20 classroom chairs, a blackboard, anatomical charts of the head, neck, and face, and one barber chair in the class theory room;
(9) a library with library facilities available to students containing at least one medical dictionary and a standard work on human anatomy;
(10) adequate drinking fountain facilities, with at least one for each floor;
(11) adequate toilet facilities for the students; and
(12) adequate fire-fighting equipment.
(b) An applicant for a barber school permit must submit to the board:
(1) a detailed drawing and chart of the proposed physical layout of the school, showing the departments, floor space, equipment, lights, and outlets;
(2) photographs of the proposed site for the school, including the interior and exterior of the building, rooms, and departments;
(3) a detailed copy of the training program;
(4) a copy of the catalogue and promotional literature of the school;
(5) a copy of the building lease or proposed building lease if the building is not owned by the school;
(6) a sworn statement showing the ownership of the school; and
(7) a permit fee not to exceed $1,000. (V.A.C.S. Art. 8407a, Secs. 9(g), (m).)
Sec. 1601.354. PREREQUISITES FOR GRADUATION. (a) The board may not approve an application for a barber school permit unless the school requires as a prerequisite for graduation the following hours of instruction:
(1) for a barber technician, 300 hours of instruction completed in a course of not less than eight weeks;
(2) for a Class A barber, 1,500 hours of instruction completed in a course of not less than nine months, at least 800 hours of which is in the actual practice of cutting hair as a primary service;
(3) for a manicurist, 300 hours of instruction completed in a course of not less than eight weeks;
(4) for a teacher, 1,000 hours of instruction completed in a course of not less than six months;
(5) for a wig instructor, 200 hours of instruction completed in a course of not less than eight weeks; and
(6) for a wig specialist, 300 hours of instruction completed in a course of not less than eight weeks.
(b) If a barber school offers a refresher course, the course must require at least 300 hours of instruction. The board by rule shall set the curriculum for a refresher course. (V.A.C.S. Art. 8407a, Secs. 9(c), (d).)
Sec. 1601.355. SUPERVISION AND TEACHING REQUIREMENTS. (a) The board may not approve an application for a permit for a barber school that provides training leading to issuance of a Class A barber certificate unless the school is under the direct supervision and control of a Class A barber certificate holder who presents evidence of at least five years' experience as a practicing barber.
(b) Each barber school for which a permit is sought must have at least one teacher who has a teacher's certificate and is capable and qualified to teach to the students the required curriculum of the school. In addition to satisfying other board requirements, the teacher must demonstrate to the board:
(1) through a written and practical examination an ability to teach the curriculum; and
(2) that the teacher is qualified to teach and:
(A) has had at least six months' experience as a teacher in an approved school in this state or in another state approved by the board; or
(B) has completed 1,000 hours of instruction in a postgraduate course as a student teacher in a board-approved barber school in this state. (V.A.C.S. Art. 8407a, Sec. 9(j).)
Sec. 1601.356. INSPECTION BEFORE OPERATION. (a) A person may not operate a barber school or solicit or enroll students until the board determines, by inspection, that the person has established the school in compliance with this subchapter.
(b) A barber school that is not approved by the board on initial inspection may be reinspected. The board shall charge a reinspection fee in an amount not to exceed $500. (V.A.C.S. Art. 8407a, Sec. 9(n).)
Sec. 1601.357. SURETY BOND. An applicant for a barber school permit must furnish a $10,000 surety bond that is:
(1) payable to the state; and
(2) conditioned to refund unused tuition if the school ceases operation before its course of instruction is completed. (V.A.C.S. Art. 8407a, Sec. 9(a) (part).)
Sec. 1601.358. WIG SCHOOL PERMIT. (a) A wig school permit holder may operate an establishment that teaches only barbering as defined by Section 1601.002(1)(J).
(b) The board shall issue a wig school permit to an applicant who:
(1) complies with board rules;
(2) pays a $100 permit fee; and
(3) has not committed an act that is a ground for revoking a license or permit. (V.A.C.S. Art. 8407a, Secs. 18.1(a), (c).)
[Sections 1601.359-1601.400 reserved for expansion]
SUBCHAPTER I. CERTIFICATE, LICENSE, AND PERMIT RENEWAL
Sec. 1601.401. EXPIRATION OF CERTIFICATE OR LICENSE. (a) The board by rule may adopt a system under which certificates or licenses expire on various dates during the year.
(b) For the year in which the expiration date is changed, the board shall prorate on a monthly basis certificate or license renewal fees payable on November 1 so that each certificate or license holder pays only that portion of the certificate or license renewal fee that is allocable to the number of months during which the certificate or license is valid. On renewal of the certificate or license on the new expiration date, the certificate or license holder shall pay the total certificate or license renewal fee. (V.A.C.S. Art. 8407a, Sec. 20b.)
Sec. 1601.402. RENEWAL OF CERTIFICATE OR LICENSE. (a) A certificate or license expires two years from the date of issuance.
(b) A Class A barber, barber technician, teacher, wig instructor, wig specialist, manicurist, or other licensed specialist must renew the person's certificate or license on or before the expiration date.
(c) The board shall issue a renewal certificate or license on receipt of a renewal application in the form prescribed by the board, accompanied by a renewal fee in an amount equal to the original certificate or license fee but not to exceed $100.
(d) The board may not renew a certificate or license until an applicant presents a health certificate from a physician stating that the applicant does not have an infectious or contagious disease. (V.A.C.S. Art. 8407a, Secs. 20(a), 21(b) (part).)
Sec. 1601.403. RENEWAL OF TEACHER'S CERTIFICATE. The board shall renew a teacher's certificate biennially on or before November 1 of each odd-numbered year on payment of a renewal fee not to exceed $100. (V.A.C.S. Art. 8407a, Sec. 9(k) (part).)
Sec. 1601.404. RENEWAL OR REINSTATEMENT OF EXPIRED CERTIFICATE OR LICENSE. (a) A Class A barber or other license holder whose certificate or license has been expired for not more than 30 days may renew the person's certificate or license by applying to the board and paying the biennial renewal fee.
(b) A Class A barber or license holder whose certificate or license has been expired for not more than five years may reinstate the person's certificate or license by applying to the board and submitting a personal affidavit that the board determines provides a justification for issuing a certificate or license to the person. The person must pay a fee equal to the amount of the current certificate or license fee and an additional delinquency fee of $30 for each year or part of a year the certificate or license has been expired.
(c) A Class A barber or license holder who retires from practice and whose certificate or license has been expired for more than five years may qualify for a new certificate or license by applying to the board and by:
(1) making a proper showing to the board, supported by a personal affidavit;
(2) paying an examination fee not to exceed $100;
(3) passing a satisfactory examination conducted by the board; and
(4) paying the fee for an original certificate or license. (V.A.C.S. Art. 8407a, Secs. 20(b), (c), (d).)
Sec. 1601.405. RENEWAL WHILE IN ARMED FORCES. (a) The board may not require a Class A barber, barber technician, teacher, manicurist, or wig specialist who is serving on active duty in the United States armed forces to renew the person's certificate or license.
(b) The board shall issue a renewal certificate or license on application and payment of a renewal fee not later than the 90th day after the date the person is released or discharged from active duty in the armed forces. The renewal fee is:
(1) $10 if the application and payment are made during the period beginning November 1 of an odd-numbered year and ending October 31 of the following year; or
(2) $5 if the application and payment are made during the period beginning November 1 of an even-numbered year and ending October 31 of the following year. (V.A.C.S. Art. 8407a, Sec. 20a.)
Sec. 1601.406. RENEWAL OF BARBERSHOP OR SPECIALTY SHOP PERMIT. (a) A barbershop permit or specialty shop permit expires on July 1 of each odd-numbered year.
(b) A barbershop permit holder may renew the permit by paying a renewal fee not to exceed $70.
(c) A specialty shop permit holder may renew the permit by submitting to the board a renewal application accompanied by a renewal fee not to exceed $50. (V.A.C.S. Art. 8407a, Secs. 3(f), 15A(g), 18(g).)
Sec. 1601.407. RENEWAL OF BARBER SCHOOL PERMIT. (a) A barber school permit expires on September 1 of each year.
(b) A barber school may renew its permit by paying a renewal fee not to exceed $300. (V.A.C.S. Art. 8407a, Sec. 9(o).)
Sec. 1601.408. RENEWAL OF EXPIRED PERMIT. A person holding a barbershop, specialty shop, or barber school permit that has been expired for more than 30 days may renew the person's permit by submitting to the board a renewal application accompanied by:
(1) the regular renewal fee; and
(2) an additional delinquency fee of $30 for each year or part of a year the permit has been expired. (V.A.C.S. Art. 8407a, Sec. 29E.)
[Sections 1601.409-1601.450 reserved for expansion]
SUBCHAPTER J. PRACTICE BY INDIVIDUAL
CERTIFICATE OR LICENSE HOLDER
Sec. 1601.451. DISPLAY OF CERTIFICATE OR LICENSE. A certificate or license holder shall display the original certificate or license and an attached photograph of the certificate or license holder in a conspicuous place adjacent to or near the certificate or license holder's work chair in the shop in which the certificate or license holder is working. (V.A.C.S. Art. 8407a, Sec. 19.)
Sec. 1601.452. DISPLAY OF SANITATION RULES. Each barbershop or specialty shop shall post in the shop a copy of the board of health's rules adopted under Section 1601.152. (V.A.C.S. Art. 8407a, Sec. 28(a) (part).)
Sec. 1601.453. LOCATION OF PRACTICE. A person licensed by the board may practice barbering only at a location for which the board has issued a barbershop permit, specialty shop permit, or barber school permit. (V.A.C.S. Art. 8402, Subsec. (b) (part); Art. 8451a, Sec. 19(d) (part).)
Sec. 1601.454. PRACTICE AT FACILITY LICENSED OR PERMITTED BY BOARD AND TEXAS COSMETOLOGY COMMISSION. (a) The board may not adopt rules to restrict or prohibit practice by a Class A barber, manicurist, or wig specialist in a facility solely because the facility is licensed or permitted by both the board and the Texas Cosmetology Commission.
(b) If the board and the Texas Cosmetology Commission license or permit the same facility, the board may not adopt rules requiring separate treatment of the barbers and cosmetologists practicing in the facility or of their customers, including separate:
(1) work areas for barbers and cosmetologists;
(2) waiting areas for customers of the barbers and cosmetologists; or
(3) restrooms for the barbers and cosmetologists practicing in the facility or for their customers. (V.A.C.S. Art. 8402, Subsecs. (b) (part), (c); Art. 8451a, Secs. 19(d) (part), (e).)
[Sections 1601.455-1601.500 reserved for expansion]
SUBCHAPTER K. OPERATION OF BARBERSHOP AND SPECIALTY SHOP
Sec. 1601.501. DISPLAY OF BARBERSHOP PERMIT. A barbershop permit holder must display the permit in a conspicuous place in the shop for which the permit is issued. (V.A.C.S. Art. 8407a, Sec. 3(d).)
Sec. 1601.502. SUPERVISION OF BARBERSHOP. A person may not operate a barbershop unless:
(1) the shop is at all times under the exclusive supervision and management of a Class A barber; and
(2) no person is practicing on the premises by authority of a license, permit, or certificate issued by the Texas Cosmetology Commission, except as allowed by other law. (V.A.C.S. Art. 8407a, Sec. 3(g).)
Sec. 1601.503. NOTIFICATION OF CHANGE OF LOCATION. A person operating under a barbershop permit may move the operation to another location approved by the board if the person notifies the board not later than the 10th day before the date of the move. (V.A.C.S. Art. 8407a, Sec. 3(h).)
Sec. 1601.504. NECESSARY EQUIPMENT. The owner, operator, or manager of a barbershop or specialty shop shall equip the shop with the facilities, supplies, and appliances, furnishings, or materials necessary to enable a person employed on the premises to comply with this chapter. (V.A.C.S. Art. 8403 (part).)
Sec. 1601.505. EMPLOYEE WITH DISEASE. (a) An owner, operator, or manager of a barbershop or specialty shop may not knowingly permit a person with a communicable skin disease or a venereal disease to act as a barber or employee or work in the shop.
(b) A person who knows the person has a communicable disease or a venereal disease may not act as a barber or work in a barbershop or specialty shop. (V.A.C.S. Art. 8404 (part).)
Sec. 1601.506. CLEANLINESS. (a) A person in charge of a barbershop or specialty shop shall:
(1) keep the shop and all furniture, tools, appliances, and other equipment used at the shop in a clean condition;
(2) wash thoroughly, at least once daily, and otherwise maintain the cleanliness of each comb, hairbrush, or similar item used in the shop; and
(3) sterilize, at least once after each use, each mug, shaving brush, razor, scissors, shears, clippers, or tweezers used in the shop.
(b) A barber or other person regulated under this chapter shall immediately after using:
(1) a mug, shaving brush, or clippers for the service of a person, sterilize the equipment by immersing it in boiling water for at least one minute; or
(2) a razor or scissors, shears, or tweezers for the service of a person, sterilize the equipment by:
(A) immersing it for at least 10 minutes in a five percent aqueous solution of carbolic acid; or
(B) immersing it in boiling water for at least one minute.
(c) A barber or other person regulated under this chapter may not:
(1) use for the service of a customer:
(A) a comb or hairbrush or any similar item that is not thoroughly clean;
(B) a mug, shaving brush, or razor or shears, scissors, clippers, or tweezers that are not thoroughly clean or that have not been sterilized since last used; or
(C) a towel or washcloth that has not been laundered since last used;
(2) serve a customer unless the person thoroughly cleans the person's hands immediately before the service;
(3) use on more than one person the same piece of alum or other material to stop the flow of blood;
(4) shave a person when the surface to be shaved is inflamed, is broken out, or contains pus;
(5) permit any person to use the headrest of any barber's chair under the person's control until after the headrest has been covered with a towel that has been laundered since last used or with clean new paper or a similar clean substance;
(6) use a powder puff or sponge in the service of a customer unless it has been sterilized since last used;
(7) use a finger bowl unless it has been sterilized since last used and fresh water or other liquid has been placed in the bowl; or
(8) serve a customer without the use of a sanitized neck strip, cloth towel, or paper towel between the customer and the chair cloth.
(d) A person subject to Subsection (c) may use a neck duster in providing services for a customer. (V.A.C.S. Art. 8405 (part).)
Sec. 1601.507. USE OF SHOP AS SLEEPING QUARTERS. (a) An owner or manager of a barbershop or specialty shop may not permit a person to sleep in a room used as part of the shop.
(b) A person may not act as a barber or be employed in a barbershop or specialty shop in a room used as sleeping quarters. (V.A.C.S. Art. 8406 (part).)
[Sections 1601.508-1601.550 reserved for expansion]
SUBCHAPTER L. OPERATION OF BARBER SCHOOL
Sec. 1601.551. DISPLAY OF PERMIT. A barber school shall prominently display the barber school's permit at all times. (V.A.C.S. Art. 8407a, Sec. 9(a) (part).)
Sec. 1601.552. DISPLAY OF SANITATION RULES. Each barber school shall post in the school a copy of the board of health's rules adopted under Section 1601.152. (V.A.C.S. Art. 8407a, Sec. 28(a) (part).)
Sec. 1601.553. SIGN REQUIRED. (a) A barber school shall place a sign on the front outside portion of its building in a prominent place that reads in at least 10-inch block letters: "BARBER SCHOOL--STUDENT BARBERS."
(b) The school shall prominently display printed signs containing the information required by Subsection (a) on each inside wall of the school. (V.A.C.S. Art. 8407a, Sec. 9(h).)
Sec. 1601.554. CHANGE OF BARBER SCHOOL OWNERSHIP OR LOCATION. (a) If a barber school changes ownership, the board must be notified of the change not later than the 10th day before the date the change takes effect.
(b) A barber school may not change the location of the school unless the school obtains approval from the board before the change by showing that the proposed location meets the requirements of Subchapter H for issuance of a permit to the school. (V.A.C.S. Art. 8407a, Secs. 9(p), (q).)
Sec. 1601.555. COMPLIANCE WITH CERTAIN REQUIREMENTS. A barber school is subject to the requirements of Sections 1601.504-1601.507. (V.A.C.S. Arts. 8403 (part), 8404 (part), 8405 (part), 8406 (part).)
Sec. 1601.556. INFORMATION PROVIDED TO PROSPECTIVE STUDENT. The holder of a barber school permit shall furnish each prospective student with:
(1) a course outline;
(2) a schedule of the tuition and other fees assessed;
(3) the school's refund policy required under Section 1601.563;
(4) the school's grading policy and rules relating to incomplete grades;
(5) the school's rules of operation and conduct, including rules relating to absences;
(6) the board's name, mailing address, and telephone number for the purpose of directing complaints to the board; and
(7) the current rates of job placement and employment of students who complete a course of training. (V.A.C.S. Art. 8407a, Sec. 9(u).)
Sec. 1601.557. COURSE LENGTH AND CURRICULUM CONTENT. (a) A barber school shall submit to the board for approval the course length and curriculum content for a course offered by the school. The course length and curriculum content shall be designed to reasonably ensure that a student develops the job skills and knowledge necessary for employment. The school may not implement a course length or curriculum content unless it is approved by the board.
(b) Before issuing or renewing a permit under this chapter, the board shall require a school to account for all course lengths and curriculum contents. (V.A.C.S. Art. 8407a, Sec. 9(x) (part).)
Sec. 1601.558. REQUIRED COURSES. (a) A barber school shall instruct students in the theory and practice of subjects necessary and beneficial to the practice of barbering, including:
(1) the laws governing the practice of barbering in this state;
(2) scientific fundamentals of barbering;
(3) hygienic bacteriology;
(4) histology of the hair, skin, muscles, and nerves;
(5) the structure of the head, neck, and face;
(6) elementary chemistry relating to sterilization and antiseptics;
(7) common disorders of the skin and hair;
(8) massaging of muscles of the scalp, face, and neck;
(9) haircutting;
(10) shaving, shampooing, bleaching, and dyeing of hair;
(11) manicuring, administration of facial treatments, hair weaving, and servicing of wigs; and
(12) any other barbering services.
(b) At least five hours each week shall be devoted in the classroom to the instruction of theory. If classes are conducted:
(1) five days a week, one hour each day shall be devoted to instruction in theory; and
(2) four days a week, one hour and 15 minutes each day shall be devoted to instruction in theory.
(c) Saturdays shall be devoted exclusively to practical work over the chair.
(d) A barber school may not increase, decrease, or withhold for any reason the number of credit hours earned by a student. (V.A.C.S. Art. 8407a, Secs. 9(e) (part), (f), (i) (part).)
Sec. 1601.559. DAILY ATTENDANCE REPORTS. (a) A barber school shall maintain an attendance book showing a record of the students' daily attendance.
(b) The board may inspect a school's attendance record book at any time. (V.A.C.S. Art. 8407a, Sec. 9(i) (part).)
Sec. 1601.560. QUALIFIED INSTRUCTOR. (a) In addition to the teacher required by Section 1601.355(b), a barber school that provides training leading to issuance of a Class A barber certificate shall have at least one qualified instructor, holding a Class A certificate, for every 20 students for instruction in practical work. A teacher may serve as an instructor in practical work in addition to holding a position as a theory teacher.
(b) A barber school may not enroll more than one student teacher for each certified teacher who teaches at the school. A student teacher shall concentrate on developing teaching skills and may not be booked with customers. (V.A.C.S. Art. 8407a, Sec. 9(l) (part).)
Sec. 1601.561. REPORTS TO BOARD. (a) A barber school shall submit a monthly progress report to the board regarding each student attending the school. The report must certify the daily attendance record of each student and the number of credit hours earned by each student during the previous month.
(b) On a student's completion of a prescribed course of instruction, the school shall certify to the board that the student has completed the required number of hours and is eligible to take the appropriate examination.
(c) A barber school permit holder shall furnish to the board:
(1) the current course completion rates of students who attend a course of instruction offered by the school; and
(2) job placement rates and employment rates of students who complete a course of instruction. (V.A.C.S. Art. 8407a, Sec. 9(e) (part).)
Sec. 1601.562. CANCELLATION AND SETTLEMENT POLICY. A barber school permit holder shall maintain a cancellation and settlement policy that provides a full refund of all money paid by a student if the student:
(1) cancels the enrollment agreement not later than midnight of the third day after the date the agreement is signed by the student, excluding Saturdays, Sundays, and legal holidays; or
(2) entered into the enrollment agreement because of a misrepresentation made:
(A) in the school's advertising or promotional materials; or
(B) by an owner or representative of the school. (V.A.C.S. Art. 8407a, Sec. 9A(a).)
Sec. 1601.563. REFUND POLICY. (a) A barber school permit holder shall maintain a refund policy to provide for the refund of the unused part of tuition, fees, and other charges paid by a student who, after the expiration of the cancellation period established under Section 1601.562:
(1) fails to begin the course of training;
(2) withdraws from the course of training; or
(3) is terminated from the course of training before completion of the course.
(b) A barber school's refund policy must provide that:
(1) the refund is based on the period of the student's enrollment, computed on the basis of course time expressed in clock hours;
(2) the effective date of the termination for refund purposes is the earliest of:
(A) the last date of attendance, if the student is terminated by the school;
(B) the date the permit holder receives the student's written notice of withdrawal; or
(C) 10 school days after the last date of attendance; and
(3) the school may retain not more than $100 if:
(A) tuition is collected before the course of training begins; and
(B) the student does not begin the course of training before the date the cancellation period under Section 1601.562 expires.
(c) A barber school permit holder shall publish in the catalogue and enrollment agreement of the school a description of the refund policy. (V.A.C.S. Art. 8407a, Secs. 9(v), 9A(b).)
Sec. 1601.564. WITHDRAWAL OR TERMINATION OF STUDENT. (a) If a student who begins a course of training scheduled to last not more than 12 months withdraws from the course or is terminated from the course by the barber school, the school:
(1) may retain $100 in tuition and fees paid by the student; and
(2) is not obligated to refund any additional outstanding tuition if the student withdraws or is terminated during the last 50 percent of the course.
(b) If the student withdraws or is terminated before the last 50 percent of the course begins, the school shall refund:
(1) 90 percent of any outstanding tuition for a withdrawal or termination that occurs during the first week or first one-tenth of the course, whichever period is shorter;
(2) 80 percent of any outstanding tuition for a withdrawal or termination that occurs after the first week or first one-tenth of the course, whichever period is shorter;
(3) 75 percent of any outstanding tuition for a withdrawal or termination that occurs after the first three weeks of the course but not later than the completion of the first 25 percent of the course; and
(4) 50 percent of any outstanding tuition for a withdrawal or termination that occurs not later than the completion of the first 50 percent of the course.
(c) If a student withdraws or is terminated after 50 percent of the course has been completed, the school shall allow the student to reenter the school at any time before the fourth anniversary of the date of withdrawal or termination. (V.A.C.S. Art. 8407a, Secs. 9A(c), (d).)
Sec. 1601.565. EFFECT OF STUDENT WITHDRAWAL. (a) A barber school shall record a grade of incomplete for a student who withdraws from a course of training but who is not entitled to a refund under Section 1601.564 if:
(1) the student requests the grade at the time of withdrawal; and
(2) the withdrawal is for an appropriate reason unrelated to the student's academic status.
(b) A student who receives a grade of incomplete may reenroll in the course of training before the fourth anniversary of the date the student withdraws and may complete the subjects without paying additional tuition. (V.A.C.S. Art. 8407a, Sec. 9A(g).)
Sec. 1601.566. PAYMENT OF REFUND. (a) A barber school shall pay a refund owed under this subchapter not later than the 30th day after the date the student becomes eligible for the refund.
(b) A school that fails to pay the refund within the period required by this section shall pay interest on the amount of the refund for the period beginning on the 31st day after the date the student becomes eligible for the refund and ending on the day preceding the date the refund is made. The commissioner of education shall annually set the interest rate at a rate sufficient to deter a school from retaining money paid by a student.
(c) If a school refunds tuition to a lending institution, the interest is paid to the institution and applied against the student's loan.
(d) The board may exempt a school from the payment of interest if the school makes a good faith effort to refund the tuition but is unable to locate the student. The school shall provide to the board on request documentation of the school's effort to locate the student. (V.A.C.S. Art. 8407a, Secs. 9A(e), (f).)
[Sections 1601.567-1601.600 reserved for expansion]
SUBCHAPTER M. DENIAL AND DISCIPLINARY PROCEEDINGS
Sec. 1601.601. DENIAL, SUSPENSION, OR REVOCATION. The board shall deny an application for issuance or renewal of, or shall suspend or revoke, a certificate, license, or permit if the applicant or person holding the certificate, license, or permit engages in:
(1) gross malpractice;
(2) knowingly continuing to practice while having an infectious or contagious disease;
(3) knowingly making a false or deceptive statement in advertising;
(4) advertising, practicing, or attempting to practice under another person's name or trade name; or
(5) an act that violates this chapter or a rule or order of the board. (V.A.C.S. Art. 8407a, Secs. 21(a), 28(c) (part).)
Sec. 1601.602. REVOCATION OF STUDENT TEACHER'S BARBER CERTIFICATE. A violation of Section 1601.560(b) by a student teacher is a ground for the revocation of the person's student teacher barber license. (V.A.C.S. Art. 8407a, Sec. 9(l) (part).)
Sec. 1601.603. DENIAL OF PERMIT; SUIT. (a) If the board denies an application for a barber school permit, the school may request in writing the reasons for the refusal.
(b) If the barber school meets the requirements for issuance of the permit and shows that the requirements of this chapter have been met, and the board refuses to issue the permit, the school may file suit in a district court in Travis County to require the board to issue the permit.
(c) A suit under Subsection (b) must be filed not later than the 20th day after the date of the board's final order denying issuance of the permit, if registered notice of the order is mailed or it is otherwise shown that the school had notice of the order not later than the 10th day after the date the board entered the order. (V.A.C.S. Art. 8407a, Sec. 9(r).)
Sec. 1601.604. SUSPENSION OR REVOCATION OF BARBER SCHOOL PERMIT. (a) The board shall suspend or revoke the permit of a barber school that directly or indirectly violates this chapter.
(b) A proceeding under this section is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 8407a, Sec. 9(s) (part); New.)
Sec. 1601.605. PROBATION FOR ALTERING COURSE LENGTH. The board shall place on probation a barber school that alters a course length below or above industry standards until the school:
(1) provides justification for the alteration; or
(2) adjusts the course length to meet industry standards. (V.A.C.S. Art. 8407a, Sec. 9(x) (part).)
Sec. 1601.606. PEER REVIEW. (a) If the board has reasonable cause to believe that a barber school has violated this chapter or a rule adopted under this chapter, the board may:
(1) order a peer review of the school; or
(2) suspend the admission of students to the school.
(b) The peer review shall be conducted by a peer review team consisting of knowledgeable persons selected by the board. The board shall attempt to provide a balance on a peer review team between members assigned to the team who are from this state and members who are from other states.
(c) The peer review team shall provide the board with an objective assessment of the school's curriculum content and its application.
(d) A barber school under peer review shall pay the costs of the peer review. (V.A.C.S. Art. 8407a, Sec. 9(w).)
Sec. 1601.607. ADMINISTRATIVE PROCEDURE. A hearing or an appeal from a hearing under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 8407a, Sec. 22(c) (part).)
[Sections 1601.608-1601.650 reserved for expansion]
SUBCHAPTER N. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1601.651. INJUNCTION; CIVIL PENALTY. (a) The attorney general may file an action for an injunction or other proceeding to:
(1) enforce this chapter; or
(2) enjoin a barber or barber school from operating in violation of this chapter.
(b) A barber or barber school that operates in violation of this chapter is liable to the state for a civil penalty in the amount of $25 a day for each day a violation occurs. The attorney general may bring an action under this subsection. The attorney general shall bring an action under this subsection in Travis County.
(c) In addition to injunctive relief or other remedies provided by law, a barber school that violates this chapter or a rule adopted under this chapter is liable to the state for a civil penalty. The civil penalty may not exceed $1,000 a day for each violation. The attorney general, at the request of the board, may bring a civil action to collect a civil penalty under this subsection.
(d) In addition to any other action authorized by law, the board may institute an action in its own name to enjoin a violation of this chapter or a rule of the board.
(e) The board is not required to allege or prove:
(1) that an adequate remedy at law does not exist; or
(2) that substantial or irreparable damage would result from the continued violation.
(f) The board is not required to give an appeal bond in a cause arising under this chapter. (V.A.C.S. Art. 8407a, Secs. 9(t), (y) (part), 28(c) (part).)
Sec. 1601.652. OFFENSE; PENALTY. (a) A person commits an offense if the person:
(1) engages in barbering without holding an appropriate certificate, license, or permit;
(2) permits another in the person's employ, supervision, or control to practice as a barber or other license holder unless that person holds a certificate or license;
(3) obtains or attempts to obtain a certificate or license by making a fraudulent representation;
(4) owns, operates, or manages a barber school and provides barbering services to the public in the school;
(5) owns, operates, or manages a barber school and permits a person other than an enrolled student to provide barbering services to the public in the school;
(6) wilfully fails to display a certificate, license, or permit as required under this chapter; or
(7) engages in other conduct that violates a requirement established under this chapter.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200. (V.A.C.S. Art. 8407a, Sec. 24.)
Sec. 1601.653. INSPECTORS; SALE OF SUPPLIES OR ENGAGING IN OTHER BUSINESS. (a) A person commits an offense if the person is a barber inspector or other board employee and the person sells barber supplies or engages in a business, other than barbering, that deals directly with a barber, barbershop, specialty shop, or barber school.
(b) A violation of this section is a misdemeanor punishable by:
(1) a fine of not more than $5,000;
(2) confinement in a county jail for not more than two years; or
(3) both the fine and confinement. (V.A.C.S. Art. 8407a, Sec. 27a.)
Sec. 1601.654. ENFORCEMENT BY ATTORNEY GENERAL. The attorney general shall represent the board in an action to enforce this chapter. (V.A.C.S. Art. 8407a, Sec. 28(c) (part).)
CHAPTER 1602. COSMETOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1602.001. GENERAL DEFINITIONS
Sec. 1602.002. DEFINITION OF COSMETOLOGY
Sec. 1602.003. APPLICATION OF CHAPTER
Sec. 1602.004. APPLICATION OF SUNSET ACT
[Sections 1602.005-1602.050 reserved for expansion]
SUBCHAPTER B. TEXAS COSMETOLOGY COMMISSION
Sec. 1602.051. COMMISSION; MEMBERSHIP
Sec. 1602.052. MEMBER ELIGIBILITY
Sec. 1602.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 1602.054. OFFICIAL OATH
Sec. 1602.055. TERMS; VACANCY
Sec. 1602.056. GROUNDS FOR REMOVAL
Sec. 1602.057. PER DIEM; REIMBURSEMENT
Sec. 1602.058. PRESIDING OFFICER; COMMITTEES
Sec. 1602.059. MEETINGS
[Sections 1602.060-1602.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1602.101. EXECUTIVE DIRECTOR
Sec. 1602.102. PERSONNEL
Sec. 1602.103. DIVISION OF RESPONSIBILITIES
Sec. 1602.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 1602.105. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 1602.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 1602.107-1602.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 1602.151. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 1602.152. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 1602.153. SUBPOENA
Sec. 1602.154. FEES
Sec. 1602.155. ANNUAL REPORT
[Sections 1602.156-1602.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 1602.201. PUBLIC INTEREST INFORMATION
Sec. 1602.202. COMPLAINTS
Sec. 1602.203. RECORDS OF COMPLAINTS
Sec. 1602.204. PUBLIC PARTICIPATION
[Sections 1602.205-1602.250 reserved for expansion]
SUBCHAPTER F. LICENSE AND CERTIFICATE REQUIREMENTS
FOR INDIVIDUALS
Sec. 1602.251. LICENSE OR CERTIFICATE REQUIRED
Sec. 1602.252. LICENSE OR CERTIFICATE APPLICATION
Sec. 1602.253. CERTIFICATE OF HEALTH REQUIRED FOR CERTAIN
APPLICANTS
Sec. 1602.254. ELIGIBILITY FOR AN OPERATOR LICENSE
Sec. 1602.255. ELIGIBILITY FOR AN INSTRUCTOR LICENSE
Sec. 1602.256. ELIGIBILITY FOR A MANICURIST LICENSE
Sec. 1602.257. ELIGIBILITY FOR A FACIALIST SPECIALTY LICENSE
Sec. 1602.258. ELIGIBILITY FOR A SPECIALTY CERTIFICATE
Sec. 1602.259. LICENSE EXAMINATION
Sec. 1602.260. EXAMINATION PROCEDURES
Sec. 1602.261. EXAMINATION RESULTS
Sec. 1602.262. ISSUANCE OF LICENSE OR CERTIFICATE
Sec. 1602.263. RECIPROCAL LICENSE OR CERTIFICATE
Sec. 1602.264. TEMPORARY LICENSE
Sec. 1602.265. DUPLICATE LICENSE OR CERTIFICATE;
TRANSCRIPT
Sec. 1602.266. STUDENT PERMIT
[Sections 1602.267-1602.300 reserved for expansion]
SUBCHAPTER G. LICENSING OF FACILITIES
Sec. 1602.301. FACILITY LICENSE REQUIRED
Sec. 1602.302. BEAUTY SHOP LICENSE
Sec. 1602.303. PRIVATE BEAUTY CULTURE SCHOOL LICENSE
Sec. 1602.304. PUBLIC SECONDARY OR POSTSECONDARY BEAUTY
CULTURE SCHOOL CERTIFICATE
Sec. 1602.305. SPECIALTY SHOP LICENSE
Sec. 1602.306. BOOTH RENTAL LICENSE
[Sections 1602.307-1602.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 1602.351. RENEWAL OF LICENSE OR CERTIFICATE REQUIRED
Sec. 1602.352. PROCEDURE FOR RENEWAL OR REINSTATEMENT
Sec. 1602.353. CERTIFICATE OF HEALTH REQUIRED FOR CERTAIN
RENEWALS
Sec. 1602.354. CONTINUING EDUCATION
[Sections 1602.355-1602.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 1602.401. DISPLAY OF CERTIFICATE OR LICENSE
Sec. 1602.402. LICENSE OR CERTIFICATE NOT TRANSFERABLE
Sec. 1602.403. EMPLOYMENT OF LICENSE OR CERTIFICATE
HOLDER
Sec. 1602.404. OPERATING CERTAIN SHOPS OR SCHOOLS ON SINGLE
PREMISES
Sec. 1602.405. PRACTICE AT FACILITY LICENSED BY COMMISSION
AND STATE BOARD OF BARBER EXAMINERS
Sec. 1602.406. INFECTIOUS AND CONTAGIOUS DISEASES
Sec. 1602.407. GROUNDS FOR REFUSING, REVOKING, OR SUSPENDING
LICENSE
[Sections 1602.408-1602.450 reserved for expansion]
SUBCHAPTER J. OPERATION OF BEAUTY CULTURE SCHOOL
Sec. 1602.451. DUTIES OF LICENSE HOLDER
Sec. 1602.452. INFORMATION PROVIDED TO PROSPECTIVE STUDENT
Sec. 1602.453. COURSE LENGTH AND CURRICULUM CONTENT
Sec. 1602.454. STUDENT RECORD
Sec. 1602.455. TRANSFER OF HOURS OF INSTRUCTION
Sec. 1602.456. IDENTIFICATION OF AND WORK PERFORMED BY
STUDENTS
Sec. 1602.457. CANCELLATION AND SETTLEMENT POLICY
Sec. 1602.458. REFUND POLICY
Sec. 1602.459. WITHDRAWAL OR TERMINATION OF STUDENT
Sec. 1602.460. INTEREST ON REFUND
Sec. 1602.461. REENTRY OF STUDENT AFTER WITHDRAWAL OR
TERMINATION
Sec. 1602.462. EFFECT OF STUDENT WITHDRAWAL
Sec. 1602.463. EFFECT OF SCHOOL CLOSURE
Sec. 1602.464. PRIVATE BEAUTY CULTURE SCHOOL TUITION
PROTECTION ACCOUNT
Sec. 1602.465. PEER REVIEW
[Sections 1602.466-1602.500 reserved for expansion]
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 1602.501. IMPOSITION OF PENALTY
Sec. 1602.502. AMOUNT OF PENALTY
Sec. 1602.503. REPORT AND NOTICE OF VIOLATION AND PENALTY
Sec. 1602.504. PENALTY TO BE PAID OR HEARING REQUESTED
Sec. 1602.505. HEARING
Sec. 1602.506. DECISION BY EXECUTIVE DIRECTOR
Sec. 1602.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
Sec. 1602.508. COLLECTION OF PENALTY
Sec. 1602.509. DETERMINATION BY COURT
Sec. 1602.510. REMITTANCE OF PENALTY AND INTEREST
Sec. 1602.511. ADMINISTRATIVE PROCEDURE
[Sections 1602.512-1602.550 reserved for expansion]
SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1602.551. RIGHT OF ACCESS; DISCOVERY OF VIOLATION
Sec. 1602.552. INJUNCTIVE RELIEF
Sec. 1602.553. CIVIL PENALTY
Sec. 1602.554. GENERAL CRIMINAL PENALTY
Sec. 1602.555. ISSUANCE OF CERTIFICATE WITHOUT EXAMINATION;
OFFENSE
CHAPTER 1602. COSMETOLOGISTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1602.001. GENERAL DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Cosmetology Commission.
(2) "Public school" includes a public high school, a public junior college, or any other nonprofit tax-exempt institution that conducts a cosmetology program. (V.A.C.S. Art. 8451a, Secs. 1(2), (4).)
Sec. 1602.002. DEFINITION OF COSMETOLOGY. In this chapter, "cosmetology" means the practice of performing or offering to perform for compensation any of the following services:
(1) treating a person's hair by:
(A) providing any method of treatment as a primary service, including arranging, beautifying, bleaching, cleansing, coloring, cutting, dressing, dyeing, processing, shampooing, shaping, singeing, straightening, styling, tinting, or waving;
(B) providing a necessary service that is preparatory or ancillary to a service under Paragraph (A), including bobbing, clipping, cutting, or trimming; or
(C) cutting the person's hair as a separate and independent service for which a charge is directly or indirectly made separately from charges for any other service;
(2) weaving or braiding a person's hair;
(3) shampooing and conditioning a person's hair;
(4) servicing a person's wig or artificial hairpiece on a person's head or on a block after the initial retail sale and servicing in any manner listed in Subdivision (1);
(5) cleansing, stimulating, or massaging a person's scalp, face, neck, or arms:
(A) by hand or by using a device, apparatus, or appliance; and
(B) with or without the use of any cosmetic preparation, antiseptic, tonic, lotion, or cream;
(6) beautifying a person's face, neck, or arms using a cosmetic preparation, antiseptic, tonic, lotion, powder, oil, clay, cream, or appliance;
(7) administering facial treatments;
(8) removing superfluous hair from a person's body using depilatories or mechanical tweezers;
(9) treating a person's nails by:
(A) cutting, trimming, polishing, tinting, coloring, cleansing, or manicuring; or
(B) attaching false nails; or
(10) massaging, cleansing, treating, or beautifying a person's hands or feet. (V.A.C.S. Art. 8451a, Sec. 1(3).)
Sec. 1602.003. APPLICATION OF CHAPTER. (a) In this section, "fashion photography studio" means a permanent establishment that charges a fee exclusively for a photographic sitting.
(b) This chapter does not apply to a person who:
(1) provides a service in an emergency;
(2) is licensed in this state to practice medicine, dentistry, podiatry, chiropractic, or nursing and is operating within the scope of the person's license;
(3) is in the business of or receives compensation for makeup applications only;
(4) acts as a barber under Chapter 1601, if the person does not hold the person out as a cosmetologist;
(5) provides a cosmetic service as a volunteer or an employee performing regular duties at a licensed nursing or convalescent custodial or personal care home to a patient residing in the home;
(6) owns, operates, or manages a licensed nursing or convalescent custodial or personal care home that allows a person with an operator license to perform cosmetic services for patients residing in the home on an occasional but not daily basis; or
(7) provides an incidental cosmetic service, or owns, operates, or manages the location where that service is provided, if the primary purpose of the service is to enable or assist the recipient of the service to participate as the subject of:
(A) a photographic sitting at a fashion photography studio;
(B) a television appearance; or
(C) the filming of a motion picture. (V.A.C.S. Art. 8451a, Secs. 1(5), 39.)
Sec. 1602.004. APPLICATION OF SUNSET ACT. The Texas Cosmetology Commission is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2003. (V.A.C.S. Art. 8451a, Sec. 2(k).)
[Sections 1602.005-1602.050 reserved for expansion]
SUBCHAPTER B. TEXAS COSMETOLOGY COMMISSION
Sec. 1602.051. COMMISSION; MEMBERSHIP. (a) The Texas Cosmetology Commission consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) one member who holds a beauty shop license;
(2) one member who holds a private beauty culture school license;
(3) two members who each hold an operator license; and
(4) two members who represent the public.
(b) The associate commissioner for occupational education and technology of the Texas Education Agency or the associate commissioner's authorized representative shall serve as an ex officio member of the commission with voting privileges.
(c) Appointments to the commission shall be made without regard to the race, color, handicap, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 8451a, Secs. 2(a) (part), (b), (c), (e) (part).)
Sec. 1602.052. MEMBER ELIGIBILITY. (a) To qualify as a member of the commission, a person must:
(1) be a United States citizen;
(2) be at least 25 years of age; and
(3) have been actively engaged in the field of cosmetology the person represents for not less than the five years preceding appointment.
(b) A beauty shop license holder is not eligible for appointment as a member of the commission if the license holder has a direct or indirect affiliation with or a financial or other interest in a private beauty culture school.
(c) A private beauty culture school license holder is not eligible for appointment as a member of the commission if the license holder has a direct or indirect affiliation with or a financial or other interest in a beauty shop.
(d) An operator license holder is not eligible for appointment as a member of the commission if the license holder has a direct or indirect affiliation with or a financial or other interest in a private beauty culture school or beauty shop.
(e) A person is not eligible for appointment as a public member of the commission if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of cosmetology;
(2) is employed by or participates in the management of a business entity or other organization regulated by the commission or receiving funds from the commission;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the commission; or
(4) uses or receives a substantial amount of tangible goods, services, or funds from the commission, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses. (V.A.C.S. Art. 8451a, Secs. 2(a) (part), (d).)
Sec. 1602.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of cosmetology may not be a member of the commission and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of cosmetology may not be a member of the commission and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the commission if the person is related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a Texas trade association in the field of cosmetology.
(e) A person may not serve as a member of the commission or act as the general counsel to the commission 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 commission.
(f) An employee of the commission whose duties include the administration of the commission's functions under this chapter may not:
(1) have, other than as a consumer, a financial interest in the cosmetology industry;
(2) be an officer, employee, or paid consultant of a trade association in the cosmetology industry; or
(3) be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the cosmetology industry.
(g) An employee who violates this section is subject to dismissal. (V.A.C.S. Art. 8451a, Sec. 7, as amended Acts 72nd Leg., R.S., Ch. 626; Secs. 7(a), (b), (c) (part), as amended Acts 72nd Leg., R.S., Ch. 561.)
Sec. 1602.054. OFFICIAL OATH. Each person appointed to the commission shall take the constitutional oath of office not later than the 15th day after the date of the person's appointment. (V.A.C.S. Art. 8451a, Sec. 2(f) (part).)
Sec. 1602.055. TERMS; VACANCY. (a) Members of the commission serve staggered six-year terms, with the terms of two members expiring on December 31 of each odd-numbered year.
(b) A person may not be appointed to serve more than two consecutive terms.
(c) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 8451a, Secs. 2(e) (part), (j).)
Sec. 1602.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the commission that a member:
(1) does not have at the time of appointment the qualifications required by Sections 1602.051 and 1602.052;
(2) does not maintain during service on the commission the qualifications required by Sections 1602.051 and 1602.052;
(3) violates a prohibition established by Section 1602.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the commission.
(b) The validity of an action of the commission is not affected by the fact that the action is taken when a ground for removal of a commission member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the commission of the potential ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 8451a, Secs. 2(g), (h), (i); Sec. 7(c) (part), as amended Acts 72nd Leg., R.S., Ch. 561.)
Sec. 1602.057. PER DIEM; REIMBURSEMENT. (a) A commission member is entitled to receive a per diem allowance of $25 and reimbursement for actual travel expenses incurred in performing the member's duties of office.
(b) A commission member may not receive more than 30 days of per diem compensation in any fiscal year. (V.A.C.S. Art. 8451a, Sec. 5(a).)
Sec. 1602.058. PRESIDING OFFICER; COMMITTEES. (a) The governor shall designate one member of the commission as presiding officer to serve in that capacity at the pleasure of the governor.
(b) The commission may appoint committees that it considers necessary to carry out its duties. (V.A.C.S. Art. 8451a, Sec. 3(a).)
Sec. 1602.059. MEETINGS. (a) The commission shall meet at least once each year.
(b) The commission may meet at other times at the call of the presiding officer or as provided by commission rule. (V.A.C.S. Art. 8451a, Sec. 3(b).)
[Sections 1602.060-1602.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1602.101. EXECUTIVE DIRECTOR. The commission may employ an executive director. The executive director is the executive head of the commission and performs its administrative duties. (V.A.C.S. Art. 8451a, Secs. 6(a), (c).)
Sec. 1602.102. PERSONNEL. The executive director may employ personnel necessary to administer the functions of the commission. (V.A.C.S. Art. 8451a, Sec. 6(b).)
Sec. 1602.103. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly define the respective responsibilities of the commission and the staff of the commission. (V.A.C.S. Art. 8451a, Sec. 4(h).)
Sec. 1602.104. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The commission shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 8451a, Sec. 4(g).)
Sec. 1602.105. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for commission employees must be based on the system established under this subsection. (V.A.C.S. Art. 8451a, Secs. 6(d), (e).)
Sec. 1602.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The commission shall set and monitor hiring goals for women and minorities for each program area of the commission and shall coordinate recruiting efforts with student organizations and other groups able to assist in meeting those hiring goals.
(b) The executive director shall prepare and submit a report to the commission not later than February 1 of each year describing the progress of the commission in the recruitment and hiring of women and minority job applicants.
(c) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the commission workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the commission workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to address appropriately those areas of significant underuse.
(d) A policy statement prepared under Subsection (c) must cover an annual period, be updated at least annually, and be filed with the governor.
(e) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (d). The report may be made separately or as a part of other biennial reports to the legislature. (V.A.C.S. Art. 8451a, Secs. 4(k), 6(f), (g), (h).)
[Sections 1602.107-1602.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 1602.151. GENERAL POWERS AND DUTIES OF COMMISSION. (a) The commission shall:
(1) prescribe the minimum curriculum, including the subjects and the number of hours in each subject, taught by a private beauty culture school or a vocational cosmetology program in a public school; and
(2) establish sanitation rules to prevent the spread of an infectious or contagious disease.
(b) The commission may adopt rules consistent with this chapter. (V.A.C.S. Art. 8451a, Secs. 4(a) (part), (d), (e).)
Sec. 1602.152. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commission may not adopt rules restricting advertising or competitive bidding by a person regulated by the commission except to prohibit false, misleading, or deceptive practices by that person.
(b) The commission may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the commission a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the use of the person's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 8451a, Secs. 4(b), (c).)
Sec. 1602.153. SUBPOENA. (a) The commission may request and, if necessary, compel by subpoena:
(1) the attendance of a witness for examination under oath; and
(2) the production for inspection and copying of records and other evidence relevant to the investigation of an alleged violation of this chapter.
(b) If a person fails to comply with a subpoena issued under this section, the commission, acting through the attorney general, may file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the commission may be held.
(c) The court shall order a person to comply with the subpoena if the court determines that good cause exists for issuing the subpoena. (V.A.C.S. Art. 8451a, Sec. 4(l) (part).)
Sec. 1602.154. FEES. The commission by rule shall set fees, including renewal fees for licenses and certificates issued under this chapter, in amounts reasonable and necessary to cover the cost of administering this chapter. The commission shall assess the fees against each person licensed or regulated under this chapter. (V.A.C.S. Art. 8451a, Secs. 4(m); 34(a).)
Sec. 1602.155. ANNUAL REPORT. (a) The commission shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year.
(b) The report must be in the form and filed in the time provided by the General Appropriations Act.
(c) The commission shall file a copy of the report with the comptroller, in the form required by the comptroller, on August 31 of each year. (V.A.C.S. Art. 8451a, Secs. 8(b), (d).)
[Sections 1602.156-1602.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 1602.201. PUBLIC INTEREST INFORMATION. (a) The commission shall prepare information of public interest describing the functions of the commission and the procedures by which complaints are filed with and resolved by the commission.
(b) The commission shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 8451a, Sec. 28(a).)
Sec. 1602.202. COMPLAINTS. The commission by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission. The commission may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for service provided by a person regulated under this chapter. (V.A.C.S. Art. 8451a, Sec. 28(b).)
Sec. 1602.203. RECORDS OF COMPLAINTS. (a) The commission shall keep an information file about each complaint filed with the commission relating to a person regulated under this chapter.
(b) If a written complaint is filed with the commission that the commission has authority to resolve, the commission, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 8451a, Sec. 41.)
Sec. 1602.204. PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction.
(b) The commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability can be provided reasonable access to the commission's programs. (V.A.C.S. Art. 8451a, Secs. 4(i), (j).)
[Sections 1602.205-1602.250 reserved for expansion]
SUBCHAPTER F. LICENSE AND CERTIFICATE REQUIREMENTS
FOR INDIVIDUALS
Sec. 1602.251. LICENSE OR CERTIFICATE REQUIRED. (a) A person may not perform or attempt to perform a practice of cosmetology unless the person holds a license or certificate to perform that practice.
(b) A person may not teach cosmetology unless the person:
(1) holds an instructor license issued in this state; and
(2) performs the instruction in a private beauty culture school or a vocational cosmetology program in a public school.
(c) A person licensed by the commission may practice cosmetology only at a facility operated by a person holding a beauty shop license, private beauty culture school license, or other license issued by the commission. (V.A.C.S. Arts. 8402(b)(2) (part); 8451a, Secs. 9(a), (c); 19(d) (part).)
Sec. 1602.252. LICENSE OR CERTIFICATE APPLICATION. (a) An application for a license or certificate under this subchapter must be made on a form prescribed by the commission.
(b) An application for an operator license, instructor license, manicurist license, or facialist specialty license must be filed with the commission not later than the 10th day before the date set for the applicable examination. (V.A.C.S. Art. 8451a, Secs. 10(c), 11(c), 12(c), 13(c), 13A(c), 15(b) (part), 16(a) (part), 17(b) (part), 18(b) (part).)
Sec. 1602.253. CERTIFICATE OF HEALTH REQUIRED FOR CERTAIN APPLICANTS. An applicant for an operator license, instructor license, reciprocal license, or specialty certificate must submit a certificate of health that:
(1) shows the applicant is free, as determined by a physical examination, from tuberculosis, hepatitis, or any contagious disease for which the applicant is not entitled to protection under the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.); and
(2) is signed by a licensed physician or licensed physician assistant. (V.A.C.S. Art. 8451a, Sec. 31(a) (part).)
Sec. 1602.254. ELIGIBILITY FOR AN OPERATOR LICENSE. (a) A person holding an operator license may perform any practice of cosmetology.
(b) To be eligible for an operator license, an applicant must:
(1) be at least 17 years of age;
(2) have completed the seventh grade or its equivalent; and
(3) have completed:
(A) 1,500 hours of instruction in a licensed beauty culture school; or
(B) 1,000 hours of instruction in beauty culture courses and 500 hours of related high school courses prescribed by the commission in a vocational cosmetology program in a public school. (V.A.C.S. Art. 8451a, Secs. 10(a), (b).)
Sec. 1602.255. ELIGIBILITY FOR AN INSTRUCTOR LICENSE. (a) A person holding an instructor license may perform any practice of cosmetology and may instruct a person in any practice of cosmetology.
(b) To be eligible for an instructor license, an applicant must:
(1) be at least 18 years of age;
(2) have completed the 12th grade or its equivalent;
(3) hold an operator license; and
(4) have completed:
(A) a course consisting of 750 hours of instruction in cosmetology courses and methods of teaching in:
(i) a licensed private beauty culture school; or
(ii) a vocational training program of a publicly financed postsecondary institution; or
(B) at least:
(i) two years of verifiable experience as a licensed operator; and
(ii) 250 hours of instruction in cosmetology in a commission-approved training program.
(c) The commission shall adopt rules for the licensing of specialty instructors to teach specialty courses in the practice of cosmetology defined in Sections 1602.002(7), (9), and (10). (V.A.C.S. Art. 8451a, Secs. 12(a), (b), (e).)
Sec. 1602.256. ELIGIBILITY FOR A MANICURIST LICENSE. (a) A person holding a manicurist license may perform only the practice of cosmetology defined in Section 1602.002(9) or (10).
(b) To be eligible for a manicurist license, an applicant must:
(1) be at least 17 years of age;
(2) have completed the seventh grade or its equivalent; and
(3) have completed 600 hours of instruction in manicuring through a commission-approved training program. (V.A.C.S. Art. 8451a, Secs. 11(a), (b).)
Sec. 1602.257. ELIGIBILITY FOR A FACIALIST SPECIALTY LICENSE. (a) A person holding a facialist specialty license may perform only the practice of cosmetology defined in Section 1602.002(7).
(b) To be eligible for a facialist specialty license, an applicant must:
(1) be at least 17 years of age;
(2) have completed the seventh grade or its equivalent; and
(3) have the necessary requisites in the facialist specialty as determined by the commission. (V.A.C.S. Art. 8451a, Secs. 13A(a), (b).)
Sec. 1602.258. ELIGIBILITY FOR A SPECIALTY CERTIFICATE. (a) A person holding a specialty certificate may perform only the practice of cosmetology defined in Section 1602.002(2), (3), (4), or (7).
(b) To be eligible for a specialty certificate, an applicant must:
(1) be at least 17 years of age;
(2) have completed the seventh grade or its equivalent; and
(3) have the necessary requisites as determined by the commission in the particular specialty for which certification is sought, including training through a commission-approved training program. (V.A.C.S. Art. 8451a, Secs. 13(a), (b).)
Sec. 1602.259. LICENSE EXAMINATION. (a) The commission shall select a written examination to administer to license applicants. The written examination must be:
(1) validated by independent testing professionals; or
(2) purchased from a national testing service.
(b) The commission may require a practical examination as it considers necessary for a license or certificate issued under this chapter. The commission shall prescribe the method and content of any practical examination. (V.A.C.S. Art. 8451a, Sec. 30(a).)
Sec. 1602.260. EXAMINATION PROCEDURES. (a) The commission shall administer examinations beginning the first day of each month. If the first day of the month is a legal holiday, the examination shall begin on the following day.
(b) The commission shall announce the site of the examinations not later than six months before the scheduled examination date. The commission may not administer an examination in a commission member's school.
(c) The commission may provide for the early administration of an operator license written examination to a student who submits a written request for the examination and has completed at least 1,000 hours of instruction in a commission-approved training program. Agency inspectors may administer an examination under this subsection on-site at beauty culture schools throughout the state. (V.A.C.S. Art. 8451a, Secs. 30(b), (c).)
Sec. 1602.261. EXAMINATION RESULTS. (a) The commission shall notify each examinee of the results of the examination not later than the 30th day after the date an examination is administered. If an examination is graded or reviewed by a national testing service, the commission shall notify each examinee of the results of the examination not later than the 14th day after the date the commission receives the results from the testing service.
(b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the commission shall notify the examinee of the reason for the delay before the 90th day.
(c) If the examinee is a student in a vocational cosmetology program in a public school, the commission shall grade the examination and may not submit the examination for grading by a national testing service.
(d) If requested in writing by a person who fails the examination, the commission shall send to the person not later than the 60th day after the day the request is received by the commission an analysis of the person's performance on the examination. (V.A.C.S. Art. 8451a, Sec. 30(d).)
Sec. 1602.262. ISSUANCE OF LICENSE OR CERTIFICATE. (a) An applicant for an operator license, instructor license, manicurist license, or facialist specialty license is entitled to the license if the applicant:
(1) meets the applicable eligibility requirements;
(2) passes the applicable examination;
(3) pays the required fee; and
(4) has not committed an act that constitutes a ground for denial of the license.
(b) An applicant for a specialty certificate is entitled to the certificate if the applicant:
(1) meets the eligibility requirements;
(2) pays the required fee; and
(3) has not committed an act that constitutes a ground for denial of the certificate. (V.A.C.S. Art. 8451a, Secs. 10(d), 11(d), 12(d), 13(d), 13A(d).)
Sec. 1602.263. RECIPROCAL LICENSE OR CERTIFICATE. (a) A person who holds a license or certificate to practice cosmetology from another state or country that has standards or work experience requirements that are substantially equivalent to the requirements of this chapter may apply for a license or certificate to perform the same practice of cosmetology in this state that the person practiced in the other state or country.
(b) The person shall:
(1) submit an application for the license or certificate to the commission;
(2) pay a fee in an amount prescribed by the commission; and
(3) pay the applicable license or certificate fee.
(c) A person issued a license or certificate under this section:
(1) may engage in the practice of cosmetology stated on the license or certificate; and
(2) is subject to the renewal procedures and fees provided in this chapter for that practice of cosmetology. (V.A.C.S. Art. 8451a, Secs. 17(a), (b) (part), (c).)
Sec. 1602.264. TEMPORARY LICENSE. (a) The commission shall issue a temporary license to a person who:
(1) holds a license in another state or country;
(2) submits an application for a temporary license to the commission; and
(3) pays the required fee.
(b) A person holding a temporary license may perform any practice of cosmetology for which the person holds a license in another state or country.
(c) A person is not required to hold a temporary license to engage in the practice of cosmetology for educational or demonstration purposes at a seminar, trade show, or convention. (V.A.C.S. Art. 8451a, Secs. 15(a), (b) (part), (d).)
Sec. 1602.265. DUPLICATE LICENSE OR CERTIFICATE; TRANSCRIPT. (a) The commission shall issue a duplicate license or certificate to an applicant who:
(1) submits an application for a duplicate license or certificate to the commission; and
(2) pays the required fee.
(b) A transcript shall be provided to a person holding a license or certificate under this chapter if the person:
(1) submits a transcript application on a form prescribed by the commission; and
(2) pays the fee set by the commission. (V.A.C.S. Art. 8451a, Secs. 16(a) (part), (b).)
Sec. 1602.266. STUDENT PERMIT. (a) The commission shall require a student enrolled in a school of cosmetology in this state to hold a permit stating the student's name and the name of the school. The permit shall be displayed in a reasonable manner at the school.
(b) The commission shall issue a student permit to an applicant who submits an application to the commission for a student permit accompanied by the required fee.
(c) The amount of the permit fee includes one examination fee and a transcript fee and is nonrefundable. (V.A.C.S. Art. 8451a, Secs. 18(a), (b) (part), (c).)
[Sections 1602.267-1602.300 reserved for expansion]
SUBCHAPTER G. LICENSING OF FACILITIES
Sec. 1602.301. FACILITY LICENSE REQUIRED. (a) A person may not operate a beauty shop, beauty culture school, specialty shop, or other place of business in which cosmetology is taught or practiced unless the person holds a license to operate that place of business.
(b) A person may not operate a vocational cosmetology program in a public school or lease space on the premises of a beauty shop to engage in the practice of cosmetology as an independent contractor unless the person holds a license issued under this chapter. (V.A.C.S. Art. 8451a, Secs. 9(b), (d).)
Sec. 1602.302. BEAUTY SHOP LICENSE. (a) A person holding a beauty shop license may maintain an establishment in which any practice of cosmetology is performed.
(b) An application for a beauty shop license must be accompanied by the required inspection fee and:
(1) be on a form prescribed by the commission;
(2) contain proof of the particular requisites for a beauty shop established by the commission; and
(3) be verified by the applicant.
(c) The applicant is entitled to a beauty shop license if:
(1) the application complies with commission rules;
(2) the applicant pays the required license fee; and
(3) the applicant has not committed an act that constitutes a ground for denial of a license. (V.A.C.S. Art. 8451a, Secs. 19(a), (b), (c).)
Sec. 1602.303. PRIVATE BEAUTY CULTURE SCHOOL LICENSE. (a) A person holding a private beauty culture school license may maintain an establishment in which any practice of cosmetology is taught.
(b) An application for a private beauty culture school license must be accompanied by the required license fee and inspection fee and:
(1) be on a form prescribed by the commission;
(2) be verified by the applicant;
(3) contain a detailed floor plan of the school building divided into two separate areas, one area for instruction in theory and one area for clinic work; and
(4) contain a statement that the building:
(A) is fireproof;
(B) is of permanent construction;
(C) contains a minimum of 3,500 square feet of floor space;
(D) has separate restrooms for male and female students; and
(E) contains, or will contain before classes begin, the equipment established by commission rule as sufficient to properly instruct a minimum of 50 students.
(c) The applicant is entitled to a private beauty culture school license if:
(1) the commission determines that the applicant is financially sound and capable of fulfilling the school's commitments for training;
(2) the applicant's facilities pass an inspection conducted by the commission; and
(3) the applicant has not committed an act that constitutes a ground for denial of a license.
(d) The commission shall charge an inspection fee for each inspection trip required before approval of the license. (V.A.C.S. Art. 8451a, Secs. 21(a), (b), (c), (d) (part), (e).)
Sec. 1602.304. PUBLIC SECONDARY OR POSTSECONDARY BEAUTY CULTURE SCHOOL CERTIFICATE. (a) Each application for certification as a public secondary or public postsecondary beauty culture school must be accompanied by the required inspection fee.
(b) The commission shall charge an inspection fee for each inspection trip required before approval of the certificate. (V.A.C.S. Art. 8451a, Sec. 21(d) (part).)
Sec. 1602.305. SPECIALTY SHOP LICENSE. (a) A person holding a specialty shop license may maintain an establishment in which only the practice of cosmetology as defined in Section 1602.002(2), (4), (7), (9), or (10) is performed.
(b) An application for a specialty shop license must be accompanied by the required inspection fee and:
(1) be on a form prescribed by the commission;
(2) contain proof of the particular requisites for a specialty shop as established by the commission; and
(3) be verified by the applicant.
(c) The applicant is entitled to a specialty shop license if:
(1) the application complies with commission rules;
(2) the applicant pays the required license fee; and
(3) the applicant has not committed an act that constitutes a ground for denial of a license. (V.A.C.S. Art. 8451a, Secs. 20(a), (b), (c).)
Sec. 1602.306. BOOTH RENTAL LICENSE. (a) A person licensed or certified under this chapter may not lease space on the premises of a beauty shop to engage in the practice of cosmetology as an independent contractor unless the person also holds a booth rental license issued under this section.
(b) An application for a booth rental license must:
(1) be on a form prescribed by the commission;
(2) contain information as required by commission rule; and
(3) be verified by the applicant.
(c) The applicant is entitled to a booth rental license if the applicant:
(1) pays the application fee set by the commission in an amount reasonable and necessary to cover the costs of administering the booth rental licensing program;
(2) complies with commission rules; and
(3) has not committed an act that constitutes a ground for denial of a license or certificate.
(d) The commission shall adopt rules relating to the information submitted for a booth rental license, including information regarding the applicant's compliance with state and federal tax laws. (V.A.C.S. Art. 8451a, Sec. 20A.)
[Sections 1602.307-1602.350 reserved for expansion]
SUBCHAPTER H. LICENSE RENEWAL
Sec. 1602.351. RENEWAL OF LICENSE OR CERTIFICATE REQUIRED. (a) Except as provided by Subsections (b) and (c), a license or certificate issued under this chapter expires on the second anniversary of the date the license or certificate is issued.
(b) A temporary license expires on the 60th day after the date the license is issued. A temporary license may not be renewed.
(c) A private beauty culture school license expires on the anniversary of the date the license is issued.
(d) The commission may prorate a license or certificate for the number of months the license or certificate is valid. (V.A.C.S. Art. 8451a, Secs. 15(c), 21A(a) (part), 33(a), (d).)
Sec. 1602.352. PROCEDURE FOR RENEWAL OR REINSTATEMENT. (a) A person applying to renew a license for the first time must:
(1) hold a high school diploma;
(2) hold the equivalent of a high school diploma; or
(3) have passed an examination that measures the person's ability to benefit from training.
(b) A person who is not in violation of this chapter at the time of renewal may renew a license by paying the required renewal fee to the commission before the expiration date of the license.
(c) If a person's license has been expired for 30 days or less, the person may renew the license by:
(1) submitting a completed application form prescribed by the commission; and
(2) paying the required renewal fee and a delinquency fee in the amount set by the commission.
(d) Except as provided by Subsection (f), if a person's license has been expired for more than 30 days but not more than five years, the person may renew the license by:
(1) submitting an application;
(2) paying the required renewal fee for each year the license has been expired; and
(3) paying a delinquency fee in the amount set by the commission.
(e) If a person's license has been expired for more than five years, the person may reinstate the license by:
(1) submitting an application;
(2) paying the examination fee;
(3) passing the examination; and
(4) paying a reinstatement fee in the amount set by the commission.
(f) A private beauty culture school license that has been expired for more than 30 days may not be renewed. The license holder may obtain a new license by complying with the requirements for obtaining an original license. (V.A.C.S. Art. 8451a, Secs. 33(c), (e), (f), (g), (h) (part), (i).)
Sec. 1602.353. CERTIFICATE OF HEALTH REQUIRED FOR CERTAIN RENEWALS. An applicant to renew an operator license, instructor license, reciprocal license, or specialty certificate must submit a current certificate of health as described by Section 1602.253. (V.A.C.S. Art. 8451a, Secs. 31(a) (part), 33(b).)
Sec. 1602.354. CONTINUING EDUCATION. The commission may recognize, prepare, or administer continuing education programs for the practice of cosmetology. Participation in the programs is voluntary. (V.A.C.S. Art. 8451a, Sec. 4(f).)
[Sections 1602.355-1602.400 reserved for expansion]
SUBCHAPTER I. PRACTICE BY LICENSE HOLDER
Sec. 1602.401. DISPLAY OF CERTIFICATE OR LICENSE. A person holding a license or certificate issued under this chapter shall display the license or certificate in the person's place of business or employment. (V.A.C.S. Art. 8451a, Sec. 27.)
Sec. 1602.402. LICENSE OR CERTIFICATE NOT TRANSFERABLE. A license or certificate issued under this chapter is not transferable. (V.A.C.S. Art. 8451a, Sec. 9(e).)
Sec. 1602.403. EMPLOYMENT OF LICENSE OR CERTIFICATE HOLDER. (a) A private beauty culture school may not employ:
(1) a person holding an operator license, manicurist license, or specialty certificate solely to perform the practices of cosmetology for which the person is licensed or certified; or
(2) a person holding an instructor license to perform any act or practice of cosmetology.
(b) A license holder may not:
(1) operate a beauty shop unless the shop is at all times under the direct supervision of a holder of an operator license or instructor license; or
(2) operate a specialty shop unless the shop is at all times under the direct supervision of a holder of an operator license, instructor license, or specialty certificate.
(c) A person holding a beauty shop license or specialty shop license may not employ a person as an operator or specialist or lease to a person who acts as an operator or specialist unless the person holds a license or certificate under this chapter or under Chapter 1601. (V.A.C.S. Art. 8451a, Sec. 26.)
Sec. 1602.404. OPERATING CERTAIN SHOPS OR SCHOOLS ON SINGLE PREMISES. A person may not operate a beauty shop, specialty shop, or private beauty culture school on the same premises as another one of those facilities unless the facilities are separated by walls of permanent construction without an opening between the facilities. (V.A.C.S. Art. 8451a, Sec. 25.)
Sec. 1602.405. PRACTICE AT FACILITY LICENSED BY COMMISSION AND STATE BOARD OF BARBER EXAMINERS. (a) The commission may not adopt rules to restrict or prohibit practice by a cosmetologist in a facility solely because the facility is licensed by both the commission and the State Board of Barber Examiners.
(b) If the commission and the State Board of Barber Examiners license the same facility, the commission may not adopt rules requiring separate treatment of the barbers and cosmetologists practicing in the facility or of their customers, including separate:
(1) work areas for barbers and cosmetologists;
(2) waiting areas for customers of the barbers and cosmetologists; or
(3) restrooms for the barbers and cosmetologists practicing in the facility or for their customers. (V.A.C.S. Arts. 8402(b)(2) (part), (c); 8451a, Secs. 19(d) (part), (e).)
Sec. 1602.406. INFECTIOUS AND CONTAGIOUS DISEASES. (a) A person holding an operator license, instructor license, or specialty certificate may not perform any practice of cosmetology if the person knows the person is suffering from an infectious or contagious disease for which the person is not entitled to protection under the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.).
(b) A person holding a beauty shop license, specialty shop license, private beauty culture school license, or license to operate a vocational cosmetology program in a public school may not employ a person to perform any practice of cosmetology if the license holder knows that the person is suffering from an infectious or contagious disease for which the person is not entitled to protection under the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.). (V.A.C.S. Art. 8451a, Sec. 32.)
Sec. 1602.407. GROUNDS FOR REFUSING, REVOKING, OR SUSPENDING LICENSE. A license or certificate may be denied or, after a hearing, suspended or revoked if the applicant or license holder:
(1) secures a license or certificate by fraud or deceit;
(2) violates or conspires to violate this chapter or a rule adopted under this chapter;
(3) knowingly makes false or misleading statements in any advertising of the license holder's services;
(4) advertises, practices, or attempts to practice under the name or trade name of another license holder; or
(5) engages in the gross malpractice of cosmetology. (V.A.C.S. Art. 8451a, Secs. 36, 40(b) (part).)
[Sections 1602.408-1602.450 reserved for expansion]
SUBCHAPTER J. OPERATION OF BEAUTY CULTURE SCHOOL
Sec. 1602.451. DUTIES OF LICENSE HOLDER. (a) The holder of a private beauty culture school license shall:
(1) maintain a sanitary establishment;
(2) maintain on its staff and on duty during business hours one full-time licensed instructor for each 25 students in attendance;
(3) maintain a daily record of students' attendance;
(4) establish regular class and instruction hours and grades;
(5) require a school term of not less than nine months and not less than 1,500 hours instruction for a complete course in cosmetology;
(6) require a school term of not less than 600 hours instruction for a complete course in manicuring;
(7) hold examinations before issuing diplomas;
(8) maintain a copy of the school's curriculum in a conspicuous place and verify that the curriculum is being followed;
(9) publish in the school's catalogue and enrollment contract a description of the refund policy required under Section 1602.458;
(10) submit to the executive director the name of each student within 10 days after the date the student enrolls in the school and notify the executive director of the withdrawal or graduation of a student not later than the 10th day after the date the student withdraws or graduates; and
(11) provide the commission with information on:
(A) the current course completion rates of students who attend a course of instruction offered by the school; and
(B) job placement rates and employment rates of students who complete the course of instruction.
(b) The holder of a private beauty culture school license may not require a student to work, be instructed, or earn credit for more than 48 hours in a calendar week. (V.A.C.S. Art. 8451a, Secs. 22(a), (b), (e).)
Sec. 1602.452. INFORMATION PROVIDED TO PROSPECTIVE STUDENT. The holder of a private beauty culture school license shall furnish each prospective student with:
(1) a course outline;
(2) a schedule of the tuition and other fees assessed;
(3) the refund policy required under Section 1602.458;
(4) the school grading policy and rules relating to incomplete grades;
(5) the school rules of operation and conduct, including rules relating to absences;
(6) the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission; and
(7) the current rates of job placement and employment of students who complete a course of training. (V.A.C.S. Art. 8451a, Sec. 22(d).)
Sec. 1602.453. COURSE LENGTH AND CURRICULUM CONTENT. (a) A private beauty culture school shall design course length and curriculum content to reasonably ensure that a student develops the job skills and knowledge necessary for employment.
(b) A school must submit to the commission for approval the course length and curriculum content for each course offered by the school. The school may implement a course length and curriculum content only after approval by the commission.
(c) Before issuing or renewing a license under this chapter, the commission shall require a school to account for each course length and curriculum content.
(d) If a school manipulates a course length below or above industry standards, the commission shall place the school on probation until:
(1) justification for the deviation is proven; or
(2) the course length is adjusted to meet industry standards. (V.A.C.S. Art. 8451a, Sec. 21B.)
Sec. 1602.454. STUDENT RECORD. A private beauty culture school shall send to the commission a certified copy of a student's record, indicating all course hours completed by the student and whether the agreed tuition has been paid, when the student:
(1) graduates from a course of training offered by the school; or
(2) withdraws or transfers from a course of training without completion of the training. (V.A.C.S. Art. 8451a, Sec. 22(c).)
Sec. 1602.455. TRANSFER OF HOURS OF INSTRUCTION. (a) A student of a private beauty culture school or a vocational cosmetology program in a public school may transfer completed hours of instruction to a private beauty culture school or a vocational cosmetology program in a public school in this state.
(b) In order for the hours of instruction to be transferred, a transcript showing the completed courses and number of hours certified by the school in which the instruction was given must be submitted to the executive director.
(c) In evaluating a student's transcript, the executive director shall determine whether the agreed tuition has been paid. If the tuition has not been paid, the executive director shall notify the student that the student's transcript cannot be certified to the school to which the student seeks a transfer until proof is provided that the tuition has been paid.
(d) On evaluation and approval, the executive director shall certify in writing to the student and to the school to which the student seeks a transfer that:
(1) the stated courses and hours have been successfully completed; and
(2) the student is not required to repeat the hours of instruction.
(e) If a private beauty culture school license has been expired for more than 30 days, a student of that school may not transfer hours of instruction the student completed at that school. (V.A.C.S. Art. 8451a, Secs. 23, 33(h) (part).)
Sec. 1602.456. IDENTIFICATION OF AND WORK PERFORMED BY STUDENTS. (a) Each private beauty culture school or vocational cosmetology program in a public school shall maintain in a conspicuous place a list of the names and identifying pictures of the students who are enrolled in cosmetology courses.
(b) A private beauty culture school or public school may not receive compensation for work done by a student unless the student has completed 10 percent of the required number of hours for a license under this chapter.
(c) If a private beauty culture school or public school violates this section, the license of the private beauty culture school or the certificate of the public school may be revoked or suspended. (V.A.C.S. Art. 8451a, Sec. 24.)
Sec. 1602.457. CANCELLATION AND SETTLEMENT POLICY. The holder of a private beauty culture school license shall maintain a cancellation and settlement policy that provides a full refund of money paid by a student if the student:
(1) cancels the enrollment agreement or contract not later than midnight of the third day after the date the agreement or contract is signed by the student, excluding Saturdays, Sundays, and legal holidays; or
(2) entered into the enrollment agreement or contract because of a misrepresentation made:
(A) in the advertising or promotional materials of the school; or
(B) by an owner or representative of the school. (V.A.C.S. Art. 8451a, Sec. 21(f).)
Sec. 1602.458. REFUND POLICY. (a) The holder of a private beauty culture school license shall maintain a refund policy to provide for the refund of any unused part of tuition, fees, and other charges paid by a student who, at the expiration of the cancellation period established under Section 1602.457:
(1) fails to enter the course of training;
(2) withdraws from the course of training; or
(3) is terminated from the course of training before completion of the course.
(b) The refund policy must provide that:
(1) the refund is based on the period of the student's enrollment, computed on the basis of course time expressed in clock hours;
(2) the effective date of the termination for refund purposes is the earliest of:
(A) the last date of attendance, if the student is terminated by the school;
(B) the date the license holder receives the student's written notice of withdrawal; or
(C) 10 school days after the last date of attendance; and
(3) the school may retain not more than $100 if:
(A) tuition is collected before the course of training begins; and
(B) the student fails to withdraw from the course of training before the cancellation period expires. (V.A.C.S. Art. 8451a, Sec. 21(g).)
Sec. 1602.459. WITHDRAWAL OR TERMINATION OF STUDENT. (a) If a student begins a course of training at a private beauty culture school that is scheduled to run not more than 12 months and, during the last 50 percent of the course, withdraws from the course or is terminated by the school, the school:
(1) may retain 100 percent of the tuition and fees paid by the student; and
(2) is not obligated to refund any additional outstanding tuition.
(b) If a student begins a course of training at a private beauty culture school that is scheduled to run not more than 12 months and, before the last 50 percent of the course, withdraws from the course or is terminated by the school, the school shall refund:
(1) 90 percent of any outstanding tuition for a withdrawal or termination that occurs during the first week or first one-tenth of the course, whichever period is shorter;
(2) 80 percent of any outstanding tuition for a withdrawal or termination that occurs after the first week or first one-tenth of the course, whichever period is shorter, but within the first three weeks of the course;
(3) 75 percent of any outstanding tuition for a withdrawal or termination that occurs after the first three weeks of the course but not later than the completion of the first 25 percent of the course; and
(4) 50 percent of any outstanding tuition for a withdrawal or termination that occurs not later than the completion of the first 50 percent of the course.
(c) A refund owed under this section must be paid not later than the 30th day after the date the student becomes eligible for the refund. (V.A.C.S. Art. 8451a, Secs. 21(h), (j).)
Sec. 1602.460. INTEREST ON REFUND. (a) If tuition is not refunded within the period required by Section 1602.459, the school shall pay interest on the amount of the refund for the period beginning the first day after the date the refund period expires and ending the day preceding the date the refund is made.
(b) If tuition is refunded to a lending institution, the interest shall be paid to that institution and applied against the student's loan.
(c) The commissioner of education shall annually set the interest rate at a rate sufficient to deter a school from retaining money paid by a student.
(d) The commission may exempt a school from the payment of interest if the school makes a good faith effort to refund the tuition but is unable to locate the student. The school shall provide to the commission on request documentation of the effort to locate the student. (V.A.C.S. Art. 8451a, Sec. 21(k).)
Sec. 1602.461. REENTRY OF STUDENT AFTER WITHDRAWAL OR TERMINATION. If a student voluntarily withdraws or is terminated after completing 50 percent of the course at a private beauty culture school, the school shall allow the student to reenter at any time during the 48-month period following the date of withdrawal or termination. (V.A.C.S. Art. 8451a, Sec. 21(i).)
Sec. 1602.462. EFFECT OF STUDENT WITHDRAWAL. (a) A private beauty culture school shall record a grade of incomplete for a student who withdraws but is not entitled to a refund under Section 1602.459(a) if the student:
(1) requests the grade at the time the student withdraws; and
(2) withdraws for an appropriate reason unrelated to the student's academic status.
(b) A student who receives a grade of incomplete may reenroll in the program during the 48-month period following the date the student withdraws and complete the subjects without payment of additional tuition. (V.A.C.S. Art. 8451a, Sec. 21(l).)
Sec. 1602.463. EFFECT OF SCHOOL CLOSURE. (a) If a private beauty culture school closes, the commission shall attempt to arrange for students enrolled in the closed school to attend another private beauty culture school.
(b) If a student from a closed school is placed in a private beauty culture school, the expense incurred by the school in providing training directly related to educating the student, including the applicable tuition for the period for which the student paid tuition, shall be paid from the private beauty culture school tuition protection account.
(c) If a student from a closed school cannot be placed in another school, the student's tuition and fees shall be refunded as provided by Section 1602.458. If a student from a closed school does not accept a place that is available and reasonable in another school, the student's tuition and fees shall be refunded under the refund policy maintained by the closed school under Section 1602.459. A refund under this subsection shall be paid from the private beauty culture school tuition protection account. The amount of the refund may not exceed $35,000.
(d) If another school assumes responsibility for the closed school's students and there are no significant changes in the quality of the training, the student from the closed school is not entitled to a refund under Subsection (c). (V.A.C.S. Art. 8451a, Secs. 21A(e), (f), (g), (h), (i), (j).)
Sec. 1602.464. PRIVATE BEAUTY CULTURE SCHOOL TUITION PROTECTION ACCOUNT. (a) If on January 1 of any year the amount in the private beauty culture school tuition protection account is less than $200,000, the commission shall collect a fee from each private beauty culture school during that year by applying a percentage to the school's renewal fee at a rate that will bring the balance of the account to $200,000.
(b) The comptroller shall invest the account in the same manner as other state funds. Sufficient money from the account shall be appropriated to the commission for the purpose described by Section 1602.463. The commission shall administer claims made against the account.
(c) Attorney's fees, court costs, or damages may not be paid from the account. (V.A.C.S. Art. 8451a, Secs. 21A(a) (part), (c) (part), (d), (k).)
Sec. 1602.465. PEER REVIEW. (a) If the commission has reasonable cause to believe that a private beauty culture school has violated this chapter or a rule adopted under this chapter, the commission may:
(1) order a peer review of the school; or
(2) suspend the admission of students to the school.
(b) The peer review shall be conducted by a peer review team consisting of knowledgeable persons selected by the commission. The commission shall attempt to provide a balance on each team between members assigned to the team who are from this state and those who are from other states.
(c) The team shall provide the commission with an objective assessment of the content of the school's curriculum and its application.
(d) The school under review shall pay the costs of the peer review. (V.A.C.S. Art. 8451a, Sec. 22(f).)
[Sections 1602.466-1602.500 reserved for expansion]
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 1602.501. IMPOSITION OF PENALTY. The commission may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 8451a, Sec. 35A(a).)
Sec. 1602.502. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstance, extent, and gravity of any prohibited act; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require. (V.A.C.S. Art. 8451a, Secs. 35A(b), (c).)
Sec. 1602.503. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director determines that a violation has occurred, the executive director may issue to the commission a report stating:
(1) the facts on which the determination is based; and
(2) the executive director's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 8451a, Secs. 35A(d), (e).)
Sec. 1602.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the executive director's determination and recommended administrative penalty in writing; or
(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the executive director's determination and recommended penalty, the commission by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 8451a, Secs. 35A(f), (g).)
Sec. 1602.505. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 8451a, Sec. 35A(h) (part).)
Sec. 1602.506. DECISION BY EXECUTIVE DIRECTOR. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commission by order may determine that:
(1) a violation occurred and impose an administrative penalty; or
(2) a violation did not occur.
(b) Notice of the commission's order to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 8451a, Secs. 35A(h) (part), (i).)
Sec. 1602.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the commission's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty that is effective until all judicial review of the commission's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable, and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 8451a, Secs. 35A(j), (k), (l).)
Sec. 1602.508. COLLECTION OF PENALTY. If the person on whom the administrative penalty is imposed does not pay the penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 8451a, Sec. 35A(m).)
Sec. 1602.509. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the occurrence of the violation, the court shall order that a penalty is not owed. (V.A.C.S. Art. 8451a, Sec. 35A(o).)
Sec. 1602.510. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) order the release of the bond if the penalty is not imposed or order the release of the bond after the person pays the penalty if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 8451a, Sec. 35A(p).)
Sec. 1602.511. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter to impose an administrative penalty is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 8451a, Sec. 35A(r).)
[Sections 1602.512-1602.550 reserved for expansion]
SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1602.551. RIGHT OF ACCESS; DISCOVERY OF VIOLATION. (a) The commission, an inspector, or an authorized representative of the commission may enter a license holder's premises at any time during normal business hours to determine whether the license holder is in compliance with this chapter and commission rules.
(b) If an inspector discovers a violation of this chapter or a commission rule, the inspector shall:
(1) give to the violator written notice of the violation on a form prescribed by the commission; and
(2) file a complaint with the executive director. (V.A.C.S. Art. 8451a, Secs. 29, 35(a).)
Sec. 1602.552. INJUNCTIVE RELIEF. (a) The commission may bring an action in a district court in Travis County to enjoin a person from violating this chapter or a commission rule.
(b) If a license holder commits a violation of this chapter or a rule adopted under this chapter and the violation poses a serious threat to the public health, the commission shall initiate a suit for injunction and proceedings for suspension or revocation of the license. (V.A.C.S. Art. 8451a, Secs. 35(b), 38.)
Sec. 1602.553. CIVIL PENALTY. (a) A private beauty culture school that violates this chapter or a rule adopted under this chapter is liable for a civil penalty in addition to any injunctive relief or other remedy provided by law.
(b) On the commission's request, the attorney general may bring an action to collect a civil penalty.
(c) The amount of a civil penalty may not exceed $1,000 a day for each violation. (V.A.C.S. Art. 8451a, Sec. 22(g) (part).)
Sec. 1602.554. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.
(b) Unless otherwise provided by this chapter, an offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $300. (V.A.C.S. Art. 8451a, Secs. 40(a), (b) (part).)
Sec. 1602.555. ISSUANCE OF CERTIFICATE WITHOUT EXAMINATION; OFFENSE. (a) A person commits an offense if the person, without conducting a physical examination, signs a health certificate required by Section 1602.353.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $200. (V.A.C.S. Art. 8451a, Sec. 31(b).)
[Chapters 1603-1700 reserved for expansion]
TITLE 10. OCCUPATIONS RELATED TO LAW
ENFORCEMENT AND SECURITY
CHAPTER 1701. LAW ENFORCEMENT OFFICERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1701.001. DEFINITIONS
Sec. 1701.002. APPLICATION OF SUNSET ACT
Sec. 1701.003. APPLICATION OF CHAPTER
[Sections 1701.004-1701.050 reserved for expansion]
SUBCHAPTER B. COMMISSION ON LAW ENFORCEMENT OFFICER
STANDARDS AND EDUCATION
Sec. 1701.051. COMMISSION MEMBERSHIP
Sec. 1701.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 1701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 1701.054. TERMS; VACANCY
Sec. 1701.055. OFFICERS; QUORUM; VOTING
Sec. 1701.056. GROUNDS FOR REMOVAL
Sec. 1701.057. COMPENSATION; REIMBURSEMENT
Sec. 1701.058. MEETINGS
Sec. 1701.059. TRAINING
Sec. 1701.060. APPLICATION OF OPEN RECORDS LAW AND
ADMINISTRATIVE PROCEDURE LAW
[Sections 1701.061-1701.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1701.101. EXECUTIVE DIRECTOR
Sec. 1701.102. PERSONNEL
Sec. 1701.103. DIVISION OF RESPONSIBILITIES
Sec. 1701.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 1701.105. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 1701.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
[Sections 1701.107-1701.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF COMMISSION
Sec. 1701.151. GENERAL POWERS OF COMMISSION; RULEMAKING
AUTHORITY
Sec. 1701.152. RULES RELATING TO HIRING DATE OF PEACE
OFFICER
Sec. 1701.153. REPORTS FROM AGENCIES AND SCHOOLS
Sec. 1701.154. FEES
Sec. 1701.155. GIFTS AND GRANTS
Sec. 1701.156. LAW ENFORCEMENT OFFICER STANDARDS AND EDUCATION
FUND
Sec. 1701.157. MONEY ALLOCATED AND USED FOR CONTINUING
EDUCATION
Sec. 1701.158. ANNUAL REPORT
Sec. 1701.159. LIST OF ACTIVE AND INACTIVE PEACE OFFICERS
[Sections 1701.160-1701.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
PROCEDURES
Sec. 1701.201. PUBLIC INTEREST INFORMATION
Sec. 1701.202. COMPLAINTS
Sec. 1701.203. RECORDS OF COMPLAINTS
Sec. 1701.204. PUBLIC PARTICIPATION
[Sections 1701.205-1701.250 reserved for expansion]
SUBCHAPTER F. TRAINING PROGRAMS AND SCHOOLS
Sec. 1701.251. TRAINING PROGRAMS; INSTRUCTORS
Sec. 1701.252. PROGRAM AND SCHOOL REQUIREMENTS; ADVISORY
BOARD
Sec. 1701.253. SCHOOL CURRICULUM
Sec. 1701.254. RISK ASSESSMENT AND INSPECTIONS
Sec. 1701.255. ENROLLMENT QUALIFICATIONS
Sec. 1701.256. INSTRUCTION IN WEAPONS PROFICIENCY REQUIRED
Sec. 1701.257. FIREARMS TRAINING PROGRAM FOR SUPERVISION
OFFICERS
[Sections 1701.258-1701.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS; DISQUALIFICATIONS
AND EXEMPTIONS
Sec. 1701.301. LICENSE REQUIRED
Sec. 1701.302. CERTAIN ELECTED LAW ENFORCEMENT OFFICERS;
LICENSE REQUIRED
Sec. 1701.303. LICENSE APPLICATION; DUTIES OF APPOINTING
ENTITY
Sec. 1701.304. EXAMINATION
Sec. 1701.305. EXAMINATION RESULTS
Sec. 1701.306. PSYCHOLOGICAL AND PHYSICAL EXAMINATION
Sec. 1701.307. ISSUANCE OF LICENSE
Sec. 1701.308. WEAPONS PROFICIENCY
Sec. 1701.309. AGE REQUIREMENT
Sec. 1701.310. APPOINTMENT OF COUNTY JAILER; TRAINING
REQUIRED
Sec. 1701.311. PROVISIONAL LICENSE FOR WORKFORCE SHORTAGE
Sec. 1701.312. DISQUALIFICATION: FELONY CONVICTION OR
PLACEMENT ON COMMUNITY SUPERVISION
Sec. 1701.313. DISQUALIFICATION: CONVICTION OF BARRATRY
Sec. 1701.314. EXEMPTION: OFFICER APPOINTED BEFORE SEPTEMBER
1, 1970
Sec. 1701.315. RECORDS
Sec. 1701.316. REACTIVATION OF PEACE OFFICER LICENSE
[Sections 1701.317-1701.350 reserved for expansion]
SUBCHAPTER H. CONTINUING EDUCATION AND YEARLY WEAPONS
PROFICIENCY
Sec. 1701.351. CONTINUING EDUCATION REQUIRED FOR PEACE
OFFICERS
Sec. 1701.352. CONTINUING EDUCATION PROGRAMS
Sec. 1701.353. CONTINUING EDUCATION PROCEDURES
Sec. 1701.354. CONTINUING EDUCATION FOR CONSTABLES AND DEPUTY
CONSTABLES
Sec. 1701.355. CONTINUING DEMONSTRATION OF WEAPONS
PROFICIENCY
Sec. 1701.356. CERTAIN OFFICERS: REACTIVATION AND CONTINUING
EDUCATION NOT REQUIRED
[Sections 1701.357-1701.400 reserved for expansion]
SUBCHAPTER I. PROFESSIONAL TRAINING AND RECOGNITION
Sec. 1701.401. PROFESSIONAL ACHIEVEMENT
Sec. 1701.402. PROFICIENCY CERTIFICATES
Sec. 1701.403. INVESTIGATIVE HYPNOSIS
Sec. 1701.404. CERTIFICATION OF OFFICERS FOR MENTAL HEALTH
ASSIGNMENTS
Sec. 1701.405. TELECOMMUNICATORS
Sec. 1701.406. COUNTY JAIL PERSONNEL
[Sections 1701.407-1701.450 reserved for expansion]
SUBCHAPTER J. EMPLOYMENT RECORDS
Sec. 1701.451. PREEMPLOYMENT INQUIRY
Sec. 1701.452. EMPLOYMENT TERMINATION REPORT
Sec. 1701.453. MAINTENANCE OF REPORTS AND STATEMENTS
Sec. 1701.454. CONFIDENTIALITY
Sec. 1701.455. SUBPOENA
Sec. 1701.456. IMMUNITY FROM LIABILITY
Sec. 1701.457. LIMITATION ON COMMISSION AUTHORITY
[Sections 1701.458-1701.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 1701.501. DISCIPLINARY ACTION
Sec. 1701.502. FELONY CONVICTION OR PLACEMENT ON COMMUNITY
SUPERVISION
Sec. 1701.503. BARRATRY CONVICTION
Sec. 1701.504. HEARING
Sec. 1701.505. ADMINISTRATIVE PROCEDURE
Sec. 1701.506. APPEAL
[Sections 1701.507-1701.550 reserved for expansion]
SUBCHAPTER L. CRIMINAL PENALTY
Sec. 1701.551. CRIMINAL PENALTY FOR APPOINTMENT OR
RETENTION OF CERTAIN PERSONS
Sec. 1701.552. CRIMINAL PENALTY FOR APPOINTMENT OF PERSON NOT
CERTIFIED FOR INVESTIGATIVE HYPNOSIS
Sec. 1701.553. CRIMINAL PENALTY FOR APPOINTMENT OR RETENTION
OF PERSONS WITH CERTAIN CONVICTIONS
[Sections 1701.554-1701.950 reserved for expansion]
SUBCHAPTER Z. TEXAS PEACE OFFICERS' MEMORIAL;
ADVISORY COMMITTEE
Sec. 1701.951. DEFINITION
Sec. 1701.952. TEXAS PEACE OFFICERS' MEMORIAL
Sec. 1701.953. ADVISORY COMMITTEE MEMBERSHIP
Sec. 1701.954. MEMBER ELIGIBILITY
Sec. 1701.955. TERMS; VACANCIES
Sec. 1701.956. GROUNDS FOR REMOVAL
Sec. 1701.957. COMPENSATION; REIMBURSEMENT
Sec. 1701.958. OFFICERS
Sec. 1701.959. MEETINGS
Sec. 1701.960. ADVISORY COMMITTEE DUTIES
Sec. 1701.961. APPROVAL OF CERTAIN COMMISSION DECISIONS
Sec. 1701.962. REPORTS
Sec. 1701.963. FUNDS
Sec. 1701.964. CEREMONIES
Sec. 1701.965. STATEMENT OF PROGRESS
CHAPTER 1701. LAW ENFORCEMENT OFFICERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1701.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Commission on Law Enforcement Officer Standards and Education.
(2) "County jailer" means a person employed as a county jail guard under Section 85.005, Local Government Code.
(3) "Officer" means a peace officer or reserve law enforcement officer.
(4) "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, or other law.
(5) "Public security officer" means a person employed or appointed as an armed security officer by this state or a political subdivision of this state. The term does not include a security officer employed by a private security company that contracts with this state or a political subdivision of this state to provide security services for the entity.
(6) "Reserve law enforcement officer" means a person designated as a reserve law enforcement officer under Section 85.004, 86.012, or 341.012, Local Government Code. (Government Code, Secs. 415.001(1), (2), (4), (5), (6), (7).)
Sec. 1701.002. APPLICATION OF SUNSET ACT. The Commission on Law Enforcement Officer Standards and Education is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2009. (Government Code, Sec. 415.003.)
Sec. 1701.003. APPLICATION OF CHAPTER. (a) Except as expressly provided by this chapter, this chapter does not:
(1) limit the powers or duties of a municipality or county; or
(2) affect Chapter 143, Local Government Code.
(b) This chapter does not affect a constable or other officer or county jailer elected under the Texas Constitution before September 1, 1985, and does not affect a person who held the office of sheriff before January 1, 1994.
(c) This chapter does not prevent an employing agency from establishing qualifications and standards for hiring or training officers and county jailers that exceed the commission's minimum standards.
(d) A provision of this chapter applying to issuance or revocation of a peace officer license applies to issuance or revocation of a public security officer license. (Government Code, Secs. 415.015, 415.051(a) (part).)
[Sections 1701.004-1701.050 reserved for expansion]
SUBCHAPTER B. COMMISSION ON LAW ENFORCEMENT OFFICER
STANDARDS AND EDUCATION
Sec. 1701.051. COMMISSION MEMBERSHIP. (a) The Commission on Law Enforcement Officer Standards and Education is an agency of this state and consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1) three members who are sheriffs, constables, or chiefs of police;
(2) three members who:
(A) are licensed under this chapter, two of whom are peace officers who, at the time of appointment, hold nonsupervisory positions with a law enforcement agency; and
(B) have been licensed under this chapter for the five years preceding the date of appointment; and
(3) three members who represent the public.
(b) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(c) A public officer appointed to the commission serves on the commission as an additional duty of the office.
(d) The following officers serve as ex officio members of the commission:
(1) the commissioner of higher education of the Texas Higher Education Coordinating Board;
(2) the commissioner of the Texas Education Agency;
(3) the director of the Department of Public Safety;
(4) the executive director of the criminal justice division of the governor's office; and
(5) the attorney general. (Government Code, Secs. 415.002, 415.004(a) (part), (b) (part), (e), (f).)
Sec. 1701.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the commission if the person or the person's spouse:
(1) is registered, certified, or licensed by an occupational regulatory agency in the field of law enforcement;
(2) is employed by or participates in the management of a business entity or other organization regulated by the commission or receiving funds from the commission;
(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the commission or receiving funds from the commission;
(4) uses or receives a substantial amount of tangible goods, services, or funds from the commission, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses; or
(5) is an officer, employee, or paid consultant of a law enforcement labor union. (Government Code, Secs. 415.004(a) (part), (b) (part).)
Sec. 1701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) An officer, employee, or paid consultant of a Texas trade association in the field of law enforcement may not be a commission member and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(c) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of law enforcement may not be a commission member and may not be an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a member of the commission or act as the general counsel to the commission 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 commission's operation. (Government Code, Sec. 415.005.)
Sec. 1701.054. TERMS; VACANCY. (a) Appointed commission members serve staggered six-year terms. Every two years:
(1) the term of one of the members appointed under Section 1701.051(a)(1) expires;
(2) the term of one of the members appointed under Section 1701.051(a)(2) expires; and
(3) the term of one of the members appointed under Section 1701.051(a)(3) expires.
(b) A vacancy in an office of a member of the commission shall be filled for the unexpired term. (Government Code, Secs. 415.004(b) (part), (c), (d).)
Sec. 1701.055. OFFICERS; QUORUM; VOTING. (a) The governor shall designate a commission member to serve as the commission's presiding officer. The presiding officer serves in that capacity at the will of the governor.
(b) At its first meeting after appointment of members to serve regular terms, the commission shall elect an assistant presiding officer and a secretary from its appointed members.
(c) Five members, excluding ex officio members, constitute a quorum.
(d) An ex officio member may not vote. (Government Code, Sec. 415.007.)
Sec. 1701.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the commission that a member:
(1) does not have at the time of appointment the qualifications required by Section 1701.051(a) or 1701.052;
(2) does not maintain during service on the commission the qualifications required by Section 1701.051(a) or 1701.052;
(3) violates a prohibition established by Section 1701.053;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists.
(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the commission's presiding officer of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the commission, who shall notify the governor and the attorney general that a potential ground for removal exists. (Government Code, Sec. 415.006.)
Sec. 1701.057. COMPENSATION; REIMBURSEMENT. (a) A commission member may not receive compensation for service on the commission.
(b) A commission member is entitled to reimbursement for actual and necessary expenses incurred in performing functions under this chapter. (Government Code, Sec. 415.008.)
Sec. 1701.058. MEETINGS. (a) The commission shall meet at least once during each biennium to receive public comment on training and standards for officers and county jailers. Within a reasonable time after the meeting, the commission shall report to the governor and legislature findings and recommendations resulting from the meeting.
(b) The commission may meet at other times and places in this state that the commission considers proper. The presiding officer may call a meeting on the officer's own motion and shall call a meeting on the written request of five members. (Government Code, Secs. 415.009(b), (c).)
Sec. 1701.059. TRAINING. (a) To be eligible to take office as a member of the commission, a person appointed to the commission must complete at least one course of a training program that complies with this section.
(b) The training program shall provide information to a member regarding:
(1) this chapter;
(2) the programs operated by the commission;
(3) the role and functions of the commission;
(4) the rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the commission;
(7) the requirements of Chapters 551, 552, and 2001, Government Code;
(8) the requirements of the conflict of interest laws and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the commission or the Texas Ethics Commission.
(c) A person appointed to the commission is entitled to reimbursement for travel expenses incurred in attending the training program, as provided by the General Appropriations Act, as if the person were a member of the commission. (Government Code, Sec. 415.0065.)
Sec. 1701.060. APPLICATION OF OPEN RECORDS LAW AND ADMINISTRATIVE PROCEDURE LAW. Except as provided by Sections 1701.502 and 1701.503, the commission is subject to Chapters 551 and 2001, Government Code. (Government Code, Sec. 415.009(d).)
[Sections 1701.061-1701.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1701.101. EXECUTIVE DIRECTOR. The commission may employ an executive director. (Government Code, Sec. 415.010 (part).)
Sec. 1701.102. PERSONNEL. The commission may employ personnel necessary to perform commission functions. (Government Code, Sec. 415.010 (part).)
Sec. 1701.103. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly define the policy-making responsibilities of the commission and the management responsibilities of the executive director and the staff of the commission. (Government Code, Sec. 415.0101.)
Sec. 1701.104. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide, as often as necessary, to the commission's members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (Government Code, Sec. 415.0105.)
Sec. 1701.105. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for employees within the agency. The program must require intra-agency posting of all positions concurrently with any public posting.
(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations that are based on documented employee performance. All merit pay for commission employees must be based on this system. (Government Code, Secs. 415.013(a), (b).)
Sec. 1701.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the commission workforce that meets federal and state laws, rules, and regulations and instructions promulgated directly from those laws, rules, and regulations;
(3) procedures by which a determination can be made of underuse in the commission workforce of all persons for whom federal or state laws, rules, and regulations and instructions promulgated directly from those laws, rules, and regulations encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports to the legislature. (Government Code, Secs. 415.013(c), (d), (e).)
[Sections 1701.107-1701.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF COMMISSION
Sec. 1701.151. GENERAL POWERS OF COMMISSION; RULEMAKING AUTHORITY. The commission may:
(1) adopt rules for the administration of this chapter and for the commission's internal management and control;
(2) establish minimum standards relating to competence and reliability, including education, training, physical, mental, and moral standards, for licensing as an officer, county jailer, or public security officer;
(3) report to the governor and legislature on the commission's activities, with recommendations on matters under the commission's jurisdiction, and make other reports that the commission considers desirable;
(4) require a state agency or a county, special district, or municipality in this state that employs officers or county jailers to submit reports and information;
(5) contract as the commission considers necessary for services, facilities, studies, and reports required for:
(A) cooperation with municipal, county, special district, state, and federal law enforcement agencies in training programs; and
(B) performance of the commission's other functions; and
(6) conduct research and stimulate research by public and private agencies to improve law enforcement and police administration. (Government Code, Sec. 415.010 (part).)
Sec. 1701.152. RULES RELATING TO HIRING DATE OF PEACE OFFICER. The commission may not adopt or enforce a rule that sets the date of appointment of a peace officer at a later date than the date that appears on employment records of the hiring law enforcement agency. (Government Code, Sec. 415.064.)
Sec. 1701.153. REPORTS FROM AGENCIES AND SCHOOLS. (a) The commission shall establish reporting standards and procedures for:
(1) appointment and termination of officers and county jailers by law enforcement agencies;
(2) the activities of licensed training schools; and
(3) other matters the commission considers necessary for the administration of this chapter.
(b) The commission shall furnish each agency and licensed training school with the required reporting forms.
(c) The chief administrative officer of a law enforcement agency or licensed training school is responsible for compliance with the reporting standards and procedures prescribed by the commission. (Government Code, Sec. 415.012.)
Sec. 1701.154. FEES. The commission may establish reasonable and necessary fees for the administration of this chapter, including reasonable and necessary fees for the administration of Section 1701.257. (Government Code, Secs. 415.010 (part), 415.038(d).)
Sec. 1701.155. GIFTS AND GRANTS. The commission may accept grants or gifts from private individuals, foundations, or the federal government. (Government Code, Sec. 415.010 (part).)
Sec. 1701.156. LAW ENFORCEMENT OFFICER STANDARDS AND EDUCATION FUND. (a) The law enforcement officer standards and education fund account is in the general revenue fund.
(b) The commission shall use the account in administering this chapter and performing other commission duties established by law.
(c) Money in the account at the end of the state fiscal year, other than money appropriated to the commission, shall be transferred to the general revenue fund. (Government Code, Secs. 415.081, 415.084(c).)
Sec. 1701.157. MONEY ALLOCATED AND USED FOR CONTINUING EDUCATION. (a) Not later than March 1 of each calendar year, the comptroller shall allocate money deposited during the preceding calendar year in the general revenue fund to the credit of the law enforcement officer standards and education fund account for expenses related to the continuing education of persons licensed under this chapter as follows:
(1) 20 percent of the money is allocated to all local law enforcement agencies in this state in equal shares; and
(2) 80 percent of the money is allocated to all local law enforcement agencies in this state in a share representing a fixed amount for each position in the agency, as of January 1 of the preceding calendar year, that is reserved to a person who:
(A) is licensed under this chapter;
(B) works as a peace officer on the average of at least 32 hours a week; and
(C) is compensated by a political subdivision of this state at least at the minimum wage and is entitled to all employee benefits offered to a peace officer by the political subdivision.
(b) Not later than November 1 of each calendar year, each local law enforcement agency shall report to the comptroller the number of agency positions described by Subsection (a)(2) as of January 1 of that year.
(c) The head of a law enforcement agency shall maintain a complete and detailed written record of money received and spent by the agency under this section. Money received under this section is subject to audit by the comptroller. Money spent under this section is subject to audit by the state auditor.
(d) A local law enforcement agency shall use money received under Subsection (a) only as necessary to ensure the continuing education of persons licensed under this chapter or to provide necessary training, as determined by the agency head, to full-time fully paid law enforcement support personnel in the agency.
(e) A local law enforcement agency may not use money received under Subsection (a) to replace funds that are provided to the agency by the county or municipality having jurisdiction over the agency on a recurring basis for training law enforcement officers and support personnel. (Government Code, Sec. 415.0845.)
Sec. 1701.158. ANNUAL REPORT. (a) The commission shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year.
(b) The report must meet the reporting requirements applicable to financial reporting provided by the General Appropriations Act. (Government Code, Sec. 415.011(a).)
Sec. 1701.159. LIST OF ACTIVE AND INACTIVE PEACE OFFICERS. The commission by rule shall establish a list of active licensed peace officers and a list of inactive licensed peace officers who leave the employment of a law enforcement agency. (Government Code, Sec. 415.052(c) (part).)
[Sections 1701.160-1701.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 1701.201. PUBLIC INTEREST INFORMATION. (a) The commission shall prepare information of public interest describing the regulatory functions of the commission and the procedures by which public complaints are filed with and resolved by the commission.
(b) The commission shall make the information available to the public and appropriate state agencies. (Government Code, Sec. 415.014.)
Sec. 1701.202. COMPLAINTS. The commission shall provide the commission's policies and procedures relating to complaint investigation and resolution to a person filing a complaint and to each person that is the subject of the complaint. (Government Code, Sec. 415.0595(a) (part).)
Sec. 1701.203. RECORDS OF COMPLAINTS. (a) The commission shall keep an information file about each written complaint filed with the commission that the commission has authority to resolve. The information file must include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of each person contacted in relation to the complaint;
(5) a summary of the results of the review or investigation of the complaint; and
(6) an explanation of the reason that a complaint was closed without action by the commission.
(b) The commission, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (Government Code, Secs. 415.0595(a) (part), (b).)
Sec. 1701.204. PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction.
(b) The commission shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the commission's programs and services. (Government Code, Secs. 415.009(a), 415.0145 (part).)
[Sections 1701.205-1701.250 reserved for expansion]
SUBCHAPTER F. TRAINING PROGRAMS AND SCHOOLS
Sec. 1701.251. TRAINING PROGRAMS; INSTRUCTORS. (a) The commission shall establish and maintain training programs for officers and county jailers. The training shall be conducted by the commission staff or by other agencies and institutions the commission considers appropriate.
(b) The commission may authorize reimbursement for a political subdivision or state agency as authorized by the legislature for expenses incurred in attending a training program.
(c) The commission may:
(1) issue or revoke the license of a school operated by or for this state or a political subdivision of this state specifically for training officers, county jailers, or recruits;
(2) operate schools and conduct preparatory, in-service, basic, and advanced courses in the schools, as the commission determines appropriate, for officers, county jailers, and recruits;
(3) issue a license to a person to act as a qualified instructor under conditions that the commission prescribes; and
(4) consult and cooperate with a municipality, county, special district, state agency or other governmental agency, or a university, college, junior college, or other institution, concerning the development of schools and training programs for officers and county jailers. (Government Code, Secs. 415.031(a), (b) (part), 415.033.)
Sec. 1701.252. PROGRAM AND SCHOOL REQUIREMENTS; ADVISORY BOARD. (a) Unless a school has created an advisory board for developing a curriculum, the commission may not issue a license to the school or approve a training program or course for officers or county jailers other than a program created by the Bill Blackwood Law Enforcement Management Institute of Texas.
(b) At least one-third of the members of an advisory board under Subsection (a) must be public members who meet the qualifications required of a public member of the commission. (Government Code, Sec. 415.031(c).)
Sec. 1701.253. SCHOOL CURRICULUM. (a) The commission shall establish minimum curriculum requirements for preparatory and advanced courses and programs for schools subject to approval under Section 1701.251(c)(1).
(b) In establishing requirements under this section, the commission shall require courses and programs to provide training in:
(1) the investigation and documentation of cases that involve:
(A) child abuse or neglect;
(B) family violence; and
(C) sexual assault; and
(2) issues concerning sex offender characteristics.
(c) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on civil rights, racial sensitivity, and cultural diversity for persons licensed under this chapter.
(d) Training in documentation of cases required by Subsection (b) shall include instruction in:
(1) making a written account of the extent of injuries sustained by the victim of an alleged offense;
(2) recording by photograph or videotape the area in which an alleged offense occurred and the victim's injuries; and
(3) recognizing and recording a victim's statement that may be admissible as evidence in a proceeding concerning the matter about which the statement was made. (Government Code, Sec. 415.032.)
Sec. 1701.254. RISK ASSESSMENT AND INSPECTIONS. (a) The commission may visit and inspect a school conducting a training course for officers, county jailers, or recruits and make necessary evaluations to determine if the school complies with this chapter and commission rules.
(b) The commission shall develop a risk assessment method to determine the relative performance of schools conducting training courses for officers, county jailers, or recruits. The commission shall base its schedule for inspection of schools on the results of the risk assessment.
(c) The risk assessment method must:
(1) consider the scores of students enrolled in a school on the basic peace officer examination;
(2) consider the past inspection records of a school;
(3) consider a self-assessment performed by a school in a noninspection year; and
(4) include a random element to ensure periodic inspection of each school. (Government Code, Secs. 415.031(b) (part), 415.0315.)
Sec. 1701.255. ENROLLMENT QUALIFICATIONS. (a) The commission by rule shall establish minimum qualifications for a person to enroll in a training program under Section 1701.251(a) that provides instruction in defensive tactics, arrest procedures, firearms, or use of a motor vehicle for law enforcement purposes.
(b) A person who is disqualified by law to be an officer or county jailer may not enroll in a training program described by Subsection (a). (Government Code, Sec. 415.031(e).)
Sec. 1701.256. INSTRUCTION IN WEAPONS PROFICIENCY REQUIRED. A peace officer training program under Section 1701.251(a) must provide instruction in weapons proficiency. (Government Code, Sec. 415.031(d) (part).)
Sec. 1701.257. FIREARMS TRAINING PROGRAM FOR SUPERVISION OFFICERS. (a) The commission and the Texas Department of Criminal Justice by rule shall adopt a memorandum of understanding that establishes each agency's respective responsibilities in developing a basic training program in the use of firearms by community supervision and corrections department officers and parole officers. The program established under the memorandum of understanding must provide instruction in:
(1) legal limitations on the use of firearms and on the powers and authority of the officers;
(2) range firing and procedure;
(3) firearms safety and maintenance; and
(4) other topics determined by each agency to be necessary for the responsible use of firearms by the officers.
(b) The commission shall administer the training program and shall issue a certificate of firearms proficiency to each community supervision and corrections department officer or parole officer the commission determines has successfully completed the program. (Government Code, Secs. 415.038(a), (b), (c).)
[Sections 1701.258-1701.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS; DISQUALIFICATIONS
AND EXEMPTIONS
Sec. 1701.301. LICENSE REQUIRED. Except as provided by Sections 1701.310 and 1701.311, a person may not appoint a person to serve as an officer, county jailer, or public security officer unless the person appointed holds an appropriate license issued by the commission. (Government Code, Sec. 415.051(a) (part).)
Sec. 1701.302. CERTAIN ELECTED LAW ENFORCEMENT OFFICERS; LICENSE REQUIRED. (a) An officer, including a sheriff, elected under the Texas Constitution or a statute or appointed to fill a vacancy in an elective office must obtain a license from the commission not later than the second anniversary of the date the officer takes office.
(b) The commission shall establish requirements for issuing the license and for revocation, suspension, or denial of the license.
(c) An officer to whom this section applies who does not obtain the license by the required date or does not remain licensed is incompetent and is subject to removal from office under Section 665.052, Government Code, or another removal statute. (Government Code, Sec. 415.053.)
Sec. 1701.303. LICENSE APPLICATION; DUTIES OF APPOINTING ENTITY. (a) A law enforcement agency or governmental entity that hires a person for whom a license is sought must file an application with the commission as provided by commission rule.
(b) A person who appoints an officer or county jailer licensed by the commission shall notify the commission not later than the 30th day after the date of the appointment. If the person appoints an individual who previously served as an officer or county jailer and the appointment occurs after the 180th day after the last date of service as an officer or county jailer, the person must have on file for the officer or county jailer in a form readily accessible to the commission:
(1) new criminal history record information;
(2) a new declaration of psychological and emotional health and lack of drug dependency or illegal drug use; and
(3) two completed fingerprint cards. (Government Code, Secs. 415.051(a) (part), (b).)
Sec. 1701.304. EXAMINATION. (a) The commission shall conduct an examination for each type of license issued by the commission at least four times each year at times and places designated by the commission. The commission shall:
(1) prescribe the content of an examination for each type of license;
(2) include in each examination a written examination that tests the applicant's knowledge of the appropriate occupation; and
(3) prescribe standards for acceptable performance on each examination.
(b) The commission by rule shall establish minimum qualifications for a person to be examined under this section. A person who is disqualified by law to be an officer or county jailer may not take an examination under this section.
(c) A law enforcement agency may request the commission to conduct examinations required by this chapter in the jurisdiction served by the agency. The commission may conduct the examinations in the jurisdiction if:
(1) the commission determines that doing so will not place a significant hardship on the commission's resources; and
(2) the requesting law enforcement agency reimburses the commission for additional costs incurred in conducting the examination in the agency's jurisdiction. (Government Code, Secs. 415.056(a), (d), (e).)
Sec. 1701.305. EXAMINATION RESULTS. (a) The commission shall notify each examinee of the examination results not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the commission shall notify each examinee of the examination results not later than the 14th day after the date the commission receives the results from the testing service.
(b) If notice of the results of an examination graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the commission shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails an examination, the commission shall provide to the person an analysis of the person's performance on the examination. (Government Code, Secs. 415.056(b), (c).)
Sec. 1701.306. PSYCHOLOGICAL AND PHYSICAL EXAMINATION. (a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by:
(1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and
(2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test.
(b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information.
(c) The commission shall adopt rules that:
(1) relate to appropriate standards and measures to be used by a law enforcement agency in reporting the declarations made under Subsection (a); and
(2) provide for exceptional circumstances in the administration of the examination of the applicant's psychological and emotional health, including permitting the examination to be made by a qualified licensed physician instead of a psychologist or psychiatrist.
(d) The commission may order an applicant to submit to an examination described by Subsection (a) by a psychologist, psychiatrist, or physician appointed by the commission if the commission:
(1) has cause to believe that a law enforcement agency failed to follow commission rules relating to an examination; or
(2) discovers that the applicant has submitted a false declaration. (Government Code, Sec. 415.057.)
Sec. 1701.307. ISSUANCE OF LICENSE. (a) The commission shall issue an appropriate license to a person who, as required by this chapter:
(1) submits an application;
(2) completes the required training;
(3) passes the required examination;
(4) is declared to be in satisfactory psychological and emotional health and free from drug dependency or illegal drug use; and
(5) demonstrates weapons proficiency.
(b) The commission may issue a permanent license to a person to serve as an officer and may issue a temporary or permanent license to a person to serve as a county jailer. (Government Code, Secs. 415.052(a), (b).)
Sec. 1701.308. WEAPONS PROFICIENCY. The commission shall require a person applying for a peace officer license to demonstrate weapons proficiency. (Government Code, Sec. 415.031(d) (part).)
Sec. 1701.309. AGE REQUIREMENT. The commission by rule shall set 21 years of age as the minimum age for obtaining a license as an officer. The rules must provide that a person at least 18 years of age may be issued a license as an officer if the person has:
(1) completed and received credit for at least 60 hours of study at an accredited college or university or received an associate degree from an accredited college or university; or
(2) received an honorable discharge from the United States armed forces after at least two years of service. (Government Code, Sec. 415.059.)
Sec. 1701.310. APPOINTMENT OF COUNTY JAILER; TRAINING REQUIRED. (a) A person may not be appointed as a county jailer, except on a temporary basis, unless the person has satisfactorily completed a preparatory training program, as required by the commission, in the operation of a county jail at a school operated or licensed by the commission.
(b) A county jailer appointed on a temporary basis who does not satisfactorily complete the preparatory training program before the first anniversary of the date that the person is appointed shall be removed from the position. A temporary appointment may not be renewed, except that not earlier than the first anniversary of the date that a person is removed under this subsection, the sheriff may petition the commission for reinstatement of the person to a temporary appointment.
(c) A county jailer serving under permanent appointment before September 1, 1979, regardless of whether the person's employment was terminated before that date because of failure to satisfy standards adopted under Chapter 511, Government Code, is not required to meet a requirement of this section as a condition of continued employment or promotion unless:
(1) in an attempt to meet the standards the person took an examination and failed or was not allowed to finish the examination because the person acted dishonestly in regard to the examination;
(2) the person forged a document purporting to show that the person meets the standards; or
(3) the person seeks a new appointment as a county jailer on or after September 1, 1984.
(d) A county jailer serving under permanent appointment before September 1, 1979, is eligible to attend training courses in the operation of a county jail, subject to commission rules. (Government Code, Sec. 415.054.)
Sec. 1701.311. PROVISIONAL LICENSE FOR WORKFORCE SHORTAGE. (a) The commission shall adopt rules to allow a law enforcement agency to petition for issuance of a provisional license for an officer if the agency proves that it has a workforce shortage.
(b) Except in an emergency, a peace officer holding a provisional license may not be required to work at the peace officer's employing agency and attend a commission-approved basic preparatory school for more than a total of 40 hours a week.
(c) An agency employing a peace officer who holds a provisional license may contract with the peace officer for reimbursement of the cost of a basic preparatory training course if the peace officer voluntarily resigns from the agency before a date specified in the contract that is not later than the first anniversary of the date the officer is appointed. The contract must state the cost of the course. (Government Code, Sec. 415.055.)
Sec. 1701.312. DISQUALIFICATION: FELONY CONVICTION OR PLACEMENT ON COMMUNITY SUPERVISION. (a) A person who has been convicted of a felony is disqualified to be an officer, public security officer, or county jailer, and the commission may not issue a license to, and a law enforcement agency may not appoint or employ, the person.
(b) For purposes of this section and Section 1701.502, a person is convicted of a felony if a court enters an adjudication of guilt against the person on a felony offense under the laws of this or another state or the United States, regardless of whether:
(1) the sentence is subsequently probated and the person is discharged from community supervision;
(2) the accusation, complaint, information, or indictment against the person is dismissed and the person is released from all penalties and disabilities resulting from the offense; or
(3) the person is pardoned for the offense, unless the pardon is granted expressly for subsequent proof of innocence.
(c) The commission, on receipt of a certified copy of a court's judgment under Article 42.011, Code of Criminal Procedure, shall note on the person's licensing records the conviction or community supervision indicated by the judgment. (Government Code, Secs. 415.058(a) (part), (c), (d).)
Sec. 1701.313. DISQUALIFICATION: CONVICTION OF BARRATRY. (a) A person who has been convicted of barratry under Section 38.12, Penal Code, is disqualified to be an officer or county jailer, and the commission may not issue a license to the person.
(b) For purposes of this section and Section 1701.503, a person is convicted of barratry if a court enters an adjudication of guilt against the person regardless of whether:
(1) the sentence is subsequently probated and the person is discharged from community supervision;
(2) the accusation, complaint, information, or indictment against the person is dismissed following community supervision; or
(3) the person is pardoned for the offense, unless the pardon is granted expressly for subsequent proof of innocence. (Government Code, Secs. 415.0581(a) (part), (b).)
Sec. 1701.314. EXEMPTION: OFFICER APPOINTED BEFORE SEPTEMBER 1, 1970. A peace officer serving under a permanent appointment before September 1, 1970, is not required to obtain a license as a condition of tenure, continued employment, or promotion unless the officer seeks a new appointment. The officer is eligible to attend peace officer training courses subject to commission rules. (Government Code, Sec. 415.051(c).)
Sec. 1701.315. RECORDS. The commission is entitled to access to records maintained under Sections 1701.303, 1701.306, and 1701.310 by an agency hiring a person to be an officer or county jailer, including records that relate to age, education, physical standards, citizenship, experience, and other matters relating to competence and reliability, as evidence of qualification for licensing of an officer or county jailer. (Government Code, Sec. 415.063.)
Sec. 1701.316. REACTIVATION OF PEACE OFFICER LICENSE. (a) The commission shall adopt rules establishing requirements for reactivation of a peace officer's license after a break in employment.
(b) The commission may consider employment as a peace officer in another state in determining whether the person is required to obtain additional training or testing. (Government Code, Sec. 415.052(c) (part).)
[Sections 1701.317-1701.350 reserved for expansion]
SUBCHAPTER H. CONTINUING EDUCATION AND YEARLY WEAPONS PROFICIENCY
Sec. 1701.351. CONTINUING EDUCATION REQUIRED FOR PEACE OFFICERS. (a) Each peace officer shall complete a continuing education program at least once every 24 months. The commission may suspend the license of a peace officer who fails to comply with this requirement.
(b) The commission by rule shall provide for waiver of the requirements of this section when mitigating circumstances exist. (Government Code, Sec. 415.034(g).)
Sec. 1701.352. CONTINUING EDUCATION PROGRAMS. (a) The commission shall recognize, prepare, or administer continuing education programs for officers and county jailers.
(b) The commission shall require a state, county, special district, or municipal agency that appoints or employs peace officers to provide each peace officer with a training program at least once every 24 months. At least 20 hours of the instruction must be on topics selected by the agency. The course must:
(1) be approved by the commission;
(2) contain curricula that incorporate the learning objectives developed by the commission; and
(3) include education and training in:
(A) civil rights, racial sensitivity, and cultural diversity; and
(B) unless determined by the agency head to be inconsistent with the officer's assigned duties:
(i) the recognition and documentation of cases that involve child abuse or neglect, family violence, and sexual assault; and
(ii) issues concerning sex offender characteristics; and
(4) include other education and training only if determined by the agency head to be consistent with the officer's assigned duties.
(c) A course provided under Subsection (b):
(1) may not exceed 40 hours; and
(2) may use instructional materials developed by the agency or its trainers or by entities having training agreements with the commission in addition to materials included in curricula developed by the commission.
(d) A peace officer appointed to the officer's first supervisory position must receive in-service training on supervision as part of the course provided for the officer under Subsection (b) during the 24-month period after the date of that appointment.
(e) The commission may require a state, county, special district, or municipal agency that appoints or employs a reserve law enforcement officer, county jailer, or public security officer to provide each of those persons with education and training in civil rights, racial sensitivity, and cultural diversity at least once every 24 months.
(f) Training in documentation of cases required by Subsection (b) shall include instruction in:
(1) making a written account of the extent of injuries sustained by the victim of an alleged offense;
(2) recording by photograph or videotape the area in which an alleged offense occurred and the victim's injuries; and
(3) recognizing and recording a victim's statement that may be admissible as evidence in a proceeding concerning the matter about which the statement was made. (Government Code, Secs. 415.034(a); (b), as amended Acts 74th Leg., R.S., Chs. 254, 538, 562, 585; (c), as amended Acts 74th Leg., R.S., Chs. 254, 538, 585; (d); (f); (i).)
Sec. 1701.353. CONTINUING EDUCATION PROCEDURES. (a) The commission by rule shall adopt procedures to:
(1) ensure the timely and accurate reporting by agencies and peace officers of information related to training programs offered under this subchapter, including procedures for creating training records for individual peace officers; and
(2) provide adequate notice to agencies and peace officers of impending noncompliance with the training requirements of this subchapter so that the agencies and peace officers may comply within the 24-month period.
(b) The commission shall require agencies to report in a timely manner the reasons that a peace officer is in noncompliance after receiving notice by the commission of the peace officer's noncompliance. The commission shall, following receipt of an agency's report or on a determination that the agency has failed to report in a timely manner, conduct a hearing consistent with Section 1701.504 if the peace officer claims that:
(1) mitigating circumstances exist; or
(2) the peace officer failed to complete the required training because the officer's employing agency did not provide an adequate opportunity for the officer to attend the required training course. (Government Code, Sec. 415.034(h).)
Sec. 1701.354. CONTINUING EDUCATION FOR CONSTABLES AND DEPUTY CONSTABLES. (a) If the commission requires a state, county, special district, or municipal agency that employs a constable or deputy constable to provide the constable or deputy constable with a training program under Section 1701.352, the commission shall require the constable or deputy constable to attend at least 20 hours of instruction in civil process.
(b) The commission shall adopt rules and procedures concerning a civil process course, including rules providing for:
(1) approval of course content and standards; and
(2) issuance of course credit.
(c) For the purposes of removal of a constable under Subchapter B, Chapter 87, Local Government Code, a constable is considered to be incompetent if the constable fails to complete the hours of instruction required by this section.
(d) The commission may waive the requirement that a constable or deputy constable complete the instruction required by this section if:
(1) the constable or deputy constable requests a waiver because of hardship; and
(2) the commission determines that a hardship exists. (Government Code, Sec. 415.0345.)
Sec. 1701.355. CONTINUING DEMONSTRATION OF WEAPONS PROFICIENCY. (a) An agency that employs at least two peace officers shall designate a firearms proficiency officer and require each peace officer the agency employs to demonstrate weapons proficiency to the firearms proficiency officer at least annually. The agency shall maintain records of the weapons proficiency of the agency's peace officers.
(b) On request, the commission may waive the requirement that a peace officer demonstrate weapons proficiency on a determination by the commission that the requirement causes a hardship.
(c) The commission by rule shall define weapons proficiency for purposes of this section. (Government Code, Sec. 415.035.)
Sec. 1701.356. CERTAIN OFFICERS: REACTIVATION AND CONTINUING EDUCATION NOT REQUIRED. An honorably retired commissioned officer of the Department of Public Safety who is a special ranger under Section 411.023, Government Code, or retired state employee and who holds a permanent license issued before January 1981 and that was current on January 1, 1995:
(1) has the same rights and privileges as any other peace officer of this state;
(2) holds, notwithstanding Section 1701.316, an active license unless the license is revoked, suspended, or probated by the commission for a violation of this chapter; and
(3) is not subject to Section 1701.351. (Government Code, Secs. 415.034(e), 415.052(d).)
[Sections 1701.357-1701.400 reserved for expansion]
SUBCHAPTER I. PROFESSIONAL TRAINING AND RECOGNITION
Sec. 1701.401. PROFESSIONAL ACHIEVEMENT. (a) In this section:
(1) "Professional achievement" includes an instance in which an individual through personal initiative, fixity of purpose, persistence, or endeavor creates a program or system that has a significant positive impact on the law enforcement profession that exceeds the normal expectations of job performance.
(2) "Public service" includes an instance in which an individual through initiative creates or participates in a program or system that has a significant positive impact on the general population of a community that exceeds the normal expectations of job performance.
(3) "Valor" includes an act of personal heroism or bravery that exceeds the normal expectations of job performance, including placing one's own life in jeopardy to save another person's life, to prevent serious bodily injury to another, or to prevent the consequences of a criminal act.
(b) The commission shall issue certificates that recognize professional achievement. For this purpose the commission shall use the employment records of the employing agency.
(c) The commission shall adopt rules for issuing achievement awards to peace officers, reserve peace officers, jailers, or custodial officers who are licensed by the commission. The commission's rules shall require recommendations from an elected official of this state or a political subdivision, an administrator of a law enforcement agency, or a person holding a license issued by the commission.
(d) The awards shall be given in the name of this state and presented at the State Capitol during May of each year. At a minimum the award shall consist of a document, an appropriate medal, and a ribbon suitable for wearing on a uniform.
(e) The awards shall be issued in three areas: valor, public service, and professional achievement.
(f) The commission may present not more than 20 awards each year. (Government Code, Secs. 415.062(a) (part); (b), as added Acts 71st Leg., R.S., Chs. 923, 1032; (c); (d); (e); (f).)
Sec. 1701.402. PROFICIENCY CERTIFICATES. (a) The commission shall issue certificates that recognize proficiency based on law enforcement training, education, and experience. For this purpose the commission shall use the employment records of the employing agency.
(b) As a requirement for a basic proficiency certificate, the commission shall require completion of local courses or programs of instruction on federal and state statutes that relate to employment issues affecting peace officers and county jailers, including:
(1) civil service;
(2) compensation, including overtime compensation, and vacation time;
(3) personnel files and other employee records;
(4) management-employee relations in law enforcement organizations;
(5) work-related injuries;
(6) complaints and investigations of employee misconduct; and
(7) disciplinary actions and the appeal of disciplinary actions.
(c) An employing agency is responsible for providing the training required by this section. (Government Code, Sec. 415.062(a) (part).)
Sec. 1701.403. INVESTIGATIVE HYPNOSIS. (a) The commission may establish minimum requirements for the training, testing, and certification of peace officers who use investigative hypnosis.
(b) A peace officer may not use a hypnotic interview technique unless the officer:
(1) completes a training course approved by the commission; and
(2) passes an examination administered by the commission that is designed to test the officer's knowledge of investigative hypnosis.
(c) The commission may issue a professional achievement or proficiency certificate to an officer who meets the requirements of Subsection (b). (Government Code, Sec. 415.036.)
Sec. 1701.404. CERTIFICATION OF OFFICERS FOR MENTAL HEALTH ASSIGNMENTS. (a) The commission by rule may establish minimum requirements for the training, testing, and certification of special officers for offenders with mental impairments.
(b) The commission may certify a sheriff, sheriff's deputy, constable, or other peace officer, or a justice of the peace, as a special officer for offenders with mental impairments if the officer:
(1) completes a training course in emergency first aid and lifesaving techniques approved by the commission;
(2) completes a training course administered by the commission on mental health issues and offenders with mental impairments; and
(3) passes an examination administered by the commission that is designed to test the officer's:
(A) knowledge and recognition of the characteristics and symptoms of mental illness, mental retardation, and mental disabilities; and
(B) knowledge of mental health crisis intervention strategies for people with mental impairments.
(c) The commission may issue a professional achievement or proficiency certificate to an officer who meets the requirements of Subsection (b). (Government Code, Sec. 415.037, as amended Acts 75th Leg., R.S., Chs. 312, 676.)
Sec. 1701.405. TELECOMMUNICATORS. (a) In this section:
(1) "Communication" means any type of system in which electric or electromagnetic signals are used to transmit information, including a system transmitting information by means of:
(A) radio, light, or waves in other portions of the electromagnetic spectrum;
(B) wire or cable; or
(C) any other medium.
(2) "Emergency" means the occurrence or imminent threat of damage, injury, or loss of life or property resulting from an extraordinary natural or man-made cause.
(3) "Telecommunicator" means a person acknowledged by the commission and employed by or serving a law enforcement agency who receives, processes, and transmits public safety information and criminal justice data for the agency using a base radio station on a public safety frequency regulated by the Federal Communications Commission or by teletype or other communications system.
(b) This state or a political subdivision of this state may not appoint or employ a person to act as a telecommunicator unless the person has had at least 40 hours of telecommunicator training as determined by the commission.
(c) The commission shall accredit telecommunicator training programs that fulfill the minimum requirements for a telecommunicator. The commission shall adopt rules providing for the accreditation of telecommunicator training programs developed and taught by the Department of Public Safety, an institution of higher education, including a junior college, community college, or technical school, or any other entity approved by the commission.
(d) A person who completes an accredited training program under this section may, by letter to the commission, request a written acknowledgment from the commission that the person has met the minimum requirements for a telecommunicator as determined by the commission. The request must be accompanied, in accordance with commission rules, by evidence of satisfactory completion of an accredited telecommunicator training program. On a determination by the commission that the person meets the minimum requirements for a telecommunicator, the commission shall issue the written acknowledgment to the person.
(e) This section does not apply to a person who:
(1) performs the duties of a telecommunicator; and
(2) is employed by a law enforcement agency that:
(A) employs 20 or fewer employees; or
(B) does not perform law enforcement services on a 24-hour basis.
(f) A person performing the duties of a telecommunicator and serving under permanent appointment on and before September 1, 1987, is not required to meet the requirements of this section as a condition of continued employment.
(g) Notwithstanding this section, a person may be appointed or serve as a telecommunicator on a temporary or probationary basis or may perform the duties of a telecommunicator in an emergency.
(h) A person appointed on a temporary or probationary basis after September 1, 1987, who does not satisfactorily complete an accredited telecommunicator training program before the first anniversary of the date the person is originally appointed shall be removed from the position. The person's temporary or probationary appointment may not be extended for more than one year except that not earlier than the first anniversary of the date the person is removed under this subsection, the employing agency may petition the commission for reinstatement of the person to temporary or probationary employment. (Government Code, Secs. 415.001(8), 415.066.)
Sec. 1701.406. COUNTY JAIL PERSONNEL. (a) Not later than the first anniversary of the date the commission establishes standards for county jail personnel, a county may not employ or use jail personnel who are not certified by the commission.
(b) The commission shall establish minimum physical, mental, educational, and moral standards for all persons employed or used in the operation of a county jail.
(c) The commission's authority and power applies to all county jail personnel. The commission shall have additional staff to carry out this section.
(d) A commission standard requiring a person to have a degree of formal education or the equivalent does not apply to a person who was employed or whose services were used in the operation of a county jail on August 29, 1977. (Government Code, Sec. 415.0541.)
[Sections 1701.407-1701.450 reserved for expansion]
SUBCHAPTER J. EMPLOYMENT RECORDS
Sec. 1701.451. PREEMPLOYMENT INQUIRY. (a) Before a law enforcement agency may hire a person licensed under this chapter, the agency head or the agency head's designee must contact the commission to determine whether the commission has employment history records for the person required by this subchapter.
(b) This section does not authorize the commission to release information concerning the records other than information regarding the existence of the records.
(c) A law enforcement agency may not use information obtained under this section to affect a person's eligibility for employment with the agency. (Government Code, Sec. 415.0635(c).)
Sec. 1701.452. EMPLOYMENT TERMINATION REPORT. (a) The head of a law enforcement agency shall submit a report to the commission on a form prescribed by the commission regarding a person licensed under this chapter who resigns from the employment of the law enforcement agency or whose appointment with the law enforcement agency is terminated. The agency head shall include in the report an explanation of the circumstances under which the person resigned or was terminated.
(b) The head of the law enforcement agency from which a person resigns or is terminated shall provide to the person a copy of the report. The person may submit a written statement to the commission to contest or explain any matter contained in the report. (Government Code, Secs. 415.0635(a), (b).)
Sec. 1701.453. MAINTENANCE OF REPORTS AND STATEMENTS. The commission shall maintain a copy of each report and written statement submitted to the commission under this subchapter until at least the 10th anniversary of the date on which the report or statement is submitted. (Government Code, Sec. 415.0635(d).)
Sec. 1701.454. CONFIDENTIALITY. (a) A report or statement submitted to the commission under this subchapter is confidential and is not subject to disclosure under Chapter 552, Government Code.
(b) Except as provided by this subsection, a commission member or other person may not release the contents of a report or statement submitted under this subchapter. The report or statement may be released only by the commission employee having the responsibility to maintain the report or statement and only if:
(1) the head of a law enforcement agency or the agency head's designee makes a written request on the agency's letterhead for the report or statement accompanied by the agency head's or designee's signature; and
(2) the person who is the subject of the report or statement authorizes the release by providing a sworn statement on a form supplied by the commission that includes the person's waiver of liability regarding an agency head who is responsible for or who takes action based on the report or statement. (Government Code, Secs. 415.0635(e), (f).)
Sec. 1701.455. SUBPOENA. A report or statement submitted to the commission under this subchapter is subject to subpoena only in a judicial proceeding. (Government Code, Sec. 415.0635(g).)
Sec. 1701.456. IMMUNITY FROM LIABILITY. (a) The commission is not liable for civil damages for providing information contained in a report or statement maintained by the commission under this subchapter if the commission released the information as provided by Section 1701.454(b).
(b) A law enforcement agency, agency head, or other law enforcement official is not liable for civil damages for a report made by that agency or person if the report is made in good faith. (Government Code, Sec. 415.0635(h).)
Sec. 1701.457. LIMITATION ON COMMISSION AUTHORITY. This subchapter does not authorize the commission to review disciplinary action taken by a law enforcement agency against a person licensed under this chapter or to issue a subpoena to compel the production of a document prepared or maintained by the agency in connection with a disciplinary matter. (Government Code, Sec. 415.0635(i).)
[Sections 1701.458-1701.500 reserved for expansion]
SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 1701.501. DISCIPLINARY ACTION. (a) The commission shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for a violation of this chapter or a commission rule.
(b) The commission may establish procedures for the revocation of a license issued under this chapter, other than a license issued to an officer elected under the Texas Constitution.
(c) The commission by rule may adopt other necessary enforcement procedures. (Government Code, Secs. 415.060(a), (b) (part).)
Sec. 1701.502. FELONY CONVICTION OR PLACEMENT ON COMMUNITY SUPERVISION. (a) The commission shall immediately revoke the license of a person licensed under this chapter who is convicted of a felony.
(b) The commission shall immediately suspend the license of a person licensed under this chapter who is charged with a felony and is placed on community supervision regardless of whether the court defers further proceedings without entering an adjudication of guilt.
(c) The commission may reinstate, as provided by commission rules, a license that is suspended under Subsection (b) when the license holder is released from community supervision. (Government Code, Secs. 415.058(a) (part), (b), 415.060(b) (part).)
Sec. 1701.503. BARRATRY CONVICTION. The commission shall immediately revoke the license of a person licensed under this chapter who is convicted of barratry under Section 38.12, Penal Code. (Government Code, Sec. 415.0581(a) (part).)
Sec. 1701.504. HEARING. (a) Except as provided by Sections 1701.502 and 1701.503, if the commission proposes to suspend or revoke a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.
(b) If the commission proposes to refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings. (Government Code, Secs. 415.060(b) (part), 415.0605 (part).)
Sec. 1701.505. ADMINISTRATIVE PROCEDURE. (a) Proceedings for a disciplinary action are governed by Chapter 2001, Government Code.
(b) Rules of practice adopted by the commission under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (Government Code, Sec. 415.0605 (part).)
Sec. 1701.506. APPEAL. (a) A person dissatisfied with an action of the commission may appeal the action under Chapter 2001, Government Code. The court shall set the matter for hearing not earlier than 10 days after written notice of the appeal is given to the commission and the commission's attorney.
(b) The court may suspend an action of the commission pending a hearing. The order suspending the action takes effect when served on the commission. The commission shall provide its attorney a copy of the petition and order.
(c) The attorney general or the district or county attorney shall represent the commission in the appeal. (Government Code, Sec. 415.061.)
[Sections 1701.507-1701.550 reserved for expansion]
SUBCHAPTER L. CRIMINAL PENALTY
Sec. 1701.551. CRIMINAL PENALTY FOR APPOINTMENT OR RETENTION OF CERTAIN PERSONS. (a) A person commits an offense if the person appoints or retains another person as an officer or county jailer in violation of Section 1701.301, 1701.303, or 1701.306.
(b) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $100 and not more than $1,000. (Government Code, Secs. 415.065(a) (part), (c).)
Sec. 1701.552. CRIMINAL PENALTY FOR APPOINTMENT OF PERSON NOT CERTIFIED FOR INVESTIGATIVE HYPNOSIS. (a) A person commits an offense if the person appoints or retains another person in violation of Section 1701.403.
(b) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $100 and not more than $1,000. (Government Code, Secs. 415.065(a) (part), (c).)
Sec. 1701.553. CRIMINAL PENALTY FOR APPOINTMENT OR RETENTION OF PERSONS WITH CERTAIN CONVICTIONS. (a) A person commits an offense if the person appoints or retains an individual as an officer, public security officer, or county jailer in violation of Section 1701.312 or 1701.313.
(b) An offense under Subsection (a) is a state jail felony. (Government Code, Secs. 415.065(b), (d).)
[Sections 1701.554-1701.950 reserved for expansion]
SUBCHAPTER Z. TEXAS PEACE OFFICERS' MEMORIAL;
ADVISORY COMMITTEE
Sec. 1701.951. DEFINITION. In this subchapter, "advisory committee" means the Texas Peace Officers' Memorial Advisory Committee to the Commission on Law Enforcement Officer Standards and Education. (Government Code, Sec. 415.111.)
Sec. 1701.952. TEXAS PEACE OFFICERS' MEMORIAL. (a) A Texas peace officers' memorial shall be constructed on the grounds of the Capitol Complex to honor Texas peace officers who have died in the line of duty.
(b) The memorial must be compatible in scale, proportion, materials, and feeling with the early monuments erected on the Capitol grounds.
(c) A person is eligible to have the person's name on the memorial if the person was killed in the line of duty and was a:
(1) Texas law enforcement officer;
(2) commissioned deputy game warden; or
(3) corrections officer in a municipal, county, or state penal institution in this state. (Government Code, Secs. 415.112 (part), 415.117(a) (part), (c).)
Sec. 1701.953. ADVISORY COMMITTEE MEMBERSHIP. (a) The advisory committee consists of:
(1) three licensed peace officers appointed by the governor;
(2) a surviving spouse of a Texas peace officer who died in the line of duty, appointed by the governor;
(3) nine individuals, each appointed by a member of the commission; and
(4) the following nonvoting ex officio members:
(A) the director of the Department of Public Safety;
(B) the executive director of the State Preservation Board; and
(C) the director and librarian of the Texas State Library and Archives Commission.
(b) Appointments to the advisory committee shall be made without regard to the race, color, religion, sex, disability, or national origin of the appointee. (Government Code, Secs. 415.113, 415.114 (part).)
Sec. 1701.954. MEMBER ELIGIBILITY. (a) A person is not eligible for appointment to the advisory committee unless the person:
(1) is at least 21 years of age;
(2) is a resident of this state;
(3) is of good character; and
(4) does not have a conviction for a misdemeanor involving moral turpitude or a felony.
(b) Each appointee, other than the appointee described by Section 1701.953(a)(2), must meet the experience requirements prescribed for commission members under Sections 1701.051 and 1701.052.
(c) A person is not eligible for appointment to the advisory committee if the person is a commission member, a commission employee, or a person related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a commission member or employee. (Government Code, Sec. 415.114 (part).)
Sec. 1701.955. TERMS; VACANCIES. (a) Appointed members of the advisory committee serve two-year terms that expire February 1 of each odd-numbered year.
(b) In the event of a vacancy during a term, the governor or the member of the commission who appointed the member who has vacated the advisory committee position shall appoint a replacement who meets the qualifications of the vacated office. (Government Code, Sec. 415.115(a).)
Sec. 1701.956. GROUNDS FOR REMOVAL. The commission may remove a member from the advisory committee if the member:
(1) does not have at the time of appointment the qualifications required for appointment to the advisory committee;
(2) does not maintain during service on the advisory committee the qualifications required for appointment to the advisory committee; or
(3) is not an ex officio member and misses more than half of the scheduled committee meetings in a calendar year. (Government Code, Sec. 415.115(b).)
Sec. 1701.957. COMPENSATION; REIMBURSEMENT. (a) An advisory committee member may not receive compensation for service on the advisory committee.
(b) An advisory committee member is entitled to reimbursement for actual and necessary expenses incurred in performing functions as an advisory committee member. (Government Code, Sec. 415.119.)
Sec. 1701.958. OFFICERS. The advisory committee shall elect a presiding officer, assistant presiding officer, and secretary from its members. (Government Code, Sec. 415.116(b).)
Sec. 1701.959. MEETINGS. (a) Until dedication of the memorial, the advisory committee shall meet at least once in each quarter of the calendar year and may meet at other times as necessary to perform its duties.
(b) On completion of construction and after dedication of the memorial, the advisory committee shall meet as necessary to perform its duties, but at least once in each calendar year. (Government Code, Sec. 415.116(a).)
Sec. 1701.960. ADVISORY COMMITTEE DUTIES. The advisory committee shall advise the commission on issues related to the funding, design, construction, updating, maintenance, and management of the memorial and shall recommend tasks, purposes, policies, rules, programs, and criteria. The advisory committee's duties include advising the commission on:
(1) selecting the site of the memorial on the grounds of the Capitol Complex;
(2) raising funds from private or public contributions;
(3) establishing a schedule for the design, construction, and dedication of the memorial;
(4) implementing procedures to solicit designs for the memorial and devising a selection process and choice of the final design;
(5) selecting persons to provide fund-raising services;
(6) selecting persons to construct the memorial;
(7) reviewing and monitoring the design and construction of the memorial;
(8) establishing rules and procedures for adding names to the memorial in accordance with Section 1701.952(c); and
(9) establishing guidelines for conducting memorial services at the memorial site. (Government Code, Secs. 415.112 (part), 415.117(a) (part).)
Sec. 1701.961. APPROVAL OF CERTAIN COMMISSION DECISIONS. A commission decision described by:
(1) Section 1701.960(1) must be approved by the State Preservation Board and the architect of the Capitol;
(2) Section 1701.960(3), (4), or (7) must be approved by the State Preservation Board; and
(3) Section 1701.960(6) must be approved by the State Preservation Board and the General Services Commission. (Government Code, Sec. 415.117(b).)
Sec. 1701.962. REPORTS. The advisory committee shall submit reports to the commission relating to the operation of the advisory committee as required by the commission. (Government Code, Sec. 415.118.)
Sec. 1701.963. FUNDS. (a) Funds contributed for the Texas peace officers' memorial shall be deposited in the state treasury to the credit of a separate interest-bearing fund account established for the peace officers' memorial.
(b) An entity that collects funds for the Texas peace officers' memorial or solicits funds in any way giving the impression that the proceeds or funds are for the benefit of the Texas peace officers' memorial shall send that money to the comptroller to be deposited in the fund account not later than the 30th day after the date on which the money is collected.
(c) Notwithstanding other law, income from investments of the fund is deposited to the credit of the fund.
(d) Money in the fund may be used only by the commission with the advice of the advisory committee for the purposes prescribed by Sections 1701.952(a) and 1701.960. (Government Code, Sec. 415.120.)
Sec. 1701.964. CEREMONIES. (a) The lieutenant governor and the speaker of the house of representatives shall supervise the dedication of the memorial on the Capitol Complex grounds. A subsequent ceremony must be conducted according to reasonable guidelines established by the commission with the advice of the advisory committee. Those guidelines may not exceed the guidelines established by the State Preservation Board for other ceremonies held on the Capitol Complex grounds.
(b) The secretary of state shall publish the date of the dedication ceremony and of a subsequent ceremony in the Texas Register not later than the 30th day before the date of the ceremony. The commission shall timely inform the secretary of the dates. (Government Code, Sec. 415.122.)
Sec. 1701.965. STATEMENT OF PROGRESS. The commission shall issue to the governor, lieutenant governor, and speaker of the house of representatives as well as the respective oversight committees in the house of representatives and the senate an annual report of its progress in funding, designing, and constructing the Texas peace officers' memorial. (Government Code, Sec. 415.121.)
CHAPTER 1702. PRIVATE INVESTIGATORS AND PRIVATE
SECURITY AGENCIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1702.001. SHORT TITLE
Sec. 1702.002. DEFINITIONS
Sec. 1702.003. APPLICATION OF SUNSET ACT
Sec. 1702.004. GENERAL SCOPE OF REGULATION
[Sections 1702.005-1702.020 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF PRIVATE INVESTIGATORS AND
PRIVATE SECURITY AGENCIES
Sec. 1702.021. BOARD MEMBERSHIP
Sec. 1702.022. EX OFFICIO BOARD MEMBERS
Sec. 1702.023. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 1702.024. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 1702.025. TERMS; VACANCIES
Sec. 1702.026. OFFICERS
Sec. 1702.027. GROUNDS FOR REMOVAL
Sec. 1702.028. PER DIEM; REIMBURSEMENT
Sec. 1702.029. MEETINGS
[Sections 1702.030-1702.040 reserved for expansion]
SUBCHAPTER C. DIRECTOR AND PERSONNEL
Sec. 1702.041. DIRECTOR
Sec. 1702.042. PERSONNEL; CONFLICT OF INTEREST
Sec. 1702.043. DIVISION OF RESPONSIBILITIES
Sec. 1702.044. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION
Sec. 1702.045. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS
Sec. 1702.046. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT
[Sections 1702.047-1702.060 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF BOARD
Sec. 1702.061. GENERAL POWERS AND DUTIES OF BOARD
Sec. 1702.062. FEES
Sec. 1702.063. BOARD USE OF FINES
Sec. 1702.064. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 1702.065. POWERS AND DUTIES RELATING TO ALARM SYSTEMS
INSTALLERS; CERTIFICATES OF INSTALLATION
Sec. 1702.066. SERVICE OF PROCESS; SERVICE OF DOCUMENTS ON
BOARD
Sec. 1702.067. BOARD RECORDS; EVIDENCE
Sec. 1702.068. APPEAL BOND NOT REQUIRED
Sec. 1702.069. ANNUAL REPORT
[Sections 1702.070-1702.080 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 1702.081. PUBLIC INTEREST INFORMATION
Sec. 1702.082. COMPLAINTS
Sec. 1702.083. PUBLIC PARTICIPATION
[Sections 1702.084-1702.100 reserved for expansion]
SUBCHAPTER F. LICENSING AND DUTIES OF INVESTIGATIONS
COMPANIES AND SECURITY SERVICES CONTRACTORS
Sec. 1702.101. INVESTIGATIONS COMPANY LICENSE REQUIRED
Sec. 1702.102. SECURITY SERVICES CONTRACTOR LICENSE
REQUIRED; SCOPE OF LICENSE
Sec. 1702.103. CLASSIFICATION AND LIMITATION OF LICENSES
Sec. 1702.104. INVESTIGATIONS COMPANY
Sec. 1702.105. ALARM SYSTEMS COMPANY
Sec. 1702.106. ARMORED CAR COMPANY
Sec. 1702.107. COURIER COMPANY
Sec. 1702.108. GUARD COMPANY
Sec. 1702.109. GUARD DOG COMPANY
Sec. 1702.110. APPLICATION FOR LICENSE
Sec. 1702.111. ISSUANCE OF BRANCH OFFICE LICENSE
Sec. 1702.112. FORM OF LICENSE
Sec. 1702.113. GENERAL QUALIFICATIONS FOR LICENSE
Sec. 1702.114. ADDITIONAL QUALIFICATIONS FOR INVESTIGATIONS
COMPANY LICENSE
Sec. 1702.115. ADDITIONAL QUALIFICATIONS FOR SECURITY
SERVICES CONTRACTOR LICENSE
Sec. 1702.116. QUALIFICATIONS FOR GUARD DOG COMPANY LICENSE;
INSPECTIONS
Sec. 1702.117. EXAMINATION
Sec. 1702.118. EXAMINATION RESULTS
Sec. 1702.119. MANAGER REQUIRED
Sec. 1702.120. FALSE APPLICATION OF MANAGER
Sec. 1702.121. TERMINATION OF MANAGER
Sec. 1702.122. TEMPORARY CONTINUATION OF LICENSE HOLDER'S
BUSINESS
Sec. 1702.123. INSURANCE; BOND
Sec. 1702.124. INSURANCE REQUIREMENT
Sec. 1702.125. BOND REQUIREMENT
Sec. 1702.126. CASH INSTEAD OF BOND
Sec. 1702.127. LICENSE HOLDER EMPLOYEES; RECORDS
Sec. 1702.128. POSTING OF LICENSE REQUIRED
Sec. 1702.129. NOTICE OF CERTAIN CHANGES; BRANCH
OFFICES
Sec. 1702.130. USE OF CERTAIN TITLES, UNIFORMS, INSIGNIA, OR
IDENTIFICATIONS PROHIBITED
Sec. 1702.131. ADVERTISING
Sec. 1702.132. REPORTS TO EMPLOYER OR CLIENT
Sec. 1702.133. CONFIDENTIALITY; INFORMATION RELATING TO
CRIMINAL OFFENSE
Sec. 1702.134. LICENSE HOLDER EXEMPTIONS FROM CERTAIN LOCAL
REGULATIONS
[Sections 1702.135-1702.160 reserved for expansion]
SUBCHAPTER G. SECURITY OFFICER COMMISSION REQUIREMENTS
Sec. 1702.161. SECURITY OFFICER COMMISSION REQUIRED
Sec. 1702.162. EMPLOYER'S APPLICATION FOR SECURITY OFFICER
COMMISSION
Sec. 1702.163. QUALIFICATIONS FOR SECURITY OFFICER
COMMISSION
Sec. 1702.164. NOTICE OF APPLICATION FOR SECURITY OFFICER
COMMISSION TO LAW ENFORCEMENT; REVIEW
Sec. 1702.165. ISSUANCE OF SECURITY OFFICER COMMISSION;
POCKET CARD
Sec. 1702.166. GEOGRAPHICAL SCOPE OF SECURITY OFFICER
COMMISSION
Sec. 1702.167. TERMINATION OF EMPLOYMENT AS COMMISSIONED
SECURITY OFFICER; TRANSFER OF COMMISSION
Sec. 1702.168. FIREARM REQUIREMENTS
Sec. 1702.169. FIREARM RESTRICTIONS
Sec. 1702.170. NONAPPLICABILITY OF FIREARM
RESTRICTIONS
Sec. 1702.171. SECURITY OFFICER COMMISSION RECORDS
[Sections 1702.172-1702.180 reserved for expansion]
SUBCHAPTER H. EMPLOYMENT OF COMMISSIONED SECURITY OFFICER
BY CERTAIN PERSONS; LETTER OF AUTHORITY REQUIREMENTS
Sec. 1702.181. LETTER OF AUTHORITY REQUIRED
Sec. 1702.182. SECURITY DEPARTMENT OF PRIVATE
BUSINESS
Sec. 1702.183. APPLICATION FOR LETTER OF AUTHORITY
[Sections 1702.184-1702.200 reserved for expansion]
SUBCHAPTER I. PERSONAL PROTECTION OFFICER AUTHORIZATION
REQUIREMENTS
Sec. 1702.201. PERSONAL PROTECTION OFFICER
AUTHORIZATION REQUIRED
Sec. 1702.202. PERSONAL PROTECTION OFFICER
Sec. 1702.203. APPLICATION FOR PERSONAL PROTECTION
OFFICER AUTHORIZATION
Sec. 1702.204. PERSONAL PROTECTION OFFICER
AUTHORIZATION; QUALIFICATIONS
Sec. 1702.205. PERSONAL PROTECTION OFFICER TRAINING
Sec. 1702.206. CONCEALED FIREARMS
[Sections 1702.207-1702.220 reserved for expansion]
SUBCHAPTER J. REGISTRATION REQUIREMENTS; REGISTRANT DUTIES
Sec. 1702.221. REGISTRATION REQUIRED
Sec. 1702.222. SECURITY OFFICER
Sec. 1702.223. ALARM SYSTEMS INSTALLER
Sec. 1702.224. ALARM SYSTEMS MONITOR
Sec. 1702.225. DOG TRAINER
Sec. 1702.226. PRIVATE SECURITY CONSULTANT
Sec. 1702.227. SECURITY SALESPERSON
Sec. 1702.228. EMPLOYEE OF LICENSE HOLDER; REGISTRATION
PERMITTED
Sec. 1702.229. QUALIFICATIONS FOR REGISTRATION
Sec. 1702.230. APPLICATION FOR REGISTRATION
Sec. 1702.231. NOTICE OF APPLICATION FOR REGISTRATION TO LAW
ENFORCEMENT; REVIEW
Sec. 1702.232. POCKET CARDS
Sec. 1702.233. POCKET CARDS FOR CERTAIN REGISTRANTS
Sec. 1702.234. POCKET CARDS FOR NONCOMMISSIONED SECURITY
OFFICERS
Sec. 1702.235. PREEMPLOYMENT CHECK FOR NONCOMMISSIONED
SECURITY OFFICERS
Sec. 1702.236. NOTICE OF TERMINATION OF EMPLOYMENT
Sec. 1702.237. SECURITY OFFICER TRAINING
Sec. 1702.238. CONTINUING EDUCATION FOR PRIVATE
INVESTIGATORS
Sec. 1702.239. TRAINING REQUIREMENTS FOR ALARM SYSTEMS
INSTALLER AND SECURITY SALESPERSON;
EXAMINATION
Sec. 1702.240. REGISTRATION EXEMPTIONS FOR UNDERCOVER AGENT
[Sections 1702.241-1702.260 reserved for expansion]
SUBCHAPTER K. SELLER'S CERTIFICATE
Sec. 1702.261. APPLICABILITY OF CHAPTER
Sec. 1702.262. SELLERS OF CERTAIN DEVICES
Sec. 1702.263. APPLICATION FOR SELLER'S CERTIFICATE
Sec. 1702.264. EXPIRATION OF SELLER'S CERTIFICATE
Sec. 1702.265. CONSUMER PROTECTION
Sec. 1702.266. CERTAIN PROHIBITED PRACTICES
Sec. 1702.267. SUSPENSION OR REVOCATION OF SELLER'S
CERTIFICATE
[Sections 1702.268-1702.280 reserved for expansion]
SUBCHAPTER L. GENERAL PROVISIONS APPLICABLE
TO REGULATED PERSONS
Sec. 1702.281. NOTICE TO LAW ENFORCEMENT
Sec. 1702.282. CRIMINAL HISTORY CHECK
Sec. 1702.283. CRUELTY TO ANIMALS
Sec. 1702.284. ALARM SYSTEMS RECORDS CONFIDENTIAL
Sec. 1702.285. FALSE REPRESENTATION
[Sections 1702.286-1702.300 reserved for expansion]
SUBCHAPTER M. EXPIRATION; RENEWAL
Sec. 1702.301. EXPIRATION
Sec. 1702.302. LICENSE RENEWAL
Sec. 1702.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER
Sec. 1702.304. PRORATION OF LICENSE RENEWAL FEE
Sec. 1702.305. EFFECT OF LICENSE RENEWAL ON DISCIPLINARY
ACTION
Sec. 1702.306. EFFECT OF SUSPENSION ON LICENSE RENEWAL
REQUIREMENTS
Sec. 1702.307. REGISTRATION RENEWAL
[Sections 1702.308-1702.320 reserved for expansion]
SUBCHAPTER N. EXCEPTIONS
Sec. 1702.321. GOVERNMENT EMPLOYEES
Sec. 1702.322. LAW ENFORCEMENT PERSONNEL
Sec. 1702.323. SECURITY DEPARTMENT OF PRIVATE BUSINESS
Sec. 1702.324. CERTAIN OCCUPATIONS
Sec. 1702.325. COMMON CARRIERS
Sec. 1702.326. MEDICAL ALERT SERVICES
Sec. 1702.327. NONPROFIT AND CIVIC ORGANIZATIONS
Sec. 1702.328. SECURITY SYSTEMS SALES AND INSTALLATION
Sec. 1702.329. FIRE ALARM AND DETECTION SALES AND
INSTALLATION
[Sections 1702.330-1702.360 reserved for expansion]
SUBCHAPTER O. PROHIBITED PRACTICES AND GROUNDS FOR
DENIAL AND DISCIPLINARY ACTION
Sec. 1702.361. DENIAL AND DISCIPLINARY POWERS OF BOARD;
GROUNDS
Sec. 1702.362. FAILURE TO FILE REQUIRED NOTICE
Sec. 1702.363. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT
Sec. 1702.364. SUMMARY SUSPENSION
Sec. 1702.365. ABDUCTION OF CHILD
Sec. 1702.366. PAYMENT INSTEAD OF SUSPENSION
Sec. 1702.367. COMPLAINT INVESTIGATION; SUBPOENA; WITNESS
Sec. 1702.368. NOTICE FROM DEPARTMENT OF PUBLIC SAFETY
Sec. 1702.369. NO REINSTATEMENT AFTER REVOCATION
Sec. 1702.370. EFFECT OF SUSPENSION; MONITORING OF
EXISTING ALARM CONTRACTS
Sec. 1702.371. CONVICTION OF CERTAIN CRIMES
[Sections 1702.372-1702.380 reserved for expansion]
SUBCHAPTER P. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1702.381. CIVIL PENALTY
Sec. 1702.382. INJUNCTION
Sec. 1702.383. ACTION FOR CIVIL PENALTY OR INJUNCTION
Sec. 1702.384. FALSIFICATION OF CERTAIN DOCUMENTS;
OFFENSE
Sec. 1702.385. NEGLECT BY GUARD DOG COMPANY; OFFENSE
Sec. 1702.386. UNAUTHORIZED EMPLOYMENT; OFFENSE
Sec. 1702.387. FAILURE TO SURRENDER CERTAIN DOCUMENTS;
OFFENSE
Sec. 1702.388. VIOLATION OF CHAPTER; OFFENSE
Sec. 1702.389. VENUE
CHAPTER 1702. PRIVATE INVESTIGATORS AND PRIVATE
SECURITY AGENCIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1702.001. SHORT TITLE. This chapter may be cited as the Private Investigators and Private Security Agencies Act. (V.A.C.S. Art. 4413(29bb), Sec. 1.)
Sec. 1702.002. DEFINITIONS. In this chapter:
(1) "Alarm system" means a burglar alarm signal device, burglar alarm, robbery alarm, television camera, still camera, or other electrical, mechanical, or electronic device used:
(A) to prevent or detect burglary, theft, robbery, or other losses resulting from similar acts;
(B) to prevent or detect intrusion; or
(C) primarily to detect or summon aid for emergencies not listed in Paragraph (A) or (B).
(2) "Board" means the Texas Board of Private Investigators and Private Security Agencies.
(3) "Branch office" means an office that is:
(A) identified to the public as a place from which business is conducted, solicited, or advertised; and
(B) at a place other than the principal place of business as shown in board records.
(4) "Branch office license" means a permit issued by the board that entitles a person to operate at a branch office as a security services contractor or investigations company.
(5) "Commissioned security officer" means a security officer to whom a security officer commission has been issued by the board.
(6) "Detection device" means an electronic device used:
(A) as a part of a burglar or robbery alarm, including a control, communications device, motion detector, door or window switch, sound detector, vibration detector, light beam, pressure mat, wiring, or similar device; or
(B) to limit a person's access into a structure or gate compound, including a control, communications device, motion detector, door or window switch, card or proximity reader, push-button keypad entry, gate entry device, door exit button, or similar device.
(7) "Firearm" has the meaning assigned by Section 46.01, Penal Code.
(8) "Insurance agent" means:
(A) a person licensed under Article 1.14-2 or 21.14, Insurance Code;
(B) a salaried, state, or special agent; or
(C) a person authorized to represent an insurance fund or pool created by a local government under Chapter 791, Government Code.
(9) "Investigations company" means a person who performs the activities described by Section 1702.104.
(10) "Letter of authority" means a permit issued by the board that entitles the security department of a private business or a political subdivision to employ a commissioned security officer.
(11) "License" means a permit issued by the board that entitles a person to operate as a security services contractor or investigations company.
(12) "License holder" means a person to whom the board issues a license.
(13) "Manager" means an officer or supervisor of a corporation or a general partner of a partnership who has the experience required by Section 1702.119 to manage a security services contractor or an investigations company.
(14) "Peace officer" means a person who is a peace officer under Article 2.12, Code of Criminal Procedure.
(15) "Personal protection officer authorization" means a permit issued by the board that entitles an individual to act as a personal protection officer.
(16) "Private investigator" means an individual who performs one or more services described by Section 1702.104.
(17) "Registrant" means an individual who has registered with the board under Section 1702.221.
(18) "Registration" means a permit issued by the board to an individual described by Section 1702.221.
(19) "Security officer commission" means an authorization issued by the board that entitles a security officer to carry a firearm.
(20) "Security services contractor" means a person who performs the activities described by Section 1702.102. (V.A.C.S. Art. 4413(29bb), Secs. 2(1); (3) (part); (5) (part); (9) (part); (11); (14); (15); (16); (17); (18); (19); (20); (21) (part); (22) (part); (23); (26); (27) (part); (31) (part); (32), as added Acts 71st Leg., R.S., Ch. 823; (33); (34) (part); (36).)
Sec. 1702.003. APPLICATION OF SUNSET ACT. The Texas Board of Private Investigators and Private Security Agencies is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 1999. (V.A.C.S. Art. 4413(29bb), Sec. 4(d).)
Sec. 1702.004. GENERAL SCOPE OF REGULATION. The board, in addition to performing duties required by other law or exercising powers granted by other law:
(1) licenses investigations companies and security services contractors;
(2) issues commissions to certain security officers;
(3) issues authorizations to certain security officers engaged in the personal protection of individuals;
(4) registers:
(A) certain individuals connected with a license holder; and
(B) certain individuals employed in a field connected to private investigation or private security; and
(5) regulates license holders, security officers, and registrants under this chapter. (New.)
[Sections 1702.005-1702.020 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF PRIVATE INVESTIGATORS AND
PRIVATE SECURITY AGENCIES
Sec. 1702.021. BOARD MEMBERSHIP. (a) The Texas Board of Private Investigators and Private Security Agencies consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) three public members each of whom is a citizen of the United States;
(2) two members who are licensed under this chapter, each of whom:
(A) has been engaged for five consecutive years as a private investigator or security services contractor; and
(B) is not employed by a person who employs another member of the board; and
(3) one member who:
(A) is licensed under this chapter as the owner or operator of a guard company;
(B) has operated for at least five consecutive years as a guard company; and
(C) is not employed by a person who employs another member of the board.
(b) Appointments to the board shall be made without regard to the race, creed, color, disability, sex, religion, age, or national origin of the appointee.
(c) On presentation by a board member of the constitutional oath taken by the member, together with the certificate of appointment, the secretary of state shall issue a commission to the member as evidence of the member's authority to act as a board member. (V.A.C.S. Art. 4413(29bb), Secs. 5(a) (part), 6(b).)
Sec. 1702.022. EX OFFICIO BOARD MEMBERS. (a) The director of the Department of Public Safety and the attorney general are ex officio members of the board during their terms of office and shall perform the duties required of board members.
(b) The attorney general and the director of the Department of Public Safety may delegate to a personal representative from their respective offices the authority and duty to represent them on the board.
(c) The designated representative may exercise the powers and duties of the ex officio board member while performing official board business, but the member making the designation is responsible for the representative's acts and decisions. (V.A.C.S. Art. 4413(29bb), Secs. 5(a) (part), 7(b), 9.)
Sec. 1702.023. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of private security;
(2) is employed by or participates in the management of a business entity or other organization related to the field of private security; or
(3) has, other than as a consumer, a financial interest in a business entity or other organization related to the field of private security. (V.A.C.S. Art. 4413(29bb), Sec. 5(b).)
Sec. 1702.024. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors designed to assist its members and its industry or profession in dealing with mutual or professional problems and in promoting their common interests.
(b) A member or employee of the board may not be an officer, employee, or paid consultant of a trade association in the private security industry.
(c) A person who is the spouse of an officer, employee, or paid consultant of a trade association on behalf of a profession related to the operation of the board may not be a board member and may not be an employee of the board who is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) A person may not serve as a board member or act as 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. (V.A.C.S. Art. 4413(29bb), Secs. 5(c), (d), (h).)
Sec. 1702.025. TERMS; VACANCIES. (a) The appointed board members serve staggered six-year terms, with the terms of two appointed members expiring on January 31 of each odd-numbered year.
(b) If a vacancy occurs during the term of an appointed board member, the governor shall appoint a new member to fill the unexpired term. (V.A.C.S. Art. 4413(29bb), Secs. 7(a) (part), 8.)
Sec. 1702.026. OFFICERS. (a) The governor shall designate one board member as presiding officer without regard to race, creed, color, disability, sex, religion, age, or national origin.
(b) The board, including the representative of the director of the Department of Public Safety if one is designated, shall elect from among its members an assistant presiding officer and a secretary to serve two-year terms beginning on September 1 of each odd-numbered year.
(c) The presiding officer of the board or, when the presiding officer is absent, the assistant presiding officer shall preside at each board meeting and perform the other duties prescribed by this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 12(b).)
Sec. 1702.027. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have the qualifications required by Section 1702.021 or 1702.023 for appointment to the board at the time of appointment;
(2) does not maintain the qualifications required by Section 1702.021 or 1702.023 for appointment to the board during service on the board;
(3) violates a prohibition established by Section 1702.024;
(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from at least half of the regularly scheduled board meetings held in a calendar year, excluding meetings held when the person was not a board member.
(b) The validity of an action of the board is not affected by the fact that it was taken when a ground for removal of a board member existed.
(c) If the director has knowledge that a potential ground for removal exists, the director shall notify the presiding officer of the board of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4413(29bb), Secs. 5(e), (f), (g).)
Sec. 1702.028. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by legislative appropriation for each day the member engages in the business of the board.
(b) A member is entitled to reimbursement for transportation expenses as prescribed by the General Appropriations Act. A member may not receive compensation for travel expenses, including expenses for meals and lodging, other than transportation expenses. (V.A.C.S. Art. 4413(29bb), Sec. 10(a) (part).)
Sec. 1702.029. MEETINGS. The board shall meet at regular intervals to be decided by the board. (V.A.C.S. Art. 4413(29bb), Sec. 12(a).)
[Sections 1702.030-1702.040 reserved for expansion]
SUBCHAPTER C. DIRECTOR AND PERSONNEL
Sec. 1702.041. DIRECTOR. (a) The director is the chief administrator of the board. The director shall perform duties as prescribed by the board.
(b) The director is a full-time employee of the board. A board member may not serve as director. (V.A.C.S. Art. 4413(29bb), Sec. 4(b) (part).)
Sec. 1702.042. PERSONNEL; CONFLICT OF INTEREST. An employee of the board may not:
(1) have a financial or business interest, contingent or otherwise, in a security services contractor or investigations company; or
(2) be licensed under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 4(b) (part).)
Sec. 1702.043. DIVISION OF RESPONSIBILITIES. The board shall adopt policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4413(29bb), Sec. 10(e).)
Sec. 1702.044. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:
(1) qualifications for office or employment under this chapter; and
(2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4413(29bb), Sec. 10(d).)
Sec. 1702.045. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The director or the director's designee shall develop an intra-agency career ladder program. The program must require the intra-agency posting of each nonentry level position at least 10 days before any public posting.
(b) The director or the director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4413(29bb), Secs. 10(b), (c).)
Sec. 1702.046. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The director shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, creed, color, disability, sex, religion, age, or national origin. The policy statement must include:
(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel;
(2) a comprehensive analysis of the board's workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of significant underuse in the board's workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and
(4) reasonable methods to appropriately address those areas of significant underuse.
(b) The policy statement must:
(1) cover an annual period;
(2) be updated at least annually; and
(3) be filed with the governor.
(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4413(29bb), Sec. 10A.)
[Sections 1702.047-1702.060 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF BOARD
Sec. 1702.061. GENERAL POWERS AND DUTIES OF BOARD. (a) The Texas Board of Private Investigators and Private Security Agencies shall perform the functions and duties provided by this chapter.
(b) The board has the powers and duties to:
(1) determine the qualifications of license holders, registrants, and commissioned security officers;
(2) investigate alleged violations of this chapter and of board rules;
(3) adopt rules necessary to implement this chapter; and
(4) establish and enforce standards governing the safety and conduct of each person licensed, registered, or commissioned under this chapter.
(c) The board shall have a seal in the form prescribed by the board. (V.A.C.S. Art. 4413(29bb), Secs. 4(a); 11(a), (b).)
Sec. 1702.062. FEES. (a) If the General Appropriations Act does not specify the amount of a fee, the board by rule shall establish reasonable and necessary fees that produce sufficient revenue to administer this chapter. The fees may not produce unnecessary fund balances and may not exceed the following amounts:
Class A license $225 (original and renewal) Class B license $225 (original and renewal) Class C license $340 (original and renewal) Reinstate suspended license $150 Assignment of license $150 Change name of license $75 Delinquency fee ______ Branch office certificate and renewal $150 Registration fee for private investigator, manager, branch office manager, and alarm systems installer $20 (original and renewal) Registration fee for noncommissioned security officer $35 Registration fee for security salesperson $20 Registration fee for alarm systems monitor $20 Registration fee for dog trainer $20 Registration fee for owner, officer, partner, or shareholder of a license holder $20 Registration fee for security consultant $55 Security officer commission fee $35 (original and renewal) School instructor fee $100 (original and renewal) School approval fee $250 (original and renewal) Letter of authority fee for private business and political subdivision $225 (original and renewal) FBI fingerprint check $25 Duplicate pocket card $10 Employee information update fee $15 Burglar alarm seller renewal fee $25 Personal protection officer authorization $50
(b) In addition to other fees established under this chapter, the board may charge a fee each time the board requires a person regulated under this chapter to resubmit a set of fingerprints for processing by the board during the application process for a license, registration, or commission. The board shall set the fee in an amount that is reasonable and necessary to cover the board's administrative expenses related to processing the fingerprints. (V.A.C.S. Art. 4413(29bb), Secs. 17(a), (c).)
Sec. 1702.063. BOARD USE OF FINES. The fines collected under this chapter may not be used to administer this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 4(f), as added Acts 67th Leg., R.S., Ch. 306.)
Sec. 1702.064. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.
(b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:
(1) restricts the person's use of any medium for advertising;
(2) restricts the person's personal appearance or use of the person's personal voice in an advertisement;
(3) relates to the size or duration of an advertisement by the person; or
(4) restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4413(29bb), Sec. 30(b).)
Sec. 1702.065. POWERS AND DUTIES RELATING TO ALARM SYSTEMS INSTALLERS; CERTIFICATES OF INSTALLATION. (a) The board may interpret and issue an opinion resolving a question concerning the eligibility of an alarm system installation to comply with Article 5.33A, Insurance Code. A board interpretation or opinion relating to general conditions or an individual installation is conclusive.
(b) The board may authorize an alarm systems company to issue a certificate of installation showing that an installation complies with Article 5.33A, Insurance Code. An inspection otherwise required by the Insurance Code is not required if a certificate is issued under this section. The certificate must be furnished to the insurer, and the insurer shall determine whether the person's property is in compliance with Article 5.33A, Insurance Code, taking into consideration the installer's certificate and information from any other investigation the insurer determines to be appropriate. (V.A.C.S. Art. 4413(29bb), Secs. 3B, 3C.)
Sec. 1702.066. SERVICE OF PROCESS; SERVICE OF DOCUMENTS ON BOARD. Legal process and documents required by law to be served on or filed with the board must be served on or filed with the director at the designated office of the board. (V.A.C.S. Art. 4413(29bb), Sec. 4(c) (part).)
Sec. 1702.067. BOARD RECORDS; EVIDENCE. An official record of the board or an affidavit by the director as to the content of the record is prima facie evidence of a matter required to be kept by the board. (V.A.C.S. Art. 4413(29bb), Sec. 4(c) (part).)
Sec. 1702.068. APPEAL BOND NOT REQUIRED. The board is not required to give an appeal bond in any cause arising under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 11A(e) (part).)
Sec. 1702.069. ANNUAL REPORT. The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all money received and disbursed by the board in the preceding fiscal year. The form of the annual report and the reporting time are as provided in the General Appropriations Act. (V.A.C.S. Art. 4413(29bb), Sec. 11(c).)
[Sections 1702.070-1702.080 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 1702.081. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of interest to consumers or recipients of services regulated under this chapter describing the board's regulatory functions and the procedures by which complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4413(29bb), Sec. 12A(a).)
Sec. 1702.082. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
(1) on each registration form, application, or written contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or
(3) in a bill for services provided by a person regulated under this chapter.
(b) The board shall keep an information file about each complaint filed with the board relating to a person regulated by the board.
(c) If a written complaint is filed with the board relating to a person regulated by the board, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4413(29bb), Secs. 12A(b), 50A.)
Sec. 1702.083. PUBLIC PARTICIPATION. The board shall adopt policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction. (V.A.C.S. Art. 4413(29bb), Sec. 11(e).)
[Sections 1702.084-1702.100 reserved for expansion]
SUBCHAPTER F. LICENSING AND DUTIES OF INVESTIGATIONS
COMPANIES AND SECURITY SERVICES CONTRACTORS
Sec. 1702.101. INVESTIGATIONS COMPANY LICENSE REQUIRED. Unless the person holds a license as an investigations company, a person may not:
(1) act as an investigations company;
(2) offer to perform the services of an investigations company; or
(3) engage in business activity for which a license is required under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 13(a) (part).)
Sec. 1702.102. SECURITY SERVICES CONTRACTOR LICENSE REQUIRED; SCOPE OF LICENSE. (a) Unless the person holds a license as a security services contractor, a person may not:
(1) act as an alarm systems company, armored car company, courier company, guard company, or guard dog company;
(2) offer to perform the services of a company in Subdivision (1); or
(3) engage in business activity for which a license is required under this chapter.
(b) A person licensed only as a security services contractor may not conduct an investigation other than an investigation incidental to the loss, misappropriation, or concealment of property that the person has been engaged to protect. (V.A.C.S. Art. 4413(29bb), Secs. 2(9), 13(a) (part), 16(c).)
Sec. 1702.103. CLASSIFICATION AND LIMITATION OF LICENSES. (a) The license classifications are:
(1) Class A: investigations company license, covering operations of an investigations company;
(2) Class B: security services contractor license, covering operations of a security services contractor; and
(3) Class C: covering the operations included within Class A and Class B.
(b) A Class A, B, or C license does not authorize the license holder to perform a service for which the license holder has not qualified. A person may not engage in an operation outside the scope of that person's license. The board shall indicate on the license the services the license holder is authorized to perform. The license holder may not perform a service unless it is indicated on the license.
(c) A license is not assignable unless the assignment is approved in advance by the board.
(d) The board shall prescribe by rule the procedure under which a license may be terminated. (V.A.C.S. Art. 4413(29bb), Secs. 16(a), (b), (d); 24; 25.)
Sec. 1702.104. INVESTIGATIONS COMPANY. A person acts as an investigations company for the purposes of this chapter if the person:
(1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to:
(A) crime or wrongs done or threatened against a state or the United States;
(B) the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person;
(C) the location, disposition, or recovery of lost or stolen property; or
(D) the cause or responsibility for a fire, libel, loss, accident, damage, or injury to a person or to property;
(2) engages in the business of securing, or accepts employment to secure, evidence for use before a court, board, officer, or investigating committee;
(3) engages in the business of securing, or accepts employment to secure, the electronic tracking of the location of an individual or motor vehicle other than for criminal justice purposes by or on behalf of a governmental entity; or
(4) engages in the business of protecting, or accepts employment to protect, an individual from bodily harm through the use of a personal protection officer. (V.A.C.S. Art. 4413(29bb), Sec. 2(3).)
Sec. 1702.105. ALARM SYSTEMS COMPANY. A person acts as an alarm systems company for the purposes of this chapter if the person sells, installs, services, monitors, or responds to an alarm system or detection device. (V.A.C.S. Art. 4413(29bb), Sec. 2(5) (part).)
Sec. 1702.106. ARMORED CAR COMPANY. A person acts as an armored car company for the purposes of this chapter if the person provides secured and protected transportation of valuables, including money, coins, bullion, securities, bonds, or jewelry. (V.A.C.S. Art. 4413(29bb), Sec. 2(6).)
Sec. 1702.107. COURIER COMPANY. A person acts as a courier company for purposes of this chapter if the person transports or offers to transport under armed guard an item that requires expeditious delivery, including a document, map, stock, bond, or check. (V.A.C.S. Art. 4413(29bb), Sec. 2(7).)
Sec. 1702.108. GUARD COMPANY. A person acts as a guard company for the purposes of this chapter if the person engages in the business of or undertakes to provide a private watchman, guard, or street patrol service on a contractual basis for another person to:
(1) prevent entry, larceny, vandalism, abuse, fire, or trespass on private property;
(2) prevent, observe, or detect unauthorized activity on private property;
(3) control, regulate, or direct the movement of the public, whether by vehicle or otherwise, only to the extent and for the time directly and specifically required to ensure the protection of property;
(4) protect an individual from bodily harm including through the use of a personal protection officer; or
(5) perform a function similar to a function listed in this section. (V.A.C.S. Art. 4413(29bb), Sec. 2(4).)
Sec. 1702.109. GUARD DOG COMPANY. A person acts as a guard dog company for the purposes of this chapter if the person places, rents, sells, or trains a dog used to:
(1) protect an individual or property; or
(2) conduct an investigation. (V.A.C.S. Art. 4413(29bb), Sec. 2(8).)
Sec. 1702.110. APPLICATION FOR LICENSE. An application for a license under this chapter must be in the form prescribed by the board and include:
(1) the full name and business address of the applicant;
(2) the name under which the applicant intends to do business;
(3) a statement as to the general nature of the business in which the applicant intends to engage;
(4) a statement as to the classification for which the applicant requests qualification;
(5) if the applicant is an entity other than an individual, the full name and residence address of each partner, officer, and director of the applicant, and of the applicant's manager;
(6) if the applicant is an individual, one classifiable set of fingerprints of the applicant or, if the applicant is an entity other than an individual, of each officer and of each partner or shareholder who owns at least a 25 percent interest in the applicant;
(7) a verified statement of the applicant's experience qualifications in the particular classification in which the applicant is applying;
(8) letters from the police department of the municipality and the sheriff's department of the county in which the applicant resides:
(A) concerning the character of the applicant; and
(B) containing any objection or recommendation with respect to the application;
(9) a letter from the Department of Public Safety stating the applicant's record of any convictions for a crime involving moral turpitude or a felony;
(10) the social security number of the individual making the application; and
(11) other information, evidence, statements, or documents required by the board. (V.A.C.S. Art. 4413(29bb), Secs. 15(a), (b).)
Sec. 1702.111. ISSUANCE OF BRANCH OFFICE LICENSE. (a) A license holder, in accordance with Section 1702.129, shall notify the board in writing of the establishment of a branch office and file in writing with the board the address of the branch office.
(b) On application by a license holder, the board shall issue a branch office license. (V.A.C.S. Art. 4413(29bb), Secs. 31(a) (part), (b).)
Sec. 1702.112. FORM OF LICENSE. The board shall prescribe the form of a license, including a branch office license. The license must include:
(1) the name of the license holder;
(2) the name under which the license holder is to operate; and
(3) the license number and the date the license was issued. (V.A.C.S. Art. 4413(29bb), Sec. 21.)
Sec. 1702.113. GENERAL QUALIFICATIONS FOR LICENSE. An applicant for a license or the applicant's manager must be at least 18 years of age and may not:
(1) have been convicted in any jurisdiction of a felony, unless a full pardon has been granted;
(2) have been convicted in any jurisdiction of a misdemeanor involving moral turpitude during the seven-year period preceding the date of application, unless a full pardon has been granted;
(3) have been found by a court to be incompetent by reason of a mental defect or disease and not have been restored to competency;
(4) be suffering from habitual drunkenness or from narcotics addiction or dependence; or
(5) have been discharged from the United States armed services under other than honorable conditions. (V.A.C.S. Art. 4413(29bb), Sec. 14(a).)
Sec. 1702.114. ADDITIONAL QUALIFICATIONS FOR INVESTIGATIONS COMPANY LICENSE. (a) An applicant for a license to engage in the business of an investigations company or the applicant's manager must have, before the date of the application, three consecutive years' experience in the investigative field as an employee, manager, or owner of an investigations company or satisfy other requirements set by the board.
(b) The applicant's experience must be:
(1) reviewed by the board or the director; and
(2) determined to be adequate to qualify the applicant to engage in the business of an investigations company. (V.A.C.S. Art. 4413(29bb), Sec. 14(b).)
Sec. 1702.115. ADDITIONAL QUALIFICATIONS FOR SECURITY SERVICES CONTRACTOR LICENSE. (a) An applicant for a license to engage in the business of a security services contractor or the applicant's manager must have, before the date of the application, two consecutive years' experience in each security services field for which the person applies as an employee, manager, or owner of a security services contractor or satisfy other requirements set by the board.
(b) The applicant's experience must have been obtained legally and must be:
(1) reviewed by the board or the director; and
(2) determined to be adequate to qualify the applicant to engage in the business of a security services contractor. (V.A.C.S. Art. 4413(29bb), Sec. 14(c).)
Sec. 1702.116. QUALIFICATIONS FOR GUARD DOG COMPANY LICENSE; INSPECTIONS. (a) An applicant for a license to engage in the business of a guard dog company must:
(1) meet the requirements of Sections 1702.113 and 1702.115; and
(2) present evidence satisfactory to the board that the applicant will comply with the rules adopted under this section.
(b) After consulting the Texas Department of Health, the board shall adopt rules to ensure that the areas in which a guard dog company houses, exercises, or trains its animals are securely enclosed by a six-foot chain-link fence or made equally secure.
(c) The board shall conduct regular inspections to ensure compliance with the rules adopted under this section. (V.A.C.S. Art. 4413(29bb), Sec. 14A.)
Sec. 1702.117. EXAMINATION. (a) The board may require an applicant or the applicant's manager to demonstrate qualifications in the person's license classification by taking an examination to be determined by the board.
(b) Payment of the application fee entitles the applicant or the applicant's manager to take one examination without additional charge. A person who fails the examination must pay a reexamination fee to take a subsequent examination.
(c) The board shall set the reexamination fee in an amount not to exceed the amount of the renewal fee for the license classification for which application was made.
(d) If requested in writing by a person who fails a licensing examination administered under this chapter, the board shall furnish to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4413(29bb), Secs. 15(c), (d), (f).)
Sec. 1702.118. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the date a licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the examination results not later than the 14th day after the date the board receives the results from the testing service.
(b) If the notice of the results of an examination graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day. (V.A.C.S. Art. 4413(29bb), Sec. 15(e).)
Sec. 1702.119. MANAGER REQUIRED. (a) A license holder's business shall be operated under the direction and control of one manager. A license holder may not apply to designate more than one individual to serve as manager of the license holder's business.
(b) An individual may not act as a manager until the individual has:
(1) demonstrated the individual's qualifications by passing a written examination; and
(2) made a satisfactory showing to the board that the individual:
(A) satisfies the requirements of Section 1702.113 and either Section 1702.114 or Section 1702.115, as appropriate; and
(B) has not engaged in conduct that is grounds for disciplinary action under Section 1702.361(b).
(c) If a manager lacks the experience to qualify to manage each category of service included in a license or application, the license holder must designate a supervisor qualified under Subsection (b) who is responsible for each service for which the manager is not qualified. (V.A.C.S. Art. 4413(29bb), Secs. 18(a), (b), (e).)
Sec. 1702.120. FALSE APPLICATION OF MANAGER. (a) An individual may not:
(1) serve as manager of an investigations company, guard company, alarm systems company, armored car company, courier company, or guard dog company; and
(2) fail to maintain that supervisory position on a daily basis for that company.
(b) An individual may not apply to the board to serve as manager of an investigations company, guard company, alarm systems company, armored car company, courier company, or guard dog company without the intent to maintain that supervisory position on a daily basis for that company. (V.A.C.S. Art. 4413(29bb), Sec. 13(c).)
Sec. 1702.121. TERMINATION OF MANAGER. A license holder shall notify the board in writing not later than the 14th day after the date a manager ceases to be manager of the license holder's business. The license remains in effect for a reasonable period after notice is given as provided by board rule pending the board's determination of the qualification of another manager under this subchapter. (V.A.C.S. Art. 4413(29bb), Sec. 18(c) (part).)
Sec. 1702.122. TEMPORARY CONTINUATION OF LICENSE HOLDER'S BUSINESS. Under the terms provided by board rule, a license holder's business may continue for a temporary period if the individual on the basis of whose qualifications a license under this chapter has been obtained ceases to be connected with the license holder. (V.A.C.S. Art. 4413(29bb), Sec. 18(d).)
Sec. 1702.123. INSURANCE; BOND. (a) A license holder shall maintain on file with the board at all times the surety bond and certificate of insurance required by this chapter.
(b) The board shall immediately suspend the license of a license holder who violates Subsection (a).
(c) The board may rescind the license suspension if the license holder provides proof to the board that the bond or the insurance coverage is still in effect. The license holder must provide the proof in a form satisfactory to the board not later than the 10th day after the date the license is suspended.
(d) After suspension of the license, the board may not reinstate the license until an application, in the form prescribed by the board, is filed accompanied by a proper bond, insurance certificate, or both. The board may deny the application notwithstanding the applicant's compliance with this section:
(1) for a reason that would justify suspending, revoking, or denying a license; or
(2) if, during the suspension, the applicant performs a practice for which a license is required. (V.A.C.S. Art. 4413(29bb), Secs. 42(a), (b).)
Sec. 1702.124. INSURANCE REQUIREMENT. (a) The board may not issue a license unless the applicant files with the board:
(1) evidence of a general liability insurance policy on a certificate of insurance form prescribed by the board and countersigned by an insurance agent licensed in this state; or
(2) a certificate of insurance for surplus lines coverage obtained under Article 1.14-2, Insurance Code, through a licensed Texas surplus lines agent resident in this state.
(b) The general liability insurance policy must be conditioned to pay on behalf of the license holder damages that the license holder becomes legally obligated to pay because of bodily injury, property damage, or personal injury, caused by an event involving the principal, or an officer, agent, or employee of the principal, in the conduct of any business licensed under this chapter.
(c) The insurance policy must contain minimum limits of:
(1) $100,000 for each occurrence for bodily injury and property damage;
(2) $50,000 for each occurrence for personal injury; and
(3) a total aggregate amount of $200,000 for all occurrences.
(d) A person who is licensed to install and service fire alarms under Article 5.43-2, Insurance Code, complies with the insurance requirements of this section by complying with the insurance requirement of that article if the insurance held by the applicant complies with the requirements of this section in amounts and types of coverage.
(e) An insurance certificate executed and filed with the board under this chapter remains in effect until the insurer terminates future liability by providing to the board at least 10 days' notice of the intent to terminate liability. (V.A.C.S. Art. 4413(29bb), Secs. 40, 42(d).)
Sec. 1702.125. BOND REQUIREMENT. (a) The bond required by this chapter must be payable to the state. A person injured by the principal, or an officer, agent, or employee of the principal, is entitled to sue directly on the bond in the person's own name. The bond is subject to successive suits for recovery until complete exhaustion of the face amount of the bond.
(b) A bond executed and filed with the board under this chapter remains in effect until the surety terminates future liability by providing to the board at least 30 days' notice of the intent to terminate liability. (V.A.C.S. Art. 4413(29bb), Secs. 41, 42(c).)
Sec. 1702.126. CASH INSTEAD OF BOND. A license holder may deposit $10,000 in cash with the state instead of the surety bond required by this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 43.)
Sec. 1702.127. LICENSE HOLDER EMPLOYEES; RECORDS. (a) A license holder may be legally responsible for the conduct in the license holder's business of each employee of the license holder while the employee is performing assigned duties for the license holder.
(b) A license holder shall maintain a record containing information related to the license holder's employees as required by the board.
(c) A license holder shall maintain for board inspection at the license holder's principal place of business or branch office two recent color photographs, of a type required by the board, of each applicant, registrant, commissioned security officer, and employee of the license holder. (V.A.C.S. Art. 4413(29bb), Secs. 27, 29.)
Sec. 1702.128. POSTING OF LICENSE REQUIRED. A license holder shall at all times post:
(1) the person's license in a conspicuous place in the principal place of business of the license holder; and
(2) each branch office license in a conspicuous place in each branch office of the license holder. (V.A.C.S. Art. 4413(29bb), Sec. 22.)
Sec. 1702.129. NOTICE OF CERTAIN CHANGES; BRANCH OFFICES. (a) A license holder shall notify the board not later than the 14th day after the date of:
(1) a change of address for the license holder's principal place of business;
(2) a change of a name under which the license holder does business; or
(3) a change in the license holder's officers or partners.
(b) A license holder shall notify the board in writing not later than the 14th day after the date a branch office:
(1) is established;
(2) is closed; or
(3) changes address or location. (V.A.C.S. Art. 4413(29bb), Secs. 23, 31(a) (part).)
Sec. 1702.130. USE OF CERTAIN TITLES, UNIFORMS, INSIGNIA, OR IDENTIFICATIONS PROHIBITED. (a) A license holder, or an officer, director, partner, manager, or employee of a license holder, may not:
(1) use a title, an insignia, or an identification card, wear a uniform, or make a statement with the intent to give an impression that the person is connected with the federal government, a state government, or a political subdivision of a state government; or
(2) use a title, an insignia, or an identification card or wear a uniform containing the designation "police."
(b) Subsection (a) does not prohibit a commissioned security officer employed by a political subdivision of this state from using a title, insignia, or identification card, wearing a uniform, or making a statement indicating the employment of that individual by the political subdivision. (V.A.C.S. Art. 4413(29bb), Sec. 28(d).)
Sec. 1702.131. ADVERTISING. An advertisement by a license holder soliciting or advertising business must contain the license holder's company name and address as stated in board records. (V.A.C.S. Art. 4413(29bb), Sec. 30(a).)
Sec. 1702.132. REPORTS TO EMPLOYER OR CLIENT. (a) A written report submitted to a license holder's employer or client may only be submitted by the license holder or manager or a person authorized by a license holder or manager. The person submitting the report shall exercise diligence in determining whether the information in the report is correct.
(b) A license holder or an officer, director, partner, manager, or employee of a license holder may not knowingly make a false report to the employer or client for whom information is obtained. (V.A.C.S. Art. 4413(29bb), Secs. 28(b), (c).)
Sec. 1702.133. CONFIDENTIALITY; INFORMATION RELATING TO CRIMINAL OFFENSE. (a) A license holder or an officer, director, partner, or manager of a license holder may not disclose to another information obtained by the person for an employer or client except:
(1) at the direction of the employer or client; or
(2) as required by state law or court order.
(b) A license holder or an officer, director, partner, or manager of a license holder shall disclose to a law enforcement officer or a district attorney, or that individual's representative, information the person obtains that relates to a criminal offense. (V.A.C.S. Art. 4413(29bb), Sec. 28(a).)
Sec. 1702.134. LICENSE HOLDER EXEMPTIONS FROM CERTAIN LOCAL REGULATIONS. (a) A license holder or an employee of a license holder is not required to obtain an authorization, permit, franchise, or license from, pay another fee or franchise tax to, or post a bond in a municipality, county, or other political subdivision of this state to engage in business or perform a service authorized under this chapter.
(b) A municipality, county, or other political subdivision of this state may not require a payment for the use of municipal, county, or other public facilities in connection with a business or service provided by a license holder, except that a municipality may impose and collect:
(1) a reasonable charge for the use of a central alarm installation located in a police office that is owned, operated, or monitored by the municipality; and
(2) reasonable inspection and reinspection fees in connection with a device that causes at least five false alarms in a 12-month period.
(c) A municipality may require, until the device is repaired to the satisfaction of the appropriate municipal official, discontinuation of service of an alarm signal device that, because of mechanical malfunction or faulty equipment, causes at least five false alarms in a 12-month period.
(d) For the purposes of Subsection (c), a false alarm caused by human error or an act of God is not considered a mechanical malfunction or faulty equipment. (V.A.C.S. Art. 4413(29bb), Secs. 3(b), (c).)
[Sections 1702.135-1702.160 reserved for expansion]
SUBCHAPTER G. SECURITY OFFICER COMMISSION REQUIREMENTS
Sec. 1702.161. SECURITY OFFICER COMMISSION REQUIRED. (a) An individual may not accept employment as a security officer to carry a firearm in the course and scope of the individual's duties unless the individual holds a security officer commission.
(b) An individual employed as a security officer may not knowingly carry a firearm during the course of performing duties as a security officer unless the board has issued a security officer commission to the individual.
(c) A person may not hire or employ an individual as a security officer to carry a firearm in the course and scope of the individual's duties unless the individual holds a security officer commission. (V.A.C.S. Art. 4413(29bb), Sec. 19(a) (part).)
Sec. 1702.162. EMPLOYER'S APPLICATION FOR SECURITY OFFICER COMMISSION. The employer of a security officer who applies for a security officer commission for the officer must submit an application to the board on a form provided by the board. (V.A.C.S. Art. 4413(29bb), Sec. 19(e) (part).)
Sec. 1702.163. QUALIFICATIONS FOR SECURITY OFFICER COMMISSION. (a) The board may not issue a security officer commission to an applicant employed by a license holder unless the applicant submits evidence satisfactory to the board that the applicant has:
(1) completed the basic training course at a school or under an instructor approved by the board;
(2) met each qualification established by this chapter and board rule; and
(3) satisfied the firearm requirements in Section 1702.168(c).
(b) The board may not issue a security officer commission to an individual who:
(1) is younger than 18 years of age;
(2) is a convicted felon; or
(3) has committed an act that, if committed by a license holder, would be grounds for suspension or revocation of a license. (V.A.C.S. Art. 4413(29bb), Secs. 19(f), 20(e) (part).)
Sec. 1702.164. NOTICE OF APPLICATION FOR SECURITY OFFICER COMMISSION TO LAW ENFORCEMENT; REVIEW. (a) The board shall send a copy of each application for a security officer commission to the Department of Public Safety and to the sheriff of the county and the chief of police of the principal municipality of the county in which the applicant resides. A sheriff or chief of police may mail or deliver to the board a written statement objecting to the issuance of a security officer commission to an applicant and stating the reasons for the objection.
(b) If the board decides to issue a security officer commission to an applicant over the objections of a sheriff or chief of police, the board shall mail a notice of the decision to the objecting officer and give the officer an opportunity to request a hearing before the board to contest the board's decision. The board shall set a hearing if the objecting officer files a request for a hearing not later than the 30th day after the date the notice was mailed.
(c) The board may not issue a security officer commission to an applicant over the objection of a sheriff or chief of police unless:
(1) the board determines at the hearing that good cause exists to issue the commission over the objection; or
(2) a hearing is not requested and the time for requesting a hearing has passed. (V.A.C.S. Art. 4413(29bb), Secs. 19(g), (h).)
Sec. 1702.165. ISSUANCE OF SECURITY OFFICER COMMISSION; POCKET CARD. (a) The board, with the concurrence of the Department of Public Safety:
(1) may issue a security officer commission to an individual employed as a uniformed security officer; and
(2) shall issue a security officer commission to a qualified employee of an armored car company that is a carrier conducting the armored car business under a federal or state permit or certificate.
(b) A security officer commission issued under this section must be in the form of a pocket card designed by the board that identifies the security officer. (V.A.C.S. Art. 4413(29bb), Secs. 19(b) (part), (d) (part), (i) (part).)
Sec. 1702.166. GEOGRAPHICAL SCOPE OF SECURITY OFFICER COMMISSION. (a) Except as provided by Subsections (b) and (c), the geographical scope of a security officer commission is restricted to one named county and each county contiguous to the named county.
(b) The board, with the concurrence of the Department of Public Safety, may issue a security officer commission that is broader in geographical scope than that specified in Subsection (a) if the broader scope is shown to be in the public interest and necessary to the performance of the security officer's duties.
(c) A security officer commission issued to an employee of an armored car company must be broad enough in its geographical scope to cover each county in which the armored car company has a permit or certificate to conduct its business. (V.A.C.S. Art. 4413(29bb), Secs. 19(b) (part), (c), (d) (part).)
Sec. 1702.167. TERMINATION OF EMPLOYMENT AS COMMISSIONED SECURITY OFFICER; TRANSFER OF COMMISSION. (a) If the holder of a security officer commission terminates the individual's employment, the employer shall notify the board not later than the 14th day after the date of termination of the employment.
(b) The holder of a security officer commission who terminates employment with one employer may transfer the individual's commission to a new employer if, not later than the 10th day after the date the individual begins the new employment, the new employer notifies the board of the transfer of employment on a form prescribed by the board, accompanied by payment of the employee information update fee. (V.A.C.S. Art. 4413(29bb), Secs. 19(j), (l).)
Sec. 1702.168. FIREARM REQUIREMENTS. (a) In addition to the requirements of Section 1702.163(a), the board by rule shall establish other qualifications for individuals who are employed in positions requiring the carrying of firearms. The qualifications may include:
(1) physical and mental standards;
(2) standards of good moral character; and
(3) other requirements that relate to the competency and reliability of individuals to carry firearms.
(b) The board shall prescribe appropriate forms and adopt rules by which evidence is presented that the requirements are fulfilled.
(c) The board shall require a commissioned security officer and an applicant for a security officer commission to demonstrate to the satisfaction of a firearm training instructor who is employed by a board-approved training school that the individual has:
(1) attained proficiency in the use of firearms;
(2) complied with board standards for minimum marksmanship competency with a shotgun; and
(3) attained with a handgun:
(A) a minimum average marksmanship competency of 160 out of 300 on an "Army L" target or a minimum of 80 out of 150 on an FBI Silhouette target (NRA B-27), at 50 feet with 10 shots slow fire, 10 shots time fire, and 10 shots double-action; or
(B) compliance with board standards of marksmanship.
(d) An applicant for a security officer commission must demonstrate the required proficiency within the 90-day period before the date the security officer commission is issued.
(e) A commissioned security officer must demonstrate the required proficiency within the 90-day period before the date the commission is renewed.
(f) The school shall maintain the records of the required proficiency and make the records available for inspection by the board. (V.A.C.S. Art. 4413(29bb), Secs. 20(e) (part), (f).)
Sec. 1702.169. FIREARM RESTRICTIONS. A commissioned security officer may not carry a firearm unless:
(1) the security officer is:
(A) engaged in the performance of duties as a security officer; or
(B) traveling directly to or from the place of assignment;
(2) the security officer wears a distinctive uniform indicating that the individual is a security officer; and
(3) the firearm is in plain view, except as provided by Section 1702.206. (V.A.C.S. Art. 4413(29bb), Sec. 19(a) (part).)
Sec. 1702.170. NONAPPLICABILITY OF FIREARM RESTRICTIONS. Sections 1702.161, 1702.169, and 1702.206 do not apply to the holder of a temporary security officer commission who:
(1) is in uniform;
(2) possesses only one firearm; and
(3) is performing the individual's duties. (V.A.C.S. Art. 4413(29bb), Sec. 19(k).)
Sec. 1702.171. SECURITY OFFICER COMMISSION RECORDS. The board shall adopt rules for the maintenance of records relating to an individual to whom the board has issued a security officer commission. (V.A.C.S. Art. 4413(29bb), Sec. 20(g).)
[Sections 1702.172-1702.180 reserved for expansion]
SUBCHAPTER H. EMPLOYMENT OF COMMISSIONED SECURITY OFFICER
BY CERTAIN PERSONS; LETTER OF AUTHORITY REQUIREMENTS
Sec. 1702.181. LETTER OF AUTHORITY REQUIRED. The security department of a private business or a political subdivision may not employ a commissioned security officer unless the security department holds a letter of authority. (New.)
Sec. 1702.182. SECURITY DEPARTMENT OF PRIVATE BUSINESS. A security department acts as the security department of a private business if it:
(1) has as its general purpose the protection and security of its own property and grounds; and
(2) does not offer or provide security services to another person. (V.A.C.S. Art. 4413(29bb), Sec. 2(10).)
Sec. 1702.183. APPLICATION FOR LETTER OF AUTHORITY. A security department of a private business or of a political subdivision that applies for a security officer commission for an individual employed by the department must submit an application to the board for a letter of authority on a form provided by the board. (V.A.C.S. Art. 4413(29bb), Sec. 19(e) (part).)
[Sections 1702.184-1702.200 reserved for expansion]
SUBCHAPTER I. PERSONAL PROTECTION OFFICER AUTHORIZATION
REQUIREMENTS
Sec. 1702.201. PERSONAL PROTECTION OFFICER AUTHORIZATION REQUIRED. A commissioned security officer may not act as a personal protection officer unless the officer holds a personal protection officer authorization. (V.A.C.S. Art. 4413(29bb), Sec. 2(35) (part); New.)
Sec. 1702.202. PERSONAL PROTECTION OFFICER. An individual acts as a personal protection officer if the individual:
(1) has been issued a security officer commission to carry a concealed firearm; and
(2) provides to an individual personal protection from bodily harm. (V.A.C.S. Art. 4413(29bb), Secs. 2(34) (part), (35) (part).)
Sec. 1702.203. APPLICATION FOR PERSONAL PROTECTION OFFICER AUTHORIZATION. An applicant for a personal protection officer authorization must submit a written application on a form prescribed by the board. (V.A.C.S. Art. 4413(29bb), Secs. 2(34) (part), 14(d) (part).)
Sec. 1702.204. PERSONAL PROTECTION OFFICER AUTHORIZATION; QUALIFICATIONS. (a) An applicant for a personal protection officer authorization must be at least 21 years of age and must provide:
(1) a certificate of completion of the basic security officer training course;
(2) proof that the applicant:
(A) has been issued a security officer commission;
(B) is employed at the time of application by an investigations company or guard company licensed by the board; and
(C) has completed the required training in nonlethal self-defense or defense of a third person; and
(3) proof of completion and the results of the Minnesota Multiphasic Personality Inventory psychological testing.
(b) The board by rule shall require an applicant for a personal protection officer authorization to complete the Minnesota Multiphasic Personality Inventory test. The board may use the results of the test to evaluate the applicant's psychological fitness. (V.A.C.S. Art. 4413(29bb), Secs. 14(d) (part), (g).)
Sec. 1702.205. PERSONAL PROTECTION OFFICER TRAINING. (a) The board shall establish a 15-hour course for a personal protection officer consisting of training in nonlethal self-defense or defense of a third person.
(b) The training required by this section is in addition to the basic training course for security officers required under Section 1702.237. (V.A.C.S. Art. 4413(29bb), Sec. 14(f).)
Sec. 1702.206. CONCEALED FIREARMS. An individual acting as a personal protection officer may not carry a concealed firearm unless the officer:
(1) is engaged in the exclusive performance of the officer's duties as a personal protection officer for the employer under whom the officer's personal protection officer authorization is issued; and
(2) carries the officer's security officer commission and personal protection officer authorization on the officer's person while performing the officer's duties and presents the commission and authorization on request. (V.A.C.S. Art. 4413(29bb), Sec. 19(a) (part).)
[Sections 1702.207-1702.220 reserved for expansion]
SUBCHAPTER J. REGISTRATION REQUIREMENTS; REGISTRANT DUTIES
Sec. 1702.221. REGISTRATION REQUIRED. An individual must register with the board as provided by board rule if the individual:
(1) is employed as an alarm systems installer, alarm systems monitor, dog trainer, manager or branch office manager, noncommissioned security officer, private investigator, private security consultant, or security salesperson; or
(2) is an owner, officer, partner, or shareholder of a license holder. (V.A.C.S. Art. 4413(29bb), Secs. 2(21) (part), (22) (part); 32(a).)
Sec. 1702.222. SECURITY OFFICER. An individual acts as a security officer for purposes of this chapter if the individual is:
(1) employed by a security services contractor or the security department of a private business; and
(2) employed to perform the duties of an alarm systems response runner who responds to the first signal of entry, a security guard, security watchman, security patrolman, armored car guard, or courier guard. (V.A.C.S. Art. 4413(29bb), Secs. 2(13), (25).)
Sec. 1702.223. ALARM SYSTEMS INSTALLER. An individual acts as an alarm systems installer for purposes of this chapter if the individual installs, maintains, or repairs an alarm system. (V.A.C.S. Art. 4413(29bb), Sec. 2(27) (part).)
Sec. 1702.224. ALARM SYSTEMS MONITOR. (a) An individual acts as an alarm systems monitor for purposes of this chapter if the individual monitors an alarm system or detection device.
(b) This section does not apply to an individual employed exclusively and regularly by an employer, other than a license holder, in connection with the affairs of that employer and with whom the individual has an employee-employer relationship. (V.A.C.S. Art. 4413(29bb), Sec. 2(31) (part).)
Sec. 1702.225. DOG TRAINER. An individual acts as a dog trainer for purposes of this chapter if the individual, as the employee of a licensed guard dog company or investigations company, trains a dog used to protect persons or property or to conduct investigations. (V.A.C.S. Art. 4413(29bb), Sec. 2(29).)
Sec. 1702.226. PRIVATE SECURITY CONSULTANT. An individual acts as a private security consultant for purposes of this chapter if the individual offers advice or services in the field of private security. (V.A.C.S. Art. 4413(29bb), Sec. 2(28).)
Sec. 1702.227. SECURITY SALESPERSON. An individual acts as a security salesperson for purposes of this chapter if the individual is employed by a security services contractor to sell services offered by the contractor. (V.A.C.S. Art. 4413(29bb), Sec. 2(30).)
Sec. 1702.228. EMPLOYEE OF LICENSE HOLDER; REGISTRATION PERMITTED. An employee of a license holder who is employed in a capacity that is not subject to mandatory registration under this subchapter may register with the board. (V.A.C.S. Art. 4413(29bb), Sec. 32(c).)
Sec. 1702.229. QUALIFICATIONS FOR REGISTRATION. (a) An individual must be at least 18 years of age to be registered.
(b) The board by rule may adopt additional qualifications for an individual to be registered under this subchapter. (V.A.C.S. Art. 4413(29bb), Secs. 32(b), (d).)
Sec. 1702.230. APPLICATION FOR REGISTRATION. (a) An application for registration must be verified and include:
(1) the applicant's full name, residence address, residence telephone number, date and place of birth, and social security number;
(2) a statement that:
(A) lists each name used by the applicant, other than the name by which the applicant is known at the time of application, and an explanation stating each place where each name was used, the date of each use, and a full explanation of the reasons the name was used; or
(B) states that the applicant has never used a name other than the name by which the applicant is known at the time of application;
(3) the name and address of the applicant's employer and, if applicable, the applicant's consulting firm;
(4) the date the employment commenced;
(5) a letter from the license holder requesting that the applicant be registered;
(6) the title of the position occupied by the applicant and a description of the applicant's duties; and
(7) any other information, evidence, statement, or document required by the board.
(b) The employer of the applicant shall make a reasonable attempt to verify the information required under Subsection (a)(1). (V.A.C.S. Art. 4413(29bb), Secs. 33(a), (b).)
Sec. 1702.231. NOTICE OF APPLICATION FOR REGISTRATION TO LAW ENFORCEMENT; REVIEW. (a) The board shall send a copy of each application for registration to the Department of Public Safety and to the sheriff of the county and the chief of police of the principal municipality of the county in which the applicant resides. A sheriff or chief of police may mail or deliver a written statement of an objection to the registration of the applicant and the reasons for that objection to the board.
(b) If the board decides to issue a registration to an applicant over the objections of a sheriff or chief of police, the board shall mail a notice of the decision to the objecting officer and give the officer an opportunity to request a hearing before the board to contest the board's decision. The board shall set a hearing if the objecting officer files a request for a hearing not later than the 30th day after the date the notice was mailed.
(c) The board may not issue a registration to an applicant over the objection of a sheriff or chief of police unless:
(1) the board determines at the hearing that good cause exists to issue the registration over the objection; or
(2) a hearing is not requested and the time for requesting a hearing has passed. (V.A.C.S. Art. 4413(29bb), Secs. 33(c), (d).)
Sec. 1702.232. POCKET CARDS. (a) The board shall issue a pocket card for each registrant under this chapter.
(b) The board shall determine the size, design, and content of the pocket card.
(c) The pocket card must:
(1) state the name of the registrant;
(2) contain a color photograph and the signature of the registrant; and
(3) state the date the card was issued and the card's expiration date. (V.A.C.S. Art. 4413(29bb), Secs. 34, 36(a) (part).)
Sec. 1702.233. POCKET CARDS FOR CERTAIN REGISTRANTS. (a) A pocket card issued for a registrant other than a noncommissioned security officer is issued to the registrant's employer, is valid for two years, and expires on the date the registration expires under Section 1702.301(d) or (f).
(b) A registrant other than a noncommissioned security officer must return the registrant's pocket card to the license holder at the time the registrant ceases employment in the position for which the registration is required.
(c) If an employee who was registered as a private investigator, manager, branch office manager, alarm systems installer, private security consultant, security salesperson, alarm systems monitor, or dog trainer ceases to be an employee of a license holder, the license holder shall return the employee's pocket card to the board.
(d) If an individual ceases to be an owner, officer, partner, or shareholder of a license holder, the license holder shall return the pocket card held by that individual to the board. (V.A.C.S. Art. 4413(29bb), Secs. 36(a) (part), 37(a), 38(b), (d).)
Sec. 1702.234. POCKET CARDS FOR NONCOMMISSIONED SECURITY OFFICERS. (a) A pocket card issued to a noncommissioned security officer is issued to the individual employee, is valid for four years, and expires on the date the registration expires under Section 1702.301(g).
(b) An employee who is registered as a noncommissioned security officer who ceases employment as a noncommissioned security officer may retain the pocket card for use in future employment and may transfer the registration to a new employer as provided by Subsection (c).
(c) A noncommissioned security officer may transfer the registrant's registration from one employer to another employer if, not later than the 10th day after the date the registrant begins the new employment, the new employer notifies the board of the transfer of employment on a form prescribed by the board accompanied by payment of the employee information update fee. (V.A.C.S. Art. 4413(29bb), Secs. 36(a) (part), 37(b), (c), 38(c).)
Sec. 1702.235. PREEMPLOYMENT CHECK FOR NONCOMMISSIONED SECURITY OFFICERS. A person may not hire a noncommissioned security officer unless the person conducts a preemployment check as required by board rule. (V.A.C.S. Art. 4413(29bb), Sec. 32(e).)
Sec. 1702.236. NOTICE OF TERMINATION OF EMPLOYMENT. A license holder shall notify the board in writing of the termination of employment of a registrant not later than the 14th day after the date the employment is terminated. The notice must state:
(1) the date the employment was terminated; and
(2) the cause for which or the conditions under which the employment was terminated. (V.A.C.S. Art. 4413(29bb), Sec. 38(a).)
Sec. 1702.237. SECURITY OFFICER TRAINING. (a) The board shall establish a basic training course for security officers. The course must be taught by schools and instructors approved by the board. To receive board approval, a school or instructor must submit an application to the board on a form provided by the board.
(b) The basic training course approved by the board must consist of at least 30 hours of training and include:
(1) legal limitations on the use of firearms and on the powers and authority of a security officer;
(2) familiarity with this chapter;
(3) field note taking and report writing;
(4) range firing and procedure and firearms safety and maintenance; and
(5) any other topic of security officer training curriculum the board considers necessary.
(c) The board shall:
(1) adopt rules necessary to administer the training requirements; and
(2) develop a commissioned security officer training manual to be used in the instruction and training of commissioned security officers. (V.A.C.S. Art. 4413(29bb), Secs. 20(a), (b), (c), (d).)
Sec. 1702.238. CONTINUING EDUCATION FOR PRIVATE INVESTIGATORS. (a) The board shall recognize, prepare, or administer continuing education programs for private investigators. The board shall set the minimum number of hours that must be completed and the types of programs that may be offered.
(b) A private investigator shall submit evidence of compliance with the board's continuing education requirements in a manner prescribed by the board. (V.A.C.S. Art. 4413(29bb), Sec. 11(d).)
Sec. 1702.239. TRAINING REQUIREMENTS FOR ALARM SYSTEMS INSTALLER AND SECURITY SALESPERSON; EXAMINATION. (a) The board may require that an individual employed as an alarm systems installer or security salesperson hold a certification by a board-approved training program to renew an initial registration. The board may approve only nationally recognized training programs that consist of at least 20 hours of classroom study in the areas of work allowed by the registration. To be approved, a training program must offer at least two certification programs each year, sufficient to complete the requirements of this subsection, within 100 miles of each county in the state that has a population of more than 500,000.
(b) The board may require an individual who has completed a training program under Subsection (a) to pass an examination given by the board or by a person approved by the board. The board may approve examinations in conjunction with training programs approved under Subsection (a). The individual's performance on the examination must demonstrate the individual's qualifications to perform the duties allowed by the individual's registration.
(c) An individual who holds a registration on September 30, 1993, is not required to comply with requirements adopted under Subsections (a) and (b) during the time the individual maintains the registration with the individual's current license holder.
(d) If the board requires certification or examination under this section, the board shall implement rules to require that to renew a registration, an individual who is employed as an alarm systems installer or a security salesperson and who has already once renewed the registration must obtain continuing education credits related to the line of work for which the individual is licensed. If the board requires the continuing education, the director must approve classes offered by nationally recognized organizations, and participants in the classes must qualify according to board rules. (V.A.C.S. Art. 4413(29bb), Secs. 32(f), (g).)
Sec. 1702.240. REGISTRATION EXEMPTIONS FOR UNDERCOVER AGENT. (a) For the purposes of this section, "undercover agent" means an individual hired by a person to perform a job in or for that person, and while performing that job, to act as an undercover agent, an employee, or an independent contractor of a license holder, but supervised by a license holder.
(b) An employee of a license holder who is employed exclusively as an undercover agent is not required to register with the board. (V.A.C.S. Art. 4413(29bb), Secs. 2(12), 35.)
[Sections 1702.241-1702.260 reserved for expansion]
SUBCHAPTER K. SELLER'S CERTIFICATE
Sec. 1702.261. APPLICABILITY OF CHAPTER. Except as provided by this subchapter, this chapter does not apply to a person who meets the requirements under Section 1702.262. (V.A.C.S. Art. 4413(29bb), Sec. 3A(a) (part).)
Sec. 1702.262. SELLERS OF CERTAIN DEVICES. A person may sell a detection device or other device for preventing or detecting burglary if:
(1) the person does not install, repair, or maintain detection devices;
(2) the person holds a seller's certificate;
(3) the person, or the manufacturer or distributor of the device that the person sells, files with the board a certificate evidencing insurance for liability for bodily injury or property damage arising from faulty or defective products in an amount of not less than $1 million combined single limit, provided that the policy of insurance need not relate exclusively to burglary devices;
(4) the person, or the manufacturer or distributor of the device that the person sells, files with the board a surety bond executed by a surety company authorized to do business in this state in the sum of $10,000 in favor of the state; and
(5) the person is not employed by a security services contractor. (V.A.C.S. Art. 4413(29bb), Sec. 3A(a) (part).)
Sec. 1702.263. APPLICATION FOR SELLER'S CERTIFICATE. (a) To obtain a seller's certificate, a person must:
(1) submit to the board an application that includes the person's full name, residence telephone number, date and place of birth, and social security number and two sets of classifiable fingerprints; and
(2) pay to the board a seller's certificate fee established by the board in an amount not to exceed $25.
(b) The board shall approve an application for a seller's certificate and issue the certificate to the applicant unless:
(1) the background check of the applicant discloses a felony conviction for which a full pardon has not been granted; or
(2) any information provided in the application is false. (V.A.C.S. Art. 4413(29bb), Secs. 3A(a) (part), (b).)
Sec. 1702.264. EXPIRATION OF SELLER'S CERTIFICATE. A seller's certificate expires on the second anniversary of the date the certificate is issued. (V.A.C.S. Art. 4413(29bb), Sec. 3A(a) (part).)
Sec. 1702.265. CONSUMER PROTECTION. A customer purchasing a device from a person under this subchapter for use in the customer's home who does not receive delivery of the device in accordance with the contract or agreement may bring an action against the surety bond required by Section 1702.262 to recover the down payment or purchase price actually paid. (V.A.C.S. Art. 4413(29bb), Sec. 3A(a) (part).)
Sec. 1702.266. CERTAIN PROHIBITED PRACTICES. (a) A seller's certificate does not authorize the person who holds the certificate to install, service, monitor, or respond to a detection device used to prevent or detect burglary or other losses resulting from similar acts.
(b) A violation of this section is punishable under Section 1702.388. (V.A.C.S. Art. 4413(29bb), Sec. 3A(c).)
Sec. 1702.267. SUSPENSION OR REVOCATION OF SELLER'S CERTIFICATE. On conviction under Section 1702.388 for a violation of this subchapter, the board may revoke or suspend a seller's certificate after a hearing conducted under Subchapter O. (V.A.C.S. Art. 4413(29bb), Sec. 3A(d).)
[Sections 1702.268-1702.280 reserved for expansion]
SUBCHAPTER L. GENERAL PROVISIONS APPLICABLE
TO REGULATED PERSONS
Sec. 1702.281. NOTICE TO LAW ENFORCEMENT. The board shall provide to the sheriff of the county and the chief of police of the principal municipality of the county in which a person regulated under this chapter resides notice of the issuance, revocation, reinstatement, or expiration of a license, registration, or commission issued by the board. (V.A.C.S. Art. 4413(29bb), Sec. 26.)
Sec. 1702.282. CRIMINAL HISTORY CHECK. (a) The board shall deny an application for a person who does not provide two complete sets of fingerprints on forms prescribed by the board or fails to pay a required fee.
(b) The board shall conduct a criminal history check in the manner provided by Subchapter F, Chapter 411, Government Code, on each applicant for a license, registration, or security officer commission. An applicant is not eligible for a license, registration, or commission if the check reveals that the applicant has committed an act that constitutes grounds for the denial of the license, registration, or commission.
(c) Before beginning employment as a commissioned security officer, the applicant must be approved by the board based on the results of the check under Subsection (b). To continue employment in a capacity regulated under this chapter other than as a commissioned security officer, the applicant must be approved by the board based on the results of the check under Subsection (b) not later than the 120th day after the date the applicant begins employment in that capacity.
(d) A license, registration, security officer commission, letter of approval, or permit issued by the board is conditional on the board's receipt of criminal history record information. (V.A.C.S. Art. 4413(29bb), Secs. 39(a) (part), (b), (c), (d), (e).)
Sec. 1702.283. CRUELTY TO ANIMALS. A person who has been convicted of cruelty to animals under Section 42.09, Penal Code:
(1) is ineligible for a license as a guard dog company or for registration as a dog trainer; and
(2) may not be employed to work with dogs as a security officer by a security services contractor or security department of a private business that uses dogs to protect individuals or property or to conduct investigations. (V.A.C.S. Art. 4413(29bb), Sec. 14B.)
Sec. 1702.284. ALARM SYSTEMS RECORDS CONFIDENTIAL. Information contained in alarm systems records maintained by a governmental body that concerns the location of an alarm system, the name of the occupant of an alarm system location, or the type of alarm system used is confidential and may be disclosed only to the board or as otherwise required by state law or court order. (V.A.C.S. Art. 4413(29bb), Sec. 28(e).)
Sec. 1702.285. FALSE REPRESENTATION. A person may not represent falsely that the person:
(1) is employed by a license holder; or
(2) is licensed, registered, or commissioned under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 13(b).)
[Sections 1702.286-1702.300 reserved for expansion]
SUBCHAPTER M. EXPIRATION; RENEWAL
Sec. 1702.301. EXPIRATION. (a) A license is valid for one year from the date of issuance. A license expires at midnight on the last day of the 11th month after the month in which it is issued.
(b) A security officer commission expires on the second anniversary of the date the commission is issued.
(c) A personal protection officer authorization expires on the expiration date of the security officer commission under which the individual's authorization is issued.
(d) Registration as a private investigator, manager, branch office manager, alarm systems installer, security consultant, security salesperson, alarm systems monitor, or dog trainer expires on the second anniversary of the date of registration.
(e) Notwithstanding Subsection (d), an initial registration as an alarm systems installer or security salesperson expires on the first anniversary of the date of registration if the board requires registrants to be trained or tested under Section 1702.239.
(f) Registration as an owner, officer, partner, or shareholder of a license holder expires on the second anniversary of the date of registration.
(g) Registration as a noncommissioned security officer expires on the fourth anniversary of the date of registration.
(h) A letter of authority, or a school approval or school instructor approval letter issued by the board, expires on the first anniversary of the date of issuance.
(i) A license or registration issued under this chapter other than one specified in this section expires on the date specified by this chapter or by board rule. (V.A.C.S. Art. 4413(29bb), Secs. 14(e), 17(d), 19(i) (part), 45(a).)
Sec. 1702.302. LICENSE RENEWAL. (a) The renewal period for a license is the month preceding the month in which it expires. At least 30 days before the expiration date of a person's license, the board shall send written notice of the impending expiration to the person at the person's last known address according to board records.
(b) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the license examination fee.
(d) A person whose license has been expired for longer than 90 days but less than two years may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee.
(e) A person whose license has been expired for two years or longer may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4413(29bb), Secs. 45(c), (d), (e), (f), (g), (i) (part).)
Sec. 1702.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applies for renewal. The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4413(29bb), Sec. 45(h).)
Sec. 1702.304. PRORATION OF LICENSE RENEWAL FEE. The board by rule may adopt a system under which the expiration date of a license may be changed at the time of renewal so that a license holder pays only that portion of the license renewal fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4413(29bb), Sec. 46.)
Sec. 1702.305. EFFECT OF LICENSE RENEWAL ON DISCIPLINARY ACTION. Renewal of a license does not prohibit the bringing of disciplinary proceedings for an act committed before the effective date of the renewal. (V.A.C.S. Art. 4413(29bb), Sec. 45(b).)
Sec. 1702.306. EFFECT OF SUSPENSION ON LICENSE RENEWAL REQUIREMENTS. A suspended license expires on the license's expiration date and may be renewed as provided by this chapter, but the renewal does not entitle the license holder, while the license remains suspended and until the license is reinstated, to engage in the licensed activity or in conduct in violation of the order or judgment by which the license was suspended. (V.A.C.S. Art. 4413(29bb), Sec. 47 (part).)
Sec. 1702.307. REGISTRATION RENEWAL. (a) At least 30 days before the expiration date of an individual's registration, the board shall send written notice of the impending expiration to the individual at the individual's last known address according to board records.
(b) On notification from the board the month before the expiration date stated on the registrant's pocket card, the registrant must file for renewal of the registration on a form prescribed by the board. (V.A.C.S. Art. 4413(29bb), Secs. 36(b), 45(i) (part).)
[Sections 1702.308-1702.320 reserved for expansion]
SUBCHAPTER N. EXCEPTIONS
Sec. 1702.321. GOVERNMENT EMPLOYEES. (a) Except as provided by this section, this chapter does not apply to an officer or employee of the United States, this state, or a political subdivision of this state while the employee or officer is performing official duties.
(b) The provisions of this chapter relating to security officer commissions apply to a person employed by a political subdivision whose duties include serving as a security guard, security watchman, or security patrolman on property owned or operated by the political subdivision if the governing body of the political subdivision files a written request with the board for the board to issue a commission to the political subdivision's employees with those duties.
(c) The board may not charge a fee for issuing a commission to an officer under Subsection (b). The board shall issue to the officer a pocket card designating the political subdivision that employs the officer.
(d) The commission expires at the time the officer's employment as a security officer by the political subdivision is terminated.
(e) The board may approve a security officer training program conducted by the political subdivision in accordance with Sections 1702.168 and 1702.237. (V.A.C.S. Art. 4413(29bb), Secs. 3(a) (part), (e).)
Sec. 1702.322. LAW ENFORCEMENT PERSONNEL. This chapter does not apply to:
(1) a person who has full-time employment as a peace officer and who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, or watchman if the officer:
(A) is employed in an employee-employer relationship or employed on an individual contractual basis;
(B) is not in the employ of another peace officer;
(C) is not a reserve peace officer; and
(D) works as a peace officer on the average of at least 32 hours a week, is compensated by the state or a political subdivision of the state at least at the minimum wage, and is entitled to all employee benefits offered to a peace officer by the state or political subdivision;
(2) a reserve peace officer while the reserve officer is performing guard, patrolman, or watchman duties for a county and is being compensated solely by that county;
(3) a peace officer acting in an official capacity in responding to a burglar alarm or detection device; or
(4) a person engaged in the business of electronic monitoring of an individual as a condition of that individual's community supervision, parole, mandatory supervision, or release on bail, if the person does not perform any other service that requires a license under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
Sec. 1702.323. SECURITY DEPARTMENT OF PRIVATE BUSINESS. (a) Except as provided by Subsection (b), this chapter does not apply to an individual employed in an employee-employer relationship exclusively and regularly by one employer in connection with the affairs of the employer.
(b) An individual described by Subsection (a) who carries a firearm in the course of employment must obtain a private security officer commission under this chapter.
(c) Although the security department of a private business that hires or employs an individual as a private security officer to possess a firearm in the course and scope of the individual's duties is required to apply for a security officer commission for the individual under this chapter, the security department of a private business is not required to apply to the board for any license under this chapter. (V.A.C.S. Art. 4413(29bb), Secs. 3(a) (part), (d).)
Sec. 1702.324. CERTAIN OCCUPATIONS. (a) For the purposes of this section, "landman" means an individual who, in the course and scope of the individual's business:
(1) acquires or manages petroleum or mineral interests; or
(2) performs title or contract functions related to the exploration, exploitation, or disposition of petroleum or mineral interests.
(b) This chapter does not apply to:
(1) a manufacturer or a manufacturer's authorized distributor who sells equipment to a license holder that is used in the operations for which the person is required to be licensed;
(2) a person engaged exclusively in the business of obtaining and providing information to:
(A) determine creditworthiness;
(B) collect debts; or
(C) ascertain the financial responsibility of an applicant for property insurance or an indemnity or surety bond;
(3) a person engaged exclusively in the business of repossessing property that is secured by a mortgage or other security interest;
(4) a locksmith who:
(A) does not install or service detection devices;
(B) does not conduct investigations; and
(C) is not a security services contractor;
(5) a person who:
(A) is engaged in the business of psychological testing or other testing and interviewing services, including services to determine attitudes, honesty, intelligence, personality, and skills, for preemployment purposes; and
(B) does not perform any other service that requires a license under this chapter;
(6) a person who:
(A) is engaged in obtaining information that is a public record under Chapter 552, Government Code, regardless of whether the person receives compensation;
(B) is not a full-time employee, as defined by Section 61.001, Labor Code, of a person licensed under this chapter; and
(C) does not perform any other act that requires a license under this chapter;
(7) a registered professional engineer practicing under The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) and performing forensic engineering studies who does not:
(A) install or service detection devices;
(B) conduct nonengineering investigations; and
(C) act as a security services contractor;
(8) an employee of a cattle association who inspects livestock brands under the authority granted to the cattle association by the Grain Inspection, Packers and Stockyards Administration of the United States Department of Agriculture;
(9) a landman performing activities in the course and scope of the landman's business;
(10) an attorney in performing the attorney's duties;
(11) a person who obtains a document for use in litigation under an authorization or subpoena issued for a written or oral deposition;
(12) a person who:
(A) by education, experience, or background has specialized expertise or knowledge that would qualify or tend to qualify the person as an expert witness, authorized to provide opinions in proceedings conducted in a court, administrative agency, or governing body of this state or of the United States, in accordance with applicable rules; and
(B) does not perform any other service for which a license is required under this chapter; or
(13) an admitted insurer, insurance adjuster, agent, or insurance broker licensed by the state, performing duties in connection with insurance transacted by that person. (V.A.C.S. Art. 4413(29bb), Secs. 2(32), as added Acts 71st Leg., R.S., Ch. 294; 3(a) (part).)
Sec. 1702.325. COMMON CARRIERS. This chapter does not apply to:
(1) a common carrier by rail engaged in interstate commerce, regulated by state and federal authorities, and transporting commodities essential to the national defense and to the general welfare and safety of the community; or
(2) an officer, employee, or agent of a common carrier, as defined by Section 153 of the federal Communications Act of 1934 (47 U.S.C. Section 153), while protecting the carrier or a user of the carrier's long-distance services from a fraudulent, unlawful, or abusive use of those long-distance services. (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
Sec. 1702.326. MEDICAL ALERT SERVICES. (a) This chapter does not apply to an entity that:
(1) provides medical alert services for persons who are sick or disabled;
(2) does not provide any other service that requires a license under this chapter; and
(3) is:
(A) a hospital or a wholly owned subsidiary or an affiliate of a hospital licensed under Chapter 241, Health and Safety Code; or
(B) a charitable or a nonprofit entity that provides the services in the manner required by Subsection (b) and that is exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 and its subsequent amendments by being listed as an exempt entity under Section 501(c)(3) of that code.
(b) A charitable or nonprofit entity that provides medical alert services must provide those services through a licensed person, licensed nurse, licensed physician assistant or by a hospital, subsidiary, or affiliate described by Subsection (a)(3)(A). (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
Sec. 1702.327. NONPROFIT AND CIVIC ORGANIZATIONS. This chapter does not apply to:
(1) a nonprofit business or civic organization that:
(A) employs a peace officer who meets the qualifications of Section 1702.322(1) as a patrolman, guard, or watchman;
(B) provides the services of the peace officer only to:
(i) the organization's members; or
(ii) if the organization does not have members, the members of the communities served by the organization as described in the organization's articles of incorporation or other organizational documents;
(C) devotes the net receipts from all charges for the services exclusively to the cost of providing the services or to the costs of other services for the enhancement of the security or safety of:
(i) the organization's members; or
(ii) if the organization does not have members, the members of the communities served by the organization as described in the organization's articles of incorporation or other organizational documents; and
(D) does not perform any other service that requires a license under this chapter; or
(2) a charitable, nonprofit organization that maintains a system of records to aid in the location of missing children and that:
(A) is exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 and its subsequent amendments by being listed as an exempt entity under Section 501(c)(3) of that code;
(B) exclusively provides services related to locating missing children; and
(C) does not perform any other service that requires a license under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
Sec. 1702.328. SECURITY SYSTEMS SALES AND INSTALLATION. This chapter does not apply to:
(1) a person who owns and installs a burglar detection or alarm device on the person's own property or, if the person does not charge for the device or the installation, installs the device for the protection of the person's personal property located on another person's property and does not, as a normal business practice, install the devices on the property of another;
(2) a person in the business of building construction that installs electrical wiring and devices that may include in part the installation of a burglar alarm or detection device if:
(A) the person is a party to a contract that provides that:
(i) the installation will be performed under the direct supervision of, and inspected and certified by, a person licensed to install and certify the alarm or detection device; and
(ii) the license holder assumes full responsibility for the installation of the alarm or detection device; and
(B) the person does not service or maintain burglar alarms or detection devices;
(3) a person who sells or installs automobile burglar alarm devices and who does not perform any other act that requires a license under this chapter; or
(4) a person who sells exclusively over the counter or by mail order burglar alarm signal devices, burglary alarms, television cameras, still cameras, or other electrical, mechanical, or electronic devices used for preventing or detecting burglary, theft, or other losses. (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
Sec. 1702.329. FIRE ALARM AND DETECTION SALES AND INSTALLATION. This chapter does not apply to:
(1) a person whose activities are regulated under Article 5.43-2, Insurance Code, except to the extent those activities are specifically regulated under this chapter; or
(2) a person who holds a license or other credential issued by a municipality to practice as an electrician and who installs fire or smoke detectors only in single-family or multifamily residences. (V.A.C.S. Art. 4413(29bb), Sec. 3(a) (part).)
[Sections 1702.330-1702.360 reserved for expansion]
SUBCHAPTER O. PROHIBITED PRACTICES AND GROUNDS FOR
DENIAL AND DISCIPLINARY ACTION
Sec. 1702.361. DENIAL AND DISCIPLINARY POWERS OF BOARD; GROUNDS. (a) The board, for conduct described by Subsection (b), may:
(1) revoke or suspend a license, registration, or security officer commission;
(2) reprimand a license holder, registrant, or commissioned security officer;
(3) deny an application for a license, registration, or security officer commission or for renewal of the license, registration, or commission; or
(4) place on probation a person whose license, registration, or security officer commission has been suspended.
(b) The board shall take disciplinary action described by Subsection (a) on proof:
(1) that the applicant, license holder, registrant, or commissioned security officer has:
(A) violated this chapter or a rule adopted under this chapter;
(B) been convicted of a felony;
(C) been convicted of a misdemeanor involving moral turpitude committed after the date of application for the license, registration, or commission;
(D) engaged in fraud, deceit, or misrepresentation; or
(E) made a material misstatement in an application for or renewal of a license, registration, or commission; or
(2) that the license holder of a registrant or commissioned security officer has submitted to the board sufficient evidence that the registrant or commissioned security officer:
(A) engaged in fraud or deceit while employed by the license holder; or
(B) committed theft while performing work as a registrant or commissioned security officer. (V.A.C.S. Art. 4413(29bb), Sec. 11B(a).)
Sec. 1702.362. FAILURE TO FILE REQUIRED NOTICE. The board may suspend or revoke a license if the license holder fails to notify the board as required by Section 1702.121 that a manager has ceased to be the manager of the license holder. (V.A.C.S. Art. 4413(29bb), Sec. 18(c) (part).)
Sec. 1702.363. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. Except as provided by Section 1702.364, proceedings for the denial, suspension, or revocation of a license, registration, or security officer commission or for the probation of a person are governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4413(29bb), Sec. 11B(f) (part).)
Sec. 1702.364. SUMMARY SUSPENSION. (a) On receiving written notice from the Department of Public Safety or another law enforcement agency that an individual has been arrested for or charged with a misdemeanor involving moral turpitude or a felony, the board may:
(1) summarily deny the individual's application for registration or for a security officer commission; or
(2) summarily suspend the individual's registration or security officer commission.
(b) To initiate a proceeding to take action under Subsection (a), the board must serve notice to the individual. The notice must:
(1) inform the individual of the right to a preliminary hearing before the board;
(2) state the alleged violations that constitute grounds for summary suspension; and
(3) be personally served on the individual or sent to the individual by certified or registered mail, return receipt requested, to the individual's mailing address as it appears in the board's records.
(c) The suspension is effective at the time notice is served. If notice is served in person, the individual shall immediately surrender to the board the registration, commission, pocket card, or other identification issued by the board. If the notice is served by mail, the individual shall immediately return to the board the registration, commission, pocket card, or other identification issued by the board.
(d) At a preliminary hearing, the individual must show cause why, pending final hearing on the suspension or denial:
(1) the application should not remain denied; or
(2) the registration or commission should not remain suspended.
(e) A final hearing may be scheduled at a time after the final disposition of the charges resulting in the summary suspension or summary denial.
(f) Chapter 2001, Government Code, does not apply to a proceeding before the board under this section except for a final administrative hearing.
(g) The dismissal of a complaint, information, or indictment or an acquittal releases the individual from automatic grounds for a summary denial of an application or summary suspension of a registration or commission under this section. (V.A.C.S. Art. 4413(29bb), Secs. 11B(b), (c), (e), (f) (part); 11D.)
Sec. 1702.365. ABDUCTION OF CHILD. The board shall revoke a person's license, registration, or security officer commission or deny a person's application for, or renewal of, a license, registration, or security officer commission on proof that the person or an agent of the person has, after the date of application for a license, registration, or security officer commission, abducted or attempted to abduct by force or the threat of force or by misrepresentation, stealth, or unlawful entry a child who at the time of the abduction or attempt is under the care and control of a person who:
(1) has custody or physical possession of the child under a court order; or
(2) is exercising the care and control with the consent of a person who has custody or physical possession of the child under a court order. (V.A.C.S. Art. 4413(29bb), Sec. 11C.)
Sec. 1702.366. PAYMENT INSTEAD OF SUSPENSION. (a) The board may permit a license holder for whom the board is authorized to suspend a license under this chapter to pay money rather than suspend the person's license. The required payment may not exceed $200 for each day the license was to have been suspended.
(b) A license holder who does not make the required payment before the sixth day after the date the board notifies the person of the amount may not make the payment, and the board shall impose the license suspension. (V.A.C.S. Art. 4413(29bb), Sec. 11B(g).)
Sec. 1702.367. COMPLAINT INVESTIGATION; SUBPOENA; WITNESS. (a) For an investigation conducted under this chapter, the board may issue a subpoena to compel the attendance of a witness or the production of a pertinent record or document. The hearings officer may administer oaths and require testimony or evidence to be given under oath.
(b) A witness is not privileged to refuse to testify to a fact or to produce a record or document with respect to which the witness is properly examined by the hearings officer.
(c) A person required to testify or to produce a record or document on any matter properly under inquiry by the board who refuses to testify or to produce the record or document on the ground that the testimony or the production of the record or document would incriminate or tend to incriminate the person is nonetheless required to testify or to produce the record or document. A person who is required to testify or to produce a record or document under this subsection is not subject to indictment or prosecution for a transaction, matter, or thing concerning which the person truthfully testifies or produces evidence.
(d) If a witness refuses to obey a subpoena or to give evidence relevant to proper inquiry by the board, the board may petition a district court of the county in which the hearing is held to compel the witness to obey the subpoena or to give the evidence. The court shall immediately issue process to the witness and shall hold a hearing on the petition as soon as possible.
(e) An investigator employed by the board may take statements under oath in an investigation of a matter covered by this chapter. (V.A.C.S. Art. 4413(29bb), Secs. 11A(a), (b), (c) (part), (d).)
Sec. 1702.368. NOTICE FROM DEPARTMENT OF PUBLIC SAFETY. The Department of Public Safety shall notify the board and the police department of the municipality and the sheriff's department of the county in which a person licensed, registered, or commissioned under this chapter resides of the conviction of the person for a crime involving moral turpitude or a felony. (V.A.C.S. Art. 4413(29bb), Sec. 49.)
Sec. 1702.369. NO REINSTATEMENT AFTER REVOCATION. A revoked license may not be reinstated. (V.A.C.S. Art. 4413(29bb), Sec. 48.)
Sec. 1702.370. EFFECT OF SUSPENSION; MONITORING OF EXISTING ALARM CONTRACTS. Subject to expiration of the license under Section 1702.306, a license holder may continue to monitor under an existing alarm contract or contract to monitor under an existing alarm contract for 30 days after the date of suspension of the person's license. (V.A.C.S. Art. 4413(29bb), Sec. 47 (part).)
Sec. 1702.371. CONVICTION OF CERTAIN CRIMES. In this subchapter, a person is considered to be convicted of a misdemeanor involving moral turpitude or a felony if a court enters a judgment against the person for committing a misdemeanor involving moral turpitude or a felony under the laws of this state, another state, or the United States, including:
(1) a conviction in which a person is placed on and subsequently discharged from community supervision; and
(2) a conviction for which a person is pardoned, unless the pardon is granted expressly because of proof of the person's innocence. (V.A.C.S. Art. 4413(29bb), Sec. 11B(d).)
[Sections 1702.372-1702.380 reserved for expansion]
SUBCHAPTER P. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1702.381. CIVIL PENALTY. (a) A person who is not licensed under this chapter, who does not have a license application pending, and who violates this chapter may be assessed a civil penalty to be paid to the state not to exceed $1,000 for each violation.
(b) The board must give a person 30 days' notice of the requirement to obtain a license before the civil penalty may be assessed. (V.A.C.S. Art. 4413(29bb), Sec. 44(e).)
Sec. 1702.382. INJUNCTION. (a) The board may institute an action in the name of the board against a person to enjoin a violation by the person of this chapter or a board rule.
(b) The board is not required to allege or prove that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation to sustain an action under this section. (V.A.C.S. Art. 4413(29bb), Sec. 11A(e) (part).)
Sec. 1702.383. ACTION FOR CIVIL PENALTY OR INJUNCTION. If a person has violated a provision of this chapter for which a penalty is imposed under Section 1702.381, the board may institute a civil suit in a Travis County district court for injunctive relief under Section 1702.382 or for assessment and recovery of the civil penalty. (V.A.C.S. Art. 4413(29bb), Sec. 11A(f).)
Sec. 1702.384. FALSIFICATION OF CERTAIN DOCUMENTS; OFFENSE. (a) A person commits an offense if the person knowingly falsifies fingerprints or photographs submitted under Section 1702.110.
(b) An offense under this section is a felony of the third degree. (V.A.C.S. Art. 4413(29bb), Sec. 44(a).)
Sec. 1702.385. NEGLECT BY GUARD DOG COMPANY; OFFENSE. (a) A license holder commits an offense if the license holder:
(1) operates a guard dog company; and
(2) fails to provide necessary food, care, or shelter for an animal used by the guard dog company.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4413(29bb), Sec. 44(b).)
Sec. 1702.386. UNAUTHORIZED EMPLOYMENT; OFFENSE. (a) A person commits an offense if the person contracts with or employs a person who is required to hold a license, registration, certificate, or commission under this chapter knowing that the person does not hold the required license, registration, certificate, or commission or who otherwise, at the time of contract or employment, is in violation of this chapter.
(b) An offense under Subsection (a) is a Class A misdemeanor. (V.A.C.S. Art. 4413(29bb), Sec. 44(f).)
Sec. 1702.387. FAILURE TO SURRENDER CERTAIN DOCUMENTS; OFFENSE. (a) A person commits an offense if the person fails to surrender or immediately return to the board the person's registration, commission, pocket card, or other identification issued to the person by the board on notification of a summary suspension or summary denial under Section 1702.364.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4413(29bb), Sec. 44(g).)
Sec. 1702.388. VIOLATION OF CHAPTER; OFFENSE. (a) A person commits an offense if the person violates a provision of this chapter for which a specific criminal penalty is not prescribed.
(b) An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the person has previously been convicted under this chapter of failing to hold a license, registration, certificate, or commission that the person is required to hold under this chapter. (V.A.C.S. Art. 4413(29bb), Sec. 44(c).)
Sec. 1702.389. VENUE. An offense under this chapter may be prosecuted in Travis County or in the county in which the offense occurred. (V.A.C.S. Art. 4413(29bb), Sec. 44(d).)
CHAPTER 1703. POLYGRAPH EXAMINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1703.001. SHORT TITLE
Sec. 1703.002. LIBERAL CONSTRUCTION
Sec. 1703.003. DEFINITIONS
Sec. 1703.004. EFFECT OF CHAPTER
Sec. 1703.005. APPLICATION OF SUNSET ACT
[Sections 1703.006-1703.050 reserved for expansion]
SUBCHAPTER B. POLYGRAPH EXAMINERS BOARD
Sec. 1703.051. BOARD MEMBERSHIP
Sec. 1703.052. ELIGIBILITY OF PUBLIC MEMBERS
Sec. 1703.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
Sec. 1703.054. TERMS; VACANCY
Sec. 1703.055. OFFICERS
Sec. 1703.056. GROUNDS FOR REMOVAL
Sec. 1703.057. PER DIEM; REIMBURSEMENT
[Sections 1703.058-1703.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 1703.101. ADMINISTRATION OF CHAPTER
Sec. 1703.102. FEES
Sec. 1703.103. RULES; FORMS
Sec. 1703.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING
Sec. 1703.105. PROOF OF BOARD SIGNATURES AND
QUALIFICATIONS
Sec. 1703.106. ANNUAL REPORT
[Sections 1703.107-1703.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 1703.151. PUBLIC INTEREST INFORMATION
Sec. 1703.152. INFORMATION INCLUDED IN CONTRACT FOR
SERVICES AND WAIVER OF LIABILITY
Sec. 1703.153. COMPLAINT INFORMATION
[Sections 1703.154-1703.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 1703.201. LICENSE REQUIRED
Sec. 1703.202. LICENSE APPLICATION
Sec. 1703.203. QUALIFICATIONS FOR LICENSE
Sec. 1703.204. EXAMINATION RESULTS
Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR
INSURANCE POLICY REQUIREMENT
Sec. 1703.206. NONRESIDENT APPLICANT FOR LICENSE
Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE
Sec. 1703.208. POLYGRAPH EXAMINER INTERNSHIP LICENSE
[Sections 1703.209-1703.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 1703.251. ANNUAL RENEWAL REQUIRED
Sec. 1703.252. LICENSE EXPIRATION DATE
Sec. 1703.253. LICENSE RENEWAL
Sec. 1703.254. LICENSE RENEWAL RELATED TO MILITARY SERVICE
Sec. 1703.255. CONTINUING EDUCATION
[Sections 1703.256-1703.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 1703.301. LICENSE HOLDER INFORMATION
Sec. 1703.302. REGISTRATION WITH COUNTY CLERK
Sec. 1703.303. DISPLAY OF LICENSE
Sec. 1703.304. LICENSE REQUIRED TO MAINTAIN ACTION OR
COUNTERCLAIM
Sec. 1703.305. MINIMUM INSTRUMENTATION REQUIREMENTS
Sec. 1703.306. CONFIDENTIALITY OF EXAMINATION RESULTS
[Sections 1703.307-1703.350 reserved for expansion]
SUBCHAPTER H. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION
Sec. 1703.352. ADMINISTRATIVE HEARING
Sec. 1703.353. SURRENDER OF LICENSE
Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER
Sec. 1703.355. JUDICIAL REVIEW
[Sections 1703.356-1703.400 reserved for expansion]
SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1703.401. INJUNCTION
Sec. 1703.402. GENERAL CRIMINAL PENALTY
Sec. 1703.403. VIOLATION OF CONFIDENTIALITY; OFFENSE
CHAPTER 1703. POLYGRAPH EXAMINERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1703.001. SHORT TITLE. This chapter may be cited as the Polygraph Examiners Act. (V.A.C.S. Art. 4413(29cc), Sec. 1.)
Sec. 1703.002. LIBERAL CONSTRUCTION. This chapter shall be liberally construed to regulate:
(1) a person who claims to be able to use an instrument to detect deception or verify the truth of a statement; and
(2) the instrument used by that person. (V.A.C.S. Art. 4413(29cc), Sec. 2 (part).)
Sec. 1703.003. DEFINITIONS. In this chapter:
(1) "Board" means the Polygraph Examiners Board.
(2) "Department" means the Department of Public Safety of the State of Texas.
(3) "Instrument" means a device used to test a subject to detect deception or verify the truth of a statement by recording visually, permanently, and simultaneously a subject's cardiovascular and respiratory patterns. The term includes a lie detector, polygraph, deceptograph, or any other similar or related device.
(4) "Polygraph examiner" means a person licensed under this chapter to use an instrument to detect deception or verify the truth of a statement.
(5) "Polygraph examiner internship" means a course of study of polygraph examinations and of the administration of polygraph examinations by a trainee under the personal supervision and control of a polygraph examiner as prescribed by the board at the beginning of the internship.
(6) "Trainee" means a person who holds a polygraph examiner internship license under this chapter. (V.A.C.S. Art. 4413(29cc), Secs. 2 (part), 3 (part), 4 (part), 7 (part); New.)
Sec. 1703.004. EFFECT OF CHAPTER. This chapter may not be interpreted to permit the results of a truth or polygraph examination to be introduced or admitted as evidence in court. (V.A.C.S. Art. 4413(29cc), Sec. 27.)
Sec. 1703.005. APPLICATION OF SUNSET ACT. The Polygraph Examiners Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2003. (V.A.C.S. Art. 4413(29cc), Sec. 5(e).)
[Sections 1703.006-1703.050 reserved for expansion]
SUBCHAPTER B. POLYGRAPH EXAMINERS BOARD
Sec. 1703.051. BOARD MEMBERSHIP. (a) The Polygraph Examiners Board consists of six members appointed by the governor with the advice and consent of the senate as follows:
(1) two polygraph examiner members who are qualified polygraph examiners for a governmental law enforcement agency, one of whom must be the supervisor of the department's polygraph section;
(2) two polygraph examiner members who are qualified polygraph examiners in the commercial field; and
(3) two members who represent the public.
(b) A member must have been a United States citizen and a resident of this state for at least two years before the date of appointment.
(c) A polygraph examiner member must:
(1) be actively engaged as a polygraph examiner on the date of appointment; and
(2) have been engaged as a polygraph examiner for at least five consecutive years before the date of appointment.
(d) Two board members may not be employed by the same person.
(e) Appointments to the board shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. (V.A.C.S. Art. 4413(29cc), Sec. 5(a) (part).)
Sec. 1703.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:
(1) is licensed by an occupational regulatory agency in the field of polygraph examining;
(2) is employed by or participates in the management of an agency or business entity related to the field of polygraph examining; or
(3) has, other than as a consumer, a financial interest in a business entity related to the field of polygraph examining. (V.A.C.S. Art. 4413(29cc), Sec. 5(a) (part).)
Sec. 1703.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) An officer, employee, or paid consultant of a trade association in the polygraph examining field may not be a member or employee of the board.
(b) A member or employee of the board may not be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the polygraph examining field.
(c) A person may not serve as a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code. (V.A.C.S. Art. 4413(29cc), Secs. 5(f), (g).)
Sec. 1703.054. TERMS; VACANCY. (a) Board members serve staggered six-year terms.
(b) If a vacancy occurs on the board, the governor shall appoint a successor to fill the unexpired term. (V.A.C.S. Art. 4413(29cc), Sec. 5(a) (part).)
Sec. 1703.055. OFFICERS. The board shall elect from among its members a presiding officer, assistant presiding officer, and secretary. (V.A.C.S. Art. 4413(29cc), Sec. 5(c) (part).)
Sec. 1703.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:
(1) does not have at the time of appointment the qualifications required by Sections 1703.051 and 1703.052 for appointment to the board;
(2) does not maintain during service on the board the qualifications required by Sections 1703.051 and 1703.052 for appointment to the board;
(3) violates a prohibition established by Section 1703.053; or
(4) fails to attend at least half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.
(b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists. (V.A.C.S. Art. 4413(29cc), Secs. 5(h), (i).)
Sec. 1703.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by legislative appropriation for each day the member engages in the business of the board.
(b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4413(29cc), Sec. 5(b) (part).)
[Sections 1703.058-1703.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 1703.101. ADMINISTRATION OF CHAPTER. The board shall contract with the department to perform the board's administrative functions, including the collection of all money due and the payment of all expenses, including board member transportation expenses. (V.A.C.S. Art. 4413(29cc), Sec. 5(b) (part).)
Sec. 1703.102. FEES. (a) The board shall establish reasonable and necessary fees for the administration of this chapter in amounts not to exceed:
(1) $225 for a polygraph examiner license;
(2) $115 for a polygraph examiner internship license;
(3) $40 for a duplicate license;
(4) $210 for renewal of a polygraph examiner license;
(5) $40 for extension or renewal of a polygraph examiner internship license; and
(6) $75 for a license examination.
(b) A governmental agency that employs a polygraph examiner may pay the fees required by this chapter. (V.A.C.S. Art. 4413(29cc), Sec. 14.)
Sec. 1703.103. RULES; FORMS. The board shall adopt rules and prescribe forms to administer and enforce this chapter. (V.A.C.S. Art. 4413(29cc), Sec. 6(a) (part).)
Sec. 1703.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices by the license holder.
(b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:
(1) restricts the license holder's use of any advertising medium;
(2) restricts the license holder's personal appearance or use of the license holder's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the license holder; or
(4) restricts the license holder's advertisement under a trade name. (V.A.C.S. Art. 4413(29cc), Sec. 6(a) (part).)
Sec. 1703.105. PROOF OF BOARD SIGNATURES AND QUALIFICATIONS. An order or a certified copy of an order, over the board seal and purporting to be signed by the board members, is prima facie proof that:
(1) the signatures are those of the board members; and
(2) the board members are qualified to act. (V.A.C.S. Art. 4413(29cc), Sec. 6(b).)
Sec. 1703.106. ANNUAL REPORT. Not later than January 1 of each year, the department shall submit to the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the department under this chapter during the preceding year. (V.A.C.S. Art. 4413(29cc), Sec. 6(e).)
[Sections 1703.107-1703.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION
AND COMPLAINT PROCEDURES
Sec. 1703.151. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of consumer interest describing the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board.
(b) The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4413(29cc), Sec. 24A(a).)
Sec. 1703.152. INFORMATION INCLUDED IN CONTRACT FOR SERVICES AND WAIVER OF LIABILITY. Each written contract for a polygraph examiner's services in this state and each waiver of liability signed by the subject of a polygraph examination must contain the board's name, mailing address, and telephone number. (V.A.C.S. Art. 4413(29cc), Sec. 24A(b).)
Sec. 1703.153. COMPLAINT INFORMATION. (a) The board shall keep an information file about each complaint relating to a license holder that is filed with the board.
(b) If a written complaint relating to a license holder is filed with the board, the board, at least quarterly and until final disposition of the complaint, shall notify the complainant of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4413(29cc), Sec. 19B.)
[Sections 1703.154-1703.200 reserved for expansion]
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 1703.201. LICENSE REQUIRED. (a) A person may not use an instrument, including a polygraph, to detect deception or verify the truth of a statement unless the person is licensed under this chapter.
(b) A person may not represent that the person is a polygraph examiner or refer to the person by another title that indicates or is intended to indicate that the person is qualified to use an instrument to detect deception or verify the truth of a statement unless the person is licensed under this chapter. (V.A.C.S. Art. 4413(29cc), Secs. 2 (part), 7 (part).)
Sec. 1703.202. LICENSE APPLICATION. An application for a polygraph examiner license must:
(1) be made to the board's secretary in writing under oath on a form prescribed by the board;
(2) be accompanied by the required nonrefundable fee; and
(3) include any information the board considers necessary to evaluate the applicant's qualifications. (V.A.C.S. Art. 4413(29cc), Sec. 10.)
Sec. 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person is qualified for a polygraph examiner license if the person:
(1) has not been convicted of a misdemeanor involving moral turpitude or a felony;
(2) either:
(A) holds a baccalaureate degree from a college or university accredited by an organization designated by the board that the board determines has accreditation standards ensuring a high level of student scholarship; or
(B) has active investigative experience during the five years preceding the date of application;
(3) either:
(A) is a graduate of a board-approved polygraph examiners course and has satisfactorily completed at least six months of a polygraph examiner internship; or
(B) has satisfactorily completed at least 12 months of a polygraph examiner internship; and
(4) has passed an examination conducted by or under the supervision of the board to determine the person's competency for a license.
(b) The board by rule shall establish the criteria by which the board evaluates an applicant's compliance with the active investigative experience requirement established by Subsection (a)(2)(B).
(c) The board shall provide for an examination under this chapter to be administered in three-month intervals. (V.A.C.S. Art. 4413(29cc), Secs. 5(c) (part), 8(a), (c).)
Sec. 1703.204. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the examination date. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the examination results not later than the 14th day after the date the board receives the results from the testing service.
(b) If notice of the examination results graded or reviewed by a national testing service will be delayed for more than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4413(29cc), Sec. 13A.)
Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner license is issued, the person to whom the license is to be issued must provide to the board evidence of a surety bond or insurance policy that:
(1) is in the amount of $5,000; and
(2) requires the obligor on the bond or policy to pay, to the extent of the face amount of the bond or policy, all judgments recovered against the license holder for any wrongful or illegal act committed by the license holder in the course of administering a polygraph examination.
(b) Each license must be signed by the board members and issued under the board seal. (V.A.C.S. Art. 4413(29cc), Secs. 8(b), 15 (part).)
Sec. 1703.206. NONRESIDENT APPLICANT FOR LICENSE. (a) An applicant for the issuance or renewal of a polygraph examiner license who is not a resident of this state, in addition to meeting all other requirements for a license, must file with the board an irrevocable consent to have:
(1) an action against the applicant filed in a court of a county or municipality of this state in which:
(A) the plaintiff resides; or
(B) a part of the transaction out of which the alleged cause of action arose occurred; and
(2) process in the action served on the applicant by leaving two copies of the process with the board's secretary.
(b) The consent must stipulate that service of process in the manner described by Subsection (a)(2) is binding for all purposes.
(c) The board's secretary shall immediately send by registered or certified mail a copy of the process to the applicant at the address shown on board records. (V.A.C.S. Art. 4413(29cc), Sec. 11.)
Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The board may waive any license requirement for an applicant who holds a license from another state that has license requirements substantially equivalent to those of this state. (V.A.C.S. Art. 4413(29cc), Sec. 12.)
Sec. 1703.208. POLYGRAPH EXAMINER INTERNSHIP LICENSE. (a) A person who holds a polygraph examiner internship license may engage in a polygraph examiner internship.
(b) On board approval, the secretary of the board shall issue a polygraph examiner internship license to an applicant who applies for the license and pays the required fee at least 10 days before the date the internship begins. The application must contain any information required by the board.
(c) A polygraph examiner internship license expires on the first anniversary of the date of issuance. On good cause shown to the board, the license may be extended or renewed for not more than six months.
(d) After the expiration of the original term of a polygraph examiner internship license and any extension or renewal of that license granted by the board, a trainee may not hold another internship license before the first anniversary of the date the trainee's previous internship license expired. (V.A.C.S. Art. 4413(29cc), Sec. 13.)
[Sections 1703.209-1703.250 reserved for expansion]
SUBCHAPTER F. LICENSE RENEWAL
Sec. 1703.251. ANNUAL RENEWAL REQUIRED. A polygraph examiner license is issued for a one-year term and may be renewed annually. (V.A.C.S. Art. 4413(29cc), Sec. 17(a).)
Sec. 1703.252. LICENSE EXPIRATION DATE. (a) The board by rule may adopt a system under which polygraph examiner licenses expire on various dates during the year.
(b) For a year in which the license expiration date is changed, license fees payable on the original expiration date shall be prorated on a monthly basis so that the license holder pays only the portion of the fee that is allocable to the number of months the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4413(29cc), Sec. 17A.)
Sec. 1703.253. LICENSE RENEWAL. (a) A person may renew an unexpired polygraph examiner license by paying the required renewal fee to the board before the license expiration date.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the license examination fee. A person whose license has been expired for more than 90 days but less than two years may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee.
(c) Except as provided by Section 1703.254, a person whose license has been expired for two years or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4413(29cc), Secs. 17(b), (c), (d), (e).)
Sec. 1703.254. LICENSE RENEWAL RELATED TO MILITARY SERVICE. (a) A person may renew an expired polygraph examiner license without submitting to reexamination if:
(1) the license expired while the person was engaged in:
(A) active duty with a United States military service;
(B) service or training with the national guard; or
(C) training or education under the supervision of the United States, before induction into a United States military service; and
(2) termination of the service, training, or education occurred under an honorable condition.
(b) A person eligible for license renewal under Subsection (a) must, before the second anniversary of the date the service, training, or education terminates, pay to the board the required renewal fee and provide to the board an affidavit stating that:
(1) the person was engaged in the service, training, or education; and
(2) termination of the service, training, or education occurred under an honorable condition. (V.A.C.S. Art. 4413(29cc), Sec. 17(f).)
Sec. 1703.255. CONTINUING EDUCATION. (a) The board may recognize, prepare, or implement continuing education programs for polygraph examiners and trainees.
(b) Participation in a program is voluntary. (V.A.C.S. Art. 4413(29cc), Sec. 5(k).)
[Sections 1703.256-1703.300 reserved for expansion]
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 1703.301. LICENSE HOLDER INFORMATION. (a) A polygraph examiner shall notify the secretary of the board in writing of a change in the examiner's principal business location not later than the 30th day after the date the change is made.
(b) Failure to notify the secretary as required by Subsection (a) results in automatic suspension of the examiner's license. (V.A.C.S. Art. 4413(29cc), Sec. 16.)
Sec. 1703.302. REGISTRATION WITH COUNTY CLERK. (a) A polygraph examiner shall register with the county clerk of the county in which the examiner maintains a business address.
(b) The county clerk of each county shall maintain a list of each polygraph examiner registered in the county. (V.A.C.S. Art. 4413(29cc), Sec. 21.)
Sec. 1703.303. DISPLAY OF LICENSE. A polygraph examiner or trainee shall prominently display the person's license at the person's place of business or place of internship, as appropriate. (V.A.C.S. Art. 4413(29cc), Sec. 15 (part).)
Sec. 1703.304. LICENSE REQUIRED TO MAINTAIN ACTION OR COUNTERCLAIM. A person may not maintain an action or counterclaim in a court in this state with respect to an agreement for or the performance of a service for which a license is required by this chapter, including the recovery of any compensation under the agreement or for the service, unless the person alleges and proves that the person was licensed at the time of making the agreement or performing the service. (V.A.C.S. Art. 4413(29cc), Sec. 18.)
Sec. 1703.305. MINIMUM INSTRUMENTATION REQUIREMENTS. (a) An instrument used by a polygraph examiner, in addition to recording visually, permanently, and simultaneously a subject's cardiovascular and respiratory patterns, may also record patterns of other physiological changes.
(b) A polygraph examiner who uses an instrument that does not comply with the instrumentation requirements of Subsection (a) is subject to penalties and may be enjoined in the manner provided by this chapter. (V.A.C.S. Art. 4413(29cc), Sec. 4 (part).)
Sec. 1703.306. CONFIDENTIALITY OF EXAMINATION RESULTS. (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:
(1) the examinee or any other person specifically designated in writing by the examinee;
(2) the person that requested the examination;
(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;
(4) another polygraph examiner in private consultation; or
(5) any other person required by due process of law.
(b) The board or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information.
(c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section. (V.A.C.S. Art. 4413(29cc), Sec. 19A.)
[Sections 1703.307-1703.350 reserved for expansion]
SUBCHAPTER H. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION. (a) The board shall take action authorized under Subsection (b) against an applicant or license holder who:
(1) wilfully violates this chapter or a rule adopted under this chapter;
(2) violates Section 1703.306(a);
(3) wilfully aids or abets another to violate this chapter or a rule adopted under this chapter;
(4) allows the person's license issued under this chapter to be used by an unlicensed person in violation of this chapter;
(5) makes a material misstatement in an application for the issuance or renewal of a license;
(6) makes a wilful misrepresentation or false promise or causes the printing of a false or misleading advertisement to directly or indirectly obtain business or trainees;
(7) fails to inform a subject to be examined:
(A) of the nature of the examination; and
(B) that the subject's participation in the examination is voluntary;
(8) fails to inform the subject of an examination of the examination results on request;
(9) violates Section 51.151, Family Code;
(10) wilfully makes a false report concerning an examination for polygraph examination purposes;
(11) fails to provide within a reasonable time information requested by the board's secretary as the result of a formal complaint to the board alleging a violation of this chapter;
(12) demonstrates unworthiness or incompetency to act as a polygraph examiner;
(13) is convicted of a misdemeanor involving moral turpitude or a felony; or
(14) is found to be incapacitated as provided by the Probate Code.
(b) On determining that an applicant or license holder has engaged in an act listed in Subsection (a), the board shall:
(1) refuse to issue a license to the applicant;
(2) revoke or suspend the person's license; or
(3) reprimand the person.
(c) The board may probate a license suspension. (V.A.C.S. Art. 4413(29cc), Sec. 19.)
Sec. 1703.352. ADMINISTRATIVE HEARING. (a) If the board proposes to refuse to issue a license to a person or to suspend or revoke a person's license, the person is entitled to a hearing before the board.
(b) A proceeding for the refusal, suspension, or revocation of a license is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4413(29cc), Sec. 22.)
Sec. 1703.353. SURRENDER OF LICENSE. (a) A license holder whose license is suspended or revoked shall immediately surrender the license to the board's secretary.
(b) The board's secretary shall restore a suspended or revoked license to the license holder on the board's written recommendations. (V.A.C.S. Art. 4413(29cc), Sec. 24 (part).)
Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a polygraph examiner or trainee engages in an unlawful act or a violation of this chapter, the board may not revoke the license of the polygraph examiner who employed the examiner or trainee unless the board is satisfied that the employer wilfully or negligently aided or abetted the examiner or trainee in the unlawful act or violation. (V.A.C.S. Art. 4413(29cc), Sec. 20.)
Sec. 1703.355. JUDICIAL REVIEW. (a) A person may appeal an action of the board, including the refusal to issue a license to the person or the suspension or revocation of the person's license, by timely filing a petition in a district court in the county in which the person resides or in Travis County.
(b) An appeal of a board action is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4413(29cc), Sec. 23 (part).)
[Sections 1703.356-1703.400 reserved for expansion]
SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1703.401. INJUNCTION. (a) If a person violates this chapter, the board's secretary, on direction of a majority of the board and through the attorney general, shall apply in the state's name in district court for an order to enjoin the violation of or to enforce compliance with this chapter.
(b) On a finding by a district court in which a verified petition is filed that a person has violated this chapter, the court may issue, without notice or bond, a temporary injunction enjoining a continued violation of this chapter. If it is established at a hearing on the matter that the person has violated or is violating this chapter, the court may issue a permanent injunction to enjoin the violation of or to enforce compliance with this chapter.
(c) A proceeding under this section is in addition to any other remedy or penalty provided by this chapter. (V.A.C.S. Art. 4413(29cc), Sec. 25 (part).)
Sec. 1703.402. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person:
(1) violates this chapter other than Section 1703.306; or
(2) falsely represents that the person:
(A) has been or is a polygraph examiner or trainee; or
(B) is qualified to use an instrument to detect deception or verify the truth of a statement.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine of not less than $100 or more than $1,000;
(2) confinement in county jail for a term not to exceed six months; or
(3) both the fine and confinement. (V.A.C.S. Art. 4413(29cc), Sec. 26(a).)
Sec. 1703.403. VIOLATION OF CONFIDENTIALITY; OFFENSE. A person commits an offense if the person, with criminal negligence, violates Section 1703.306. An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 4413(29cc), Sec. 26(b).)
CHAPTER 1704. REGULATION OF BAIL BOND SURETIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1704.001. DEFINITIONS
Sec. 1704.002. APPLICATION OF CHAPTER
[Sections 1704.003-1704.050 reserved for expansion]
SUBCHAPTER B. COUNTY BAIL BOND BOARDS
Sec. 1704.051. MANDATORY CREATION OF BOARD
Sec. 1704.052. DISCRETIONARY CREATION OF BOARD
Sec. 1704.053. BOARD COMPOSITION
Sec. 1704.054. PRESIDING OFFICER
Sec. 1704.055. MEETINGS
Sec. 1704.056. QUORUM; MAJORITY VOTE
[Sections 1704.057-1704.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 1704.101. ADMINISTRATIVE AUTHORITY
Sec. 1704.102. ENFORCEMENT AUTHORITY
Sec. 1704.103. DISBURSEMENTS FROM COUNTY FUND
Sec. 1704.104. POSTING OF BOARD RULE OR ACTION
Sec. 1704.105. LICENSED BAIL BOND SURETY LIST
Sec. 1704.106. BONDING BUSINESS REPORTS
Sec. 1704.107. NOTIFICATION OF LICENSE SUSPENSION OR
REVOCATION
Sec. 1704.108. NOTIFICATION OF DEFAULT BY CORPORATION
[Sections 1704.109-1704.150 reserved for expansion]
SUBCHAPTER D. LICENSING REQUIREMENTS
Sec. 1704.151. LICENSE REQUIRED
Sec. 1704.152. ELIGIBILITY
Sec. 1704.153. INELIGIBILITY BECAUSE OF CRIMINAL CONVICTION
Sec. 1704.154. APPLICATION REQUIREMENTS
Sec. 1704.155. REAL PROPERTY LIST
Sec. 1704.156. REAPPRAISAL OF REAL PROPERTY
Sec. 1704.157. PRELIMINARY DETERMINATIONS
Sec. 1704.158. HEARING ON APPLICATION
Sec. 1704.159. DECISION ON APPLICATION; BOARD ORDER
Sec. 1704.160. SECURITY REQUIREMENTS
Sec. 1704.161. LICENSE FORM
Sec. 1704.162. LICENSE EXPIRATION AND RENEWAL
Sec. 1704.163. ATTORNEY EXEMPTION
[Sections 1704.164-1704.200 reserved for expansion]
SUBCHAPTER E. BONDING BUSINESS
Sec. 1704.201. ACCEPTANCE OF LICENSE HOLDER BAIL BONDS
Sec. 1704.202. RECORD REQUIREMENTS
Sec. 1704.203. BAIL BOND LIMIT; ADDITIONAL SECURITY
Sec. 1704.204. PAYMENT OF FINAL JUDGMENT
Sec. 1704.205. BAIL BOND SETTLEMENT
Sec. 1704.206. REPLACEMENT OF SECURITY
Sec. 1704.207. SURRENDER OF PRINCIPAL; CONTEST
Sec. 1704.208. BOND LIABILITY
Sec. 1704.209. BOND DISCHARGED ON APPEAL
Sec. 1704.210. WITHDRAWAL OF SECURITY
Sec. 1704.211. CORPORATE POWER OF ATTORNEY
Sec. 1704.212. EFFECT OF DEFAULT BY CORPORATION; NOTICE
REQUIRED
[Sections 1704.213-1704.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT PROVISIONS
Sec. 1704.251. INVESTIGATION
Sec. 1704.252. DISCRETIONARY LICENSE SUSPENSION OR
REVOCATION: GROUNDS
Sec. 1704.253. MANDATORY LICENSE SUSPENSION OR
REVOCATION: GROUNDS
Sec. 1704.254. NOTICE AND HEARING
Sec. 1704.255. APPEAL; VENUE
Sec. 1704.256. STANDARD OF JUDICIAL REVIEW
Sec. 1704.257. EFFECT OF BOARD ORDER
[Sections 1704.258-1704.300 reserved for expansion]
SUBCHAPTER G. PROHIBITED CONDUCT AND CRIMINAL PENALTIES
Sec. 1704.301. SECURITY IN EXCESS OF RISK PROHIBITED
Sec. 1704.302. PROHIBITED REFERRALS OF BONDING BUSINESS;
OFFENSE
Sec. 1704.303. BAIL BOND SURETY ACTIVITY; OFFENSE
Sec. 1704.304. PROHIBITED RECOMMENDATIONS OR
SOLICITATIONS; OFFENSE
Sec. 1704.305. BAIL BOND RECEIPT AND INSPECTION; OFFENSE
Sec. 1704.306. RECORDS; OFFENSE
CHAPTER 1704. REGULATION OF BAIL BOND SURETIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1704.001. DEFINITIONS. In this chapter:
(1) "Bail bond" means a cash deposit, or similar deposit or written undertaking, or a bond or other security, given to guarantee the appearance of a defendant in a criminal case.
(2) "Bail bond surety" means a person who executes a bail bond as a surety or cosurety for another person for compensation.
(3) "Board" means a county bail bond board.
(4) "Bonding business" means the execution of a bail bond by a bail bond surety.
(5) "Person" means an individual or corporation. (V.A.C.S. Art. 2372p-3, Secs. 2(1), (2), (3), (5), (6).)
Sec. 1704.002. APPLICATION OF CHAPTER. This chapter applies only in a county with a population of:
(1) 110,000 or more; or
(2) less than 110,000 in which a board is created. (V.A.C.S. Art. 2372p-3, Sec. 3 (part).)
[Sections 1704.003-1704.050 reserved for expansion]
SUBCHAPTER B. COUNTY BAIL BOND BOARDS
Sec. 1704.051. MANDATORY CREATION OF BOARD. A board is created in each county with a population of 110,000 or more. (V.A.C.S. Art. 2372p-3, Sec. 5(a) (part).)
Sec. 1704.052. DISCRETIONARY CREATION OF BOARD. A board may be created in a county with a population of less than 110,000 if a majority of the persons who would serve as members of the board under Section 1704.053, or who would designate the persons who would serve as members of the board, determine to create a board. (V.A.C.S. Art. 2372p-3, Secs. 3 (part), 5(a) (part).)
Sec. 1704.053. BOARD COMPOSITION. A board consists of:
(1) the sheriff or a designee from the sheriff's office who must be the sheriff's administrator or a deputy sheriff of the rank of at least sergeant;
(2) a district judge of the county having jurisdiction over criminal matters and designated by the presiding judge of the administrative judicial district;
(3) the county judge, a member of the commissioners court designated by the county judge, or a designee approved by the commissioners court;
(4) a judge of a county court or county court at law in the county having jurisdiction over criminal matters and designated by the commissioners court;
(5) the district attorney or an assistant district attorney designated by the district attorney;
(6) a licensed bail bond surety in the county elected by other licensed bail bond sureties in the county;
(7) a justice of the peace;
(8) the district clerk or the clerk's designee;
(9) the county clerk or the clerk's designee, if the county clerk has responsibility over criminal matters;
(10) if appointed by the board, a presiding judge of a municipal court in the county;
(11) if the county's principal municipality designates a presiding judge in the municipal court system, the presiding judge; and
(12) the county treasurer or the treasurer's designee or, if appointed by the commissioners court in a county that does not have a county treasurer, the person designated by the county commissioners court to perform the duties of the county treasurer. (V.A.C.S. Art. 2372p-3, Sec. 5(b).)
Sec. 1704.054. PRESIDING OFFICER. (a) A board shall initially elect one of its members as presiding officer.
(b) The presiding officer shall preside over board meetings. (V.A.C.S. Art. 2372p-3, Sec. 5(c) (part).)
Sec. 1704.055. MEETINGS. (a) A board shall hold its initial meeting not later than the 60th day after the date the board is created.
(b) A board shall meet:
(1) at least once a month; and
(2) at other times at the call of the presiding officer. (V.A.C.S. Art. 2372p-3, Secs. 5(c) (part), (d) (part).)
Sec. 1704.056. QUORUM; MAJORITY VOTE. (a) Four members of a board constitute a quorum.
(b) A board may take action only on a majority vote of the board members present. (V.A.C.S. Art. 2372p-3, Sec. 5(d) (part).)
[Sections 1704.057-1704.100 reserved for expansion]
SUBCHAPTER C. BOARD POWERS AND DUTIES
Sec. 1704.101. ADMINISTRATIVE AUTHORITY. A board shall:
(1) exercise powers incidental or necessary to the administration of this chapter;
(2) deposit fees collected under this chapter in the general fund of the county;
(3) supervise and regulate each phase of the bonding business in the county;
(4) adopt and post rules necessary to implement this chapter;
(5) conduct hearings and investigations and make determinations relating to the issuance, denial, or renewal of licenses;
(6) issue licenses to qualified applicants;
(7) deny licenses to unqualified applicants;
(8) employ persons necessary to assist in board functions; and
(9) conduct board business, including maintaining records and minutes. (V.A.C.S. Art. 2372p-3, Secs. 5(f) (part), 8(b) (part), 9(a).)
Sec. 1704.102. ENFORCEMENT AUTHORITY. (a) A board shall:
(1) enforce this chapter in the county;
(2) conduct hearings and investigations and make determinations relating to license suspension and revocation;
(3) suspend or revoke a license for a violation of this chapter or a rule adopted by the board under this chapter; and
(4) require a record and transcription of each board proceeding.
(b) A board may:
(1) compel the appearance before the board of an applicant or license holder; and
(2) during a hearing conducted by the board, administer oaths, examine witnesses, and compel the production of pertinent records and testimony by a license holder or applicant. (V.A.C.S. Art. 2372p-3, Sec. 5(f) (part).)
Sec. 1704.103. DISBURSEMENTS FROM COUNTY FUND. (a) Fees deposited in the general fund of a county under Section 1704.101(2) may be used only to administer and enforce this chapter, including reimbursement for:
(1) reasonable expenses incurred by the board in enforcing this chapter; and
(2) actual expenses incurred by a board member in serving on the board.
(b) For purposes of this section, serving on a board is an additional duty of a board member's office. A board member may not receive compensation for serving on a board. (V.A.C.S. Art. 2372p-3, Sec. 8(b) (part).)
Sec. 1704.104. POSTING OF BOARD RULE OR ACTION. A board shall post a rule adopted or an action taken by the board in an appropriate place in the county courthouse for the 10 days preceding the date the rule or action takes effect. (V.A.C.S. Art. 2372p-3, Sec. 5(e).)
Sec. 1704.105. LICENSED BAIL BOND SURETY LIST. (a) A board shall post in each court having criminal jurisdiction in the county, and shall provide to each local official responsible for the detention of prisoners in the county, a current list of each licensed bail bond surety and agent of the bail bond surety in the county.
(b) A list of each licensed bail bond surety in a county may be displayed where prisoners are examined, processed, or confined. (V.A.C.S. Art. 2372p-3, Secs. 5(f) (part), 15(e) (part).)
Sec. 1704.106. BONDING BUSINESS REPORTS. (a) On request by the Texas Judicial Council, a board shall file a report with and furnish information to the council relating to the operation of the bonding business in the county.
(b) The Texas Judicial Council shall, not later than December 1 of each year, submit to the governor and the legislature a report relating to the operation of the bonding business in this state. (V.A.C.S. Art. 2372p-3, Sec. 5(f) (part).)
Sec. 1704.107. NOTIFICATION OF LICENSE SUSPENSION OR REVOCATION. A board shall immediately notify each court and each local official responsible for the detention of prisoners in the county of:
(1) the suspension or revocation of a license issued under this chapter; and
(2) the revocation of the authority of a license holder's agent. (V.A.C.S. Art. 2372p-3, Sec. 5(f) (part).)
Sec. 1704.108. NOTIFICATION OF DEFAULT BY CORPORATION. A board shall promptly notify the Texas Department of Insurance of a default by a corporation on a financial obligation undertaken by the corporation in the county. (V.A.C.S. Art. 2372p-3, Sec. 7(e).)
[Sections 1704.109-1704.150 reserved for expansion]
SUBCHAPTER D. LICENSING REQUIREMENTS
Sec. 1704.151. LICENSE REQUIRED. Except as provided by Section 1704.163, a person may not act as a bail bond surety in the county unless the person holds a license issued under this chapter. (V.A.C.S. Art. 2372p-3, Sec. 3(a) (part).)
Sec. 1704.152. ELIGIBILITY. (a) To be eligible for a license under this chapter, an individual must:
(1) be a resident of this state and a citizen of the United States;
(2) be at least 18 years of age; and
(3) possess the financial resources required to comply with Section 1704.160.
(b) To be eligible for a license under this chapter, a corporation must be:
(1) chartered or admitted to do business in this state; and
(2) qualified to write fidelity, guaranty, and surety bonds under the Insurance Code. (V.A.C.S. Art. 2372p-3, Secs. 3(b), (d); 7(a) (part).)
Sec. 1704.153. INELIGIBILITY BECAUSE OF CRIMINAL CONVICTION. A person is not eligible for a license under this chapter if, after August 27, 1973, the person commits and is finally convicted of a misdemeanor involving moral turpitude or a felony. (V.A.C.S. Art. 2372p-3, Sec. 3(c).)
Sec. 1704.154. APPLICATION REQUIREMENTS. (a) To be licensed under this chapter, a person must apply for a license by filing a sworn application with the board.
(b) The application must:
(1) be in a form and contain the information prescribed by the board;
(2) state:
(A) the applicant's name, age, and address;
(B) if the applicant is a corporation, whether the applicant is:
(i) chartered or admitted to do business in this state; and
(ii) qualified to write fidelity, guaranty, and surety bonds under the Insurance Code;
(C) the name under which the business will be conducted; and
(D) each place, including the street address and municipality, at which the business will be conducted;
(3) if the applicant is an individual, be accompanied by:
(A) a list, as required by Section 1704.155, of nonexempt real property owned by the applicant that the applicant intends to execute in trust to the board if the applicant's application is approved; and
(B) a statement showing the amount of cash or cash equivalent, or the cash value of a certificate of deposit or cashier's check, that the applicant intends to deposit with the county treasurer if the applicant's application is approved; and
(4) be accompanied by:
(A) the applicant's complete, sworn financial statement;
(B) the applicant's declaration that the applicant will comply with this chapter and the rules adopted by the board;
(C) three letters of recommendation, each from a person who:
(i) is reputable; and
(ii) has known the applicant or, if the applicant is a corporation, the person who will be in charge of the applicant's business in the county for at least three years;
(D) a $500 filing fee;
(E) a photograph of the applicant or, if the applicant is a corporation, of the person who will be in charge of the applicant's business in the county;
(F) a set of fingerprints of the applicant, or, if the applicant is a corporation, of the person who will be in charge of the applicant's business in the county taken by a law enforcement officer designated by the board; and
(G) if the applicant or, if the applicant is a corporation, the person who will be in charge of the applicant's business in the county is licensed under this chapter in another county, a letter from the board of that county stating whether the applicant is in good standing in the county in which the person is licensed.
(c) A letter of recommendation submitted under Subsection (b)(4)(C) must:
(1) state that the applicant or, if the applicant is a corporation, the person who will be in charge of the applicant's business in the county has a reputation for honesty, truthfulness, fair dealing, and competency; and
(2) recommend that the board issue the license. (V.A.C.S. Art. 2372p-3, Secs. 6(a) (part), (b), (c).)
Sec. 1704.155. REAL PROPERTY LIST. A list of nonexempt real property required under Section 1704.154(b)(3)(A) must, for each parcel listed, include:
(1) a legal description of the property that would be sufficient to convey the property by general warranty deed;
(2) a current statement from each taxing unit authorized to impose taxes on the property showing:
(A) that there is no outstanding tax lien against the property; and
(B) the net value of the property according to a current appraisal made by a real estate appraiser who is a member in good standing of a nationally recognized professional appraiser society or trade organization that has an established code of ethics, educational program, and professional certification program;
(3) a statement by the applicant that, while the property remains in trust, the applicant:
(A) agrees to pay the taxes on the property;
(B) will not further encumber the property unless the applicant notifies the board of the applicant's intent to encumber the property and the board permits the encumbrance; and
(C) agrees to maintain insurance on any improvements on the property against damage or destruction in the full amount of the value claimed for the improvements;
(4) a statement of whether the applicant is married; and
(5) if the applicant is married, a sworn statement from the applicant's spouse agreeing to transfer to the board, as a part of the trust, any right, title, or interest that the spouse may have in the property. (V.A.C.S. Art. 2372p-3, Sec. 6(a) (part).)
Sec. 1704.156. REAPPRAISAL OF REAL PROPERTY. (a) An appraisal district may not reappraise real property solely because the property owner is a license holder or an applicant for a license under this chapter.
(b) An appraisal district is not prohibited from reappraising real property in connection with the appraisal of real property in the same general area or if the reappraisal is requested by the board, a license holder, or an applicant for a license. (V.A.C.S. Art. 2372p-3, Sec. 6A.)
Sec. 1704.157. PRELIMINARY DETERMINATIONS. Before a hearing on an application, a board or a board's authorized representative shall determine whether the applicant:
(1) possesses the financial resources to comply with Section 1704.160; and
(2) satisfies the other requirements of this chapter. (V.A.C.S. Art. 2372p-3, Sec. 6(d).)
Sec. 1704.158. HEARING ON APPLICATION. (a) After making the determinations required by Section 1704.157, a board shall conduct a hearing on the application.
(b) During the hearing:
(1) the board may submit to the applicant or the applicant's agent any questions relevant to the board's decision on the application; and
(2) the applicant may present oral and documentary evidence. (V.A.C.S. Art. 2372p-3, Sec. 6(e) (part).)
Sec. 1704.159. DECISION ON APPLICATION; BOARD ORDER. (a) After the hearing under Section 1704.158, the board shall enter an order conditionally approving the application if the board determines that a ground does not exist to deny the application. If the board determines that a ground exists to deny the application, the board shall enter an order denying the application.
(b) An order issued under Subsection (a) conditionally approving an application becomes final on the date the applicant complies with the security requirements of Section 1704.160.
(c) A board shall give written notice to an applicant of the board's decision on the application. (V.A.C.S. Art. 2372p-3, Secs. 6(e) (part), (f) (part).)
Sec. 1704.160. SECURITY REQUIREMENTS. (a) On receipt of notice under Section 1704.159 that an application has been conditionally approved, the applicant must:
(1) if the applicant is an individual:
(A) subject to Subsection (b), deposit with the county treasurer a cashier's check, certificate of deposit, cash, or cash equivalent in the amount stated on the application under Section 1704.154(b)(3)(B); or
(B) subject to Subsections (c)-(e), execute in trust to the board each deed to the property listed on the application under Section 1704.154(b)(3)(A); or
(2) if the applicant is a corporation, provide to the sheriff an irrevocable letter of credit as a cash equivalent to pay any final judgment of a forfeiture on a bail bond executed by the applicant.
(b) A deposit made under Subsection (a)(1)(A) may not be less than $50,000, except that the deposit may not be less than $10,000 in a county with a population of less than 250,000. A deposit made to a county with a population of less than 250,000 shall be placed in a fund known as a bail security fund.
(c) The total value of the property executed in trust under Subsection (a)(1)(B) may not be less than $50,000, except that the value may not be less than $10,000 in a county with a population of less than 250,000.
(d) A trust created under Subsection (a)(1)(B) is subject to the condition that the property executed in trust may, after notice is provided and under the conditions required by the Code of Criminal Procedure, be sold to satisfy a final judgment on a forfeiture on a bail bond executed by the applicant.
(e) If an applicant is married, the applicant's spouse must execute each deed of trust under Subsection (a)(1)(B) that involves community property.
(f) A board shall file each deed of trust in the records of each county in which the property is located. The applicant shall pay the filing fee.
(g) The certificate of authority to do business in this state issued under Article 8.20, Insurance Code, to an applicant that is a corporation is conclusive evidence of:
(1) the sufficiency of the applicant's security; and
(2) the applicant's solvency and credits.
(h) A license holder must maintain the amount of security required by this section during the time the person holds the license. (V.A.C.S. Art. 2372p-3, Secs. 6(a) (part), (f), (h) (part), 7(b).)
Sec. 1704.161. LICENSE FORM. (a) Each license issued under this chapter must show on its face the license expiration date and the license number.
(b) The same license number must appear on each subsequent renewal license. (V.A.C.S. Art. 2372p-3, Sec. 8(c) (part).)
Sec. 1704.162. LICENSE EXPIRATION AND RENEWAL. (a) A license issued or renewed under this chapter expires on the second anniversary after the date the license is issued or is to expire, as appropriate.
(b) To renew a license, a license holder must file with the board an application for renewal not later than the 31st day before the license expiration date.
(c) An application for renewal must comply with the requirements for an original license application under Section 1704.154, including the $500 filing fee requirement.
(d) A board may approve an application for renewal if:
(1) the applicant's current license is not suspended or revoked;
(2) the application complies with the requirements of this chapter; and
(3) the board does not determine that a ground exists to deny the application. (V.A.C.S. Art. 2372p-3, Secs. 8(a), (c) (part).)
Sec. 1704.163. ATTORNEY EXEMPTION. (a) Except as provided by Subsection (c), a person not licensed under this chapter may execute a bail bond or act as a surety for another person if the person:
(1) is licensed to practice law in this state; and
(2) represents the other person in a criminal case.
(b) A person executing a bail bond or acting as a surety under this section may not engage in conduct involved with that practice that would subject a bail bond surety to license revocation. If the sheriff determines that a person has violated this subsection, the person may not execute a bail bond or act as a surety under this section until the person has remedied the violation.
(c) A person executing a bail bond or acting as a surety under this section who has been paid a fee for executing the bond or acting as the surety is not relieved of liability on the bond solely because the person has not been employed to represent the principal on the merits of the criminal case. (V.A.C.S. Art. 2372p-3, Secs. 3(a) (part), (e).)
[Sections 1704.164-1704.200 reserved for expansion]
SUBCHAPTER E. BONDING BUSINESS
Sec. 1704.201. ACCEPTANCE OF LICENSE HOLDER BAIL BONDS. A sheriff shall accept or approve a bail bond executed by a license holder in the county in which the license holder is licensed if:
(1) the bond is for a county or district case;
(2) the bond is executed in accordance with this chapter and the rules adopted by the board; and
(3) a bail bond is required as a condition of release of the defendant for whom the bond is executed. (V.A.C.S. Art. 2372p-3, Sec. 14(a).)
Sec. 1704.202. RECORD REQUIREMENTS. (a) A license holder shall maintain:
(1) a record of each bail bond executed by the license holder; and
(2) a separate set of records for each county in which the license holder is licensed.
(b) The records required to be maintained under this section must include for each bail bond executed and enforced:
(1) the style and number of the case and the court in which the bond is executed;
(2) the name of the defendant released on bond;
(3) the amount of bail set in the case;
(4) the amount and type of security held by the license holder; and
(5) a statement of:
(A) whether the security held by the license holder is:
(i) for the payment of a bail bond fee; or
(ii) to assure the principal's appearance in court; and
(B) the conditions under which the security will be returned.
(c) A license holder shall, before renewing a license, submit for inspection to the board or a person designated by the board the records required under this section.
(d) The records required under this section shall be made available for inspection on demand by the board or an authorized representative of the board. (V.A.C.S. Art. 2372p-3, Secs. 4(a) (part), (b).)
Sec. 1704.203. BAIL BOND LIMIT; ADDITIONAL SECURITY. (a) Except as provided by Subsection (d), a license holder may not execute, and a person may not accept from a license holder, a bail bond that, in the aggregate with other bail bonds executed by the license holder in that county, results in a total amount that exceeds 10 times the value of the security deposited or executed by the license holder under Section 1704.160.
(b) A county officer or an employee designated by the board shall maintain for each license holder the total amount of the license holder's current liability on bail bonds.
(c) A license holder may not execute a bail bond if the amount of the license holder's current total liability on judgments nisi in that county equals or exceeds twice the amount of security deposited or executed by the license holder under Section 1704.160.
(d) A license holder, at any time, may increase the limits prescribed by this section by depositing or executing additional security.
(e) This section does not apply to a license holder that is a corporation. (V.A.C.S. Art. 2372p-3, Secs. 6(g), 7(a) (part).)
Sec. 1704.204. PAYMENT OF FINAL JUDGMENT. (a) A license holder shall pay a final judgment on a forfeiture of a bail bond executed by the license holder not later than the 30th day after the date of the final judgment.
(b) If a license holder fails to pay a final judgment as required by Subsection (a), the judgment shall be paid from the security deposited or executed by the license holder under Section 1704.160. (V.A.C.S. Art. 2372p-3, Sec. 6(h) (part).)
Sec. 1704.205. BAIL BOND SETTLEMENT. Before a final judgment on a forfeiture of a bail bond:
(1) the prosecuting attorney may recommend to the court a settlement in an amount less than the amount stated in the bond; or
(2) the court may, on its own motion, approve a settlement. (V.A.C.S. Art. 2372p-3, Sec. 13(a).)
Sec. 1704.206. REPLACEMENT OF SECURITY. If a final judgment on a forfeiture of a bail bond is paid from the security deposited or executed by a license holder under Section 1704.160, the license holder shall deposit or execute additional security in an amount sufficient to comply with that section. (V.A.C.S. Art. 2372p-3, Sec. 6(h) (part).)
Sec. 1704.207. SURRENDER OF PRINCIPAL; CONTEST. (a) A person executing a bail bond may not surrender the principal for whom the bond is executed unless:
(1) the person executes and files with the court having jurisdiction over the case an affidavit stating:
(A) the date the bond was executed;
(B) the fee paid for the bond; and
(C) the reason for the surrender; and
(2) the court authorizes the surrender in writing.
(b) If a principal is surrendered under Subsection (a) and the principal, an agent of the board of the county in which the bond was executed, or an attorney representing the state or an accused in the case determines that a reason for the surrender was without reasonable cause, the person may contest the surrender in the court that authorized the surrender.
(c) If the court finds that a contested surrender was without reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond. The court shall identify the fees paid to induce the person to execute the bond regardless of whether the fees are described as fees for execution of the bond. (V.A.C.S. Art. 2372p-3, Secs. 12(a), (b), (c).)
Sec. 1704.208. BOND LIABILITY. (a) A person executing a bail bond is relieved of liability on the bond on the date of disposition of the case for which the bond is executed.
(b) For purposes of this section, disposition of a case occurs on the date the case is dismissed or the principal is acquitted or convicted. (V.A.C.S. Art. 2372p-3, Sec. 13(c).)
Sec. 1704.209. BOND DISCHARGED ON APPEAL. (a) A bail bond shall be discharged if:
(1) the principal appeals the case for which the bond is executed; and
(2) the person who executed the bond does not agree to continue during the appeal as surety.
(b) A court may not require a person who executes a bail bond to continue as surety while the principal appeals the case for which the bond is executed unless the person agrees to continue during the appeal as surety.
(c) This section does not prohibit a principal from obtaining an appeal bond under the Code of Criminal Procedure.
(d) This section prevails over any provision contained in the bail bond. (V.A.C.S. Art. 2372p-3, Sec. 12(d).)
Sec. 1704.210. WITHDRAWAL OF SECURITY. (a) A license holder may withdraw the security deposited or executed under Section 1704.160, and the security shall be returned to the license holder or the license holder's heirs or assigns, if:
(1) the license holder:
(A) ceases to engage in the bonding business;
(B) ceases to maintain the license; and
(C) presents a release by the board; and
(2) no judgment or bond liability, actual or potential, is outstanding against the license holder.
(b) The security returned to a license holder under Subsection (a) is equal to the amount of security deposited or executed under Section 1704.160 minus the amount of security:
(1) depleted under Section 1704.204(b) to pay a judgment; and
(2) necessary to secure any unexpired obligation on a bail bond executed by the license holder. (V.A.C.S. Art. 2372p-3, Sec. 6(h) (part).)
Sec. 1704.211. CORPORATE POWER OF ATTORNEY. (a) A corporation shall, before executing any bail bond, file with the county clerk of the county in which the corporation intends to execute the bond a power of attorney designating an agent of the corporation authorized to execute bail bonds on behalf of the corporation.
(b) An agent designated by a power of attorney under Subsection (a) must be a license holder under this chapter.
(c) An agent designated by a power of attorney under Subsection (a) is not required under this chapter to obtain a local recording agent license under Article 21.14, Insurance Code. (V.A.C.S. Art. 2372p-3, Secs. 7(c), (d).)
Sec. 1704.212. EFFECT OF DEFAULT BY CORPORATION; NOTICE REQUIRED. (a) A corporation may not act as a bail bond surety in a county in which the corporation is in default on five or more bail bonds.
(b) If a corporation defaults on a bail bond, the clerk of the court in which the corporation executed the bond shall deliver a written notice of the default to:
(1) the sheriff;
(2) the chief of police; or
(3) another appropriate peace officer.
(c) For purposes of this section:
(1) a corporation is considered in default on a bail bond beginning on the date the trial court enters a final judgment on the scire facias and ending on the date the judgment is satisfied or set aside; and
(2) a corporation is not considered in default on a bail bond if, pending appeal, the corporation deposits cash in the amount of the final judgment with the court in which the bond is executed.
(d) A deposit made under Subsection (c)(2) shall be applied to the payment of a final judgment in the case. (V.A.C.S. Art. 2372p-3, Sec. 14A.)
[Sections 1704.213-1704.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT PROVISIONS
Sec. 1704.251. INVESTIGATION. (a) A board, on its own motion, may investigate an action of or a record maintained by a license holder that relates to a complaint that the license holder has violated this chapter.
(b) A board shall investigate an action of or a record maintained by a license holder if:
(1) the board receives a sworn complaint providing reasonable cause to believe that a violation of this chapter has occurred; or
(2) a court requests an investigation. (V.A.C.S. Art. 2372p-3, Sec. 9(b) (part).)
Sec. 1704.252. DISCRETIONARY LICENSE SUSPENSION OR REVOCATION: GROUNDS. After notice and hearing, a board may revoke or suspend a license if the license holder:
(1) violates this chapter or a rule adopted by the board under this chapter;
(2) fraudulently obtains a license under this chapter;
(3) makes a false statement or misrepresentation:
(A) in an application for an original or renewal license; or
(B) during a hearing conducted by the board;
(4) refuses to answer a question submitted by the board during a hearing relating to the license holder's license, conduct, or qualifications;
(5) is finally convicted under the laws of this state, another state, or the United States of an offense that:
(A) is a misdemeanor involving moral turpitude or a felony; and
(B) is committed after August 27, 1973;
(6) is found by a court to be bankrupt or is insolvent;
(7) is found by a court to be mentally incompetent;
(8) fails to pay a judgment in accordance with Section 1704.204;
(9) pays commissions or fees to or divides commissions or fees with, or offers to pay commissions or fees to or divide commissions or fees with, a person or business entity not licensed under this chapter;
(10) solicits bonding business in a building in which prisoners are processed or confined;
(11) recommends to a client the employment of a particular attorney or law firm in a criminal case;
(12) falsifies or fails to maintain a record required under this chapter;
(13) fails to promptly permit the board, or a representative or an agent of the board, of the county in which the license holder is licensed to inspect a record required under this chapter;
(14) acts as a bail bond surety under a suspended or expired license;
(15) fails two or more times to maintain the amount of security required by Section 1704.160; or
(16) misrepresents to an official or an employee of the official the amount for which the license holder may execute a bail bond for purposes of obtaining the release of a person on bond. (V.A.C.S. Art. 2372p-3, Secs. 9(b) (part), 10(a).)
Sec. 1704.253. MANDATORY LICENSE SUSPENSION OR REVOCATION: GROUNDS. (a) A board shall immediately suspend a license if the license holder fails to maintain the amount of security required by Section 1704.160. A board is not required to provide notice or a hearing before suspending a license under this subsection. A license suspended under this subsection shall be immediately reinstated if the license holder deposits or executes the amount of security required by Section 1704.160.
(b) After notice and hearing as provided by Section 1704.254, a board shall revoke a license if:
(1) the license holder fails to pay a judgment in accordance with Section 1704.204; and
(2) the amount of security maintained by the license holder under Section 1704.160 is insufficient to pay the judgment. (V.A.C.S. Art. 2372p-3, Sec. 10(f).)
Sec. 1704.254. NOTICE AND HEARING. (a) Notice of a hearing to suspend or revoke a license under this chapter must:
(1) be sent by certified mail to the last known address of the license holder not later than the 11th day before the date of the hearing; and
(2) state each alleged violation of this chapter.
(b) The hearing is limited to each alleged violation stated in the notice.
(c) During the hearing, the license holder:
(1) is entitled to an opportunity to be heard; and
(2) may present and cross-examine witnesses.
(d) The hearing must be recorded. A license holder may obtain a copy of the record on request and payment of the reasonable costs of transcription. (V.A.C.S. Art. 2372p-3, Secs. 10(b), (c), (d), (e).)
Sec. 1704.255. APPEAL; VENUE. (a) An applicant or a license holder may appeal an order of a board denying an application for a license or renewal of a license, or suspending or revoking a license, by filing a petition in a district court in the county not later than the 30th day after the date the person receives notice of the denial, suspension, or revocation.
(b) An appeal filed under this section is an action against the board. An applicant or a license holder may not bring the action against an individual board member. (V.A.C.S. Art. 2372p-3, Sec. 11 (part).)
Sec. 1704.256. STANDARD OF JUDICIAL REVIEW. Judicial review of an appeal filed under Section 1704.255 is by trial de novo in the same manner as an appeal from a justice court to a county court. (V.A.C.S. Art. 2372p-3, Sec. 11 (part).)
Sec. 1704.257. EFFECT OF BOARD ORDER. (a) A board order denying an application for a license or renewal of a license, or suspending or revoking a license, becomes final on the 31st day after the date the applicant or license holder receives notice of the order unless the applicant or license holder files an appeal under Section 1704.255.
(b) A board order appealed under Section 1704.255 has full force and effect pending determination of the appeal. (V.A.C.S. Art. 2372p-3, Sec. 11 (part).)
[Sections 1704.258-1704.300 reserved for expansion]
SUBCHAPTER G. PROHIBITED CONDUCT AND CRIMINAL PENALTIES
Sec. 1704.301. SECURITY IN EXCESS OF RISK PROHIBITED. A license holder may not hold security for the payment of a bail bond fee and to assure the principal's appearance in court if the amount of the security held exceeds the particular risk involved in the case. (V.A.C.S. Art. 2372p-3, Sec. 4(a) (part).)
Sec. 1704.302. PROHIBITED REFERRALS OF BONDING BUSINESS; OFFENSE. (a) A person in the bonding business may not directly or indirectly give, donate, lend, or contribute, or promise to give, donate, lend, or contribute, money or property to an attorney, police officer, sheriff, deputy, constable, jailer, or employee of a law enforcement agency for the referral of bonding business.
(b) A person may not accept or receive from a license holder money, property, or any other thing of value as payment for the referral of bonding business unless the records of the board show that the person is an agent or employee of the license holder.
(c) A person commits an offense if the person violates this section. An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 2372p-3, Secs. 15(c), (d), (l).)
Sec. 1704.303. BAIL BOND SURETY ACTIVITY; OFFENSE. (a) A person required to be licensed under this chapter may not execute a bail bond unless the person holds a license issued under this chapter.
(b) A person may not advertise as a bail bond surety unless the person holds a license issued under this chapter.
(c) A person commits an offense if the person violates this section. An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 2372p-3, Secs. 15(a), (g), (j).)
Sec. 1704.304. PROHIBITED RECOMMENDATIONS OR SOLICITATIONS; OFFENSE. (a) A bail bond surety or an agent of a bail bond surety may not recommend or suggest to a person for whom the bail bond surety executes a bond the employment of an attorney or law firm in connection with a criminal offense.
(b) The following persons may not recommend a particular bail bond surety to another person:
(1) a police officer, sheriff, or deputy;
(2) a constable, jailer, or employee of a law enforcement agency;
(3) a judge or employee of a court;
(4) another public official; or
(5) an employee of a related agency.
(c) A bail bond surety or an agent of a bail bond surety may not solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement.
(d) A person commits an offense if the person violates this section. An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 2372p-3, Secs. 15(b), (e) (part), (f), (k) (part).)
Sec. 1704.305. BAIL BOND RECEIPT AND INSPECTION; OFFENSE. (a) A bail bond surety or an agent of a bail bond surety may not receive money or other consideration or thing of value from a person for whom the bail bond surety executes a bond unless the bail bond surety or agent issues a receipt to the person as provided by Subsection (b).
(b) The receipt must state:
(1) the name of the person who pays the money or transfers the consideration or thing of value;
(2) the amount of money paid or the estimated amount of value transferred;
(3) if the person transfers consideration or a thing of value, a brief description of the consideration or thing of value;
(4) the style and number of the case and the court in which the bond is executed; and
(5) the name of the person receiving the money, consideration, or thing of value.
(c) A bail bond surety or an agent of a bail bond surety shall retain a duplicate copy of a receipt issued under Subsection (a). The copy of the receipt shall be made available for inspection by:
(1) a representative of the board in any county in which the bail bond surety is licensed; and
(2) an appointed representative of a court in which the bail bond surety agrees to execute bail bonds.
(e) A person commits an offense if the person violates this section. An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 2372p-3, Secs. 15(h), (k) (part).)
Sec. 1704.306. RECORDS; OFFENSE. (a) A person commits an offense if the person falsifies a record required to be maintained under this chapter.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 2372p-3, Secs. 15(i), (k) (part).)
[Chapters 1705-1800 reserved for expansion]
TITLE 11. REGULATION OF SALES AND SOLICITATION
CHAPTER 1801. COMMISSION MERCHANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1801.001. DEFINITIONS
Sec. 1801.002. APPLICATION OF CHAPTER
[Sections 1801.003-1801.050 reserved for expansion]
SUBCHAPTER B. BOND
Sec. 1801.051. BOND REQUIRED
Sec. 1801.052. BOND TERMS AND CONDITIONS
Sec. 1801.053. BOND APPROVAL
Sec. 1801.054. RECORDING OF BOND
Sec. 1801.055. SUIT ON BOND
[Sections 1801.056-1801.100 reserved for expansion]
SUBCHAPTER C. COMMISSION MERCHANT DUTIES
Sec. 1801.101. CONTRACT PERFORMANCE
Sec. 1801.102. SALE OF GOODS
Sec. 1801.103. STATEMENTS AND RECEIPTS REGARDING CONSIGNMENT
Sec. 1801.104. ACCOUNTING
Sec. 1801.105. REMITTANCE OF SALE PROCEEDS
[Sections 1801.106-1801.150 reserved for expansion]
SUBCHAPTER D. ACTIONS AGAINST COMMISSION MERCHANTS
Sec. 1801.151. REQUIREMENT TO OBTAIN WRITTEN LICENSE
Sec. 1801.152. FALSE CHARGES
Sec. 1801.153. SALE WITHOUT BOND
Sec. 1801.154. CONSIGNOR'S REMEDIES
CHAPTER 1801. COMMISSION MERCHANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1801.001. DEFINITIONS. In this chapter:
(1) "Commission merchant" means a person engaged in the business of selling any goods on consignment and for a commission.
(2) "Goods" includes produce, wares, merchandise, sugar, and cotton. (V.A.C.S. Art. 1274; New.)
Sec. 1801.002. APPLICATION OF CHAPTER. A commission merchant shall meet the requirements of this chapter except to the extent that the person's business as a commission merchant is regulated by another provision of law. (New.)
[Sections 1801.003-1801.050 reserved for expansion]
SUBCHAPTER B. BOND
Sec. 1801.051. BOND REQUIRED. A commission merchant shall file a bond with the county judge of each county in which the commission merchant maintains an office. (V.A.C.S. Art. 1275 (part).)
Sec. 1801.052. BOND TERMS AND CONDITIONS. (a) A bond filed under this subchapter must:
(1) be in the amount of $3,000;
(2) be conditioned on the commission merchant performing duties required by Subchapter C, except Sections 1801.103(a), (c), and (d); and
(3) be payable to the county judge of each county in which the commission merchant maintains an office as trustee for any person who may be entitled to recover under the bond.
(b) The bond must be made with:
(1) a solvent surety company doing business in this state; or
(2) two or more good and sufficient sureties, each of whom:
(A) is a resident of this state; and
(B) makes an affidavit stating that the surety has assets, not subject to exemption, that are at least equal to the amount of the bond. (V.A.C.S. Art. 1275 (part).)
Sec. 1801.053. BOND APPROVAL. The bond must be approved by the county judge of each county in which the commission merchant maintains an office. (V.A.C.S. Art. 1275 (part).)
Sec. 1801.054. RECORDING OF BOND. The county judge shall file the bond with the county clerk in the same manner as an instrument to perfect a security interest under Chapter 9, Business & Commerce Code. (V.A.C.S. Arts. 1275 (part), 1276 (part).)
Sec. 1801.055. SUIT ON BOND. (a) A person damaged by a breach of a condition of the bond may bring suit and recover under the bond.
(b) The suit shall be filed in the county in which the bond is filed.
(c) A bond is not void on first recovery and may be sued on until the total amount is exhausted.
(d) If the amount of the bond is reduced to $1,500 or less, the commission merchant shall file a new bond in an amount equal to $3,000. The new bond is liable for all future contracts entered into by the commission merchant and a consignor.
(e) A commission merchant who does not file a new bond under Subsection (d) may not do business in this state. (V.A.C.S. Art. 1276 (part).)
[Sections 1801.056-1801.100 reserved for expansion]
SUBCHAPTER C. COMMISSION MERCHANT DUTIES
Sec. 1801.101. CONTRACT PERFORMANCE. A commission merchant shall perform all contracts with a consignor of goods. (V.A.C.S. Arts. 1275 (part), 1278 (part).)
Sec. 1801.102. SALE OF GOODS. On shipment of a consignment, a commission merchant shall promptly receive and sell the goods under the terms of the consignment contract. (V.A.C.S. Arts. 1275 (part), 1278 (part).)
Sec. 1801.103. STATEMENTS AND RECEIPTS REGARDING CONSIGNMENT. (a) A person who consigns goods to a commission merchant shall send to the commission merchant a written statement stating the quantity, the quality or class, and the condition of the consigned goods.
(b) On receipt of the statement, the commission merchant shall promptly notify the consignor of any objection the commission merchant has to the stated class, quality, or quantity and the condition of the consigned goods. If the commission merchant fails to object, the statement is prima facie evidence of the class, quality, or quantity and the condition of the consigned goods.
(c) On receipt by the commission merchant of the goods, the commission merchant shall give to the agent of the carrier delivering the goods a receipt for the goods. The receipt must state the quality, quantity, grade, and condition of the goods.
(d) The agent of the carrier shall keep the receipt on file in the carrier's office for six months from the date of receiving the receipt. The receipt may be inspected by a person interested in the shipment. (V.A.C.S. Arts. 1275 (part), 1278 (part), 1280.)
Sec. 1801.104. ACCOUNTING. (a) As soon as the goods are sold, the commission merchant shall send to the consignor a complete itemized account of the sale.
(b) The itemized account must include the price received and the date of the sale.
(c) If the commission merchant sells cotton, sugar, or other produce by weight, the itemized account must:
(1) include the weight of the cotton, sugar, or other produce in gross and the tare allowed; and
(2) be accompanied by the certificate or memorandum of the weight and condition of the cotton, sugar, or other produce required by law, signed by the weigher who weighed the cotton, sugar, or other produce. (V.A.C.S. Arts. 1275 (part), 1278 (part).)
Sec. 1801.105. REMITTANCE OF SALE PROCEEDS. Not later than the fifth day after the date of the sale of consigned goods, a commission merchant shall send to the consignor the total amount received from the sale less the commission merchant's commission. (V.A.C.S. Arts. 1275 (part), 1278 (part).)
[Sections 1801.106-1801.150 reserved for expansion]
SUBCHAPTER D. ACTIONS AGAINST COMMISSION MERCHANTS
Sec. 1801.151. REQUIREMENT TO OBTAIN WRITTEN LICENSE. (a) A commission merchant must obtain the express written license from the owner or consignor of goods, or a person authorized by the owner or consignor, before the commission merchant may, directly or indirectly, purchase or reserve an interest in the consigned goods in the merchant's name or in the name or through the instrumentality of another, for the merchant's benefit or for the benefit of another, or as an agent of any other person.
(b) On violation by a commission merchant of Subsection (a), the owner of the goods is entitled to recover from the commission merchant a penalty in an amount equal to half of the value of the goods.
(c) An action for a penalty under Subsection (b) must be brought in the county in which:
(1) the sale took place; or
(2) the commission merchant resides. (V.A.C.S. Art. 1277.)
Sec. 1801.152. FALSE CHARGES. (a) A commission merchant may not charge for mending or patching, roping bales, cooperage or repairing bales, labor, hauling, cartage, storage, or marking or weighing unless the work is actually done.
(b) A charge specifically describing work performed must be made on a bill regardless of any contrary usage or custom to make the charge by rate or average.
(c) A person who violates this section is subject to a penalty of not less than $100 or more than $500. The owner or consignor may recover the penalty by filing suit. (V.A.C.S. Art. 1279.)
Sec. 1801.153. SALE WITHOUT BOND. A person who sells any consigned goods for commission without first making and filing the bond required by Section 1801.051 shall be fined not less than $100 or more than $500. (V.A.C.S. Art. 1275a.)
Sec. 1801.154. CONSIGNOR'S REMEDIES. (a) If a commission merchant fails to comply with a provision of Subchapter C, except Section 1801.103(a), (c), or (d), the commission merchant and the surety company or sureties required by Section 1801.052 are:
(1) liable for all actual damages incurred by the consignor resulting from the failure; and
(2) subject to a penalty of not less than $100 or more than $500.
(b) The consignor may recover the damages and penalty by filing suit for the actual damages and penalty. (V.A.C.S. Art. 1278 (part).)
CHAPTER 1802. AUCTIONEERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1802.001. DEFINITIONS
Sec. 1802.002. APPLICABILITY
Sec. 1802.003. PREEMPTION
[Sections 1802.004-1802.050 reserved for expansion]
SUBCHAPTER B. LICENSE REQUIREMENTS
Sec. 1802.051. LICENSE REQUIRED
Sec. 1802.052. ELIGIBILITY FOR AUCTIONEER'S LICENSE
Sec. 1802.053. ELIGIBILITY FOR ASSOCIATE AUCTIONEER'S
LICENSE
Sec. 1802.054. APPLICATION FOR LICENSE
Sec. 1802.055. APPLICATION FOR EXAMINATION
Sec. 1802.056. LICENSE EXAMINATION
Sec. 1802.057. EXAMINATION RESULTS
Sec. 1802.058. REEXAMINATION
Sec. 1802.059. LICENSING BY RECIPROCITY
Sec. 1802.060. TERM OF LICENSE
Sec. 1802.061. CONTINUING EDUCATION
[Sections 1802.062-1802.100 reserved for expansion]
SUBCHAPTER C. AUCTIONEER EDUCATION ADVISORY BOARD
Sec. 1802.101. AUCTIONEER EDUCATION ADVISORY BOARD
Sec. 1802.102. APPOINTMENT OF ADVISORY BOARD; MEMBERSHIP;
ELIGIBILITY
Sec. 1802.103. TERMS; VACANCIES
Sec. 1802.104. PRESIDING OFFICER
Sec. 1802.105. REMOVAL
Sec. 1802.106. COMPENSATION
Sec. 1802.107. MEETINGS
Sec. 1802.108. CIVIL LIABILITY
Sec. 1802.109. AUCTIONEER EDUCATION PROGRAMS
[Sections 1802.110-1802.150 reserved for expansion]
SUBCHAPTER D. AUCTIONEER EDUCATION AND RECOVERY FUND
Sec. 1802.151. FUND
Sec. 1802.152. MANAGEMENT OF FUND
Sec. 1802.153. ADDITIONAL FEES
Sec. 1802.154. INVESTMENT OF FUND
Sec. 1802.155. LIABILITY
Sec. 1802.156. EDUCATION EXPENDITURES PERMITTED
[Sections 1802.157-1802.200 reserved for expansion]
SUBCHAPTER E. COMPLAINT PROCEDURES
Sec. 1802.201. INVESTIGATION OF COMPLAINTS
Sec. 1802.202. CONSUMER CLAIMS
Sec. 1802.203. HEARING
Sec. 1802.204. APPEAL
Sec. 1802.205. PAYMENT OF CLAIM
Sec. 1802.206. PAYMENT LIMITS
Sec. 1802.207. REIMBURSEMENT; INTEREST
Sec. 1802.208. SUBROGATION
Sec. 1802.209. EFFECT ON DISCIPLINARY PROCEEDINGS
[Sections 1802.210-1802.250 reserved for expansion]
SUBCHAPTER F. DENIAL OF LICENSE AND DISCIPLINARY PROCEDURES
Sec. 1802.251. DENIAL OF APPLICATION; SUSPENSION OR
REVOCATION OF LICENSE
Sec. 1802.252. REVOCATION FOR CLAIM ON FUND
Sec. 1802.253. HEARING
Sec. 1802.254. APPEAL
[Sections 1802.255-1802.300 reserved for expansion]
SUBCHAPTER G. CRIMINAL PENALTIES
Sec. 1802.301. PRACTICING WITHOUT LICENSE; OFFENSE
Sec. 1802.302. FRIVOLOUS CLAIM; OFFENSE
Sec. 1802.303. GENERAL CRIMINAL PENALTY
CHAPTER 1802. AUCTIONEERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1802.001. DEFINITIONS. In this chapter:
(1) "Advisory board" means the Auctioneer Education Advisory Board.
(2) "Associate auctioneer" means an individual who, for compensation, is employed by and under the direct supervision of a licensed auctioneer to sell or offer to sell property at an auction.
(3) "Auction" means the sale of property by competitive bid.
(4) "Auction company" means a person who engages in the business of arranging, managing, sponsoring, advertising, or conducting auctions.
(5) "Auctioneer" means an individual who sells or offers to sell property at auction, with or without receiving consideration, as a bid caller.
(6) "Commission" means the Texas Commission of Licensing and Regulation.
(7) "Commissioner" means the commissioner of licensing and regulation.
(8) "Department" means the Texas Department of Licensing and Regulation.
(9) "Fund" means the auctioneer education and recovery fund. (V.A.C.S. Art. 8700, Secs. 1(1), (4), (6), (9), (10), (11), (12); New.)
Sec. 1802.002. APPLICABILITY. This chapter does not apply to:
(1) a sale conducted by order of a United States court under Title 11, United States Code;
(2) a sale conducted by an employee of the United States, this state, or a political subdivision of this state in the course and scope of employment;
(3) a sale conducted by a charitable or nonprofit organization, if the auctioneer receives no compensation;
(4) a sale conducted by an individual of the individual's property if the individual is not engaged in the business of selling property as an auctioneer on a recurring basis;
(5) a foreclosure sale of real property personally conducted by a trustee under a deed of trust;
(6) a foreclosure sale of personal property personally conducted by:
(A) a person who holds a security interest in the property, including a mortgage; or
(B) an employee or agent of a person described by Paragraph (A) acting in the course and scope of employment, if:
(i) the employee or agent is not otherwise engaged in the auction business; and
(ii) all property for sale in the auction is subject to a security agreement;
(7) a sale conducted by sealed bid;
(8) an auction conducted only for student training purposes as part of a course of study approved by the commissioner for auctioneers;
(9) an auction conducted by a posted stockyard or market agency as defined by the federal Packers and Stockyards Act (7 U.S.C. Section 181 et seq.), as amended;
(10) an auction of livestock conducted by a nonprofit livestock trade association chartered in this state, if the auction involves only the sale of livestock owned by members of the trade association; or
(11) an auction conducted by a charitable or nonprofit organization chartered in this state, if the auction:
(A) is part of a fair that is organized under state, county, or municipal authority; and
(B) involves only the sale of property owned by the organization's members. (V.A.C.S. Art. 8700, Secs. 1(5), 2.)
Sec. 1802.003. PREEMPTION. A political subdivision of this state may not levy on or collect from an auctioneer or associate auctioneer a license tax or fee as a regulatory or revenue measure or require the licensing of an auctioneer or associate auctioneer, if the auctioneer or associate auctioneer holds a license under this chapter and is in compliance with this chapter. (V.A.C.S. Art. 8700, Sec. 6.)
[Sections 1802.004-1802.050 reserved for expansion]
SUBCHAPTER B. LICENSE REQUIREMENTS
Sec. 1802.051. LICENSE REQUIRED. (a) A person may not act as an auctioneer or associate auctioneer in an auction held in this state unless the person is an individual who holds a license issued by the commissioner under this chapter.
(b) An auctioneer who advertises to conduct an auction in this state shall provide the auctioneer's name and license number in the advertisement.
(c) A person who is licensed under this chapter may not act as an auctioneer for an auction company unless the company is owned or operated by a person who is licensed under this chapter. (V.A.C.S. Art. 8700, Secs. 3(a), 10, 10A.)
Sec. 1802.052. ELIGIBILITY FOR AUCTIONEER'S LICENSE. An individual is eligible for an auctioneer's license if the individual:
(1) is at least 18 years of age;
(2) is a citizen of the United States or a legal alien; and
(3) either:
(A) passes a written or oral examination demonstrating knowledge of the auction business and of the laws of this state relating to the auction business; or
(B) shows proof of employment by a licensed auctioneer for at least one year during which the applicant participated in at least five auctions. (V.A.C.S. Art. 8700, Sec. 3(b).)
Sec. 1802.053. ELIGIBILITY FOR ASSOCIATE AUCTIONEER'S LICENSE. An individual is eligible for an associate auctioneer's license if the individual:
(1) is a citizen of the United States or a legal alien; and
(2) is employed under the direct supervision of a licensed auctioneer. (V.A.C.S. Art. 8700, Sec. 3(c).)
Sec. 1802.054. APPLICATION FOR LICENSE. An applicant for a license must apply to the commissioner on a form provided by the commissioner that establishes the applicant's eligibility for the license. The application must be accompanied by:
(1) the required bond;
(2) the required license fee; and
(3) either:
(A) the permit number of a sales tax permit issued to the applicant by the comptroller under Subchapter F, Chapter 151, Tax Code; or
(B) proof of exemption from the tax permit requirement under Chapter 151, Tax Code. (V.A.C.S. Art. 8700, Sec. 3(d).)
Sec. 1802.055. APPLICATION FOR EXAMINATION. (a) An individual who establishes that the individual is eligible for an auctioneer's license may apply to the commissioner to take the license examination. The application must be accompanied by the examination fee.
(b) On receipt of an examination application and fee, the commissioner shall furnish the applicant with:
(1) study materials and references on which the examination will be based; and
(2) a schedule specifying the dates and places the examination will be offered.
(c) The applicant may take the examination at any scheduled offering not later than the 90th day after the date the applicant receives the study materials. (V.A.C.S. Art. 8700, Sec. 3(f) (part).)
Sec. 1802.056. LICENSE EXAMINATION. (a) The license examination must be designed to establish:
(1) an applicant's general knowledge of the auction business;
(2) the principles of conducting an auction; and
(3) the laws of this state relating to auctioneers.
(b) The license examination shall be offered at least four times each year at locations designated by the commissioner.
(c) The commissioner shall prepare:
(1) examinations for an auctioneer's license; and
(2) study and reference materials on which the examinations are based. (V.A.C.S. Art. 8700, Sec. 3(e).)
Sec. 1802.057. EXAMINATION RESULTS. (a) The commissioner shall notify each examinee of the results of the examination not later than the 30th day after the date of the examination. However, if an examination is graded or reviewed by a national testing service, the commissioner shall notify each examinee of the results of the examination not later than the 14th day after the date the commissioner receives the results from the testing service.
(b) If the notification of results of an examination graded or reviewed by a national testing service will be delayed longer than 90 days after the examination date, the commissioner shall notify each examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the examination, the commissioner shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 8700, Sec. 3A.)
Sec. 1802.058. REEXAMINATION. An applicant who fails the license examination may reapply to take the examination. If the applicant fails the examination twice during a one-year period, the applicant may not reapply for one year. (V.A.C.S. Art. 8700, Sec. 3(f) (part).)
Sec. 1802.059. LICENSING BY RECIPROCITY. (a) An applicant for an auctioneer's license who is not a resident of this state but is licensed as an auctioneer in another state must submit to the commissioner:
(1) a license application;
(2) a certified copy of the auctioneer's license issued to the applicant by the state or political subdivision in which the applicant resides; and
(3) proof that the state or political subdivision in which the applicant is licensed has competency standards equivalent to or stricter than those of this state.
(b) The commissioner shall accept the applicant's auctioneer's license submitted under Subsection (a)(2) as proof of the applicant's professional competence and waive the examination and training requirements of Section 1802.052 if the state or political subdivision that issued the nonresident a license extends similar recognition and courtesies to this state.
(c) A nonresident applicant must comply with all other application requirements prescribed by this chapter.
(d) A nonresident applicant must submit with the application a written irrevocable consent to service of process. The consent must be in the form and supported by additional information that the commissioner by rule requires. The consent must:
(1) provide that an action relating to any transaction subject to this chapter may be commenced against the license holder in the proper court of any county of this state in which the cause of action may arise or in which the plaintiff may reside by service of process on the commissioner as the license holder's agent; and
(2) include a statement stipulating and agreeing that service provided by this section is as valid and binding as if service had been made on the person according to the laws of this or any other state. (V.A.C.S. Art. 8700, Sec. 3(g).)
Sec. 1802.060. TERM OF LICENSE. A license issued under this chapter shall be issued for the period prescribed by the commission. (V.A.C.S. Art. 8700, Sec. 3(h).)
Sec. 1802.061. CONTINUING EDUCATION. The commissioner may recognize, prepare, or administer continuing education programs for license holders. Participation in the programs is voluntary. (V.A.C.S. Art. 8700, Sec. 3B.)
[Sections 1802.062-1802.100 reserved for expansion]
SUBCHAPTER C. AUCTIONEER EDUCATION ADVISORY BOARD
Sec. 1802.101. AUCTIONEER EDUCATION ADVISORY BOARD. The advisory board shall advise the commissioner on educational matters. (V.A.C.S. Art. 8700, Sec. 5B(a) (part).)
Sec. 1802.102. APPOINTMENT OF ADVISORY BOARD; MEMBERSHIP; ELIGIBILITY. (a) The advisory board consists of five members appointed as follows:
(1) three members who are licensed auctioneers appointed by the commissioner;
(2) the executive director of the Texas Department of Economic Development or the director's designee; and
(3) the commissioner of education or the commissioner's designee.
(b) In appointing advisory board members under Subsection (a)(1), the commissioner may not appoint members who reside in contiguous senatorial districts.
(c) Appointments to the advisory board shall be made without regard to the race, color, handicap, sex, religion, age, or national origin of the appointees. (V.A.C.S. Art. 8700, Secs. 5B(a) (part), (b).)
Sec. 1802.103. TERMS; VACANCIES. (a) The members appointed under Section 1802.102(a)(1) serve two-year terms that expire on September 1. If a vacancy occurs during the term of such a member, the commissioner shall appoint a replacement to serve for the remainder of the term.
(b) The remaining members are ex officio members. Each ex officio member shall continue to serve during the time the member holds office. (V.A.C.S. Art. 8700, Secs. 5B(e), (f).)
Sec. 1802.104. PRESIDING OFFICER. The advisory board shall designate one of its members as presiding officer. The presiding officer serves for two years. (V.A.C.S. Art. 8700, Sec. 5B(g).)
Sec. 1802.105. REMOVAL. A member appointed under Section 1802.102(a)(1) may be removed by a four-fifths vote of the advisory board. (V.A.C.S. Art. 8700, Sec. 5B(h).)
Sec. 1802.106. COMPENSATION. A member appointed under Section 1802.102(a)(1) may not receive:
(1) compensation for serving on the advisory board; or
(2) reimbursement for expenses. (V.A.C.S. Art. 8700, Sec. 5B(d).)
Sec. 1802.107. MEETINGS. (a) The advisory board shall meet at least quarterly each calendar year.
(b) The advisory board may meet at other times at the call of the presiding officer. (V.A.C.S. Art. 8700, Sec. 5B(i).)
Sec. 1802.108. CIVIL LIABILITY. A member of the advisory board is not liable in a civil action for an act performed in good faith while performing duties as an advisory board member. (V.A.C.S. Art. 8700, Sec. 5B(c).)
Sec. 1802.109. AUCTIONEER EDUCATION PROGRAMS. (a) The advisory board shall:
(1) evaluate educational programs, seminars, and training projects; and
(2) make recommendations to the commissioner on their usefulness and merit as continuing education tools.
(b) On the recommendation of the advisory board, the commissioner may fund or underwrite specific classes, seminars, or events for the education and advancement of the auctioneering profession in this state. (V.A.C.S. Art. 8700, Sec. 5B(j).)
[Sections 1802.110-1802.150 reserved for expansion]
SUBCHAPTER D. AUCTIONEER EDUCATION AND RECOVERY FUND
Sec. 1802.151. FUND. The auctioneer education and recovery fund is a trust fund with the comptroller for the payment of claims against auctioneers licensed under this chapter. (V.A.C.S. Art. 8700, Sec. 5A(a) (part).)
Sec. 1802.152. MANAGEMENT OF FUND. (a) The department is the manager of the fund and shall:
(1) administer the fund without appropriation;
(2) maintain books and records as required by the commissioner;
(3) appear at hearings or judicial proceedings; and
(4) invest and reinvest the fund's assets as instructed by the commissioner.
(b) The department, as manager, is entitled to compensation for reasonable and necessary costs and expenses for the management of the fund. The department shall be compensated from the earnings from the fund. (V.A.C.S. Art. 8700, Secs. 5A(a) (part), (e).)
Sec. 1802.153. ADDITIONAL FEES. (a) In addition to any other fees required by this chapter, an applicant entitled to receive a license under this chapter must pay a fee of $100 before the commissioner issues the license.
(b) If the balance in the fund on December 31 of a year is less than $300,000, each license holder at the next license renewal shall pay, in addition to the renewal fee, a fee that is equal to the greater of $50 or a pro rata share of the amount necessary to obtain a balance in the fund of $300,000.
(c) The fees paid under this section shall be deposited in the fund. (V.A.C.S. Art. 8700, Secs. 5A(b), (c), (d) (part).)
Sec. 1802.154. INVESTMENT OF FUND. (a) Amounts deposited in the fund may be invested and reinvested in the same manner as funds of the Employees Retirement System of Texas, and income from the investments shall be deposited to the credit of the fund.
(b) The department may not make an investment that would impair the liquidity required to satisfy payments made from the fund. (V.A.C.S. Art. 8700, Sec. 5A(d) (part).)
Sec. 1802.155. LIABILITY. (a) The fund or the department is not liable to a consumer for a recovery from the fund if the assets of the fund are insufficient to pay the amount awarded.
(b) If the fund contains insufficient assets to pay the consumer:
(1) the department shall record the time and date an order for payment to a consumer was received; and
(2) the commissioner shall pay consumers for whom an order is recorded under Subdivision (1) as funds become available in the order of the recorded time and date of the order. (V.A.C.S. Art. 8700, Sec. 5A(f).)
Sec. 1802.156. EDUCATION EXPENDITURES PERMITTED. The commissioner may use amounts in excess of $250,000 in the fund to:
(1) advance education and research in the auctioneering profession for the benefit of license holders and to improve and increase the efficiency of the industry;
(2) underwrite educational seminars, training centers, and other educational projects for the use and benefit of license holders;
(3) sponsor, contract, and underwrite other educational and research projects that advance the auctioneering profession in this state; and
(4) cooperate with associations of auctioneers and other groups for the education and advancement of the auctioneering profession in this state. (V.A.C.S. Art. 8700, Sec. 5A(g).)
[Sections 1802.157-1802.200 reserved for expansion]
SUBCHAPTER E. COMPLAINT PROCEDURES
Sec. 1802.201. INVESTIGATION OF COMPLAINTS. The commissioner may, on the commissioner's motion, and shall, on the written and verified complaint of a person aggrieved by the actions of an auctioneer in an auction, investigate an alleged violation of this chapter by a licensed or unlicensed auctioneer or an applicant. (V.A.C.S. Art. 8700, Sec. 8.)
Sec. 1802.202. CONSUMER CLAIMS. (a) A person who deals with an auctioneer licensed under this chapter and who is aggrieved by an action of the auctioneer as a result of a violation of a contract made with the auctioneer may initiate a claim against the fund by:
(1) filing with the department a sworn complaint against the auctioneer; and
(2) paying to the department a filing fee of $50.
(b) The commissioner may not pay a claim against an auctioneer who was not licensed at the time of the transaction on which the claim is based.
(c) The department shall investigate a complaint filed under this section and determine the amount owed to the aggrieved party. (V.A.C.S. Art. 8700, Secs. 5C(a), (b) (part), (g).)
Sec. 1802.203. HEARING. (a) If the amount determined by the department under Section 1802.202 is disputed by the auctioneer or the aggrieved party, the department's hearings examiner shall:
(1) conduct a hearing on the claim in accordance with department rules; and
(2) determine the amount owed to the aggrieved party.
(b) A hearing on a claim may be conducted at the department's Austin office or at another location as provided by department rule.
(c) After the hearing, the hearings examiner shall prepare a proposal for decision for the commissioner. (V.A.C.S. Art. 8700, Secs. 5C(b) (part), (c) (part), (d).)
Sec. 1802.204. APPEAL. A party may appeal a decision of the commissioner in the manner provided for a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 8700, Sec. 5C(c) (part).)
Sec. 1802.205. PAYMENT OF CLAIM. (a) If the department's determination under Section 1802.202 is not disputed by the auctioneer or the aggrieved party, the commissioner shall pay the claim from the fund, subject to Section 1802.206.
(b) If a hearing is held on the department's determination, the commissioner shall pay to the aggrieved party the amount of actual damages determined by the commissioner.
(c) The amount of actual damages may not include attorney's fees, speculative damages, or lost profits. (V.A.C.S. Art. 8700, Secs. 5C(e), (f) (part).)
Sec. 1802.206. PAYMENT LIMITS. (a) The commissioner may not pay a single aggrieved party more than $10,000.
(b) The total payment of all claims by more than one aggrieved party arising from one auction at one location, regardless of the length of the auction, may not exceed $20,000.
(c) The total payment of claims against a single auctioneer may not exceed $20,000. (V.A.C.S. Art. 8700, Sec. 5C(f) (part).)
Sec. 1802.207. REIMBURSEMENT; INTEREST. (a) If the commissioner pays a claim against an auctioneer, the auctioneer shall:
(1) reimburse the fund immediately or agree in writing to reimburse the fund on a schedule to be determined by rule of the commissioner; and
(2) immediately pay the aggrieved party any amount due to that party or agree in writing to pay the party on a schedule to be determined by rule of the commissioner.
(b) Payments made by an auctioneer to the fund or to an aggrieved party under this section include interest accruing at the rate of eight percent a year beginning on the date the commissioner pays the claim. (V.A.C.S. Art. 8700, Secs. 5C(h), (i).)
Sec. 1802.208. SUBROGATION. If the commissioner pays a claim against an auctioneer, the department is subrogated to all rights of the aggrieved party against the auctioneer to the extent of the amount paid to the aggrieved party. (V.A.C.S. Art. 8700, Sec. 5C(k).)
Sec. 1802.209. EFFECT ON DISCIPLINARY PROCEEDINGS. (a) This subchapter and Section 1802.252 do not limit the commissioner's authority to take disciplinary action against a license holder for a violation of this chapter or a rule adopted under this chapter.
(b) A license holder's repayment of all amounts owed to the fund does not nullify or modify the effect of another disciplinary proceeding brought under this chapter. (V.A.C.S. Art. 8700, Sec. 5C(l).)
[Sections 1802.210-1802.250 reserved for expansion]
SUBCHAPTER F. DENIAL OF LICENSE AND DISCIPLINARY PROCEDURES
Sec. 1802.251. DENIAL OF APPLICATION; SUSPENSION OR REVOCATION OF LICENSE. The commissioner may deny an application for a license or suspend or revoke the license of any auctioneer for:
(1) violating this chapter or a rule adopted under this chapter;
(2) obtaining a license through false or fraudulent representation;
(3) making a substantial misrepresentation in an application for an auctioneer's license;
(4) engaging in a continued and flagrant course of misrepresentation or making false promises through an agent, advertising, or otherwise;
(5) failing to account for or remit, within a reasonable time, money belonging to another that is in the auctioneer's possession and commingling funds of another with the auctioneer's funds or failing to keep the funds of another in an escrow or trust account;
(6) being convicted in a court of this state or another state of a criminal offense involving moral turpitude or a felony; or
(7) violating the Business & Commerce Code in conducting an auction. (V.A.C.S. Art. 8700, Sec. 7(a).)
Sec. 1802.252. REVOCATION FOR CLAIM ON FUND. (a) The commissioner may revoke a license issued under this chapter if the commissioner makes a payment from the fund as the result of an action of the license holder.
(b) The commissioner may probate an order revoking a license.
(c) An auctioneer is not eligible for a new license until the auctioneer has repaid in full the amount paid from the fund on the auctioneer's account, including interest, unless:
(1) a hearing is held; and
(2) the commissioner issues a new probated license. (V.A.C.S. Art. 8700, Sec. 5C(j).)
Sec. 1802.253. HEARING. (a) Before denying an application for a license or suspending or revoking a license, the commissioner shall:
(1) set the matter for a hearing; and
(2) before the 30th day before the hearing date, notify the applicant or license holder in writing of:
(A) the charges alleged or the question to be determined at the hearing; and
(B) the date and location of the hearing.
(b) At a hearing under this section, the applicant or license holder may:
(1) be present and be heard in person or by counsel; and
(2) have an opportunity to offer evidence by oral testimony, affidavit, or deposition.
(c) Written notice may be served by personal delivery to the applicant or license holder or by certified mail to the last known mailing address of the applicant or license holder.
(d) If the applicant or license holder who is the subject of the hearing is an associate auctioneer, the commissioner shall provide written notice to the auctioneer who employs the associate auctioneer or who has agreed to employ the associate auctioneer by mailing the notice by certified mail to the auctioneer's last known mailing address. (V.A.C.S. Art. 8700, Secs. 7(b), (c), (d).)
Sec. 1802.254. APPEAL. An appeal by an applicant or license holder of the commissioner's determination under Section 1802.252 must be to a district court of Travis County or of the county in which the violation is alleged to have occurred. (V.A.C.S. Art. 8700, Sec. 7(f) (part).)
[Sections 1802.255-1802.300 reserved for expansion]
SUBCHAPTER G. CRIMINAL PENALTIES
Sec. 1802.301. PRACTICING WITHOUT LICENSE; OFFENSE. (a) A person commits an offense if the person acts as an auctioneer without a license.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 8700, Sec. 11(a).)
Sec. 1802.302. FRIVOLOUS CLAIM; OFFENSE. (a) A person commits an offense if the person intends to benefit personally or to harm another and the person:
(1) institutes under this chapter a claim in which the person knows the person has no interest; or
(2) institutes under this chapter a frivolous suit or a claim that the person knows is false.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 8700, Secs. 5C(m), (n).)
Sec. 1802.303. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates a provision of this chapter or a rule adopted by the commissioner under this chapter for which a penalty is not provided.
(b) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 8700, Sec. 11(b).)
CHAPTER 1803. SOLICITATION FOR PUBLIC SAFETY ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1803.001. DEFINITIONS
Sec. 1803.002. EFFECT ON MUNICIPAL ORDINANCE
[Sections 1803.003-1803.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION AND BOND REQUIREMENTS
Sec. 1803.051. REGISTRATION
Sec. 1803.052. ELIGIBILITY TO USE SOLICITOR
Sec. 1803.053. REGISTRATION STATEMENT BY PUBLIC SAFETY
ENTITY OR PUBLICATION
Sec. 1803.054. PUBLIC SAFETY ENTITY REGISTRATION FEE
Sec. 1803.055. SOLICITOR REGISTRATION STATEMENT AND FEE
Sec. 1803.056. SOLICITOR BOND
[Sections 1803.057-1803.100 reserved for expansion]
SUBCHAPTER C. SOLICITATION RESTRICTIONS
Sec. 1803.101. SOLICITATION DISCLOSURE
Sec. 1803.102. SOLICITATION INFORMATION HOTLINE
Sec. 1803.103. PROHIBITED PRACTICES
Sec. 1803.104. FAILURE TO FILE TIMELY REPORT
[Sections 1803.105-1803.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT AND PENALTIES
Sec. 1803.151. AUDIT BY ATTORNEY GENERAL
Sec. 1803.152. CRIMINAL PENALTIES
Sec. 1803.153. CIVIL PENALTY AND INJUNCTION
Sec. 1803.154. CIVIL PENALTIES
Sec. 1803.155. SERVICE ON SECRETARY OF STATE
CHAPTER 1803. SOLICITATION FOR PUBLIC SAFETY ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1803.001. DEFINITIONS. In this chapter:
(1) "Law enforcement personnel" means commissioned peace officers who are employees of government law enforcement agencies.
(2) "Public safety entity" means a public safety promoter or public safety organization.
(3) "Public safety organization" means a nongovernmental organization that, in a manner that reasonably implies that the organization is composed of law enforcement or public safety personnel or that a contribution, purchase, or membership will benefit public safety personnel, uses the term "officer," "peace officer," "police officer," "police," "law enforcement," "reserve officer," "deputy," "deputy sheriff," "constable," "deputy constable," "fireman," "firefighter," "volunteer fireman," "emergency medical service provider," "civilian employee," or any other term:
(A) in its name;
(B) in a publication of the organization; or
(C) in a solicitation for:
(i) contributions to the organization;
(ii) membership in the organization;
(iii) the purchase of advertising in a publication of the organization; or
(iv) the purchase of products or tickets to an event sponsored by or for the benefit of the organization by a solicitor.
(4) "Public safety personnel" means employees or volunteers of a public safety organization, including:
(A) firefighters;
(B) emergency medical service providers; or
(C) civilian employees of a public safety organization.
(5) "Public safety promoter" means a person who:
(A) is not affiliated with a public safety organization; and
(B) in the name of public safety or in a name associated with public safety makes a request for a donation or the sale of tickets or advertising.
(6) "Public safety publication" means a nongovernmental publication with a name that includes the term "officer," "peace officer," "police officer," "police," "law enforcement," "reserve officer," "deputy," "deputy sheriff," "constable," "deputy constable," "fireman," "firefighter," "volunteer fireman," "emergency medical service provider," "civilian employee," or any other term in a manner that reasonably implies that the publication is published by a public safety organization or benefits public safety.
(7) "Public safety solicitor" means a person who:
(A) contracts for or receives money for providing solicitation services for a public safety entity or public safety publication; and
(B) solicits:
(i) contributions in person, by telephone, by electronic media, or by mail;
(ii) membership in a public safety organization from an individual not employed by a public safety agency of the United States, this state, or a political subdivision of this state; or
(iii) the purchase of:
(a) advertising; or
(b) goods, services, or tickets to an event sponsored by or for the benefit of a public safety organization or for the cause of public safety. (V.A.C.S. Art. 9023c, Sec. 1 (part); New.)
Sec. 1803.002. EFFECT ON MUNICIPAL ORDINANCE. This chapter preempts any municipal ordinance applicable to public safety entities, public safety publications, public safety solicitors, or solicitations related to a person registered under this chapter. (V.A.C.S. Art. 9023c, Sec. 16.)
[Sections 1803.003-1803.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION AND BOND REQUIREMENTS
Sec. 1803.051. REGISTRATION. (a) A public safety entity or public safety publication may not solicit unless the entity or publication:
(1) files a registration statement under Section 1803.053; and
(2) pays a registration fee under Section 1803.054.
(b) A public safety entity or public safety publication may not use a public safety solicitor, and a person may not act as a public safety solicitor unless the solicitor:
(1) files a registration statement and pays the registration fee under Section 1803.055; and
(2) files and maintains a bond under Section 1803.056. (V.A.C.S. Art. 9023c, Sec. 2.)
Sec. 1803.052. ELIGIBILITY TO USE SOLICITOR. (a) A public safety organization may register under Section 1803.053 and use a public safety solicitor only if the organization is a bona fide membership organization consisting of individual members:
(1) of whom at least five percent or 500 members, whichever is less, are employed as law enforcement personnel or public safety personnel by a public safety agency of the United States, this state, or a political subdivision of this state; and
(2) who have signed membership agreements with the organization and paid an annual membership fee of at least $10.
(b) A public safety promoter may register under Section 1803.053 and use a public safety solicitor if the disclosure required by Section 1803.101 is made. (V.A.C.S. Art. 9023c, Sec. 3.)
Sec. 1803.053. REGISTRATION STATEMENT BY PUBLIC SAFETY ENTITY OR PUBLICATION. (a) Before beginning solicitations, a public safety entity or public safety publication shall file with the secretary of state:
(1) a registration statement signed by two of its officers or directors; and
(2) if the public safety entity or publisher of the publication, as applicable, is a nonresident, an irrevocable written consent appointing the secretary of state as agent for service of process on the entity or publisher for any action relating to a violation of this chapter.
(b) The registration statement must disclose:
(1) the name, street address, and telephone number of any public safety solicitor for the registering entity;
(2) the name, street address, and telephone number of each public safety organization, public safety publication, or fund for which any part of the contributions will be used, or if there is no organization, publication, or fund, a statement describing how the contributions will be used;
(3) whether the registering entity or fund that the contributions are being solicited for has a federal and state charitable tax exemption;
(4) the name and public safety agency or former agency of each active and retired public safety officer serving on the board of directors or governing body of the registering entity;
(5) the number of members and the percentage of members who are active and retired public safety officers of the United States, this state, or a political subdivision of this state, as determined on December 31 of the year preceding the year in which the registration is made and the contributions are solicited, if the registering entity is a public safety organization;
(6) the name of the local chapter, lodge, association, or group of licensed public safety officers of the public safety organization for which contributions are being solicited, if the registering entity is a public safety organization;
(7) a copy of the most recent tax or informational return filed with the Internal Revenue Service by the registering entity;
(8) the amount of money collected during the previous year by the registering entity by solicitations of nonmembers of the public safety organization for which the funds were collected and the amount of funds paid as expenses to maintain the solicitation operation;
(9) the amount of money, if known or projected, expected to be collected during the year of filing by the registering entity by nonmember solicitations described by Subdivision (8);
(10) a copy of any contract or agreement between the registering entity and a solicitor; and
(11) if the registering entity is a public safety publication, information on:
(A) the total number of copies of each issue of the publication printed during the previous year;
(B) the frequency of the publication; and
(C) the date and circulation of the most recent issue of the publication.
(c) A registration statement takes effect on the date the secretary of state issues a certificate and is valid for one year. The statement may be renewed annually by filing a renewal registration statement and paying the registration fee required by Section 1803.054.
(d) A public safety entity or public safety publication shall file an updated statement with the secretary of state not later than the 30th day after the date of a change of street address, phone number, or name. (V.A.C.S. Art. 9023c, Sec. 4.)
Sec. 1803.054. PUBLIC SAFETY ENTITY REGISTRATION FEE. (a) Except as provided by Subsection (b), a public safety entity registering under Section 1803.053 shall pay to the secretary of state an annual registration fee of $250.
(b) A public safety organization consisting of members who are volunteer firefighters for a local political subdivision and that solicits only in the area of the firefighters' jurisdiction is not required to pay a registration fee.
(c) Subsection (b) does not apply to a statewide association of volunteer firefighters. (V.A.C.S. Art. 9023c, Sec. 5.)
Sec. 1803.055. SOLICITOR REGISTRATION STATEMENT AND FEE. (a) Before beginning solicitations for a public safety entity or public safety publication, a public safety solicitor shall file with the secretary of state a registration statement containing:
(1) the name, street and mailing address, and telephone number of the solicitor;
(2) the name, street and mailing address, and telephone number of each public safety entity or public safety publication for whom the solicitor solicits or will solicit in this state; and
(3) if the solicitor is a nonresident, an irrevocable written consent appointing the secretary of state as agent for service of process on the solicitor for any action pertaining to a violation of this chapter.
(b) The registration statement required by Subsection (a) must be accompanied by:
(1) a $500 registration fee; and
(2) a bond as required by Section 1803.056.
(c) A registration statement takes effect on the date the secretary of state issues a certificate and is valid for one year. The statement may be renewed annually by filing a renewal registration statement and paying the registration fee required by Subsection (b).
(d) A solicitor shall file an updated statement with the secretary of state not later than the 30th day after the date of a change of street address, mailing address, phone number, or name. (V.A.C.S. Art. 9023c, Sec. 6.)
Sec. 1803.056. SOLICITOR BOND. (a) A public safety solicitor shall post with the secretary of state a $10,000 surety bond issued by a surety company authorized to do business in this state.
(b) The bond must be payable to the state and conditioned on compliance with this chapter. (V.A.C.S. Art. 9023c, Sec. 7.)
[Sections 1803.057-1803.100 reserved for expansion]
SUBCHAPTER C. SOLICITATION RESTRICTIONS
Sec. 1803.101. SOLICITATION DISCLOSURE. (a) An oral or a written disclosure shall be given to each person before the person delivers any consideration to a public safety entity, public safety publication, or public safety solicitor.
(b) A written disclosure must be in contrasting eight-point type or larger.
(c) A disclosure must include:
(1) the name of the public safety organization registered under Section 1803.053, if an organization is involved;
(2) a statement that the promotion is independent of affiliation with any public safety organization, if a public safety promoter is involved;
(3) the name of any public safety solicitor employed;
(4) a general statement of the use of net funds received; and
(5) the name, street address, and statewide telephone number established under Section 1803.102 that a person may use to obtain from the secretary of state additional information on the public safety entity, public safety publication, or public safety solicitor. (V.A.C.S. Art. 9023c, Sec. 8.)
Sec. 1803.102. SOLICITATION INFORMATION HOTLINE. The secretary of state shall establish and operate a toll-free telephone line known as the Solicitation Information Hotline that enables a person to call the hotline number to:
(1) obtain information concerning a public safety entity, public safety publication, or public safety solicitor that has filed a registration statement with the secretary of state under this chapter; or
(2) report an alleged violation of this chapter by a public safety entity, public safety publication, or public safety solicitor. (V.A.C.S. Art. 9023c, Sec. 9.)
Sec. 1803.103. PROHIBITED PRACTICES. In soliciting for a public safety entity or public safety publication, a person may not:
(1) use, unless authorized in writing by a public safety agency or public safety organization:
(A) any representation that implies that the contribution is for or on behalf of the agency or organization; or
(B) any emblem, device, or printed matter belonging to or associated with the agency or organization;
(2) use a name, symbol, or statement similar to a name, symbol, or statement used by a public safety agency or organization in a manner intended to confuse or mislead a person being solicited;
(3) knowingly represent or imply that the solicitation proceeds are being used for a purpose other than the purpose for which the funds are actually used;
(4) represent or imply that the solicitor is a peace officer or member of a public safety agency or public safety organization if the solicitor is not an officer or a member;
(5) use or exploit the fact of filing with the secretary of state in a manner leading a person to believe that filing, in any way, constitutes an endorsement by or approval of the state;
(6) knowingly file incomplete, false, or misleading information in a document required to be filed with the secretary of state under this chapter;
(7) solicit for a public safety entity or public safety publication, or represent that those responding affirmatively to the solicitation will receive favored treatment by public safety personnel;
(8) collect a contribution or membership fee solicited at a person's residence by an in-person or telephone solicitation by means other than payment through the United States mail or parcel post courier;
(9) solicit for a public safety organization in a county in which members of the organization do not have jurisdiction; or
(10) commit another unfair or deceptive act or practice. (V.A.C.S. Art. 9023c, Sec. 10.)
Sec. 1803.104. FAILURE TO FILE TIMELY REPORT. A public safety entity or public safety publication that fails to timely file the information required by this chapter or that files information required by this chapter that is found to contain material misrepresentation may not use a public safety solicitor until it provides or corrects the information. (V.A.C.S. Art. 9023c, Sec. 14(b).)
[Sections 1803.105-1803.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT AND PENALTIES
Sec. 1803.151. AUDIT BY ATTORNEY GENERAL. (a) The attorney general may make a written request for information from a public safety entity, public safety publication, or public safety solicitor to audit or verify a representation contained in a registration statement.
(b) A public safety entity, public safety publication, or public safety solicitor shall provide information requested by the attorney general under Subsection (a) not later than the 10th working day after the date of the attorney general's request.
(c) Wilful failure to provide timely information under this section is a ground for bond forfeiture or suspension of registration. (V.A.C.S. Art. 9023c, Sec. 11.)
Sec. 1803.152. CRIMINAL PENALTIES. (a) A person commits an offense if the person knowingly violates this chapter.
(b) An offense under this chapter is a Class A misdemeanor.
(c) A corporation or association may be held criminally responsible for conduct by a person acting on its behalf if the person's conduct:
(1) constitutes an offense under this chapter; and
(2) is done with the knowledge and approval of the corporation or association. (V.A.C.S. Art. 9023c, Sec. 12.)
Sec. 1803.153. CIVIL PENALTY AND INJUNCTION. (a) The attorney general may bring an action in a Travis County district court:
(1) for a civil penalty for a violation of this chapter; and
(2) to enjoin a person from violating this chapter.
(b) The attorney general shall notify the defendant of the alleged prohibited conduct not later than the seventh day before the date the action is commenced.
(c) Notice is not required if the attorney general intends to request that the court issue a temporary restraining order. (V.A.C.S. Art. 9023c, Sec. 13.)
Sec. 1803.154. CIVIL PENALTIES. (a) A person who violates this chapter or an injunction issued under Section 1803.153 is liable to the state for a civil penalty of not more than:
(1) $2,500 for a single violation; or
(2) $10,000 for all of the violations.
(b) If a person found to have violated this chapter or an injunction has filed a bond under this chapter, the suit may be brought against the bond. (V.A.C.S. Art. 9023c, Sec. 14(a).)
Sec. 1803.155. SERVICE ON SECRETARY OF STATE. (a) A service of process or pleading served on the secretary of state as the agent for a nonresident public safety solicitor, public safety entity, or public safety publication must be served in triplicate.
(b) The secretary of state shall file one copy in the secretary of state's office and immediately forward the other copies by certified mail, return receipt requested, to the address of the nonresident, as shown on the nonresident's registration statement.
(c) Service on the secretary of state shall be returned not later than the 30th day after the date of service. (V.A.C.S. Art. 9023c, Sec. 15.)
CHAPTER 1804. SOLICITATION FOR VETERANS ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1804.001. DEFINITIONS
Sec. 1804.002. EFFECT ON MUNICIPAL ORDINANCE
[Sections 1804.003-1804.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION REQUIREMENTS
Sec. 1804.051. REQUIREMENTS FOR SOLICITATION
Sec. 1804.052. ELIGIBILITY TO USE SOLICITOR
Sec. 1804.053. REGISTRATION STATEMENT BY VETERANS
ORGANIZATION
Sec. 1804.054. SOLICITOR REGISTRATION STATEMENT
Sec. 1804.055. SOLICITOR REGISTRATION FEE
[Sections 1804.056-1804.100 reserved for expansion]
SUBCHAPTER C. BONDING AND REPORTING REQUIREMENTS
Sec. 1804.101. VETERANS ORGANIZATION BOND
Sec. 1804.102. SOLICITOR BOND
Sec. 1804.103. VETERANS ORGANIZATION REPORTS
Sec. 1804.104. SOLICITOR REPORTS
[Sections 1804.105-1804.150 reserved for expansion]
SUBCHAPTER D. SOLICITATION RESTRICTIONS
Sec. 1804.151. SOLICITATION DISCLOSURE
Sec. 1804.152. SOLICITATION INFORMATION HOTLINE
Sec. 1804.153. PROHIBITED PRACTICES
[Sections 1804.154-1804.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT AND PENALTIES
Sec. 1804.201. AUDIT BY ATTORNEY GENERAL
Sec. 1804.202. CRIMINAL PENALTIES
Sec. 1804.203. ENFORCEMENT AND INJUNCTION
Sec. 1804.204. CIVIL PENALTIES
Sec. 1804.205. SUIT ON BOND
Sec. 1804.206. AVAILABILITY OF OTHER REMEDIES
CHAPTER 1804. SOLICITATION FOR VETERANS ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1804.001. DEFINITIONS. In this chapter:
(1) "Veteran" means a person who has served on active duty in the armed forces of the United States or in the state military forces as defined by Section 431.001, Government Code.
(2) "Veterans organization" means a formally or informally formed nongovernmental entity that:
(A) purports to include or represent veterans; or
(B) includes a term in its name leading a reasonable person to assume the organization is associated with veterans or concerned with veterans' issues.
(3) "Veterans organization solicitor" means a person who receives monetary compensation for solicitation services for a veterans organization and who solicits:
(A) a contribution of financial support or a purchase of goods or services for a veterans organization in person, by telephone, or by mail; or
(B) membership in a veterans organization from an individual who is not a veteran. (V.A.C.S. Art. 9023b, Secs. 1(2), (3), (4).)
Sec. 1804.002. EFFECT ON MUNICIPAL ORDINANCE. This chapter does not preempt a municipal ordinance applicable to a veterans organization or a veterans organization solicitor. (V.A.C.S. Art. 9023b, Sec. 18.)
[Sections 1804.003-1804.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION REQUIREMENTS
Sec. 1804.051. REQUIREMENTS FOR SOLICITATION. (a) A veterans organization may not use a veterans organization solicitor unless:
(1) the organization:
(A) files a registration statement under Section 1804.053; and
(B) files and maintains a bond under Section 1804.101; and
(2) the solicitor complies with the requirements of Subsection (b).
(b) A person may not act as a veterans organization solicitor unless the person:
(1) files a registration statement under Section 1804.054; and
(2) files and maintains a bond under Section 1804.102. (V.A.C.S. Art. 9023b, Sec. 2.)
Sec. 1804.052. ELIGIBILITY TO USE SOLICITOR. (a) A veterans organization may register under Section 1804.053 and use a veterans organization solicitor only if the organization consists of individual members:
(1) of whom at least 90 percent or 500, whichever is less, are veterans; and
(2) who have signed membership agreements with the organization.
(b) A veterans organization may not use a veterans organization solicitor and a veterans organization solicitor may not solicit for a veterans organization if the organization or the solicitor has on three or more occasions forfeited a bond filed under this chapter. (V.A.C.S. Art. 9023b, Sec. 3.)
Sec. 1804.053. REGISTRATION STATEMENT BY VETERANS ORGANIZATION. (a) Before beginning solicitations, a veterans organization must file with the secretary of state a registration statement containing:
(1) the name, street address, and telephone number of each solicitor that solicits for the veterans organization;
(2) the name, street address, and telephone number of each veterans organization or fund for which any part of the contributions will be used, or, if there is no organization or fund, a statement describing how the contributions will be used;
(3) a statement of whether the veterans organization or fund for which the contributions are solicited has a federal and state charitable tax exemption;
(4) the name of each veteran serving on the board of directors or governing body of the veterans organization or fund for which the contributions are solicited;
(5) a statement of the number of members who are veterans and the percentage of members of the veterans organization that are veterans, as determined on December 31 preceding the year in which the statement is filed;
(6) the name of each local chapter, lodge, association, or group of veterans that is a member of the veterans organization for which contributions are solicited;
(7) a copy of the Internal Revenue Service Form 990, or its successor, the veterans organization most recently filed; and
(8) the name, address, and telephone number of the surety for the bond filed under Section 1804.101.
(b) The registration statement must be accompanied by a $150 registration fee and the original copy of the bond required under Section 1804.101.
(c) A registration statement issued under this section takes effect on the date the secretary of state issues a certificate and is valid for one year. The statement may be renewed annually by filing a renewal registration statement and paying the registration fee required by Subsection (b). (V.A.C.S. Art. 9023b, Sec. 4.)
Sec. 1804.054. SOLICITOR REGISTRATION STATEMENT. Before beginning solicitations for a veterans organization, a veterans organization solicitor must file with the secretary of state a registration statement containing:
(1) the name, address, and telephone number of the solicitor;
(2) the name, address, and telephone number of each veterans organization on whose behalf the solicitor solicits or will solicit; and
(3) the name of any other state in which the solicitor is registered as a veterans organization solicitor and the registration's status. (V.A.C.S. Art. 9023b, Sec. 6(a).)
Sec. 1804.055. SOLICITOR REGISTRATION FEE. (a) A registration statement under Section 1804.054 must be accompanied by:
(1) a $500 registration fee; and
(2) a bond required under Section 1804.102.
(b) A registration statement issued under this section takes effect on the date the secretary of state issues a certificate and is valid for one year. A registration statement may be renewed annually by filing a renewal registration statement and paying the registration fee required by Subsection (a). (V.A.C.S. Art. 9023b, Secs. 6(b), (c).)
[Sections 1804.056-1804.100 reserved for expansion]
SUBCHAPTER C. BONDING AND REPORTING REQUIREMENTS
Sec. 1804.101. VETERANS ORGANIZATION BOND. (a) A veterans organization using a veterans organization solicitor shall post a surety bond with the secretary of state:
(1) in the amount of $1,000 if the organization is a veterans organization chartered by the United States Congress; or
(2) if the organization is not chartered by the United States Congress, in the amount of:
(A) $5,000 if the organization solicits in only one county;
(B) $10,000 if the organization solicits in more than one county but fewer than six counties; or
(C) $25,000 if the organization solicits in six or more counties.
(b) The bond must be payable to the state and conditioned on compliance with this chapter. (V.A.C.S. Art. 9023b, Sec. 5.)
Sec. 1804.102. SOLICITOR BOND. (a) A veterans organization solicitor shall post a surety bond with the secretary of state in the amount of:
(1) $5,000 if the solicitor solicits in only one county;
(2) $10,000 if the solicitor solicits in more than one county but fewer than six counties; or
(3) $25,000 if the solicitor solicits in six or more counties.
(b) The bond must be payable to the state and conditioned on compliance with this chapter. (V.A.C.S. Art. 9023b, Sec. 7.)
Sec. 1804.103. VETERANS ORGANIZATION REPORTS. (a) Before January 15 of each year, each veterans organization that received more than $500 in solicitations during the preceding calendar year shall file with the secretary of state a report that includes:
(1) the name and address of the veterans organization and each officer authorized to spend the organization's funds; and
(2) the total amounts from all sources spent by the organization for each of the following:
(A) administrative expenses;
(B) travel expenses of officers of the organization;
(C) travel expenses of each member of the organization;
(D) gifts to veterans or other veterans organizations;
(E) gifts to nonveterans;
(F) payments for the purchase, rental, or lease of and repairs to facilities used by the organization; and
(G) any other expenditures.
(b) A $50 filing fee must accompany each report filed under this section.
(c) A veterans organization that is chartered by the United States Congress and that has subsidiary organizations may:
(1) collect the reports of the subsidiary organizations; and
(2) file its report and the reports of its subsidiary organizations together and pay a single filing fee.
(d) A veterans organization shall require an individual to sign a receipt for the funds given to the individual for the individual's personal use before the funds are delivered. The organization shall keep a receipt for the expenditure for seven years after the date of the expenditure.
(e) The reports and receipts are public records and the veterans organization shall make them available to any person who requests them in writing. (V.A.C.S. Art. 9023b, Sec. 11.)
Sec. 1804.104. SOLICITOR REPORTS. (a) At the end of each calendar quarter, a solicitor who raises more than $5,000 for a veterans organization during that period shall file with the secretary of state a report that includes:
(1) the name, address, and telephone number of the solicitor;
(2) the gross amount raised by the solicitor for the veterans organization;
(3) the amount paid to the veterans organization; and
(4) the name and address of the person representing the veterans organization to which the amount was paid.
(b) A $50 filing fee must accompany each report. (V.A.C.S. Art. 9023b, Sec. 10.)
[Sections 1804.105-1804.150 reserved for expansion]
SUBCHAPTER D. SOLICITATION RESTRICTIONS
Sec. 1804.151. SOLICITATION DISCLOSURE. (a) A veterans organization solicitor shall disclose at the time each solicitation is made the following information: "The secretary of state has on file important information about persons that seek contributions in the name of veterans, and the number to call about that information is the Solicitation Information Hotline (the number maintained by the secretary of state)."
(b) The disclosure must be made:
(1) orally if the solicitation is in person or by telephone; and
(2) by printed notice in any printed matter distributed by the solicitor. (V.A.C.S. Art. 9023b, Sec. 8.)
Sec. 1804.152. SOLICITATION INFORMATION HOTLINE. The secretary of state shall establish and operate a toll-free telephone line known as the Solicitation Information Hotline that enables a person to call the hotline number to:
(1) obtain information concerning a veterans organization or solicitor that has filed a statement with the secretary of state under this chapter; or
(2) report an alleged violation of this chapter by a solicitor or a veterans organization. (V.A.C.S. Art. 9023b, Sec. 9.)
Sec. 1804.153. PROHIBITED PRACTICES. (a) A veterans organization solicitor may not solicit on behalf of a veterans organization in a county other than a county that the veterans organization serves unless the solicitor discloses to the person being solicited the county or counties actually served by the organization.
(b) A contribution or membership fee solicited at a person's residence in person or by telephone may not be collected except through the United States mail or parcel post courier.
(c) A veterans organization solicitor may not make a materially false or misleading statement of fact during a solicitation that would lead a responsible person to believe that proceeds of the solicitation are being used or will be used for a purpose other than the purpose for which the proceeds are actually used.
(d) A veterans organization solicitor or a veterans organization may not make a material misrepresentation in a registration statement.
(e) For purposes of Subsection (d), overstating the number of veterans who are members of the veterans organization by more than three percent of the organization's total membership is a material misrepresentation. (V.A.C.S. Art. 9023b, Sec. 12.)
[Sections 1804.154-1804.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT AND PENALTIES
Sec. 1804.201. AUDIT BY ATTORNEY GENERAL. (a) The attorney general may request reasonable and necessary information from a veterans organization or a veterans organization solicitor for the purpose of auditing or verifying the representations contained in a registration statement.
(b) The attorney general may audit representations made by a veterans organization solicitor during a solicitation to determine whether the solicitation complies with this chapter. (V.A.C.S. Art. 9023b, Sec. 14.)
Sec. 1804.202. CRIMINAL PENALTIES. (a) A person commits an offense if the person knowingly violates this chapter.
(b) An offense under this section is a Class B misdemeanor, except that if it is shown on trial of the offense that the defendant has been convicted previously under this section, the offense is a Class A misdemeanor.
(c) A corporation or association may be held criminally responsible for the conduct of a person acting on its behalf if the person's conduct constitutes an offense under this section.
(d) It is a defense to prosecution under this section that:
(1) the defendant is a veterans organization;
(2) the person whose conduct constitutes the offense was acting on behalf of a corporation or association with which the veterans organization had contracted for services; and
(3) the person committed the conduct without the knowledge of the veterans organization. (V.A.C.S. Art. 9023b, Sec. 13.)
Sec. 1804.203. ENFORCEMENT AND INJUNCTION. (a) The attorney general may bring an action in a Travis County district court to enjoin a person from violating this chapter.
(b) The attorney general shall notify the defendant of the alleged prohibited conduct not later than the seventh day before the date the action is commenced.
(c) Notice is not required if the attorney general intends to request that the court issue a temporary restraining order. (V.A.C.S. Art. 9023b, Sec. 15.)
Sec. 1804.204. CIVIL PENALTIES. (a) A person who violates this chapter is liable to the state for a civil penalty of not more than $10,000 for each violation.
(b) A person who violates an injunction issued under this chapter is liable to the state for a civil penalty of not less than $100,000.
(c) The attorney general shall bring an action to recover a civil penalty.
(d) If the violator has filed a bond under this chapter, the suit may be brought against the bond. (V.A.C.S. Art. 9023b, Sec. 16.)
Sec. 1804.205. SUIT ON BOND. (a) A person injured by a violation of this chapter may bring an action or join an action brought by the state to recover against a bond filed under this chapter.
(b) The court may assess costs of litigation and reasonable attorney's fees incurred by a plaintiff other than the state or by a defendant who substantially prevails.
(c) In an action brought by a private plaintiff and the state under this chapter, if the amount claimed exceeds the amount of the bond, money derived from a bond forfeiture first applies to pay the private plaintiff's damages and attorney's fees, and any remaining amount is forfeited to the state. (V.A.C.S. Art. 9023b, Secs. 17(a), (b).)
Sec. 1804.206. AVAILABILITY OF OTHER REMEDIES. This chapter does not:
(1) prevent the state or an injured party from bringing an action to recover a contribution obtained by misrepresentation; or
(2) limit other causes of action available to a plaintiff by statute or common law. (V.A.C.S. Art. 9023b, Sec. 17(c).)
CHAPTER 1805. SALE OF SECONDHAND BUSINESS MACHINES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1805.001. DEFINITIONS
Sec. 1805.002. APPLICATION TO BUSINESS MACHINES
Sec. 1805.003. APPLICATION TO SECONDHAND DEALERS
Sec. 1805.004. EFFECT ON OTHER LAWS AND ORDINANCES
[Sections 1805.005-1805.050 reserved for expansion]
SUBCHAPTER B. REPORTING REQUIREMENTS
Sec. 1805.051. REPORT OF PURCHASE
Sec. 1805.052. FORM OF REPORT; FILING
Sec. 1805.053. SERIAL NUMBER
Sec. 1805.054. REQUIRED RETENTION OF PROPERTY
[Sections 1805.055-1805.100 reserved for expansion]
SUBCHAPTER C. REQUIREMENTS FOR CERTAIN PURCHASES; PENALTY
Sec. 1805.101. PURCHASE FROM MINOR
Sec. 1805.102. PURCHASE AT TEMPORARY LOCATION OF SECONDHAND
DEALER
Sec. 1805.103. CRIMINAL PENALTY
CHAPTER 1805. SALE OF SECONDHAND BUSINESS MACHINES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1805.001. DEFINITIONS. In this chapter:
(1) "Business machine" includes an adding machine, addressing machine, calculator, cash register, check-writing device, computer or peripheral device to a computer, letter-sorting or folding device, item of recording, copying, or accounting equipment, or typewriter. The term does not include office furniture or fixtures.
(2) "Secondhand dealer" means a person who:
(A) engages in the business of buying, selling, trading, accepting for sale on consignment, accepting for auction, or auctioning business machines; or
(B) owns or operates an auction or another event at which:
(i) two or more persons offer business machines for sale or exchange; and
(ii) a fee is charged for:
(a) offering or displaying property for sale or exchange; or
(b) admission to the area in which the property is offered or displayed for sale or exchange. (V.A.C.S. Art. 9024, Secs. 1(1), (3) (part).)
Sec. 1805.002. APPLICATION TO BUSINESS MACHINES. (a) This chapter applies only to a business machine that has previously been sold at retail.
(b) This chapter does not apply to a business machine:
(1) acquired in good faith in a transaction involving the stock in trade of another secondhand dealer who previously made the reports on the machine required by this chapter if:
(A) the selling dealer delivers to the acquiring dealer a written document stating that the reports have been made;
(B) the acquiring dealer submits a copy of the statement to the chief of police of the municipality or the sheriff of the county in which the selling dealer is located; and
(C) each secondhand dealer involved in the transaction retains a copy of the statement required by this subdivision for three years after the date of the transaction;
(2) acquired in a nonjudicial sale, transfer, assignment, assignment for the benefit of creditors, or consignment of the assets or stock in trade, in bulk, or a substantial part of those assets, of an industrial or commercial enterprise, other than a secondhand dealer, for the voluntary dissolution or liquidation of the seller's business, or for disposing of an excessive quantity of personal property, or property that has been acquired in a nonjudicial sale or transfer from an owner other than a secondhand dealer, the seller's entire household of personal property, or a substantial part of that property, if the secondhand dealer:
(A) gives written notice to the chief of police of the municipality or the sheriff of the county in which the dealer's business is located that a reporting exemption is being claimed under this subdivision;
(B) retains in the dealer's place of business, for three years after the date of the transaction, a copy of the bill of sale, receipt, inventory list, or other transfer document; and
(C) makes the record retained available for inspection by any peace officer;
(3) acquired in a sale made:
(A) by any public officer in the officer's official capacity as a trustee in bankruptcy, executor, administrator, receiver, or public official acting under judicial process or authority; or
(B) on the execution of, or by virtue of, any process issued by a court;
(4) acquired as surplus property from the United States, a state, a subdivision of a state, or a municipal corporation;
(5) reported by a secondhand dealer as an acquisition or a purchase, or reported as destroyed or otherwise disposed of, to:
(A) a state agency under another law of this state; or
(B) a municipal or county officer or agency under another law of this state or a municipal ordinance; or
(6) acquired by a person licensed under Chapter 371, Finance Code. (V.A.C.S. Art. 9024, Secs. 4(a), (b).)
Sec. 1805.003. APPLICATION TO SECONDHAND DEALERS. This chapter does not apply to a person:
(1) acting as a dealer for the exclusive benefit of any community chest, fund, foundation, or nonprofit corporation organized and operated for religious, hospital, or charitable purposes if none of the gross receipts or net earnings of the sale or exchange of business machines benefits a private shareholder or a person participating in the organization or the conduct of the sale or exchange;
(2) who owns the land on which an auction or event involving the sale or exchange of business machines occurs if the person:
(A) does not have control over the auction or event; and
(B) does not have personal knowledge of any facts arising from the auction or event constituting a violation of this chapter; or
(3) whose primary business includes the manufacture, sale, or service of computers or devices peripheral to computers. (V.A.C.S. Art. 9024, Secs. 1(3) (part), 4(c).)
Sec. 1805.004. EFFECT ON OTHER LAWS AND ORDINANCES. (a) This chapter does not excuse noncompliance with another state law or municipal ordinance relating to the reporting, holding, or releasing of business machines.
(b) This chapter does not prohibit the enactment, amendment, or enforcement by any municipality of any ordinance relating to a secondhand dealer.
(c) This chapter does not supersede any municipal ordinance except to the extent that the ordinance does not require any reporting for transactions involving business machines. (V.A.C.S. Art. 9024, Secs. 11, 12.)
[Sections 1805.005-1805.050 reserved for expansion]
SUBCHAPTER B. REPORTING REQUIREMENTS
Sec. 1805.051. REPORT OF PURCHASE. (a) A secondhand dealer shall report each business machine that the dealer purchases, takes in trade, accepts for sale on consignment, or accepts for auction.
(b) The report required by Subsection (a) must:
(1) meet the requirements of Section 1805.052; and
(2) be made not later than 48 hours after the time the business machine is received.
(c) Before a business machine is offered for sale or exchange, a secondhand dealer shall notify each person intending to sell or exchange a business machine that, before the dealer may accept any of the person's business machines, the person must file with the secondhand dealer a list describing each of the person's machines to be accepted by the dealer.
(d) The list required by Subsection (c) must contain:
(1) the proposed seller's driver's license number or Department of Public Safety identification card number, as recorded by the dealer on physical presentation of the license or identification card by the seller;
(2) a complete and accurate description of each business machine, including its serial number or other identifying marks or symbols;
(3) the proposed seller's certification that the information is true and complete; and
(4) if the business machine is delivered to the secondhand dealer for sale or exchange at an auction, the make, year, model, color, and registration number of the vehicle in which the business machine is transported to the auction.
(e) The secondhand dealer shall:
(1) provide, on demand, the list required by Subsection (c) to any peace officer; and
(2) mail or deliver the list to the chief of police or the sheriff as provided by Section 1805.052 not later than 48 hours after the list is filed with the secondhand dealer. (V.A.C.S. Art. 9024, Secs. 2(a), (b), (c).)
Sec. 1805.052. FORM OF REPORT; FILING. (a) A report required by this chapter must comply with this section unless a similar report is required by another state law or a municipal ordinance, in which event the required report must comply with the applicable law or ordinance.
(b) Except as provided by Section 1805.053, a report required by this chapter must contain:
(1) the name and address of the seller of the business machine;
(2) a complete and accurate description of the business machine for which the report is made, including the serial number or other identifying marks or symbols;
(3) the seller's certification that the information is true and complete; and
(4) the seller's driver's license number or Department of Public Safety identification card number, as recorded by the dealer on physical presentation of the license or identification card by the seller.
(c) If a transaction regulated by this chapter occurs in a municipality, the original report required by this chapter and a copy must be submitted to the municipality's chief of police. If the transaction does not occur in a municipality or occurs in a municipality that does not maintain a police department, the original report and a copy must be submitted to the sheriff of the county in which the transaction occurred.
(d) The person submitting the report shall:
(1) submit the report on a form prescribed by the district attorney or person performing the duties of district attorney of the county in which the transaction occurs if no other state law or municipal ordinance requires a report of property acquired by a secondhand dealer as provided by Section 1805.051(a);
(2) retain a copy of the report in the person's place of business for three years from the date the report is filed; and
(3) make the report available for inspection by any peace officer. (V.A.C.S. Art. 9024, Secs. 5(a), (b) (part), (c), (d), (e).)
Sec. 1805.053. SERIAL NUMBER. (a) A secondhand dealer may not knowingly purchase a business machine, and a person in the business of repairing or servicing business machines may not knowingly service or repair a business machine, if another person has tampered with a serial number on the machine.
(b) A secondhand dealer or person in the business of repairing or servicing business machines shall file a report not later than the second day after the date a business machine is brought to the secondhand dealer or person if a person has tampered with the serial number on the business machine that is sought to be sold, serviced, or repaired.
(c) The report must contain:
(1) a complete and accurate description of the business machine; and
(2) if available, the name and address of the person attempting to sell the machine or have it serviced or repaired. (V.A.C.S. Art. 9024, Secs. 5(b) (part), 7(a).)
Sec. 1805.054. REQUIRED RETENTION OF PROPERTY. (a) If a report is required under this chapter, other than a report under Section 1805.053, a secondhand dealer may not dispose of the business machine that is the subject of the report before the 11th day after the date the report is filed unless:
(1) the peace officer to whom the report is submitted, for good cause, authorizes disposition of any property described in a specific report; or
(2) the secondhand dealer obtains the name, address, and description of the buyer of the property and retains this information.
(b) A secondhand dealer who retains certain information under Subsection (a)(2) shall make that information available for inspection by any peace officer. (V.A.C.S. Art. 9024, Secs. 6(a), (c).)
[Sections 1805.055-1805.100 reserved for expansion]
SUBCHAPTER C. REQUIREMENTS FOR CERTAIN PURCHASES; PENALTY
Sec. 1805.101. PURCHASE FROM MINOR. (a) A secondhand dealer may not purchase a business machine from a person younger than 18 years of age unless the seller delivers to the dealer before the purchase a written statement from the seller's parent or legal guardian consenting to the transaction.
(b) The dealer shall retain the statement with the records required to be kept under this chapter. The dealer may destroy the statement when the business machine is sold or one year from the date of purchase, whichever date is later. (V.A.C.S. Art. 9024, Sec. 8(a).)
Sec. 1805.102. PURCHASE AT TEMPORARY LOCATION OF SECONDHAND DEALER. (a) A secondhand dealer conducting business from a temporary location may not engage in the business of buying business machines unless the person has filed within a 12-month period at least 30 days before the date on which each purchase is made:
(1) a registration statement with the Department of Public Safety; and
(2) a copy of the registration statement with the local law enforcement agency of:
(A) the municipality in which the temporary location is located; or
(B) the county in which the temporary location is located if the temporary location is not located in a municipality.
(b) The statement must contain:
(1) the secondhand dealer's name and address;
(2) the business's location; and
(3) other relevant information required by the department.
(c) If the secondhand dealer is an association or corporation, the statement must set forth the name and address of:
(1) each member of the association; or
(2) each officer and director of the corporation. (V.A.C.S. Art. 9024, Secs. 9(a), (b).)
Sec. 1805.103. CRIMINAL PENALTY. (a) A person commits an offense if the person:
(1) disposes of property in violation of Section 1805.054;
(2) purchases, services, or repairs a business machine in violation of Section 1805.053 or fails to timely file a report required by that section;
(3) fails to obtain or retain a statement as required by Section 1805.101;
(4) fails to make a report or record available for inspection by a peace officer as required by this chapter; or
(5) is a secondhand dealer and:
(A) fails to make a report as required by Section 1805.051; or
(B) fails to file a registration statement as required by Section 1805.102.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 9024, Secs. 2(d), 6(b), 7(b), 8(b), 9(c), 10.)
[Title 12 reserved for expansion]
TITLE 13. SPORTS, AMUSEMENTS, AND ENTERTAINMENT
SUBTITLE A. GAMING
CHAPTER 2001. BINGO
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2001.001. SHORT TITLE
Sec. 2001.002. DEFINITIONS
[Sections 2001.003-2001.050 reserved for expansion]
SUBCHAPTER B. COMMISSION POWERS AND DUTIES
Sec. 2001.051. CONTROL AND SUPERVISION OF BINGO; BINGO
DIVISION
Sec. 2001.052. DIRECTOR OF BINGO OPERATIONS
Sec. 2001.053. OFFICERS AND INVESTIGATORS
Sec. 2001.054. RULEMAKING AUTHORITY
Sec. 2001.055. REGULATION OF GAMES
Sec. 2001.056. APPROVAL OF BINGO CARDS
Sec. 2001.057. BINGO ADVISORY COMMITTEE
Sec. 2001.058. PUBLIC INFORMATION
[Sections 2001.059-2001.100 reserved for expansion]
SUBCHAPTER C. LICENSE TO CONDUCT BINGO
Sec. 2001.101. AUTHORIZED ORGANIZATION
Sec. 2001.102. LICENSE APPLICATION
Sec. 2001.103. TEMPORARY LICENSE
Sec. 2001.104. LICENSE FEES
Sec. 2001.105. LICENSE ISSUANCE OR RENEWAL
Sec. 2001.106. FORM AND CONTENTS OF LICENSE
Sec. 2001.107. TRAINING PROGRAM
[Sections 2001.108-2001.150 reserved for expansion]
SUBCHAPTER D. COMMERCIAL LESSOR LICENSE
Sec. 2001.151. LICENSE REQUIRED
Sec. 2001.152. ELIGIBILITY
Sec. 2001.153. RESTRICTIONS ON SOURCE OF FUNDS
Sec. 2001.154. INELIGIBLE PERSONS
Sec. 2001.155. EXEMPTION FROM CERTAIN LICENSE
REQUIREMENTS
Sec. 2001.156. LICENSE APPLICATION
Sec. 2001.157. SUPPLEMENTAL INFORMATION
Sec. 2001.158. LICENSE FEES
Sec. 2001.159. LICENSE ISSUANCE
Sec. 2001.160. TRANSFER OF LICENSE
Sec. 2001.161. LICENSED AUTHORIZED ORGANIZATION AS
COMMERCIAL LESSOR
[Sections 2001.162-2001.200 reserved for expansion]
SUBCHAPTER E. MANUFACTURER'S AND
DISTRIBUTOR'S LICENSES
Sec. 2001.201. MANUFACTURER'S LICENSE REQUIRED
Sec. 2001.202. ELIGIBILITY FOR MANUFACTURER'S
LICENSE
Sec. 2001.203. MANUFACTURER'S LICENSE APPLICATION
Sec. 2001.204. MANUFACTURER'S LICENSE BOND
Sec. 2001.205. MANUFACTURER'S LICENSE FEE
Sec. 2001.206. DISTRIBUTOR'S LICENSE REQUIRED
Sec. 2001.207. ELIGIBILITY FOR DISTRIBUTOR'S LICENSE
Sec. 2001.208. DISTRIBUTOR'S LICENSE APPLICATION
Sec. 2001.209. DISTRIBUTOR'S LICENSE FEE
Sec. 2001.210. GENERAL PROVISIONS
Sec. 2001.211. AMENDMENT OF APPLICATION
Sec. 2001.212. DENIAL OF LICENSE
Sec. 2001.213. COMMISSION ACTION NOT REQUIRED
Sec. 2001.214. LICENSE TERM
Sec. 2001.215. RECORDS AND REPORTS
Sec. 2001.216. EXAMINATION OF RECORDS
Sec. 2001.217. OFFENSE
Sec. 2001.218. PAYMENT DUE
[Sections 2001.219-2001.250 reserved for expansion]
SUBCHAPTER F. SYSTEM SERVICE PROVIDER LICENSE
Sec. 2001.251. LICENSE REQUIRED
Sec. 2001.252. ELIGIBILITY FOR SYSTEM SERVICE PROVIDER
LICENSE
Sec. 2001.253. SYSTEM SERVICE PROVIDER LICENSE
APPLICATION
Sec. 2001.254. LICENSE FEE
Sec. 2001.255. LICENSE REVOCATION
Sec. 2001.256. COMMISSION'S INSPECTION POWER
Sec. 2001.257. POWERS OF SYSTEM SERVICE PROVIDER
[Sections 2001.258-2001.300 reserved for expansion]
SUBCHAPTER G. GENERAL PROVISIONS RELATING TO COMMISSION
LICENSES
Sec. 2001.301. LICENSE INVESTIGATION
Sec. 2001.302. PROVISION OF SUPPLEMENTAL INFORMATION
Sec. 2001.303. ACCESS TO INTERNAL REVENUE SERVICE
INFORMATION; OFFENSE
Sec. 2001.304. TEMPORARY AUTHORIZATION
Sec. 2001.305. NOTICE TO LOCAL AUTHORITIES
Sec. 2001.306. AMENDMENT OF LICENSE
Sec. 2001.307. MAXIMUM LICENSE TERM
Sec. 2001.308. PAPERWORK REDUCTION
Sec. 2001.309. SEPARATE LICENSE
Sec. 2001.310. DISPLAY OF LICENSE
Sec. 2001.311. RIGHTS NOT VESTED
Sec. 2001.312. FAILURE TO FILE TAX OR FEE REPORTS
[Sections 2001.313-2001.350 reserved for expansion]
SUBCHAPTER H. DENIAL, REVOCATION, AND SUSPENSION
OF LICENSE
Sec. 2001.351. DENIAL OF LICENSE
Sec. 2001.352. HEARING
Sec. 2001.353. SUSPENSION OR REVOCATION OF LICENSE
Sec. 2001.354. FINAL HEARING
Sec. 2001.355. TEMPORARY SUSPENSION
Sec. 2001.356. NOTICE OF TEMPORARY SUSPENSION
Sec. 2001.357. JUDICIAL REVIEW
[Sections 2001.358-2001.400 reserved for expansion]
SUBCHAPTER I. OPERATION OF BINGO
Sec. 2001.401. RESTRICTIONS ON PREMISES PROVIDERS
Sec. 2001.402. SINGLE PREMISES
Sec. 2001.403. COMMON ROOF OR FOUNDATION
Sec. 2001.404. PRINCIPAL LOCATION
Sec. 2001.405. PROHIBITED RENTAL PAYMENTS
Sec. 2001.406. RENT FOR PREMISES
Sec. 2001.407. EQUIPMENT AND SUPPLY TRANSACTIONS
Sec. 2001.408. OTHER METHODS FOR PLAYING BINGO
Sec. 2001.409. CARD-MINDING DEVICES
Sec. 2001.410. PULL-TAB DISPENSER
Sec. 2001.411. PERSONS OPERATING OR CONDUCTING BINGO
Sec. 2001.412. ADMISSION TO BINGO GAMES
Sec. 2001.413. ADMISSION CHARGE REQUIRED
Sec. 2001.414. BINGO RECORDS
Sec. 2001.415. ADVERTISEMENTS
Sec. 2001.416. OTHER GAMES
Sec. 2001.417. TOLL-FREE HELP
Sec. 2001.418. MINORS
Sec. 2001.419. BINGO OCCASIONS
Sec. 2001.420. PRIZES
[Sections 2001.421-2001.450 reserved for expansion]
SUBCHAPTER J. BINGO ACCOUNTS AND USE OF PROCEEDS
Sec. 2001.451. ORGANIZATION BINGO ACCOUNTS
Sec. 2001.452. BINGO ACCOUNT WITHDRAWALS
Sec. 2001.453. AUTHORIZED USES OF BINGO ACCOUNT
Sec. 2001.454. USE OF NET PROCEEDS FOR CHARITABLE PURPOSES
Sec. 2001.455. USE OF PROCEEDS BY RECIPIENT
Sec. 2001.456. USE OF PROCEEDS BY LICENSED AUTHORIZED
ORGANIZATION
Sec. 2001.457. REQUIRED DISBURSEMENTS TO CHARITY
Sec. 2001.458. ITEMS OF EXPENSE
Sec. 2001.459. EXPENSES PAID FROM BINGO ACCOUNT
[Sections 2001.460-2001.500 reserved for expansion]
SUBCHAPTER K. TAXES AND PRIZE FEES
Sec. 2001.501. GROSS RENTALS TAX
Sec. 2001.502. PRIZE FEE
Sec. 2001.503. LOCAL SHARE OF PRIZE FEE
Sec. 2001.504. PAYMENT AND REPORTING OF TAX OR FEE
Sec. 2001.505. REPORT OF EXPENSES
Sec. 2001.506. RECORD OF PRIZE WINNER
Sec. 2001.507. COLLECTION AND DISBURSEMENT OF PRIZE
FEE
Sec. 2001.508. PENALTIES FOR FAILURE TO PAY OR REPORT
Sec. 2001.509. RECOMPUTATION OF TAX
Sec. 2001.510. DETERMINATION IF NO RETURN MADE
Sec. 2001.511. JEOPARDY DETERMINATION
Sec. 2001.512. APPLICATION OF TAX LAWS
Sec. 2001.513. DELINQUENCY: SEIZURE AND SALE
Sec. 2001.514. SECURITY
Sec. 2001.515. COMMISSION'S TAX DUTIES
[Sections 2001.516-2001.550 reserved for expansion]
SUBCHAPTER L. ENFORCEMENT
Sec. 2001.551. UNLAWFUL BINGO; OFFENSE
Sec. 2001.552. FRAUDULENT AWARD OF PRIZES; OFFENSE
Sec. 2001.553. UNLICENSED SALES; OFFENSE
Sec. 2001.554. OTHER OFFENSES; REVOCATION OF LICENSE
Sec. 2001.555. EXEMPTION FROM PROSECUTION
Sec. 2001.556. PRICE FIXING PROHIBITED
Sec. 2001.557. INSPECTION OF PREMISES
Sec. 2001.558. INJUNCTION; CIVIL PENALTY
Sec. 2001.559. REMEDIES NOT EXCLUSIVE
Sec. 2001.560. EXAMINATION OF RECORDS; DISCLOSURE OF
INFORMATION
Sec. 2001.561. PENAL CODE APPLICATION
[Sections 2001.562-2001.600 reserved for expansion]
SUBCHAPTER M. ADMINISTRATIVE PENALTY
Sec. 2001.601. IMPOSITION OF PENALTY
Sec. 2001.602. AMOUNT OF PENALTY
Sec. 2001.603. NOTICE OF VIOLATION AND PENALTY
Sec. 2001.604. PENALTY TO BE PAID OR HEARING
REQUESTED
Sec. 2001.605. HEARING
Sec. 2001.606. DECISION BY EXECUTIVE DIRECTOR
Sec. 2001.607. OPTIONS FOLLOWING DECISION: PAY OR
APPEAL
Sec. 2001.608. COLLECTION OF PENALTY
Sec. 2001.609. DETERMINATION BY COURT
Sec. 2001.610. REMITTANCE OF PENALTY AND INTEREST
Sec. 2001.611. ADMINISTRATIVE PROCEDURE
[Sections 2001.612-2001.650 reserved for expansion]
SUBCHAPTER N. ELECTIONS
Sec. 2001.651. ORDERING ELECTION
Sec. 2001.652. PETITION
Sec. 2001.653. VERIFICATION OF PETITION
Sec. 2001.654. DATE OF ELECTION
Sec. 2001.655. BALLOT PROPOSITION
Sec. 2001.656. EFFECT OF ELECTION
Sec. 2001.657. DETERMINATION OF LOCAL OPTION STATUS
CHAPTER 2001. BINGO
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2001.001. SHORT TITLE. This chapter may be cited as the Bingo Enabling Act. (V.A.C.S. Art. 179d, Sec. 1.)
Sec. 2001.002. DEFINITIONS. In this chapter:
(1) "Authorized commercial lessor" means a person eligible for a commercial license to lease bingo premises under Subchapter D.
(2) "Authorized organization" means a person eligible for a license to conduct bingo.
(3) "Automated bingo services" means a computer program or system for:
(A) registering or accounting for bingo sales, prizes, inventory, and prize fees;
(B) generating required reports to the commission; and
(C) providing the conductor of a game with other information requested for accounting or other business purposes.
(4) "Bingo" or "game" means, except as provided by Section 2001.551, a specific game of chance, commonly known as bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols conforming to randomly selected numbers or symbols.
(5) "Bingo equipment" means equipment used, made, or sold for the purpose of use in bingo. The term:
(A) includes:
(i) a machine or other device from which balls or other items are withdrawn to determine the letters and numbers or other symbols to be called;
(ii) an electronic or mechanical cardminding device;
(iii) a pull-tab dispenser;
(iv) a bingo card; and
(v) any other device commonly used in the direct operation of a bingo game; and
(B) does not include:
(i) a bingo game set commonly manufactured and sold as a child's game for a retail price of $20 or less unless the set or a part of the set is used in bingo subject to regulation under this chapter; or
(ii) a commonly available component part of bingo equipment such as a light bulb, fuse, or bingo ball.
(6) "Bingo occasion" means all activities incident to the conduct of a series of bingo games by a licensed authorized organization, including the organization's licensed times and any preparatory or concluding activities incident to the conduct of bingo.
(7) "Charitable purpose" means a purpose described by Section 2001.454.
(8) "Commission" means the Texas Lottery Commission.
(9) "Distributor" means a person who obtains, by purchase or otherwise, bingo equipment or supplies for use in bingo in this state and sells or furnishes the items to another person for use, resale, display, or operation.
(10) "Executive director" means the executive director of the commission.
(11) "Fraternal organization" means:
(A) a nonprofit organization organized to perform and engaged primarily in performing charitable, benevolent, patriotic, employment-related, or educational functions that meet the other requirements of this chapter; or
(B) a nonprofit National Historical District Association representing the owners and lessees of a majority of the real property located in a National Historical District designated for not less than five years by the National Register of Historic Places, Heritage Conservation and Recreation Service of the United States Department of the Interior, if the association's net proceeds are used for restoration, construction, maintenance, and security in the district. The term "fraternal organization" does not include an organization whose members are predominantly veterans or dependents of veterans of the armed services of the United States.
(12) "Governing body" means the commissioners court with regard to a county or justice precinct or the city council or other chief legislative body with regard to a municipality.
(13) "Gross receipts" means the total amount received from the sale, rental, transfer, or use of bingo cards and entrance fees charged at premises at which bingo is conducted.
(14) "Licensed authorized organization" means an authorized organization that holds a license to conduct bingo.
(15) "Licensed commercial lessor" means a person licensed to lease premises and act as a commercial lessor.
(16) "Manufacturer" means:
(A) a person who assembles from raw materials or subparts a completed piece of bingo equipment or supplies for use in bingo games in this state; or
(B) a person who converts, modifies, adds to, or removes parts from any bingo equipment, item, or assembly to further its promotion or sale for or use in a bingo game in this state.
(17) "Municipal secretary" means the officer of a municipality performing the duties of municipal secretary.
(18) "Net proceeds" means:
(A) in relation to the gross receipts from one or more bingo occasions, the amount remaining after deducting the reasonable sums necessarily and actually expended for expenses under Section 2001.458 and the fee on prizes under Section 2001.502; and
(B) in relation to the gross rent or other consideration received by a licensed authorized organization for the use of its premises, fixtures, or equipment by another license holder, the amount remaining after deducting the reasonable sums necessarily and actually expended for any janitorial services and utility supplies directly attributable to the use of the premises, fixtures, or equipment.
(19) "Nonprofit organization" means an unincorporated association or a corporation that is incorporated or holds a certificate of authority under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes). The organization:
(A) may not distribute any of its income to its members, officers, or governing body, other than as reasonable compensation for services; and
(B) must have obtained tax exempt status under Section 501(c), Internal Revenue Code of 1986.
(20) "Person" means an individual, partnership, corporation, or other group.
(21) "Political subdivision" means a county, justice precinct, or municipality.
(22) "Premises" means the area subject to the direct control of and actual use by a licensed authorized organization or group of licensed authorized organizations to conduct bingo. The term includes a location or place.
(23) "Primary business office" means the location at which all records relating to the primary purpose of a licensed authorized organization are maintained in the ordinary course of business.
(24) "Pull-tab bingo" means a form of bingo played using tickets with perforated break-open tabs, made of paper or paper products, the face of which is covered or otherwise hidden from view to conceal numbers, letters, or symbols, some of which have been designated in advance as prize winners. The term includes games commonly known as "instant bingo" and "break-open bingo."
(25) "Pull-tab dispenser" means an electronic or mechanical device that dispenses a pull-tab bingo ticket after a person inserts money into the device and includes a device commonly known as a "ticket dispenser."
(26) "Religious society" means a church, synagogue, or other organization organized primarily for religious purposes.
(27) "Veterans organization" means a nonprofit organization:
(A) whose members are veterans or dependents of veterans of the armed services of the United States; and
(B) that is chartered by the United States Congress and organized to advance the interests of veterans or active duty personnel of the armed forces of the United States and their dependents.
(28) "Volunteer fire department" means a fire-fighting organization that:
(A) operates fire-fighting equipment;
(B) is organized primarily to provide fire-fighting service;
(C) is actively providing fire-fighting service; and
(D) does not pay its members compensation other than nominal compensation. (V.A.C.S. Art. 179d, Secs. 2(1), (2), (3) (part), (4) (part), (5) (part), (6), (7), (8), (9) (part), (10), (11), (12), (13), (14), (16), (18), (19), (20), (22), (23) (part), (24) (part), (25), (26), (27), (28), (29); New.)
[Sections 2001.003-2001.050 reserved for expansion]
SUBCHAPTER B. COMMISSION POWERS AND DUTIES
Sec. 2001.051. CONTROL AND SUPERVISION OF BINGO; BINGO DIVISION. (a) The commission shall administer this chapter.
(b) The commission has broad authority and shall exercise strict control and close supervision over all bingo conducted in this state so that bingo is fairly conducted and the proceeds derived from bingo are used for an authorized purpose.
(c) The commission shall execute its authority through a bingo division established by the commission to administer this chapter. (V.A.C.S. Art. 179d, Sec. 16(a) (part).)
Sec. 2001.052. DIRECTOR OF BINGO OPERATIONS. (a) The commission shall employ a director of bingo operations.
(b) The director of bingo operations shall administer the bingo division under the direction of the commission. (V.A.C.S. Art. 179d, Sec. 16(a) (part).)
Sec. 2001.053. OFFICERS AND INVESTIGATORS. The commission may employ officers or investigators the commission considers necessary to administer this chapter. (V.A.C.S. Art. 179d, Sec. 16(h).)
Sec. 2001.054. RULEMAKING AUTHORITY. The commission may adopt rules to enforce and administer this chapter. (V.A.C.S. Art. 179d, Sec. 16(a) (part).)
Sec. 2001.055. REGULATION OF GAMES. The commission by rule may establish the number and type of bingo games that may be played during a bingo occasion. (V.A.C.S. Art. 179d, Sec. 16(j).)
Sec. 2001.056. APPROVAL OF BINGO CARDS. (a) The commission by rule shall provide procedures for the approval of bingo cards.
(b) A license holder may not use or distribute a bingo card unless the card has been approved by the commission.
(c) The commission may set the price or adopt a schedule of prices for the sale or provision of bingo cards by a licensed authorized organization.
(d) A licensed authorized organization may not sell or provide a bingo card at a price other than a price authorized by the commission or a schedule adopted by the commission.
(e) The commission by rule may require a licensed authorized organization to notify the commission of the price for bingo cards the organization will use for one or more reporting periods. (V.A.C.S. Art. 179d, Sec. 16(c).)
Sec. 2001.057. BINGO ADVISORY COMMITTEE. (a) The commission may appoint a bingo advisory committee consisting of nine members. The commission shall appoint members representing a balance of interests including representatives of:
(1) the public;
(2) charities that operate bingo games; and
(3) commercial and charity lessors that participate in the bingo industry.
(b) The commission shall include a system service provider as a member of the committee.
(c) A committee member serves at the pleasure of the commission.
(d) A committee member is not entitled to receive compensation for serving as a member. A committee member is entitled to reimbursement for reasonable expenses incurred in performing duties as a member.
(e) The committee may:
(1) advise the commission on the needs and problems of the state's bingo industry;
(2) comment on rules involving bingo during their development and before final adoption unless an emergency requires immediate action by the commission;
(3) report annually to the commission on the committee's activities; and
(4) perform other duties as determined by the commission.
(f) The committee may meet quarterly or at the commission's request.
(g) The commission may adopt rules to govern the operations of the committee. (V.A.C.S. Art. 179d, Secs. 13e(k), 43.)
Sec. 2001.058. PUBLIC INFORMATION. (a) The commission shall provide to any person on request a printed copy of this chapter and the rules applicable to the enforcement of this chapter.
(b) The commission may charge a reasonable amount for a copy provided under this section. (V.A.C.S. Art. 179d, Sec. 16(b).)
[Sections 2001.059-2001.100 reserved for expansion]
SUBCHAPTER C. LICENSE TO CONDUCT BINGO
Sec. 2001.101. AUTHORIZED ORGANIZATION. (a) The commission may license a person who is an authorized organization eligible for a license to conduct bingo if the person is:
(1) a religious society that has existed in this state for at least eight years;
(2) a nonprofit organization:
(A) whose predominant activities are for the support of medical research or treatment programs; and
(B) that for at least three years:
(i) must have had a governing body or officers elected by a vote of members or by a vote of delegates elected by the members; or
(ii) must have been affiliated with a state or national organization organized to perform the same purposes as the nonprofit organization;
(3) a fraternal organization;
(4) a veterans organization; or
(5) a volunteer fire department.
(b) A fraternal organization:
(1) must have been organized in this state for at least three years;
(2) must have had during the three-year period a bona fide membership actively and continuously engaged as an organization in furthering its authorized purposes; and
(3) may not have authorized a person on behalf of its membership, governing body, or officers to support or oppose a particular candidate for public office by:
(A) making political speeches;
(B) passing out cards or other political literature;
(C) writing letters;
(D) signing or circulating petitions;
(E) making campaign contributions; or
(F) soliciting votes. (V.A.C.S. Art. 179d, Secs. 2(3) (part), (4) (part), (5) (part), (11).)
Sec. 2001.102. LICENSE APPLICATION. (a) An applicant for a license to conduct bingo must file with the commission a written, executed, and verified application on a form prescribed by the commission.
(b) The application must include:
(1) the name and address of the applicant;
(2) the names and addresses of the applicant's officers;
(3) the address of the premises where and the time when the applicant intends to conduct bingo under the license sought;
(4) the name and address of the licensed commercial lessor of the premises, if the applicant intends to lease premises to conduct bingo from a person other than an authorized organization;
(5) the capacity or potential capacity for public assembly in any premises owned or occupied by the applicant;
(6) the amount of rent to be paid or other consideration to be given, directly or indirectly, for each occasion for use of the premises of another licensed authorized organization or for use of the premises of a licensed commercial lessor;
(7) all other items of expense intended to be incurred or paid in connection with conducting, promoting, and administering bingo and the names and addresses of the persons to whom, and the purposes for which, the expenses are to be paid;
(8) the specific purposes to and the manner in which the net proceeds of bingo are to be devoted;
(9) a statement that the net proceeds of bingo will go to one or more of the authorized charitable purposes under this chapter;
(10) a designation of one or more active members of the applicant organization under whom bingo will be conducted accompanied by a statement signed by each designated member stating that the member will be responsible for the conduct of bingo under the terms of the license and this chapter;
(11) a statement that a copy of the application has been sent to the appropriate governing body;
(12) the name and address of each person who will work at the proposed bingo occasion, the nature of the work to be performed, and a statement as to whether the person has been convicted of a felony, a gambling offense, criminal fraud, or a crime of moral turpitude; and
(13) sufficient facts relating to the applicant's incorporation and organization to enable the commission to determine whether the applicant is an authorized organization.
(c) A copy of the Internal Revenue Service letter that approves an applicant's exemption from taxation under Section 501(c), Internal Revenue Code of 1986, is adequate evidence of the person's tax-exempt status. A letter of good standing from a parent organization that holds an exemption from taxation under Section 501(c), Internal Revenue Code of 1986, for both the parent organization and its affiliate is adequate evidence of the affiliate organization's tax-exempt status. (V.A.C.S. Art. 179d, Secs. 12(a), (g).)
Sec. 2001.103. TEMPORARY LICENSE. (a) An authorized organization may receive a temporary license to conduct bingo by filing with the commission an application, on a form prescribed by the commission, accompanied by a $25 license fee.
(b) A temporary license is valid for four hours during any one day.
(c) An organization may not receive more than six temporary licenses in a calendar year.
(d) An organization operating under a temporary license is subject to:
(1) the taxes and fees authorized or imposed by this chapter; and
(2) the other provisions of this chapter to the extent they can be made applicable. (V.A.C.S. Art. 179d, Sec. 12(d).)
Sec. 2001.104. LICENSE FEES. (a) The commission shall set the fees for a license to conduct bingo in an amount reasonable to defray administrative costs but not less than the following:
(1) Class A (annual gross receipts of $25,000 or less)--$100;
(2) Class B (annual gross receipts of more than $25,000 but not more than $50,000)--$200;
(3) Class C (annual gross receipts of more than $50,000 but not more than $75,000)--$300;
(4) Class D (annual gross receipts of more than $75,000 but not more than $100,000)--$400;
(5) Class E (annual gross receipts of more than $100,000 but not more than $150,000)--$600;
(6) Class F (annual gross receipts of more than $150,000 but not more than $200,000)--$900;
(7) Class G (annual gross receipts of more than $200,000 but not more than $250,000)--$1,200;
(8) Class H (annual gross receipts of more than $250,000 but not more than $300,000)--$1,500;
(9) Class I (annual gross receipts of more than $300,000 but not more than $400,000)--$2,000; and
(10) Class J (annual gross receipts of more than $400,000)--$2,500.
(b) At the end of the license period the license holder and the commission shall compute the amount of gross receipts actually recorded during the license period to determine if the appropriate fee amount was paid.
(c) The commission by rule shall provide for:
(1) the payment of any additional fee amount determined to be due under Subsection (b); and
(2) credit to be given to the license holder for any excess fee amount determined under Subsection (b) to have been paid by the license holder. (V.A.C.S. Art. 179d, Secs. 13(d) (part), (e) (part).)
Sec. 2001.105. LICENSE ISSUANCE OR RENEWAL. (a) The commission shall issue or renew a license to conduct bingo on payment of the license fee provided by Section 2001.104 if the commission determines that:
(1) the member or members of the applicant designated in the application to conduct bingo are active members of the applicant;
(2) the bingo is to be conducted in accordance with this chapter;
(3) the proceeds of the bingo are to be disposed in accordance with this chapter;
(4) the applicant has made and can demonstrate significant progress toward the accomplishment of the purposes of the organization during the 12 months preceding the date of application for a license or license renewal;
(5) all persons who will conduct, promote, or administer the proposed bingo are active members of the applicant organization and all other persons who will assist in conducting, promoting, or administering the proposed bingo games are persons authorized to do so by Section 2001.411; and
(6) no person under whose name bingo will be conducted and no person working at the proposed bingo has been convicted of a felony, a gambling offense, criminal fraud, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, mandatory supervision, or community supervision served for the offense.
(b) The commission may not issue a license to an authorized organization to conduct bingo if an officer of the organization has been convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, mandatory supervision, or community supervision served for the offense. (V.A.C.S. Art. 179d, Secs. 13(c), (l).)
Sec. 2001.106. FORM AND CONTENTS OF LICENSE. A license to conduct bingo must include:
(1) the name and address of the license holder;
(2) the names and addresses of the member or members of the license holder under whom the bingo will be conducted;
(3) an indication of the premises where and the time when bingo is to be conducted;
(4) the specific purposes to which the net proceeds of bingo are to be devoted; and
(5) a statement of whether a prize is to be offered and the amount of any authorized prize. (V.A.C.S. Art. 179d, Sec. 15(a).)
Sec. 2001.107. TRAINING PROGRAM. (a) The person designated under Section 2001.102(b)(10) shall complete eight hours of training as provided by commission rule.
(b) A training program approved by the commission must include training related to:
(1) conducting bingo;
(2) administering and operating bingo; and
(3) promoting bingo.
(c) The commission by rule shall establish:
(1) the content of the training course;
(2) information concerning training to be reported to the commission; and
(3) other training program requirements that the commission determines to be necessary to promote the fair conduct of bingo and compliance with this chapter. (V.A.C.S. Art. 179d, Sec. 44.)
[Sections 2001.108-2001.150 reserved for expansion]
SUBCHAPTER D. COMMERCIAL LESSOR LICENSE
Sec. 2001.151. LICENSE REQUIRED. A person who leases premises on which bingo is conducted directly to a licensed authorized organization must be a licensed commercial lessor. (V.A.C.S. Art. 179d, Sec. 13(f) (part).)
Sec. 2001.152. ELIGIBILITY. (a) The commission may issue a commercial lessor license only to:
(1) a licensed authorized organization that owns or leases a premises where bingo is or will be conducted or an association of licensed authorized organizations that jointly own or lease premises where bingo is or will be conducted and that the organization or association leases or offers for lease to one or more other authorized organizations for the conduct of bingo;
(2) a person who leases premises to a single licensed authorized organization that subleases or will sublease the premises to one or more other licensed authorized organizations for the conduct of bingo; or
(3) a person who leases premises for the total control and exclusive use of only one licensed authorized organization as that organization's primary business office.
(b) Notwithstanding Subsection (a), a person who was a licensed commercial lessor on June 10, 1989, whose license has been in effect continuously since that date, and who is otherwise eligible for the license may renew the license. (V.A.C.S. Art. 179d, Secs. 13(n), (o).)
Sec. 2001.153. RESTRICTIONS ON SOURCE OF FUNDS. (a) The commission may not issue a commercial lessor license to a person unless the commission receives evidence the commission considers adequate that funds used by the person seeking the license to obtain the premises, provide the premises with furniture, fixtures, or equipment, renovate the premises, or provide utilities to the premises are:
(1) the person's own funds; or
(2) the funds of another person, including loan proceeds, that:
(A) were obtained in an arms-length transaction that was commercially reasonable under the circumstances; and
(B) were not obtained under an expectation or obligation that the person from whom the funds were obtained would directly participate in, or have a legal interest in, rents obtained under the license or revenues or profits from the conduct of bingo on the premises.
(b) Subsection (a) does not prohibit a group of licensed authorized organizations from combining the organizations' funds or combining or jointly obtaining funds described by Subsection (a)(2). (V.A.C.S. Art. 179d, Sec. 13(p).)
Sec. 2001.154. INELIGIBLE PERSONS. (a) The commission may not issue a commercial lessor license to or renew a commercial lessor license of:
(1) a person convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since termination of a sentence, parole, mandatory supervision, or community supervision served for the offense;
(2) a public officer who receives any consideration, direct or indirect, as owner or lessor of premises offered for conducting bingo;
(3) a person who extends credit to, loans money to, or pays or provides for the payment of license fees for an authorized organization;
(4) a distributor or manufacturer;
(5) a person in which a person covered by Subdivision (1), (2), (3), or (4) or a person married or related in the first degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to one of those persons has greater than a 10 percent proprietary, equitable, or credit interest or in which one of those persons is active or employed;
(6) a foreign corporation or other foreign legal entity;
(7) an individual who is not a resident of this state;
(8) a corporation or other legal entity owned or controlled by:
(A) a foreign corporation; or
(B) an individual who is not a resident of this state; or
(9) a corporation or other legal entity:
(A) whose shares are publicly traded; or
(B) owned or controlled by a corporation whose shares are publicly traded.
(b) Subsection (a)(5) does not prevent an authorized organization or other person that is not organized for pecuniary profit and no part of the net earnings of which inure to the benefit of an individual, member, or shareholder from being licensed as a commercial lessor solely because a public officer or a person married or related in the first degree by consanguinity or affinity to a public officer is a member of, active in, or employed by the authorized organization or other person. (V.A.C.S. Art. 179d, Secs. 13(q), (r).)
Sec. 2001.155. EXEMPTION FROM CERTAIN LICENSE REQUIREMENTS. (a) Sections 2001.154(a)(6), (7), (8), and (9) do not apply to a license in effect on May 1, 1997, if bingo was being lawfully conducted on the premises as of that date.
(b) Subsection (a) does not apply to a license:
(1) moved to a premises in this state that is different from the premises for which the license was in effect on May 1, 1997;
(2) expanded as to square footage or seating capacity beyond the square footage and seating capacity in use on May 1, 1997; or
(3) if ownership of the license holder changes, or the license is transferred, after May 1, 1997.
(c) The commission may make an investigation of, and require information from, a person described by Section 2001.154(a)(6), (7), (8), or (9) or an officer, director, agent, or employee of a person described by Section 2001.154(a)(6), (7), (8), or (9) that the commission may make or require of an applicant for or holder of a commercial lessor license if the person owns or controls a license described by Subsection (b). If a person described by Section 2001.154(a)(6), (7), (8), or (9), or an officer, director, agent, or employee in this state of a person described by Section 2001.154(a)(6), (7), (8), or (9), would be disqualified under this chapter from holding a commercial lessor license if the person, officer, director, agent, or employee were the license holder or an applicant for a license, an entity owned or controlled by that person is disqualified from holding the license.
(d) The commission may require the person that is the subject of a substantiated investigation under this section to pay the actual cost of the investigation.
(e) This section expires January 1, 2001. (V.A.C.S. Art. 179d, Sec. 13(w).)
Sec. 2001.156. LICENSE APPLICATION. (a) An applicant for a commercial lessor license must file with the commission a written verified application on a form prescribed by the commission.
(b) The license application must include:
(1) the name and address of the applicant and each other person who has a financial interest in or who is in any capacity a real party in interest in the applicant's business as it pertains to this chapter;
(2) a designation and address of the premises intended to be covered by the license;
(3) the lawful capacity of the premises for public assembly purposes;
(4) a statement that a copy of the application has been sent to the appropriate governing body; and
(5) a statement that the applicant complies with the conditions for eligibility for the license. (V.A.C.S. Art. 179d, Sec. 12(b).)
Sec. 2001.157. SUPPLEMENTAL INFORMATION. At any time the commission, the appropriate governing body, or the attorney general may make a written request of a commercial lessor to disclose:
(1) the cost of the premises and appraised value for property tax purposes or annual net lease rent, whichever is applicable;
(2) gross rentals received and itemized expenses for the preceding calendar or fiscal year, if any;
(3) gross rentals, if any, derived from bingo during the preceding calendar or fiscal year;
(4) the computation by which the proposed rental schedule was determined;
(5) the number of occasions on which the lessor anticipates receiving rent for bingo during the next year or shorter period if applicable and the proposed rent for each of those occasions;
(6) estimated gross rental income from all other sources during the next year; and
(7) estimated expenses itemized for the current year and the amount of each item allocated to bingo rentals. (V.A.C.S. Art. 179d, Sec. 12(c).)
Sec. 2001.158. LICENSE FEES. (a) The commission shall set the fees for a commercial lessor license in an amount reasonable to defray administrative costs but not less than the following:
(1) Class A (annual gross rentals from licensed organizations of not more than $12,000)--$100;
(2) Class B (annual gross rentals from licensed organizations of more than $12,000 but not more than $20,000)--$200;
(3) Class C (annual gross rentals from licensed organizations of more than $20,000 but not more than $30,000)--$300;
(4) Class D (annual gross rentals from licensed organizations of more than $30,000 but not more than $40,000)--$400;
(5) Class E (annual gross rentals from licensed organizations of more than $40,000 but not more than $50,000)--$600;
(6) Class F (annual gross rentals from licensed organizations of more than $50,000 but not more than $60,000)--$900;
(7) Class G (annual gross rentals from licensed organizations of more than $60,000 but not more than $70,000)--$1,200;
(8) Class H (annual gross rentals from licensed organizations of more than $70,000 but not more than $80,000)--$1,500;
(9) Class I (annual gross rentals from licensed organizations of more than $80,000 but not more than $90,000)--$2,000; and
(10) Class J (annual gross rentals from licensed organizations of more than $90,000)--$2,500.
(b) At the end of the license period, the license holder and the commission shall compute the amount of the gross rentals actually recorded during the license period to determine if the appropriate fee amount was paid.
(c) The commission by rule shall provide for:
(1) the payment of any additional fee amount determined to be due not paid under Subsection (b); and
(2) credit to be given to the license holder for any excess fee amount determined under Subsection (b) to have been paid by the license holder. (V.A.C.S. Art. 179d, Secs. 13(d) (part), (e) (part).)
Sec. 2001.159. LICENSE ISSUANCE. (a) The commission shall issue a commercial lessor license if the commission determines that:
(1) the applicant has paid the license fee as provided by Section 2001.158;
(2) the applicant qualifies to be licensed under this chapter;
(3) the applicant satisfies the requirements for a commercial lessor under this subchapter;
(4) the rent to be charged is fair and reasonable and will be charged and collected in compliance with Section 2001.406;
(5) there is no diversion of the funds of the proposed lessee from the lawful purposes under this chapter;
(6) the person whose signature or name appears in the application is in all respects the real party in interest and is not an undisclosed agent or trustee for the real party in interest; and
(7) the applicant will lease the premises for the conduct of bingo in accordance with this chapter.
(b) The commission shall issue a commercial lessor license under this section for the period specified in the license application or for a shorter period as the commission determines.
(c) The period may not exceed one year. (V.A.C.S. Art. 179d, Sec. 13(g).)
Sec. 2001.160. TRANSFER OF LICENSE. (a) A licensed commercial lessor may not transfer a commercial lessor license except as provided by this section.
(b) A transfer of a commercial lessor license under this section may be made only with the prior approval of the commission. The commission shall approve the transfer under this section if the person to whom the license will be transferred otherwise meets the requirements of this section.
(c) A licensed commercial lessor may transfer a license held by the license holder to a corporation formed by the license holder or from one corporation owned by the license holder to another corporation owned by the license holder.
(d) Subject to Subsections (e) and (f), if an individual who holds a commercial lessor license dies or becomes incapacitated as determined by a court of this state, the individual's license is part of the individual's estate and is subject to the applicable laws governing the disposition and control of the person's property. The license is not considered to have been transferred, subject to compliance with Subsection (g). The individual's estate may take any action with respect to the individual's license that the individual could have taken while the individual was alive or had capacity.
(e) Unless an injunction is issued under this section, a licensed authorized organization that conducts bingo lawfully at premises under a license to which Subsection (d) applies may continue conducting bingo at the premises after the death or incapacity of the commercial lessor license holder.
(f) On the showing by the commission of a cause that would be sufficient for the commission to obtain a license suspension under Section 2001.355, a district court in the county for which a commercial lessor license was issued may temporarily or permanently enjoin the conduct of bingo at premises under a license to which Subsection (d) applies.
(g) The estate or guardian of an individual to whom Subsection (d) applies shall notify the commission not later than one year after the date the individual dies or is determined to be incapacitated by a court of this state. The estate or guardian and the heirs or other appropriate person shall promptly take all necessary steps to complete a transfer of the license to the heirs or other appropriate person. (V.A.C.S. Art. 179d, Sec. 13(j).)
Sec. 2001.161. LICENSED AUTHORIZED ORGANIZATION AS COMMERCIAL LESSOR. (a) An authorized organization that holds a commercial lessor license to lease a premises on which bingo is conducted must hold a license to conduct bingo at the same premises.
(b) A licensed authorized organization may obtain only one commercial lessor license.
(c) The commission may issue a commercial lessor license to a licensed authorized organization only for the same premises where the organization is licensed to conduct bingo. (V.A.C.S. Art. 179d, Secs. 13(f) (part), 19a(l).)
[Sections 2001.162-2001.200 reserved for expansion]
SUBCHAPTER E. MANUFACTURER'S AND
DISTRIBUTOR'S LICENSES
Sec. 2001.201. MANUFACTURER'S LICENSE REQUIRED. A manufacturer may not sell or supply to a person in this state or for use in this state bingo cards, boards, sheets, pads, or other supplies, or equipment designed to be used in playing bingo, or engage in any intrastate activity involving those items, unless the manufacturer holds a manufacturer's license under this subchapter. (V.A.C.S. Art. 179d, Sec. 13a(a) (part).)
Sec. 2001.202. ELIGIBILITY FOR MANUFACTURER'S LICENSE. The following persons are not eligible for a manufacturer's license:
(1) a person convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, mandatory supervision, or community supervision served for the offense;
(2) a person who is or has been a professional gambler or gambling promoter;
(3) an elected or appointed public officer or a public employee;
(4) an owner, officer, director, shareholder, agent, or employee of a licensed commercial lessor;
(5) a person who conducts, promotes, or administers, or assists in conducting, promoting, or administering, bingo for which a license is required by this chapter;
(6) a distributor required to be licensed under this chapter;
(7) a person who has had a license to manufacture, distribute, or supply bingo equipment or supplies revoked within the preceding year by another state;
(8) an owner, officer, director, or shareholder of, or a person holding an equitable or credit interest in, another manufacturer or distributor licensed or required to be licensed under this chapter; or
(9) a person:
(A) in which a person described by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8) or in which a person married or related in the first degree by consanguinity or affinity to one of those persons has greater than a 10 percent proprietary, equitable, or credit interest or in which one of those persons is active or employed; or
(B) in whose application for a manufacturer's license a person described by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8) is required to be named. (V.A.C.S. Art. 179d, Sec. 13a(c).)
Sec. 2001.203. MANUFACTURER'S LICENSE APPLICATION. (a) An applicant for a manufacturer's license must file with the commission a written verified application on a form prescribed by the commission.
(b) The application must include:
(1) the name and address of the applicant and the name and address of each of its locations where bingo supplies or equipment are manufactured;
(2) a full description of each type of bingo supply or equipment that the applicant intends to manufacture or market in this state and the brand name, if any, under which each item will be sold;
(3) the name and address of the applicant and if the applicant:
(A) is not a corporation, the name and home address of each owner; or
(B) is a corporation, the name and home address of each officer and director and each person owning 10 percent or more of a class of stock in the corporation;
(4) if the applicant is a foreign corporation, the name, business name and address, and home address of its registered agent for service in this state;
(5) the name and address of each manufacturer, supplier, and distributor in which the applicant has a financial interest and the details of that financial interest, including any indebtedness between the applicant and the manufacturer, supplier, or distributor of $500 or more;
(6) information regarding whether the applicant or a person required to be named in the application has been convicted in this state or another state of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude;
(7) information regarding whether the applicant or a person required to be named in the application is an owner, officer, director, shareholder, agent, or employee of a licensed commercial lessor or conducts, promotes, administers, or assists in conducting, promoting, or administering bingo for which a license is required by this chapter;
(8) information regarding whether the applicant or a person required to be named in the application is a public officer or public employee in this state;
(9) the name of each state in which the applicant is or has been licensed to manufacture, distribute, or supply bingo equipment or supplies, each license number, the period of time licensed under each license, and whether a license has been revoked, suspended, withdrawn, canceled, or surrendered and, if so, the reasons for the action taken;
(10) information regarding whether the applicant or a person required to be named in the application is or has been a professional gambler or gambling promoter;
(11) the names and addresses of each manufacturer, supplier, or distributor of bingo equipment or supplies in which the applicant or a person required to be named in the application is an owner, officer, shareholder, director, agent, or employee; and
(12) any other information the commission requests. (V.A.C.S. Art. 179d, Sec. 13a(a) (part).)
Sec. 2001.204. MANUFACTURER'S LICENSE BOND. (a) An applicant for a manufacturer's license must give the commission a cash bond or a bond in the amount of $10,000 issued by a surety company chartered or authorized to do business in this state.
(b) The bond must provide for forfeiture to the state on the manufacturer's failure to comply with this chapter or a commission rule or on suspension or revocation of the manufacturer's license. (V.A.C.S. Art. 179d, Sec. 13a(b).)
Sec. 2001.205. MANUFACTURER'S LICENSE FEE. (a) The annual manufacturer's license fee is $3,000.
(b) In addition to the annual license fee, the commission may require an additional fee in an amount necessary to defray the cost of a background investigation, including the inspection of manufacturing plants and locations. The commission by rule may establish the conditions and procedure for payment of the additional fee. (V.A.C.S. Art. 179d, Sec. 13a(d).)
Sec. 2001.206. DISTRIBUTOR'S LICENSE REQUIRED. A distributor may not sell, distribute, or supply bingo equipment or supplies for use in bingo in this state unless the distributor holds a distributor's license under this subchapter. (V.A.C.S. Art. 179d, Sec. 13b(a).)
Sec. 2001.207. ELIGIBILITY FOR DISTRIBUTOR'S LICENSE. The following persons are not eligible for a distributor's license:
(1) a person convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, community supervision, or mandatory supervision served for the offense;
(2) a person who is or has been a professional gambler or gambling promoter;
(3) an elected or appointed public officer or a public employee;
(4) an owner, officer, director, shareholder, agent, or employee of a licensed commercial lessor;
(5) a person who conducts, promotes, or administers, or assists in conducting, promoting, or administering bingo for which a license is required by this chapter;
(6) a manufacturer required to be licensed under this chapter;
(7) a person who has had a license to manufacture, distribute, or supply bingo equipment or supplies revoked within the preceding year by another state;
(8) an owner, officer, director, or shareholder of, or a person having an equitable or credit interest in, another manufacturer or distributor licensed or required to be licensed under this chapter; or
(9) a person:
(A) in which a person described by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8) or in which a person married or related in the first degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code, to one of those persons has greater than a 10 percent proprietary, equitable, or credit interest or in which one of those persons is active or employed; or
(B) in whose application a person described by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8) is required to be named. (V.A.C.S. Art. 179d, Sec. 13b(c).)
Sec. 2001.208. DISTRIBUTOR'S LICENSE APPLICATION. (a) An applicant for a distributor's license must file with the commission an executed verified application on a form prescribed by the commission.
(b) The application must include:
(1) the full name and address of the applicant;
(2) the name and address of each location operated by the distributor from which bingo supplies or equipment are distributed or at which bingo supplies or equipment are stored;
(3) if a noncorporate distributor, the name and home address of each owner;
(4) if a corporate distributor, the name and home address of each officer or director and of each person owning at least 10 percent of a class of stock in the corporation;
(5) if a foreign corporation, the name, business name and address, and home address of its registered agent for service in this state;
(6) a full description of the type of bingo supply or equipment that the applicant intends to store or distribute in this state and the name of the manufacturer of each item and the brand name, if any, under which the item will be sold or marketed;
(7) the name and address of a manufacturer, supplier, or distributor in which the applicant has a financial interest and the details of that financial interest, including an indebtedness between the applicant and the manufacturer, supplier, or distributor of $500 or more;
(8) information regarding whether the applicant or a person required to be named in the application has been convicted in this state or another state of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude;
(9) information regarding whether the applicant or a person required to be named in the application is an owner, officer, director, shareholder, agent, or employee of a licensed commercial lessor or conducts, promotes, administers, or assists in conducting, promoting, or administering bingo for which a license is required under this chapter;
(10) information regarding whether the applicant or a person required to be named in the application is a public officer or public employee in this state;
(11) the name of each state in which the applicant is or has been licensed to manufacture, distribute, or supply bingo equipment or supplies, each license number, the period of time licensed under each license, and whether a license was revoked, suspended, withdrawn, canceled, or surrendered and, if so, the reasons for the action taken;
(12) information regarding whether the applicant or a person required to be named in the application is or has been a professional gambler or gambling promoter;
(13) the name and address of each manufacturer, supplier, or distributor of bingo equipment or supplies in which the applicant or a person required to be named in the application is an owner, officer, shareholder, director, agent, or employee; and
(14) any other information the commission requests. (V.A.C.S. Art. 179d, Sec. 13b(b).)
Sec. 2001.209. DISTRIBUTOR'S LICENSE FEE. (a) The annual distributor's license fee is $1,000.
(b) In addition to the annual license fee, the commission may require an additional fee in an amount necessary to defray the cost of a background investigation of the applicant, including the inspection of storage, distribution, or operating locations. The commission by rule may establish the conditions and procedure for payment of the additional fee. (V.A.C.S. Art. 179d, Sec. 13b(d).)
Sec. 2001.210. GENERAL PROVISIONS. A license issued under this subchapter is subject to the restrictions under this subchapter. (V.A.C.S. Art. 179d, Sec. 13c(a).)
Sec. 2001.211. AMENDMENT OF APPLICATION. (a) An applicant for a manufacturer's or distributor's license shall, during pendency of the application, notify the commission immediately of any change relating to a fact stated in the application.
(b) If a change occurs after issuance of a manufacturer's or distributor's license, the license holder shall report the change to the commission not later than the 10th day after the date of the change.
(c) Not later than the 10th day after the date of the change, a license holder shall notify the commission of a change in:
(1) the license holder's organization, structure, or mode of operation;
(2) the identity of persons named or required to be named in the application and the nature or extent of those persons' interest; or
(3) any other facts stated in the application.
(d) Failure to give a notice required under this section is cause for denial, suspension, or revocation of a license. (V.A.C.S. Art. 179d, Sec. 13c(f).)
Sec. 2001.212. DENIAL OF LICENSE. The commission may deny an application for or renewal of a license for a cause that would permit or require the suspension or revocation of the license. (V.A.C.S. Art. 179d, Sec. 13c(g).)
Sec. 2001.213. COMMISSION ACTION NOT REQUIRED. If, for reasons beyond the control of the commission, sufficient information is not available to allow the commission to determine the eligibility of an applicant for a manufacturer's or distributor's license issued under this chapter, the commission is not required to take action on the application until the applicant provides the required information. (V.A.C.S. Art. 179d, Sec. 13c(h).)
Sec. 2001.214. LICENSE TERM. A manufacturer's or distributor's license is effective for one year unless revoked or suspended by the commission. (V.A.C.S. Art. 179d, Sec. 13c(b).)
Sec. 2001.215. RECORDS AND REPORTS. The commission by rule may require a holder of a manufacturer's or distributor's license to keep records and file reports. (V.A.C.S. Art. 179d, Sec. 13c(c).)
Sec. 2001.216. EXAMINATION OF RECORDS. (a) The commission may examine the books and records of the holder of or an applicant for a manufacturer's or distributor's license.
(b) The commission may not disclose information obtained during the examination except as necessary to carry out this chapter. (V.A.C.S. Art. 179d, Sec. 13c(d).)
Sec. 2001.217. OFFENSE. A person who does not hold a manufacturer's or distributor's license commits an offense if the person sells or attempts to induce the sale of bingo equipment or supplies to a licensed authorized organization. (V.A.C.S. Art. 179d, Sec. 13c(e).)
Sec. 2001.218. PAYMENT DUE. (a) Each sale of bingo supplies or equipment to a license holder under this chapter must be on terms of immediate payment or on terms requiring payment not later than the 30th day after the date of actual delivery.
(b) If a payment is not made when due, the seller shall immediately notify the commission. The commission shall notify all manufacturers and distributors licensed in this state of the default.
(c) In the event of a default, a person may not sell or transfer bingo equipment or supplies to the purchaser in default on terms other than immediate payment on delivery until otherwise authorized by the commission. (V.A.C.S. Art. 179d, Sec. 13c(i).)
[Sections 2001.219-2001.250 reserved for expansion]
SUBCHAPTER F. SYSTEM SERVICE PROVIDER LICENSE
Sec. 2001.251. LICENSE REQUIRED. A person may not sell or supply automated bingo services for the use of a licensed authorized organization unless the person holds a system service provider license under this subchapter. (V.A.C.S. Art. 179d, Sec. 13e(a).)
Sec. 2001.252. ELIGIBILITY FOR SYSTEM SERVICE PROVIDER LICENSE. A person is not eligible for a license under this subchapter if the person:
(1) has been convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, or community supervision served for the offense;
(2) is an owner, officer, or director of a licensed commercial lessor; or
(3) holds another license under this chapter. (V.A.C.S. Art. 179d, Secs. 13e(c), (e).)
Sec. 2001.253. SYSTEM SERVICE PROVIDER LICENSE APPLICATION. (a) An applicant for a system service provider license must file with the commission a written application that includes:
(1) the name and address of the applicant;
(2) if the applicant:
(A) is not a corporation, the name and address of each owner; or
(B) is a corporation, the name and address of each officer and director and each person owning 10 percent or more of a class of stock in the corporation;
(3) information regarding whether the applicant or a person who is required to be named in the application has been convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude; and
(4) information regarding whether the applicant or a person required to be named in the application is an owner, officer, director, shareholder, agent, or employee of a licensed commercial lessor.
(b) A system service provider is subject to the licensing provisions for manufacturers and distributors under Sections 2001.201, 2001.203, and 2001.208. (V.A.C.S. Art. 179d, Secs. 13e(b), (g).)
Sec. 2001.254. LICENSE FEE. The annual system service provider license fee is $1,000 plus any cost incurred to conduct a criminal background check. (V.A.C.S. Art. 179d, Sec. 13e(d).)
Sec. 2001.255. LICENSE REVOCATION. The commission shall revoke the license of a system service provider if within the license period a disqualification under this subchapter occurs. (V.A.C.S. Art. 179d, Sec. 13e(f).)
Sec. 2001.256. COMMISSION'S INSPECTION POWER. (a) The commission may inspect the services of a system service provider after receiving a complaint regarding those services.
(b) A system service provider shall provide information sufficient to the commission regarding a complaint. (V.A.C.S. Art. 179d, Sec. 13e(h).)
Sec. 2001.257. POWERS OF SYSTEM SERVICE PROVIDER. (a) A system service provider may use bar codes on bingo paper as a means of providing accurate tracking, registering, and accounting.
(b) A system service provider may purchase goods or services from a licensed manufacturer. (V.A.C.S. Art. 179d, Secs. 13e(i), (j).)
[Sections 2001.258-2001.300 reserved for expansion]
SUBCHAPTER G. GENERAL PROVISIONS RELATING TO COMMISSION
LICENSES
Sec. 2001.301. LICENSE INVESTIGATION. Promptly after the filing of the application for a license under this chapter, the commission shall investigate the qualifications of each applicant and the merits of the application. (V.A.C.S. Art. 179d, Sec. 13(a).)
Sec. 2001.302. PROVISION OF SUPPLEMENTAL INFORMATION. (a) In addition to any required application form, a license applicant or license holder shall submit any supplemental information requested by the commission.
(b) The commission may deny a license application or revoke a license based on a failure to submit requested supplemental information when required. (V.A.C.S. Art. 179d, Sec. 12(f).)
Sec. 2001.303. ACCESS TO INTERNAL REVENUE SERVICE INFORMATION; OFFENSE. (a) Under a contract between the comptroller and the Internal Revenue Service, the commission may obtain from the Internal Revenue Service information relating to a person's qualification for a license under this chapter regarding:
(1) an operator of a bingo occasion or an applicant to act as an operator; or
(2) a licensed commercial lessor or an applicant for a license to act as a commercial lessor.
(b) Information received by the commission from the Internal Revenue Service is confidential and may only be used as provided by the contract under which the information was obtained.
(c) A person commits an offense if the person releases or discloses information obtained under this section except on court order. An offense under this subsection is a Class A misdemeanor.
(d) The comptroller shall adopt rules governing the custody and use of information obtained under this section. (V.A.C.S. Art. 179d, Sec. 13f.)
Sec. 2001.304. TEMPORARY AUTHORIZATION. (a) The commission shall issue a temporary authorization for the activity requested if a license for the activity is not issued or denied before the 31st day after the earliest date on which each of the following has occurred:
(1) the filing of an application for the license;
(2) the payment of the proper license fee;
(3) the filing of a copy of a tax exemption statement issued by the Internal Revenue Service under Section 501(c), Internal Revenue Code of 1986, if required; and
(4) the completion of a criminal background investigation.
(b) A temporary authorization is effective for not more than 60 days, subject to automatic revocation, if a denial letter is issued.
(c) The commission may extend the effective period of the temporary authorization on written request filed before the end of the period.
(d) A temporary authorization may not be effective for more than one year from the date of its original issuance. (V.A.C.S. Art. 179d, Secs. 13(b), (h) (part).)
Sec. 2001.305. NOTICE TO LOCAL AUTHORITIES. (a) The commission may not issue a license to an applicant for an authorized organization license or a commercial lessor license until the applicant has sent a copy of the license application to the appropriate governing body.
(b) Immediately after receiving a license, a license holder shall send a copy of the license to the appropriate governing body. The governing body shall file the copy of the license in a central file containing licenses issued under this chapter.
(c) Not later than the 10th day after the date a license is issued, the license holder shall give written notice of the issuance of the license to:
(1) the police department of the municipality in which bingo will be conducted, if bingo is to be conducted in a municipality; or
(2) the sheriff of the county in which bingo will be conducted, if bingo is to be conducted outside a municipality.
(d) Bingo may not be played until notification has been given under Subsections (b) and (c). (V.A.C.S. Art. 179d, Secs. 12(e), 13(i).)
Sec. 2001.306. AMENDMENT OF LICENSE. (a) A license issued under this chapter may be amended on application to the commission and on payment of a $10 fee if the subject matter of the proposed amendment could properly have been included in the original license.
(b) An amended license is effective only for the period remaining under the original license.
(c) The holder of a license to conduct bingo may not change the location at which it conducts bingo until it has:
(1) surrendered its original license; and
(2) received an amended license.
(d) The holder of a license to conduct bingo shall notify the commission before changing the time or date of a game. The license holder may provide notice to the commission regarding the change by use of telephone or facsimile.
(e) The commission by rule shall provide a method for a license holder to pay the amendment fee required by Subsection (a). (V.A.C.S. Art. 179d, Secs. 14(b), (c), (d), (e).)
Sec. 2001.307. MAXIMUM LICENSE TERM. A license issued under this chapter may not be effective for more than one year. (V.A.C.S. Art. 179d, Sec. 13(h) (part).)
Sec. 2001.308. PAPERWORK REDUCTION. The commission may not require a person who has held a license under this chapter for five or more years to complete a license renewal application that is more than two pages long. (V.A.C.S. Art. 179d, Secs. 45, 46.)
Sec. 2001.309. SEPARATE LICENSE. Each location for conducting bingo must be separately licensed. (V.A.C.S. Art. 179d, Sec. 15(d).)
Sec. 2001.310. DISPLAY OF LICENSE. (a) A licensed authorized organization or licensed commercial lessor shall conspicuously display a license issued under this chapter and a license to lease premises for conducting bingo at the premises at which bingo is conducted at all times during the conduct of bingo.
(b) Each commercial lessor license shall contain a statement of the name and address of the license holder and the address of the premises. (V.A.C.S. Art. 179d, Secs. 15(b), (c).)
Sec. 2001.311. RIGHTS NOT VESTED. The issuance of a license or temporary authorization by the commission does not grant a vested right in the license, the temporary authorization, or the privileges conferred. (V.A.C.S. Art. 179d, Sec. 13(k).)
Sec. 2001.312. FAILURE TO FILE TAX OR FEE REPORTS. A person is not eligible for a license or a license renewal unless all required reports, tax returns, and requested information have been filed under this chapter. (V.A.C.S. Art. 179d, Sec. 23(d).)
[Sections 2001.313-2001.350 reserved for expansion]
SUBCHAPTER H. DENIAL, REVOCATION, AND SUSPENSION
OF LICENSE
Sec. 2001.351. DENIAL OF LICENSE. The commission may deny an application for a license or renewal of a license issued under this chapter for a cause that would permit or require the suspension or revocation of a license issued under this chapter. (V.A.C.S. Art. 179d, Sec. 13(m).)
Sec. 2001.352. HEARING. (a) A person whose application for a license is denied by the commission may make a written request for a hearing. At the hearing the applicant is entitled to be heard on the qualifications of the applicant and the merits of the application.
(b) The burden of proof is on the applicant to establish by a preponderance of the evidence its eligibility for a license. (V.A.C.S. Art. 179d, Sec. 14(a).)
Sec. 2001.353. SUSPENSION OR REVOCATION OF LICENSE. After a hearing, the commission may suspend or revoke a license issued under this chapter for:
(1) failure to comply with this chapter or a commission rule; or
(2) a reason that would allow or require the commission to refuse to issue or renew a license of the same class. (V.A.C.S. Art. 179d, Sec. 16(d).)
Sec. 2001.354. FINAL HEARING. (a) The commission shall hold a final hearing on the suspension or revocation of a license, if requested by the license holder, not later than the 30th day after the date the commission receives written notice of the request.
(b) A final hearing on suspension or revocation is governed by the same rules as a hearing on any other suspension or revocation under this chapter. (V.A.C.S. Art. 179d, Sec. 16(g) (part).)
Sec. 2001.355. TEMPORARY SUSPENSION. (a) The commission may temporarily suspend a license issued under this chapter for failure to comply with this chapter or a commission rule.
(b) Before temporarily suspending a license, the director of bingo operations must follow any prehearing rules adopted by the commission to determine if the license holder's continued operation may constitute an immediate threat to the health, safety, morals, or welfare of the public.
(c) Chapter 2001, Government Code, does not apply to the director of bingo operations or to the commission in the enforcement and administration of a temporary suspension under this section. (V.A.C.S. Art. 179d, Sec. 16(e).)
Sec. 2001.356. NOTICE OF TEMPORARY SUSPENSION. (a) A proceeding to temporarily suspend a license issued under this chapter is initiated by the director of bingo operations by serving notice to the license holder informing the holder of:
(1) the alleged violations that constitute grounds for temporary suspension;
(2) the rules adopted by the commission regarding the prehearing temporary suspension process; and
(3) the license holder's right to a hearing before the commission.
(b) The notice must be:
(1) personally served on an officer, operator, or agent of the license holder; or
(2) sent by certified or registered mail, return receipt requested, to the license holder's mailing address as it appears on the commission's records.
(c) If a notice of temporary suspension is served on a license holder, the director of bingo operations shall simultaneously serve notice of a hearing, to be held not later than the 10th day after the date the notice is served, at which the license holder must show cause why the license should not be temporarily suspended on the 10th day after the date the notice is served. If the license holder does not show cause, the license is suspended. (V.A.C.S. Art. 179d, Secs. 16(f), (g) (part).)
Sec. 2001.357. JUDICIAL REVIEW. (a) An applicant for or the holder of a license issued or to be issued under this chapter whose application has been denied, whose license has been revoked or suspended, or who is otherwise aggrieved by an action of the commission relating to licensing under this chapter may appeal the decision of the commission to a district court in Travis County not later than the 30th day after the date on which the commission's decision becomes final and appealable.
(b) Judicial review of a commission decision is under the substantial evidence rule as provided by Chapter 2001, Government Code. (V.A.C.S. Art. 179d, Sec. 34.)
[Sections 2001.358-2001.400 reserved for expansion]
SUBCHAPTER I. OPERATION OF BINGO
Sec. 2001.401. RESTRICTIONS ON PREMISES PROVIDERS. A person may not, for direct or indirect consideration, lease or otherwise make a premises available for conducting bingo unless the person is:
(1) a licensed commercial lessor; or
(2) a person who leases or otherwise makes available premises to an organization that has been issued a temporary license. (V.A.C.S. Art. 179d, Sec. 11(b).)
Sec. 2001.402. SINGLE PREMISES. (a) Bingo may not be conducted at more than one premises on property owned or leased by a licensed authorized organization.
(b) The commission may not license more than two affiliated organizations to conduct bingo at the same premises.
(c) No more than seven licensed authorized organizations may conduct bingo at the same premises. (V.A.C.S. Art. 179d, Secs. 11(i), (j); 18 (part).)
Sec. 2001.403. COMMON ROOF OR FOUNDATION. (a) Except as provided by this section, no more than one bingo premises may exist under a common roof or over a common foundation.
(b) This section does not apply if more than one premises lawfully exists under a common roof or over a common foundation under a license application filed with the commission on or before May 23, 1997. The commission shall renew a license at the premises that is otherwise in compliance with this chapter.
(c) Subsection (b) does not apply if a premises under a common roof or over a common foundation ceases to lawfully exist. (V.A.C.S. Art. 179d, Sec. 13(v).)
Sec. 2001.404. PRINCIPAL LOCATION. A licensed authorized organization may conduct bingo only in:
(1) the county where the organization has its primary business office; or
(2) if the organization has no business office, in the county of the principal residence of its chief executive officer. (V.A.C.S. Art. 179d, Sec. 11(m).)
Sec. 2001.405. PROHIBITED RENTAL PAYMENTS. Bingo may not be conducted at a leased premises if rental under the lease is to be paid, in whole or part, on the basis of a percentage of the receipts or net proceeds derived from the operation of the game or by reference to the number of people attending a game. (V.A.C.S. Art. 179d, Sec. 11(c).)
Sec. 2001.406. RENT FOR PREMISES. (a) The rent charged by a licensed commercial lessor to a licensed authorized organization to conduct bingo may not exceed $600 for each bingo occasion conducted on the lessor's premises unless the organization subleases the premises to one or more other licensed authorized organizations to conduct bingo, in which event the rent charged by the licensed commercial lessor may not exceed $600 for each day.
(b) Rent for premises used for the conduct of bingo must be paid in a lump sum. The lump sum must include all expenses authorized by Section 2001.458 that are paid by the licensed authorized organization to the lessor in connection with the use of the premises.
(c) This section does not apply to the rent charged under a lease or other contract in existence on May 31, 1989, and on file with the comptroller on that date but does apply to the rent charged under a renewal of or extension of that lease or other contract. (V.A.C.S. Art. 179d, Secs. 11a(a), (b), (c) (part).)
Sec. 2001.407. EQUIPMENT AND SUPPLY TRANSACTIONS. (a) A licensed manufacturer may furnish, by sale or otherwise, bingo equipment or supplies to a licensed distributor. Except as provided by Section 2001.257(b), a licensed manufacturer may not furnish, by sale or otherwise, bingo equipment or supplies to a person other than a licensed distributor.
(b) A licensed distributor may not furnish by sale, lease, or otherwise, bingo equipment or supplies to a person other than a licensed authorized organization, another licensed distributor, or a person authorized to conduct bingo under Section 2001.551(b)(3) or (4). A sale of bingo equipment or supplies authorized by this section must be made on terms requiring immediate payment or payment not later than the 30th day after the date of actual delivery.
(c) A licensed distributor may not receive by purchase or otherwise bingo equipment or supplies from a person other than a licensed manufacturer or another licensed distributor.
(d) A licensed authorized organization may lease or purchase electronic or mechanical card-minding devices, pull-tab dispensers, bingo machines, consoles, blowers, and flash boards directly from a licensed distributor.
(e) Except for a purchase made by a licensed authorized organization under Subsection (f), a licensed authorized organization or a person authorized to conduct bingo under Section 2001.551(b)(3) or (4) may not obtain by purchase or otherwise bingo equipment or supplies from a person other than a licensed distributor.
(f) With the prior written consent of the commission, a licensed authorized organization may make an occasional sale of bingo cards or of a used bingo flash board or blower to another licensed authorized organization. (V.A.C.S. Art. 179d, Secs. 11(n), (o), (r), (s), (t), (y).)
Sec. 2001.408. OTHER METHODS FOR PLAYING BINGO. Subject to the commission's rules, bingo may be played using a pull-tab bingo ticket. (V.A.C.S. Art. 179d, Sec. 11(u).)
Sec. 2001.409. CARD-MINDING DEVICES. (a) A person may not use a card-minding device:
(1) to generate or determine the random letters, numbers, or other symbols used in playing the bingo card played with the device's assistance;
(2) as a receptacle for the deposit of tokens or money in payment for playing the bingo card played with the device's assistance; or
(3) as a dispenser for the payment of a bingo prize, including coins, paper currency, or a thing of value for the bingo card played with the device's assistance.
(b) Not more than 40 percent of the individuals attending a bingo occasion, based on the average of two previously submitted quarterly reports, may use electronic or mechanical card-minding devices. This subsection does not apply to pull-tab bingo. (V.A.C.S. Art. 179d, Sec. 11(v).)
Sec. 2001.410. PULL-TAB DISPENSER. (a) A person may not use a pull-tab dispenser:
(1) to generate or determine the random letters, numbers, or other symbols used in playing bingo;
(2) to affect the chances of winning at bingo; or
(3) as a dispenser for the payment of a bingo prize, including coins, paper currency, or a thing of value for the game played.
(b) The price of a pull-tab ticket sold by a pull-tab dispenser may not exceed $1.
(c) Not more than five pull-tab dispensers may be operated on one premises.
(d) A bingo game representation or combination of bingo games must be shown on a ticket dispensed from a pull-tab dispenser. (V.A.C.S. Art. 179d, Secs. 2(24) (part); 11(w), (x).)
Sec. 2001.411. PERSONS OPERATING OR CONDUCTING BINGO. (a) Except as provided by this section, a person other than a bona fide member of a licensed authorized organization may not conduct, promote, or administer, or assist in conducting, promoting, or administering, bingo.
(b) Only an active member of a licensed authorized organization may be an operator responsible for conducting, promoting, or administering bingo.
(c) A person may not assist in conducting, promoting, or administering bingo except a person who is:
(1) an active member of the licensed authorized organization;
(2) a member of an organization that is an auxiliary to the licensed authorized organization;
(3) a member of an organization of which the licensed authorized organization is an auxiliary;
(4) a member of an organization that is affiliated with the licensed authorized organization by being, with it, auxiliary to another organization; or
(5) a bookkeeper, an accountant, a cashier, an usher, or a caller.
(d) The commission, without regard to a person's membership status in a licensed authorized organization, by rule may restrict involvement in the conduct, promotion, or administration of bingo by:
(1) a licensed commercial lessor;
(2) a person having an interest in or who is active in a licensed commercial lessor; or
(3) a person related in the first degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to a person having an interest in or active in a licensed commercial lessor. (V.A.C.S. Art. 179d, Secs. 11(g); 19(a), (d).)
Sec. 2001.412. ADMISSION TO BINGO GAMES. A person may not be denied admission to a bingo game or the opportunity to participate in a game because of race, color, creed, religion, national origin, sex, or disability or because the person is not a member of the licensed authorized organization conducting the bingo game. (V.A.C.S. Art. 179d, Sec. 11(h).)
Sec. 2001.413. ADMISSION CHARGE REQUIRED. A licensed authorized organization may not offer or provide to a person the opportunity to play bingo without charge. (V.A.C.S. Art. 179d, Sec. 11(l) (part).)
Sec. 2001.414. BINGO RECORDS. (a) The commission by rule may provide for different recordkeeping procedures for licensed authorized organizations by class based on the amount of gross receipts of the organization.
(b) An organization conducting bingo must record on a cash register all transactions for which it receives bingo gross receipts in conformance with commission rules relating to transaction recording specifications. (V.A.C.S. Art. 179d, Secs. 11(l) (part), 19a(j).)
Sec. 2001.415. ADVERTISEMENTS. (a) A person other than a licensed authorized organization or the commission may not advertise bingo.
(b) A licensed authorized organization or the commission may include in an advertisement or promotion the amount of a prize or series of prizes offered at a bingo occasion. (V.A.C.S. Art. 179d, Sec. 11(p).)
Sec. 2001.416. OTHER GAMES. (a) A game of chance other than bingo or a raffle conducted under Chapter 2002 may not be conducted or allowed during a bingo occasion.
(b) A person authorized to conduct a raffle under this section must be a member of a licensed authorized organization as provided by Section 2001.411.
(c) The commission shall adopt rules for the implementation of this section.
(d) This section does not prohibit the exhibition and play of an amusement machine that is not a gambling device as defined by Section 47.01, Penal Code. (V.A.C.S. Art. 179d, Sec. 11(k).)
Sec. 2001.417. TOLL-FREE HELP. (a) The toll-free telephone number operated by the Problem Gamblers' Help Line of the Texas Council on Problem and Compulsive Gambling must be prominently displayed on each card-minding device and pull-tab dispenser.
(b) The commission shall require the license holder to prominently post the toll-free telephone number established by the Texas Commission on Alcohol and Drug Abuse under Section 461.018, Health and Safety Code, on signs provided by the Texas Council on Problem and Compulsive Gambling near the exit and at other appropriate places on the premises during each bingo occasion. (V.A.C.S. Art. 179d, Secs. 11(z), 13c(k).)
Sec. 2001.418. MINORS. (a) An individual younger than 18 years of age may not play bingo conducted under a license issued under this chapter unless the individual is accompanied by the individual's parent or guardian.
(b) A license holder may prohibit all individuals younger than 18 years of age or individuals of an age younger than 18 years of age as determined by the license holder from entering the licensed premises by posting a written notice to that effect at the premises.
(c) An individual younger than 18 years of age may not conduct or assist in the conduct of bingo under this chapter. (V.A.C.S. Art. 179d, Sec. 17.)
Sec. 2001.419. BINGO OCCASIONS. (a) A bingo occasion begins when the premises are opened to the public.
(b) A licensed authorized organization may not conduct a bingo occasion more often than three days during a calendar week and not to exceed more than four hours during a 24-hour period.
(c) A licensed authorized organization may conduct two bingo occasions during a 24-hour period. No more than two bingo occasions may be conducted at the same premises during one day except that a third bingo occasion may be conducted under a temporary license held by a licensed authorized organization at that premises.
(d) No more than two licensed authorized organizations may conduct bingo at the same premises during a 24-hour period. If two organizations conduct bingo at the same premises during a 24-hour period, the bingo occasions must be announced separately, and an intermission of at least 10 minutes must occur between the bingo occasions.
(e) If two licensed authorized organizations are authorized to conduct bingo at the same premises on the same day, the bingo occasion of one organization may overlap with the bingo occasion of the other organization, but their games must be separated by the intermission required under Subsection (d). In that event, the intermission is considered part of each organization's bingo occasion. (V.A.C.S. Art. 179d, Secs. 2(23) (part), 18 (part).)
Sec. 2001.420. PRIZES. (a) A bingo prize may not have a value of more than $750 for a single game.
(b) For bingo games other than pull-tab bingo, a person may not offer or award on a single bingo occasion prizes with an aggregate value of more than $2,500.
(c) A licensed authorized organization or other person may not award or offer to award a door prize with a value of more than $250. (V.A.C.S. Art. 179d, Secs. 11(e), (f), (q).)
[Sections 2001.421-2001.450 reserved for expansion]
SUBCHAPTER J. BINGO ACCOUNTS AND USE OF PROCEEDS
Sec. 2001.451. ORGANIZATION BINGO ACCOUNTS. (a) A licensed authorized organization shall establish and maintain one regular checking account designated as the "bingo account." The organization may also maintain an interest-bearing savings account designated as the "bingo savings account."
(b) A licensed authorized organization shall deposit in the bingo account all funds derived from the conduct of bingo, less the amount awarded as cash prizes under Sections 2001.420(a) and (b). A deposit must be made not later than the next business day after the day of the bingo occasion on which the receipts were obtained.
(c) A licensed authorized organization may lend money from its general fund to its bingo account if the organization requests and receives the prior approval of the commission. Except as provided by this section, no other funds may be deposited in the bingo account.
(d) A licensed authorized organization may not commingle gross receipts derived from the conduct of bingo with other funds of the organization.
(e) Except as permitted by Sections 2001.453(a)(2) and (3), the licensed authorized organization may not transfer gross receipts to another account maintained by the organization.
(f) A licensed authorized organization shall maintain all of its savings and checking accounts in a financial institution in this state. (V.A.C.S. Art. 179d, Secs. 19a(a), (g).)
Sec. 2001.452. BINGO ACCOUNT WITHDRAWALS. (a) Funds from the bingo account must be withdrawn by preprinted, consecutively numbered checks or withdrawal slips, signed by an authorized representative of the licensed authorized organization and made payable to a person. A check or withdrawal slip may not be made payable to "cash," "bearer," or a fictitious payee. The nature of the payment made must also be noted on the face of the check or withdrawal slip.
(b) The checks for the bingo account must be imprinted with the words "Bingo Account" and must contain the organization's bingo license number on the face of each check.
(c) A licensed authorized organization shall keep and account for all checks and withdrawal slips, including voided checks and withdrawal slips. (V.A.C.S. Art. 179d, Sec. 19a(b).)
Sec. 2001.453. AUTHORIZED USES OF BINGO ACCOUNT. (a) A licensed authorized organization may draw a check on its bingo account only for:
(1) the payment of necessary and reasonable bona fide expenses, including compensation of personnel, as permitted under Section 2001.458 incurred and paid in connection with the conduct of bingo;
(2) the disbursement of net proceeds derived from the conduct of bingo to charitable purposes; or
(3) the transfer of net proceeds derived from the conduct of bingo to the organization's bingo savings account pending a disbursement to a charitable purpose.
(b) A licensed authorized organization must make the disbursement of net proceeds on deposit in the bingo savings account to a charitable purpose by transferring the intended disbursement back into the organization's bingo account and then withdrawing an amount by a check drawn on the bingo account. (V.A.C.S. Art. 179d, Secs. 19a(c), (e).)
Sec. 2001.454. USE OF NET PROCEEDS FOR CHARITABLE PURPOSES. (a) A licensed authorized organization shall devote to a charitable purpose its net proceeds of bingo and any rental of premises.
(b) The net proceeds derived from bingo are dedicated to a charitable purpose only if directed to a cause, deed, or activity that:
(1) benefits an indefinite number of needy or deserving persons in this state by:
(A) enhancing their opportunity for religious or educational advancement;
(B) relieving them from disease, suffering, or distress;
(C) contributing to their physical well-being;
(D) assisting them in establishing themselves in life as worthy and useful citizens; or
(E) increasing their comprehension of and devotion to the principles on which this nation was founded and enhancing their loyalty to their government; or
(2) initiates, performs, or fosters worthy public works in this state or enables or furthers the erection or maintenance of public structures in this state. (V.A.C.S. Art. 179d, Secs. 2(9) (part), 11(d).)
Sec. 2001.455. USE OF PROCEEDS BY RECIPIENT. A person given bingo proceeds for a charitable purpose may not use the donation:
(1) to pay for services rendered or materials purchased in connection with the conduct of bingo by the donor organization; or
(2) for a purpose that would not constitute a charitable purpose if the activity were conducted by the donor organization. (V.A.C.S. Art. 179d, Sec. 19a(f).)
Sec. 2001.456. USE OF PROCEEDS BY LICENSED AUTHORIZED ORGANIZATION. A licensed authorized organization may not use the net proceeds from bingo directly or indirectly to:
(1) support or oppose a candidate or slate of candidates for public office;
(2) support or oppose a measure submitted to a vote of the people; or
(3) influence or attempt to influence legislation. (V.A.C.S. Art. 179d, Sec. 19a(i).)
Sec. 2001.457. REQUIRED DISBURSEMENTS TO CHARITY. (a) Before the end of each quarter, a licensed authorized organization shall disburse for charitable purposes an amount not less than 35 percent of the organization's adjusted gross receipts from the preceding quarter, less the amount of authorized expenses not to exceed six percent of the gross receipts.
(b) If a licensed authorized organization fails to meet the requirements of this section for a quarter, the commission in applying appropriate sanctions may consider whether, taking into account the amount required to be distributed during that quarter and the three preceding quarters and the charitable distributions for each of those quarters, the organization has distributed a total amount sufficient to have met the 35 percent requirement for that quarter and the three preceding quarters combined.
(c) A licensed authorized organization that has ceased to conduct bingo for any reason and that has unexpended bingo funds shall disburse those funds to charitable purposes before the end of the next calendar quarter after the calendar quarter in which the organization ceases to conduct bingo.
(d) In this section:
(1) "Adjusted gross receipts" means gross receipts less the amount of cost of goods purchased by an organization and prizes paid in the preceding quarter; and
(2) "Cost of goods purchased by an organization" means the cost of bingo paper or pull-tab bingo tickets purchased by the organization. (V.A.C.S. Art. 179d, Secs. 19a(h), (k).)
Sec. 2001.458. ITEMS OF EXPENSE. (a) An item of expense may not be incurred or paid in connection with the conduct of bingo except those expenses that are reasonable and necessarily expended for:
(1) advertising;
(2) security;
(3) repairs to premises and equipment;
(4) bingo supplies and equipment;
(5) prizes;
(6) stated rental or mortgage and insurance expenses;
(7) bookkeeping, legal, or accounting services related to bingo;
(8) fees in amounts authorized by the commission for callers, cashiers, ushers, janitorial services, and utility supplies and services; and
(9) license fees.
(b) The value of health insurance or a health benefit provided by a licensed authorized organization to an employee is not included under Subsection (a)(8). (V.A.C.S. Art. 179d, Sec. 19(c).)
Sec. 2001.459. EXPENSES PAID FROM BINGO ACCOUNT. (a) The following items of expense incurred or paid in connection with the conduct of bingo must be paid from an organization's bingo account:
(1) advertising;
(2) security during a bingo occasion;
(3) the purchase or repair of bingo supplies and equipment;
(4) prizes, other than authorized cash prizes;
(5) stated rental expenses;
(6) bookkeeping, legal, or accounting services;
(7) fees for callers, cashiers, and ushers;
(8) janitorial services;
(9) license fees; and
(10) payment for services provided by a system service provider.
(b) Payment for a service under Subsection (a)(10) may be paid from an organization's gross receipts. (V.A.C.S. Art. 179d, Sec. 19a(d).)
[Sections 2001.460-2001.500 reserved for expansion]
SUBCHAPTER K. TAXES AND PRIZE FEES
Sec. 2001.501. GROSS RENTALS TAX. (a) A tax is imposed on the rental of premises for the conduct of bingo under this chapter.
(b) The tax rate is three percent of the gross rentals received by a licensed commercial lessor or other licensed authorized organization for the rental of premises on which bingo is conducted. (V.A.C.S. Art. 179d, Secs. 2B(a), (b).)
Sec. 2001.502. PRIZE FEE. A licensed authorized organization shall collect from a person who wins a bingo prize a fee in the amount of five percent of the amount or value of the prize. (V.A.C.S. Art. 179d, Secs. 19b(a), (b).)
Sec. 2001.503. LOCAL SHARE OF PRIZE FEE. (a) Except as provided by Subsection (c), a county that imposed a gross receipts tax on the conduct of bingo as of January 1, 1993, is entitled to 50 percent of the fee collected under Section 2001.502 on a prize awarded at a game conducted in the county.
(b) Except as provided by Subsection (c), a municipality that imposed a gross receipts tax on the conduct of bingo as of January 1, 1993, is entitled to 50 percent of the fee collected under Section 2001.502 on a prize awarded at a game conducted in the municipality.
(c) If a county and municipality are both entitled to a share of the fee imposed by Section 2001.502:
(1) the county is entitled to 25 percent of the fee on a prize awarded at a game conducted in the county; and
(2) the municipality is entitled to 25 percent of the fee on a prize awarded at a game conducted in the municipality. (V.A.C.S. Art. 179d, Sec. 19c.)
Sec. 2001.504. PAYMENT AND REPORTING OF TAX OR FEE. (a) A tax or fee authorized or imposed under this subchapter is due and is payable by the license holder or a person conducting bingo without a license to the commission quarterly on or before the 15th day of the month succeeding each calendar quarter.
(b) The report of a tax or fee must be filed under oath on forms prescribed by the commission.
(c) The commission shall adopt rules for the payment of the taxes and fees.
(d) A license holder required to file a tax return shall deliver the quarterly return with the net amount of the tax due to the commission.
(e) The commission shall deposit the revenue collected under this section to the credit of the general revenue fund. (V.A.C.S. Art. 179d, Secs. 2B(c), (d); 19b(c); 20; 25.)
Sec. 2001.505. REPORT OF EXPENSES. (a) A licensed authorized organization conducting bingo shall submit quarterly to the commission and to the comptroller a report under oath stating:
(1) the amount of the gross receipts derived from bingo;
(2) each item of expense incurred or paid;
(3) each item of expenditure made or to be made, the name and address of each person to whom each item has been paid or is to be paid, and a detailed description of the merchandise purchased or the services rendered;
(4) the net proceeds derived from bingo;
(5) the use to which the proceeds have been or are to be applied; and
(6) a list of prizes offered and given, with their respective values.
(b) A license holder shall:
(1) maintain records to substantiate the contents of each report; and
(2) furnish a copy of each report to the appropriate governing body.
(c) The commission shall make a required report available to the comptroller as the comptroller directs. (V.A.C.S. Art. 179d, Secs. 23(a), (b), (c), (e).)
Sec. 2001.506. RECORD OF PRIZE WINNER. The commission by rule may require a licensed authorized organization to maintain records relating to each person to whom a prize is awarded at a bingo occasion. (V.A.C.S. Art. 179d, Sec. 23a.)
Sec. 2001.507. COLLECTION AND DISBURSEMENT OF PRIZE FEE. (a) The commission shall deposit the revenue collected from the fee on prizes imposed by Section 2001.502 to the credit of a special account in the general revenue fund.
(b) The commission shall determine the total amount of revenue deposited in the account from prizes awarded at games in a county or municipality entitled to a share under Section 2001.503.
(c) The commission shall send quarterly to a county or municipality entitled to a share of the fee on prizes the county's or municipality's share as provided by Section 2001.503.
(d) The commission shall transfer any remaining amounts in the account to a nondedicated account in the general revenue fund.
(e) The commission shall transmit a jurisdiction's share of the fee on prizes to the treasurer or the officer of the jurisdiction performing the functions of the treasurer's office payable to the jurisdiction. The amount transmitted may be used by the jurisdiction for any purpose for which the general funds of the jurisdiction may be used.
(f) The commission may retain in a jurisdiction's suspense account a portion of the jurisdiction's share of the fee on prizes collected under this chapter. The amount retained in the suspense account may not exceed five percent of the amount remitted to the jurisdiction. The commission may make refunds from the suspense account of a jurisdiction for overpayments made to those accounts and may redeem dishonored checks and drafts deposited to the credit of the jurisdiction's suspense account.
(g) If a jurisdiction entitled to a share of the fee on prizes prohibits the conduct of bingo under Sections 2001.651-2001.656, the commission may retain in the suspense account of the jurisdiction for one year five percent of the final remittance to that jurisdiction. The amount retained in the suspense account may be used to cover possible overpayment of the jurisdiction's portion of the fee and to redeem dishonored checks and drafts deposited to the credit of the account. One year after the effective date of the prohibition of bingo in the jurisdiction, the commission shall remit the balance in the account to the jurisdiction and close the account.
(h) Interest earned on all fees on prizes collected by the commission under this chapter before distribution to a local jurisdiction, including interest earned from the suspense accounts retained under this section, shall be credited to the general revenue fund. (V.A.C.S. Art. 179d, Sec. 26.)
Sec. 2001.508. PENALTIES FOR FAILURE TO PAY OR REPORT. (a) If a person fails to file a return as required by this chapter or fails to pay to the commission taxes imposed under this chapter when the return or payment is due, the person forfeits five percent of the amount due as a penalty, and after the first 30 days, the person forfeits an additional five percent.
(b) A delinquent tax accrues interest at the rate provided by Section 111.060, Tax Code, beginning on the 60th day after the due date. (V.A.C.S. Art. 179d, Sec. 29.)
Sec. 2001.509. RECOMPUTATION OF TAX. If the commission is not satisfied with a tax return or the amount of tax required to be remitted under this chapter to the state by a person, the commission may compute and determine the amount required to be paid on the basis of:
(1) the facts contained in the return or report of receipts and expenses; or
(2) any information possessed by the commission or that may come into the possession of the commission, without regard to the period covered by the information. (V.A.C.S. Art. 179d, Sec. 30.)
Sec. 2001.510. DETERMINATION IF NO RETURN MADE. (a) If a license holder fails to make a required return, or if a person conducts bingo without a license, the commission shall make an estimate of the prizes awarded at a bingo occasion or of the gross rentals received by a license holder for the rental of premises. The commission shall make the estimate for the period in respect to which the license holder or other person failed to make a return.
(b) The estimate shall be based on any information covering any period possessed by the commission or that may come into the possession of the commission.
(c) On the basis of the commission's estimate, the commission shall compute and determine the amount of taxes or fees required to be paid to the state and shall add to that amount a penalty of 10 percent of the amount.
(d) One or more determinations may be made under this section for one or more periods. (V.A.C.S. Art. 179d, Sec. 31.)
Sec. 2001.511. JEOPARDY DETERMINATION. (a) If the commission believes that the collection of a gross rental tax or fee on prizes, an amount of the tax or fee on prizes required to be remitted to the state, or the amount of a determination will be jeopardized by delay, the commission shall make a determination of the tax or fee on prizes or amount of the tax or fee required to be collected, noting the finding of jeopardy on the determination. The determined amount is due and payable immediately.
(b) If a license holder against whom the determination is made does not pay the amount specified by a determination on or before the 20th day after the date of service of the determination on the license holder, the amount becomes final at the end of the 20th day unless the license holder files a petition for redetermination on or before the 20th day after service of notice of the determination.
(c) A delinquency penalty of 10 percent of the tax or fee on prizes or amount of the tax or fee on prizes and interest at the rate of 10 percent a year attaches to the amount of the tax or fee on prizes or the amount of the tax or fee on prizes required to be collected. (V.A.C.S. Art. 179d, Sec. 32.)
Sec. 2001.512. APPLICATION OF TAX LAWS. (a) Subtitle B, Title 2, Tax Code, applies to the administration, collection, and enforcement of the gross rentals tax imposed under Section 2001.501 and the fee on prizes imposed under Section 2001.502 except as modified by this chapter.
(b) In applying the provisions of Subtitle B, Title 2, Tax Code, to the gross rentals tax imposed under Section 2001.501 and the fee on prizes imposed under Section 2001.502 only, the fee on prizes is treated as if it were a tax and the powers and duties assigned to the comptroller under that subtitle are assigned to the commission. (V.A.C.S. Art. 179d, Sec. 33.)
Sec. 2001.513. DELINQUENCY: SEIZURE AND SALE. (a) At any time within three years after a person is delinquent in the payment of an amount of gross rentals tax or fee on prizes, the commission may collect the amount under this section.
(b) The commission shall seize real or personal property of the license holder not exempt from execution under the laws of this state and sell the property, or a sufficient part of the property, at public auction to pay the amount due and interest or penalties caused by the seizure and sale.
(c) The commission shall give the delinquent person written notice of the sale, including the time and place of the sale, at least 20 days before the date set for the sale. The commission shall mail the notice, postage prepaid, in an envelope addressed to the person at the person's last known address or place of business.
(d) The commission shall publish the notice for at least 10 days before the date set for the sale in a newspaper of general circulation published in the county in which the property seized is to be sold. If there is no newspaper of general circulation in the county, the commission shall post the notice in three public places in the county at least 20 days before the date set for the sale.
(e) The notice must contain:
(1) a description of the property to be sold;
(2) a statement of the amount due, including interest, penalties, and costs;
(3) the name of the delinquent person; and
(4) a statement that unless the amount due, interest, penalties, and costs are paid on or before the time fixed in the notice for the sale, the property, or so much of it as may be necessary, will be sold in accordance with law and the notice.
(f) At the sale, the commission shall sell the property in accordance with law and the notice and shall deliver to the purchaser a bill of sale for personal property and a deed for real property sold. The bill of sale or deed vests the interest or title of the delinquent person for the amount in the purchaser. The unsold portion of property seized may be left at the place of sale at the risk of the delinquent person for the amount.
(g) Except as provided by Subsection (h), if the money received at the sale exceeds the total amounts, including interest, penalties, and costs due to the state, the commission shall return the excess money to the person liable for the amounts and shall obtain the person's receipt. If the receipt of the delinquent person for the amount is not available, the commission shall deposit the excess money with the comptroller, as trustee for the person, subject to the order of the person, or the person's heirs, successors, or assigns.
(h) If a person having an interest in or lien on the property files with the commission before the sale notice of the person's interest or lien, the commission shall withhold any excess money pending a court determination of the rights of the respective parties to the money. (V.A.C.S. Art. 179d, Sec. 37.)
Sec. 2001.514. SECURITY. (a) To secure payment of the tax on gross rentals or the fee on prizes imposed under this subchapter, each license holder shall furnish to the commission:
(1) a cash bond;
(2) a bond from a surety company chartered or authorized to do business in this state;
(3) certificates of deposit;
(4) certificates of savings;
(5) United States treasury bonds;
(6) subject to the approval of the commission, an assignment of negotiable stocks or bonds; or
(7) other security as the commission considers sufficient.
(b) The commission shall set the amount of the bond or other security, taking into consideration the amount of money that has or is expected to become due from the license holder. The amount required by the commission may not exceed three times the amount due according to the license holder's average quarterly reports.
(c) On a license holder's failure to pay the gross rentals tax or the fee on prizes imposed under this subchapter, the commission may notify the license holder and any surety of the delinquency by jeopardy or deficiency determination. If payment is not made when due, the commission may forfeit all or part of the bond or security.
(d) If the license holder ceases to conduct bingo and relinquishes the license holder's license, the commission shall authorize the release of all bonds and other security on a determination that no amounts of the gross rentals tax or the fee on prizes remain due and payable under this subchapter. (V.A.C.S. Art. 179d, Sec. 38.)
Sec. 2001.515. COMMISSION'S TAX DUTIES. The commission shall perform all functions incident to the administration, collection, enforcement, and operation of a tax imposed under this subchapter. (V.A.C.S. Art. 179d, Sec. 24.)
[Sections 2001.516-2001.550 reserved for expansion]
SUBCHAPTER L. ENFORCEMENT
Sec. 2001.551. UNLAWFUL BINGO; OFFENSE. (a) In this section, "bingo" or "game" means a specific game of chance, commonly known as bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random, whether or not a person who participates as a player furnishes something of value for the opportunity to participate.
(b) A person conducting, promoting, or administering bingo commits an offense if the person conducts, promotes, or administers bingo other than:
(1) under a license issued under this chapter;
(2) within the confines of a home for purposes of amusement or recreation when:
(A) no player or other person furnishes anything of more than nominal value for the opportunity to participate;
(B) participation in the game does not exceed 15 players; and
(C) the prizes awarded or to be awarded are nominal;
(3) on behalf of an organization of individuals 60 years of age or over, a senior citizens' association, a senior citizens' community center program operated or funded by a governmental entity, the patients in a hospital or nursing home, residents of a retirement home, or the patients in a Veteran's Administration medical center or a military hospital, solely for the purpose of amusement and recreation of its members, residents, or patients, when:
(A) no player or other person furnishes anything of more than nominal value for the opportunity to participate; and
(B) the prizes awarded or to be awarded are nominal; or
(4) on behalf of a business conducting the game for promotional or advertising purposes if:
(A) the game is conducted by or through a newspaper or a radio or television station;
(B) participation in the game is open to the general public and is not limited to customers of the business;
(C) playing materials are furnished without charge to a person on request; and
(D) no player is required to furnish anything of value for the opportunity to participate.
(c) An offense under Subsection (b) is a felony of the third degree.
(d) This section applies to a political subdivision regardless of local option status.
(e) A game exempted under Subsection (b)(2), (3), or (4) is not required to be licensed under this chapter.
(f) A game exempted under Subsection (b)(4) is subject to the following restrictions:
(1) a person licensed or required to be licensed under this chapter or having an interest in a license under this chapter may not be involved, directly or indirectly, in bingo, except that a licensed manufacturer or licensed distributor may sell or otherwise furnish bingo equipment or supplies for use in a game;
(2) a person conducting bingo may purchase or otherwise obtain bingo equipment or supplies through a newspaper, a radio or television station, or an advertising agency and, unless otherwise authorized by the commission, only from a licensed manufacturer or licensed distributor;
(3) a licensed manufacturer or licensed distributor may sell or otherwise furnish bingo equipment or supplies for use in a game only to or through a newspaper or a radio or television station or through an advertising agency acting on behalf of a person authorized to conduct the game; and
(4) the commission by rule may require a person conducting or involved in conducting the game to:
(A) notify the commission of:
(i) the persons involved in conducting the game;
(ii) the manner in which the game is to be conducted; and
(iii) any other information required by the commission; and
(B) keep records of all transactions connected with the game available for commission inspection. (V.A.C.S. Art. 179d, Sec. 39.)
Sec. 2001.552. FRAUDULENT AWARD OF PRIZES; OFFENSE. (a) A person commits an offense if the person knowingly participates in the award of a prize to a bingo player in a manner that disregards, to any extent, the random selection of numbers or symbols.
(b) An offense under this section is a felony of the third degree.
(c) It is a defense to prosecution under this section that no participant in the game furnished anything of value for the opportunity to participate in the game. (V.A.C.S. Art. 179d, Sec. 40.)
Sec. 2001.553. UNLICENSED SALES; OFFENSE. (a) A person commits an offense if a person sells or attempts to induce the sale of bingo equipment, supplies, or automated bingo services to a licensed authorized organization and the person is not licensed to do so.
(b) A licensed system service provider commits an offense if the person provides system services to a person other than a licensed authorized organization or a group of licensed authorized organizations.
(c) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 179d, Secs. 13(s), (t), (u).)
Sec. 2001.554. OTHER OFFENSES; REVOCATION OF LICENSE. (a) A person commits an offense and the person's license is subject to revocation under this chapter if the person:
(1) makes a false statement or material omission in an application for a license under this chapter;
(2) fails to maintain records that fully and accurately record each transaction connected with the conducting of bingo, the leasing of premises to be used for bingo, or the manufacture, sale, or distribution of bingo supplies or equipment;
(3) falsifies or makes a false entry in a book or record if the entry relates to bingo, the disposition of bingo proceeds, the application of rent received by a licensed authorized organization, or the gross receipts from the manufacture, sale, or distribution of bingo supplies or equipment;
(4) diverts or pays a portion of the net proceeds of bingo to a person except in furtherance of one or more of the lawful purposes provided by this chapter; or
(5) violates this chapter or a term of a license issued under this chapter.
(b) An offense under Subsection (a)(2), (3), or (5) is a Class C misdemeanor, unless it is shown on the trial of the offense that the person has been convicted previously under this section, in which event the offense is a Class B misdemeanor. An offense under Subsection (a)(1) or (4) is a Class A misdemeanor. This subsection does not apply to an offense committed under Section 2001.551(b) or Section 2001.552.
(c) A person whose license is revoked under this section may not apply for another license under this chapter before the first anniversary of the date of revocation. (V.A.C.S. Art. 179d, Sec. 36.)
Sec. 2001.555. EXEMPTION FROM PROSECUTION. (a) A person lawfully conducting or participating in bingo or permitting the conduct of bingo on premises owned or leased by the person under a license issued under this chapter is not subject to prosecution or conviction for a violation of a provision of the Penal Code or other law or ordinance to the extent that the person's action is specifically authorized by this chapter.
(b) The immunity granted under this section does not extend to a person:
(1) knowingly conducting or participating in bingo under a license obtained by a false pretense, false statement, or material omission made in an application for license or otherwise; or
(2) knowingly permitting the conduct of bingo on premises owned or leased by the person under a license known to the person to have been obtained by a false pretense or statement.
(c) A license holder under this chapter may possess paraphernalia or equipment that is required to conduct bingo. (V.A.C.S. Art. 179d, Sec. 35.)
Sec. 2001.556. PRICE FIXING PROHIBITED. (a) A manufacturer, distributor, or supplier may not by express or implied agreement with another manufacturer or distributor fix the price at which bingo equipment or supplies used or intended to be used in connection with bingo conducted under this chapter may be sold.
(b) The price of bingo supplies and equipment in the competitive marketplace shall be established by the manufacturer, distributor, or supplier and may not be established in concert with another manufacturer, distributor, or supplier. (V.A.C.S. Art. 179d, Sec. 13d.)
Sec. 2001.557. INSPECTION OF PREMISES. The commission, its officers or agents, or a state, municipal, or county peace officer may enter and inspect the contents of premises where:
(1) bingo is being conducted or intended to be conducted; or
(2) equipment used or intended for use in bingo is found. (V.A.C.S. Art. 179d, Sec. 16(i).)
Sec. 2001.558. INJUNCTION; CIVIL PENALTY. (a) If the commission, the appropriate governing body, or the attorney general has reason to believe that this chapter has been or is about to be violated, the commission, the governing body, or the attorney general may petition a court for injunctive relief to restrain the violation.
(b) Venue for an action seeking injunctive relief is in a district court in Travis County.
(c) If the court finds that this chapter has been violated or is about to be violated, the court shall issue a temporary restraining order and, after due notice and hearing, a temporary injunction, and after a final trial, a permanent injunction to restrain the violation.
(d) If the court finds that this chapter has been knowingly violated, the court shall order all proceeds from the illegal bingo to be forfeited to the appropriate governing body as a civil penalty. (V.A.C.S. Art. 179d, Sec. 42.)
Sec. 2001.559. REMEDIES NOT EXCLUSIVE. The commission may suspend or revoke a license under Section 2001.355, impose an administrative penalty under Subchapter M, or both, depending on the severity of the violation. (V.A.C.S. Art. 179d, Sec. 16b.)
Sec. 2001.560. EXAMINATION OF RECORDS; DISCLOSURE OF INFORMATION. (a) The governing body of the appropriate political subdivision or the attorney general may:
(1) examine or cause to be examined the records of an authorized organization that is or has been licensed to conduct bingo, to the extent the organization's activities relate to bingo, including the maintenance, control, and disposition of net proceeds derived from bingo or from the use of its premises for bingo; and
(2) examine a manager, officer, director, agent, member, or employee of the organization under oath regarding:
(A) the conduct of bingo under a license;
(B) the use of premises; or
(C) the disposition of proceeds derived from bingo.
(b) The governing body of the appropriate political subdivision or the attorney general may:
(1) examine or cause to be examined the records of a licensed commercial lessor if the activities of the lessor may relate to leasing premises for bingo; and
(2) examine the lessor or a manager, officer, director, agent, or employee of the lessor under oath regarding the leasing.
(c) The commission or a person authorized in writing by the commission may examine the books, papers, records, equipment, and place of business of a license holder and may investigate the character of the license holder's business to verify the accuracy of a return, statement, or report made, or, if no return is made by the license holder, to ascertain and determine the amount required to be paid.
(d) The commission may set and charge to the license holder a fee in an amount reasonably necessary to recover the cost of an authorized investigation or audit authorized under this chapter.
(e) If the commission determines that a person is not complying with this chapter, the commission shall notify the attorney general and the governing body of the appropriate political subdivision. (V.A.C.S. Art. 179d, Sec. 27.)
Sec. 2001.561. PENAL CODE APPLICATION. Section 47.08, Penal Code, applies to a prosecution for a violation of this chapter. (V.A.C.S. Art. 179d, Sec. 41.)
[Sections 2001.562-2001.600 reserved for expansion]
SUBCHAPTER M. ADMINISTRATIVE PENALTY
Sec. 2001.601. IMPOSITION OF PENALTY. The commission may impose an administrative penalty against a person who violates this chapter or a rule or order adopted by the commission under this chapter. (V.A.C.S. Art. 179d, Sec. 16a(a).)
Sec. 2001.602. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs may be considered a separate violation for purposes of imposing a penalty.
(b) In determining the amount of the penalty, the executive director shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited acts;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) efforts to correct the violation; and
(5) any other matter that justice may require. (V.A.C.S. Art. 179d, Secs. 16a(b), (c).)
Sec. 2001.603. NOTICE OF VIOLATION AND PENALTY. (a) If, after investigating a possible violation and the facts surrounding that possible violation, the executive director determines that a violation has occurred, the executive director may issue a violation report stating the facts on which the conclusion that a violation occurred is based, recommending that an administrative penalty be imposed on the person alleged to have committed the violation, and recommending the amount of the proposed penalty. The executive director shall base the recommended amount of the proposed penalty on the seriousness of the violation determined by consideration of the factors set out in Section 2001.602(b).
(b) Not later than the 14th day after the date on which the report is issued, the executive director shall give written notice of the report to the person alleged to have committed the violation.
(c) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the administrative penalty recommended; and
(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 179d, Secs. 16a(d), (e).)
Sec. 2001.604. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:
(1) accept the recommendation of the executive director, including the recommended administrative penalty; or
(2) make a written request for a hearing on the determination.
(b) If the person accepts the executive director's determination, the executive director by order shall approve the determination and impose the proposed penalty. (V.A.C.S. Art. 179d, Secs. 16a(f), (g).)
Sec. 2001.605. HEARING. (a) If the person timely requests a hearing or does not respond to the notice in the time provided by Section 2001.604(a), the executive director shall set a hearing and give notice of the hearing to the person.
(b) The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for decision as to the occurrence of the violation and the amount of the proposed penalty, if a penalty is warranted. (V.A.C.S. Art. 179d, Sec. 16a(h) (part).)
Sec. 2001.606. DECISION BY EXECUTIVE DIRECTOR. (a) Based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the executive director by order:
(1) may find that a violation has occurred and may impose an administrative penalty; or
(2) may find that a violation has not occurred.
(b) The executive director shall give notice of the order to the person. The notice must include:
(1) separate statements of the findings of fact and conclusions of law;
(2) the amount of any penalty imposed;
(3) a statement of the right of the person to judicial review of the order; and
(4) other information required by law. (V.A.C.S. Art. 179d, Secs. 16a(h) (part), (i).)
Sec. 2001.607. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date on which the order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review contesting the finding that a violation occurred, the amount of the penalty, or both; or
(3) without paying the penalty, file a petition for judicial review contesting the finding that a violation occurred, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty that is effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified mail.
(c) On receipt of a copy of the affidavit as provided by Subsection (b)(2), the executive director may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 179d, Secs. 16a(j), (k), (l).)
Sec. 2001.608. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 179d, Sec. 16a(m).)
Sec. 2001.609. DETERMINATION BY COURT. (a) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount.
(b) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 179d, Sec. 16a(o).)
Sec. 2001.610. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not upheld by the court, the court shall, after the judgment becomes final:
(1) order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or
(2) if the person posted a supersedeas bond, order the release of the bond:
(A) if the penalty is not upheld; or
(B) after the person pays the reduced penalty, if the amount of the penalty is reduced.
(b) The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 179d, Sec. 16a(p).)
Sec. 2001.611. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 179d, Secs. 16a(h) (part), (r).)
[Sections 2001.612-2001.650 reserved for expansion]
SUBCHAPTER N. ELECTIONS
Sec. 2001.651. ORDERING ELECTION. The governing body of a county, justice precinct, or municipality:
(1) shall order and hold an election under this chapter in the appropriate political subdivision if the governing body is presented with a petition for an election that meets the requirements of this chapter; and
(2) may order and hold an election on its own motion. (V.A.C.S. Art. 179d, Sec. 4.)
Sec. 2001.652. PETITION. (a) A petition for an election to legalize bingo under this chapter must have a statement substantially as follows preceding the space reserved for signatures on each page: "This petition is to require that an election be held in (name of political subdivision) to legalize bingo games authorized under the Bingo Enabling Act."
(b) A petition for an election to prohibit bingo under this chapter must have a statement substantially as follows preceding the space reserved for signatures on each page: "This petition is to require that an election be held in (name of political subdivision) to prohibit bingo games authorized under the Bingo Enabling Act."
(c) A petition is valid only if it is signed by a number of registered voters of the political subdivision equal to at least 10 percent of the number of votes received in the political subdivision by all candidates for governor in the most recent general election, or the amount specified in the document governing the administration of the political subdivision, whichever is less. If boundaries of the political subdivision do not coincide with boundaries of election precincts in effect for that general election, the officer verifying the petition may use a reasonable method to estimate the number of votes for governor received in that election in the political subdivision.
(d) A signer must enter beside the signer's signature the date of signing the petition. A signature may not be counted if the signer fails to enter the date or if the date of signing is earlier than the 90th day before the date the petition is submitted to the governing body.
(e) In addition to the signature and date of signing, the petition must include each signer's:
(1) current voter registration number;
(2) printed name; and
(3) residence address, including zip code. (V.A.C.S. Art. 179d, Sec. 5.)
Sec. 2001.653. VERIFICATION OF PETITION. (a) Not later than the fifth day after the date the governing body receives a petition for an election, the governing body shall submit the petition for verification to the county clerk if the petition is applicable to a county or justice precinct or to the municipal secretary if the petition is applicable to a municipality.
(b) The officer to whom the petition is submitted for verification shall determine whether the petition is signed by the required number of registered voters of the political subdivision in which the election is requested.
(c) Not later than the 30th day after the date the petition is submitted to the officer for verification, the officer shall certify in writing to the governing body whether the petition is valid or invalid. If the officer determines that the petition is invalid, the officer shall state all reasons for that determination. (V.A.C.S. Art. 179d, Sec. 6.)
Sec. 2001.654. DATE OF ELECTION. (a) If the officer responsible for certifying a petition determines that a petition is valid, the governing body shall:
(1) order that an election be held in the appropriate political subdivision on a date not later than the 60th day after the date of the officer's certification; and
(2) notify the commission by certified mail, return receipt requested, that an election has been ordered.
(b) If a uniform election day as provided by Section 41.001(a), Election Code, does not occur within the 60-day period, the governing body shall order the election to be held on the next uniform election date provided by that section. (V.A.C.S. Art. 179d, Sec. 7.)
Sec. 2001.655. BALLOT PROPOSITION. (a) In an election to legalize bingo under this chapter in a political subdivision, the ballot shall be prepared to provide for voting for or against the proposition: "Legalizing bingo games for charitable purposes as authorized by the Bingo Enabling Act in (name of political subdivision)."
(b) In an election to prohibit bingo under this chapter in a political subdivision, the ballot shall be prepared to provide for voting for or against the proposition: "Prohibiting bingo games for charitable purposes as authorized by the Bingo Enabling Act in (name of political subdivision)." (V.A.C.S. Art. 179d, Sec. 8.)
Sec. 2001.656. EFFECT OF ELECTION. (a) If a majority of the qualified voters voting on the question in a legalization election vote in favor of legalization, bingo is legalized throughout the political subdivision beginning on the 10th day after the date the result of the election is officially declared, except as otherwise provided as to a part of the political subdivision for which Section 2001.657 requires a contrary status.
(b) If a majority of the qualified voters voting on the question in a prohibitory election vote in favor of prohibition, bingo is prohibited throughout the political subdivision beginning on the 10th day after the date the result of the election is officially declared, except as otherwise provided as to a part of the political subdivision for which Section 2001.657 requires a contrary status.
(c) If a majority of the qualified voters voting on the question in a legalization election do not favor legalization, or if a majority of the qualified voters voting on the question in a prohibitory election do not favor prohibition, the election has no effect on the status under this chapter of the political subdivision in which the election is held.
(d) The governing body of a political subdivision in which a bingo election has been held shall not later than the 10th day after the date of the election give written notification to the commission of the results of the election. If as a result of the election bingo is legalized in the political subdivision, the governing body shall furnish the commission with a map prepared by the governing body indicating the boundaries of the political subdivision in which bingo may be conducted. (V.A.C.S. Art. 179d, Sec. 9.)
Sec. 2001.657. DETERMINATION OF LOCAL OPTION STATUS. (a) In determining whether bingo under this chapter is permitted in an area, the rules provided by this section apply.
(b) Bingo is permitted in an area only as the result of a successful election held under this chapter.
(c) To the extent that the results of local option elections held by different types of political subdivisions conflict with regard to the same territory, the relative dates of the elections are of no consequence and the following rules apply:
(1) the status of an area as determined by a municipal election prevails over a contrary status as determined by a justice precinct or county election; and
(2) the status of an area as determined by a justice precinct election prevails over the contrary status of the area as determined by a county election.
(d) If two or more local option elections held at the justice precinct level apply to the same territory, the most recent election prevails.
(e) If a municipality has established a status by a municipal election, territory annexed to the municipality after that status is established assumes the status under this chapter of the rest of the municipality. Territory detached from the municipality assumes the status the territory would have had if it had never been a part of the municipality. If the detached territory is added to another municipality that has established a status by a municipal election, the territory assumes the status of the municipality to which it is added.
(f) The addition of territory to or detachment of territory from a justice precinct does not affect the status under this chapter of the added or detached territory, except that in a county with a population of more than two million the added or detached territory assumes the status of the justice precinct of which it becomes a part. The abolition of a justice precinct does not affect the status under this chapter of the territory formerly within the justice precinct. (V.A.C.S. Art. 179d, Sec. 10.)
CHAPTER 2002. CHARITABLE RAFFLES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2002.001. SHORT TITLE
Sec. 2002.002. DEFINITIONS
Sec. 2002.003. QUALIFIED NONPROFIT ORGANIZATION
Sec. 2002.004. IMPUTED ACTIONS OF ORGANIZATION
[Sections 2002.005-2002.050 reserved for expansion]
SUBCHAPTER B. OPERATION OF RAFFLE
Sec. 2002.051. RAFFLE AUTHORIZED
Sec. 2002.052. TIME AND FREQUENCY RESTRICTIONS
Sec. 2002.053. USE OF RAFFLE PROCEEDS
Sec. 2002.054. RESTRICTIONS ON RAFFLE PROMOTION AND TICKET
SALES
Sec. 2002.055. TICKET DISCLOSURES
Sec. 2002.056. RESTRICTIONS ON PRIZES
Sec. 2002.057. TICKET SALE ON UNIVERSITY PROPERTY
Sec. 2002.058. INJUNCTIVE ACTION AGAINST UNAUTHORIZED
RAFFLE
CHAPTER 2002. CHARITABLE RAFFLES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2002.001. SHORT TITLE. This chapter may be cited as the Charitable Raffle Enabling Act. (V.A.C.S. Art. 179f, Sec. 1, as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.002. DEFINITIONS. In this chapter:
(1) "Charitable purposes" means:
(A) benefitting needy or deserving persons in this state, indefinite in number, by:
(i) enhancing their opportunities for religious or educational advancement;
(ii) relieving them from disease, suffering, or distress;
(iii) contributing to their physical well-being;
(iv) assisting them in establishing themselves in life as worthy and useful citizens; or
(v) increasing their comprehension of and devotion to the principles on which this nation was founded and enhancing their loyalty to their government;
(B) initiating, performing, or fostering worthy public works in this state; or
(C) enabling or furthering the erection or maintenance of public structures in this state.
(2) "Qualified organization" means a qualified religious society, qualified volunteer fire department, qualified volunteer emergency medical service, or qualified nonprofit organization.
(3) "Qualified religious society" means a church, synagogue, or other organization or association organized primarily for religious purposes that:
(A) has been in existence in this state for at least 10 years; and
(B) does not distribute any of its income to its members, officers, or governing body, other than as reasonable compensation for services or for reimbursement of expenses.
(4) "Qualified volunteer emergency medical service" means an association that:
(A) is organized primarily to provide and actively provides emergency medical, rescue, or ambulance services;
(B) does not pay its members compensation other than nominal compensation; and
(C) does not distribute any of its income to its members, officers, or governing body other than for reimbursement of expenses.
(5) "Qualified volunteer fire department" means an association that:
(A) operates fire-fighting equipment;
(B) is organized primarily to provide and actively provides fire-fighting services;
(C) does not pay its members compensation other than nominal compensation; and
(D) does not distribute any of its income to its members, officers, or governing body, other than for reimbursement of expenses.
(6) "Raffle" means the award of one or more prizes by chance at a single occasion among a single pool or group of persons who have paid or promised a thing of value for a ticket that represents a chance to win a prize. (V.A.C.S. Art. 179f, Secs. 2(a)(2), (4), (5), (6), (7), (8), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.003. QUALIFIED NONPROFIT ORGANIZATION. (a) An organization incorporated or holding a certificate of authority under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) is a qualified nonprofit organization for the purposes of this chapter if the organization:
(1) does not distribute any of its income to its members, officers, or governing body, other than as reasonable compensation for services;
(2) has existed for the three preceding years and during those years has had a governing body or officers elected by a vote of its members or by a vote of delegates elected by its members;
(3) does not devote a substantial part of its activities to attempting to influence legislation and does not participate or intervene in any political campaign on behalf of any candidate for public office in any manner, including by publishing or distributing statements or making campaign contributions;
(4) qualifies for and has obtained an exemption from federal income tax from the Internal Revenue Service under Section 501(c), Internal Revenue Code of 1986; and
(5) does not have or recognize any local chapter, affiliate, unit, or subsidiary organization in this state.
(b) An organization that is formally recognized as and that operates as a local chapter, affiliate, unit, or subsidiary organization of a parent organization incorporated or holding a certificate of authority under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) is a qualified nonprofit organization if:
(1) neither the local organization nor the parent organization distributes any of its income to its members, officers, or governing body, other than as reasonable compensation for services;
(2) the local organization has existed for the three preceding years and during those years:
(A) has had a governing body or officers elected by a vote of its members or by a vote of delegates elected by its members; or
(B) has been formally recognized as a local chapter, affiliate, unit, or subsidiary organization of the parent organization;
(3) neither the local organization nor the parent organization:
(A) devotes a substantial part of its activities to attempting to influence legislation; or
(B) participates or intervenes in any political campaign on behalf of any candidate for public office in any manner, including by publishing or distributing statements or making campaign contributions; and
(4) either the local organization or the parent organization qualifies for and has obtained an exemption from federal income tax from the Internal Revenue Service under Section 501(c), Internal Revenue Code of 1986.
(c) An unincorporated organization, association, or society is a qualified nonprofit organization if it:
(1) does not distribute any of its income to its members, officers, or governing body, other than as reasonable compensation for services;
(2) for the three preceding years:
(A) has had a governing body or officers elected by a vote of members or by a vote of delegates elected by the members; or
(B) has been affiliated with a state or national organization organized to perform the same purposes as the unincorporated organization, association, or society;
(3) does not devote a substantial part of its activities to attempting to influence legislation and does not participate or intervene in any political campaign on behalf of any candidate for public office in any manner, including by publishing or distributing statements or making campaign contributions; and
(4) qualifies for and has obtained an exemption from federal income tax from the Internal Revenue Service under Section 501(c), Internal Revenue Code of 1986.
(d) An organization, association, or society is considered to devote a substantial part of its activities to attempting to influence legislation for purposes of this section if, in any 12-month period in the preceding three years, more than 10 percent of the organization's expenditures were made to influence legislation. (V.A.C.S. Art. 179f, Secs. 2(a)(3), (b), 6, as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.004. IMPUTED ACTIONS OF ORGANIZATION. For purposes of this chapter, an organization performs an act if a member, officer, or agent of the organization performs the act with the consent or authorization of the organization. (V.A.C.S. Art. 179f, Sec. 4, as added Acts 71st Leg., R.S., Ch. 957.)
[Sections 2002.005-2002.050 reserved for expansion]
SUBCHAPTER B. OPERATION OF RAFFLE
Sec. 2002.051. RAFFLE AUTHORIZED. A qualified organization may conduct a raffle subject to the conditions imposed by this subchapter. (V.A.C.S. Art. 179f, Sec. 3(a), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.052. TIME AND FREQUENCY RESTRICTIONS. (a) In this section, "calendar year" means a period beginning January 1 and ending on the succeeding December 31.
(b) A raffle is not authorized by this chapter if the organization sells or offers to sell tickets for or awards prizes in the raffle in a calendar year in which the organization has previously sold or offered to sell tickets for or awarded prizes in two or more other raffles.
(c) The organization may not sell or offer to sell tickets for a raffle during a period in which the organization sells or offers to sell tickets for another raffle. If an organization violates this subsection, neither of the raffles is authorized. (V.A.C.S. Art. 179f, Secs. 2(a)(1), 3(b), (c), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.053. USE OF RAFFLE PROCEEDS. All proceeds from the sale of tickets for a raffle must be spent for the charitable purposes of the organization. (V.A.C.S. Art. 179f, Sec. 3(d), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.054. RESTRICTIONS ON RAFFLE PROMOTION AND TICKET SALES. (a) The organization may not:
(1) directly or indirectly, by the use of paid advertising, promote a raffle through a medium of mass communication, including television, radio, or newspaper;
(2) promote or advertise a raffle statewide; or
(3) sell or offer to sell tickets for a raffle statewide.
(b) The organization may not compensate a person directly or indirectly for organizing or conducting a raffle or for selling or offering to sell tickets to a raffle.
(c) The organization may not permit a person who is not a member of the organization or who is not authorized by the organization to sell or offer to sell raffle tickets. (V.A.C.S. Art. 179f, Secs. 3(e), (f), (i), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.055. TICKET DISCLOSURES. The following information must be printed on each raffle ticket sold or offered for sale:
(1) the name of the organization conducting the raffle;
(2) the address of the organization or of a named officer of the organization;
(3) the ticket price; and
(4) a general description of each prize having a value of more than $10 to be awarded in the raffle. (V.A.C.S. Art. 179f, Sec. 3(h), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.056. RESTRICTIONS ON PRIZES. (a) A prize offered or awarded at a raffle may not be money.
(b) Except as provided by Subsection (c), the value of a prize offered or awarded at a raffle that is purchased by the organization or for which the organization provides any consideration may not exceed $50,000.
(c) A raffle prize may consist of one or more tickets in the state lottery authorized by Chapter 466, Government Code, with a face value of $50,000 or less, without regard to whether a prize in the lottery game to which the ticket or tickets relate exceeds $50,000.
(d) A raffle is not authorized by this chapter unless the organization:
(1) has the prize to be offered in the raffle in its possession or ownership; or
(2) posts bond with the county clerk of the county in which the raffle is to be held for the full amount of the money value of the prize. (V.A.C.S. Art. 179f, Secs. 3(g), (j), (k), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.057. TICKET SALE ON UNIVERSITY PROPERTY. An institution of higher education, as defined by Section 61.003, Education Code, shall allow a qualified organization that is a student organization recognized by the institution to sell raffle tickets at any facility of the institution, subject to reasonable restrictions on the time, place, and manner of the sale. (V.A.C.S. Art. 179f, Sec. 3(l), as added Acts 71st Leg., R.S., Ch. 957.)
Sec. 2002.058. INJUNCTIVE ACTION AGAINST UNAUTHORIZED RAFFLE. (a) A county attorney, district attorney, criminal district attorney, or the attorney general may bring an action in county or district court for a permanent or temporary injunction or a temporary restraining order prohibiting conduct involving a raffle or similar procedure that:
(1) violates or threatens to violate state law relating to gambling; and
(2) is not authorized by this chapter or other law.
(b) Venue for an action under this section is in the county in which the conduct occurs or in which a defendant in the action resides. (V.A.C.S. Art. 179f, Sec. 5, as added Acts 71st Leg., R.S., Ch. 957.)
CHAPTER 2003. INSPECTION AND REGULATION OF
GAMBLING VESSELS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2003.001. DEFINITION
Sec. 2003.002. APPLICATION OF CHAPTER
[Sections 2003.003-2003.050 reserved for expansion]
SUBCHAPTER B. STATE INSPECTION AND REGULATION
Sec. 2003.051. CRIMINAL HISTORY RECORD INFORMATION
Sec. 2003.052. INSPECTION
[Sections 2003.053-2003.100 reserved for expansion]
SUBCHAPTER C. MUNICIPAL INSPECTION AND REGULATION
Sec. 2003.101. REGULATION
Sec. 2003.102. INSPECTION
CHAPTER 2003. INSPECTION AND REGULATION OF GAMBLING
VESSELS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2003.001. DEFINITION. In this chapter, "department" means the Department of Public Safety of the State of Texas. (V.A.C.S. Art. 179f, Sec. 1, as added Acts 71st Leg., R.S., Ch. 1030.)
Sec. 2003.002. APPLICATION OF CHAPTER. This chapter applies only to a vessel on which activity described by Section 47.02(a), Penal Code, is regularly conducted, whether or not the activity occurs in this state. (V.A.C.S. Art. 179f, Sec. 2, as added Acts 71st Leg., R.S., Ch. 1030.)
[Sections 2003.003-2003.050 reserved for expansion]
SUBCHAPTER B. STATE INSPECTION AND REGULATION
Sec. 2003.051. CRIMINAL HISTORY RECORD INFORMATION. (a) The department may request criminal history record information from the Federal Bureau of Investigation or any other law enforcement agency relating to a person who owns, has a financial interest in, operates, or is employed by a person who operates a vessel in this state, including the territorial waters of this state, whether or not the operation of the vessel is in violation of law.
(b) The department may maintain records of information obtained under Subsection (a). (V.A.C.S. Art. 179f, Sec. 3, as added Acts 71st Leg., R.S., Ch. 1030.)
Sec. 2003.052. INSPECTION. The department may inspect a vessel located in this state, including the territorial waters of this state, to ensure that the vessel is operated in compliance with state or other law. (V.A.C.S. Art. 179f, Sec. 4, as added Acts 71st Leg., R.S., Ch. 1030.)
[Sections 2003.053-2003.100 reserved for expansion]
SUBCHAPTER C. MUNICIPAL INSPECTION AND REGULATION
Sec. 2003.101. REGULATION. (a) A municipality, by ordinance, may impose regulations for the protection of the health and safety of the passengers or crew of a vessel that:
(1) regularly boards passengers in the municipality; or
(2) is regularly loaded, fueled, repaired, stored, or docked in the municipality.
(b) A municipal ordinance may not prohibit an activity relating to a vessel that is expressly permitted under Chapter 47, Penal Code, or other state law. (V.A.C.S. Art. 179f, Secs. 5(a), (c), as added Acts 71st Leg., R.S., Ch. 1030.)
Sec. 2003.102. INSPECTION. A municipality may inspect a vessel docked in the municipality to determine if the vessel is operated in compliance with Chapter 47, Penal Code, a municipal ordinance, or other law. (V.A.C.S. Art. 179f, Sec. 5(b), as added Acts 71st Leg., R.S., Ch. 1030.)
[Chapters 2004-2050 reserved for expansion]
SUBTITLE B. SPORTS
CHAPTER 2051. ATHLETE AGENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2051.001. DEFINITIONS
Sec. 2051.002. PARTICIPATION IN INTERCOLLEGIATE SPORTS
CONTESTS
Sec. 2051.003. EFFECT OF PERSONAL SERVICE CONTRACT
Sec. 2051.004. ATHLETE AGENT CONTACT
Sec. 2051.005. CERTAIN PROFESSIONAL SERVICES EXEMPT
[Sections 2051.006-2051.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF SECRETARY OF STATE
Sec. 2051.051. ADMINISTRATION OF CHAPTER
Sec. 2051.052. PUBLICATION OF COMPLIANCE RESPONSIBILITIES
[Sections 2051.053-2051.100 reserved for expansion]
SUBCHAPTER C. REGISTRATION
Sec. 2051.101. REGISTRATION REQUIRED
Sec. 2051.102. APPLICATION REQUIREMENTS
Sec. 2051.103. CORPORATION, ASSOCIATION, OR PARTNERSHIP
APPLICANT
Sec. 2051.104. SUPPLEMENTAL APPLICATION REQUIREMENTS
Sec. 2051.105. DENIAL OF APPLICATION
Sec. 2051.106. TEMPORARY OR PROVISIONAL REGISTRATION
Sec. 2051.107. REGISTRATION DURATION; EXPIRATION
Sec. 2051.108. REGISTRATION RENEWAL
[Sections 2051.109-2051.150 reserved for expansion]
SUBCHAPTER D. ATHLETE AGENT BOND
Sec. 2051.151. BOND DEPOSIT
Sec. 2051.152. CANCELLATION OF BOND; SUSPENSION OF
CERTIFICATE
Sec. 2051.153. EXEMPTION FROM BOND REQUIREMENTS FOR AGENT ONLY
CONTRACTS
[Sections 2051.154-2051.200 reserved for expansion]
SUBCHAPTER E. FORM, CONTENT, AND FILING OF CERTAIN CONTRACTS
Sec. 2051.201. CONTRACT FORM
Sec. 2051.202. CONTRACT SIGNING
Sec. 2051.203. CONTRACT REQUIREMENTS RELATING TO FEES AND
SERVICES
Sec. 2051.204. CONTRACT REQUIREMENTS RELATING TO NOTICE
Sec. 2051.205. FILING REQUIREMENTS
Sec. 2051.206. MULTIYEAR CONTRACT FEE
[Sections 2051.207-2051.250 reserved for expansion]
SUBCHAPTER F. IMPLEMENTATION STANDARDS OF INSTITUTIONS
OF HIGHER EDUCATION
Sec. 2051.251. ADOPTION OF IMPLEMENTATION STANDARDS
Sec. 2051.252. APPROVAL AND FILING OF STANDARDS
Sec. 2051.253. DESIGNATION OF COMPLIANCE COORDINATOR
Sec. 2051.254. WRITTEN REQUEST FOR IMPLEMENTATION
STANDARDS
Sec. 2051.255. NOTIFICATION OF AVAILABILITY OF IMPLEMENTATION
STANDARDS
Sec. 2051.256. WRITTEN REQUEST FOR COMPLIANCE COORDINATORS
[Sections 2051.257-2051.300 reserved for expansion]
SUBCHAPTER G. ATHLETE AGENT INTERVIEW PROGRAM
Sec. 2051.301. ATHLETE AGENT INTERVIEW PROGRAM
Sec. 2051.302. COMPLIANCE COORDINATOR'S DUTIES
Sec. 2051.303. TIME AND DURATION OF INTERVIEW PROGRAM
Sec. 2051.304. COMPLIANCE WITH INTERVIEW GUIDELINES
[Sections 2051.305-2051.350 reserved for expansion]
SUBCHAPTER H. RESTRICTION OF AGENT'S PRACTICE
Sec. 2051.351. PROHIBITIONS
Sec. 2051.352. RECORDKEEPING REQUIREMENT
Sec. 2051.353. DISCLOSURE REQUIREMENT
Sec. 2051.354. AGENT LIABILITY FOR VIOLATION OF CHAPTER
[Sections 2051.355-2051.400 reserved for expansion]
SUBCHAPTER I. INVESTIGATION OF AGENTS BY
SECRETARY OF STATE
Sec. 2051.401. INVESTIGATIVE AUTHORITY: SUBPOENA AND
SUMMONS
Sec. 2051.402. SERVICE OF PROCESS
Sec. 2051.403. ENFORCEMENT OF SUBPOENA AND SUMMONS
Sec. 2051.404. INTERROGATORIES
Sec. 2051.405. DISCIPLINARY PROCEDURES; INJUNCTIONS
[Sections 2051.406-2051.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 2051.451. ADMINISTRATIVE PENALTY
Sec. 2051.452. INVESTIGATION AND PRELIMINARY REPORT
Sec. 2051.453. PAYMENT OR REQUEST FOR HEARING
Sec. 2051.454. HEARING
Sec. 2051.455. JUDICIAL REVIEW
Sec. 2051.456. RECOVERY OF ADMINISTRATIVE PENALTY
[Sections 2051.457-2051.500 reserved for expansion]
SUBCHAPTER K. CRIMINAL PENALTY
Sec. 2051.501. CRIMINAL OFFENSE
[Sections 2051.502-2051.550 reserved for expansion]
SUBCHAPTER L. CIVIL SUIT BY INSTITUTION OF HIGHER EDUCATION
Sec. 2051.551. CIVIL SUIT
Sec. 2051.552. ADVERSELY AFFECTED
Sec. 2051.553. RECOVERY
CHAPTER 2051. ATHLETE AGENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2051.001. DEFINITIONS. In this chapter:
(1) "Agent contract" means a contract or an agreement under which an athlete authorizes an athlete agent to negotiate for employment on behalf of the athlete with a professional sports team.
(2) "Athlete" means an individual who:
(A) is eligible to participate in intercollegiate sports contests as a member of a football or basketball team at an institution of higher education; or
(B) has participated as a member of an intercollegiate football or basketball team at an institution of higher education and has never signed an employment contract with a professional sports team.
(3) "Athlete agent" means a person who:
(A) for compensation, directly or indirectly recruits or solicits an athlete to enter into an agent contract, a financial services contract, or a professional sports services contract with that person or another person; or
(B) for a fee, procures, offers, promises, or attempts to obtain employment for an athlete with a professional sports team.
(4) "Financial services contract" means a contract or an agreement under which an athlete authorizes the athlete agent to perform financial services for the athlete, including making and executing investment and other financial decisions for the athlete.
(5) "Institution of higher education" means an institution of higher education or a private or independent institution of higher education, as defined by Section 61.003, Education Code, that is a member of a national association for the promotion and regulation of intercollegiate athletics.
(6) "Schedule of fees" includes the fees and percentages charged by an athlete agent for professional services performed for an athlete. (V.A.C.S. Art. 8871, Secs. 1(a)(2), (3), (4), (5), (6); 5(b) (part), (c) (part); New.)
Sec. 2051.002. PARTICIPATION IN INTERCOLLEGIATE SPORTS CONTESTS. An athlete is not eligible to participate in intercollegiate sports contests if the athlete:
(1) declares that the athlete is eligible for recruitment by a professional sports team; or
(2) has concluded, in the athlete's final year of eligibility, the athlete's final football or basketball contest, as determined by the governing body of the national association for the promotion and regulation of intercollegiate athletics of which the athlete's institution of higher education is a member. (V.A.C.S. Art. 8871, Secs. 1(c), (d) (part).)
Sec. 2051.003. EFFECT OF PERSONAL SERVICE CONTRACT. In this chapter, a personal service contract between an athlete and the owner or prospective owner of a professional sports team in which the athlete agrees to perform future athletic services constitutes employment with a professional sports team. (V.A.C.S. Art. 8871, Sec. 1(b).)
Sec. 2051.004. ATHLETE AGENT CONTACT. (a) An athlete agent may contact an athlete only as provided by this chapter.
(b) Except as provided by Subsection (c), an athlete agent may contact a person who declares that the person is eligible for recruitment by a professional sports team.
(c) If a person eligible for recruitment by a professional sports team later becomes eligible to participate in intercollegiate sports, an athlete agent may contact the person only as provided by this chapter. (V.A.C.S. Art. 8871, Secs. 1(d) (part), 2(a) (part).)
Sec. 2051.005. CERTAIN PROFESSIONAL SERVICES EXEMPT. This chapter does not apply to a person who directly or indirectly recruits or solicits an athlete to enter into a contract with the person in which, for compensation, the person performs financial services for the athlete if:
(1) the person is licensed by the state as:
(A) a dealer, agent, or securities salesperson;
(B) a real estate broker or salesperson;
(C) an insurance agent; or
(D) another professional;
(2) the financial services performed by the person are of a type that are customarily performed by a person licensed in that profession; and
(3) the person does not:
(A) recruit or solicit the athlete to enter into an agent contract or a professional services contract on behalf of the person, an affiliate, a related entity, or a third party; or
(B) procure, offer, promise, or attempt to obtain for the athlete employment with a professional sports team. (V.A.C.S. Art. 8871, Sec. 2A.)
[Sections 2051.006-2051.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF SECRETARY OF STATE
Sec. 2051.051. ADMINISTRATION OF CHAPTER. (a) The secretary of state shall:
(1) actively enforce this chapter;
(2) set reasonable and necessary fees for the administration of this chapter; and
(3) conduct investigations necessary to ensure compliance with this chapter.
(b) The secretary may adopt rules necessary to administer this chapter.
(c) Fees shall be set in an amount to cover the costs of administering this chapter. (V.A.C.S. Art. 8871, Secs. 2(f), 3(a), 11.)
Sec. 2051.052. PUBLICATION OF COMPLIANCE RESPONSIBILITIES. (a) The secretary of state shall, at least once a year, publish information that prescribes the compliance responsibilities of an institution of higher education under this chapter.
(b) The secretary shall mail, return receipt requested, a copy of the compliance responsibilities published under Subsection (a) to the athletic director or other appropriate official of each institution of higher education.
(c) The secretary shall, as necessary, update the compliance responsibilities materials. (V.A.C.S. Art. 8871, Sec. 3(d).)
[Sections 2051.053-2051.100 reserved for expansion]
SUBCHAPTER C. REGISTRATION
Sec. 2051.101. REGISTRATION REQUIRED. (a) Unless an athlete agent is registered under this chapter, the athlete agent may not:
(1) contact, directly or indirectly, an athlete while the athlete is eligible to participate in intercollegiate sports contests; or
(2) enter into a contract with an athlete.
(b) A contract negotiated by an unregistered athlete agent is void. (V.A.C.S. Art. 8871, Secs. 2(a) (part), 8(b).)
Sec. 2051.102. APPLICATION REQUIREMENTS. (a) An applicant for registration as an athlete agent must apply on a form prescribed by the secretary of state.
(b) An applicant must provide information required by the secretary of state, including:
(1) the applicant's:
(A) name;
(B) principal business address;
(C) business or occupation for the five years immediately preceding the date of application; and
(D) formal training, practical experience, and educational background relating to the applicant's professional activities as an athlete agent; and
(2) except as provided by Subsection (d), the name and address of each person, except a bona fide employee on salary, who is financially interested as a partner, associate, or profit sharer in the applicant's business.
(c) An application, if requested by the secretary of state, shall include the names and addresses of five professional references.
(d) If an applicant is a member of the State Bar of Texas, an application under Subsection (b)(2) must include the name and address of each person who is involved in the activities of the athlete agent. This subsection does not require an applicant to state the name and address of a member of a law firm or professional corporation who is not involved in the business of the athlete agent. (V.A.C.S. Art. 8871, Sec. 2(b).)
Sec. 2051.103. CORPORATION, ASSOCIATION, OR PARTNERSHIP APPLICANT. If an applicant for registration is a corporation, association, or partnership, each officer, associate, or partner, as appropriate, must provide the information required under Section 2051.102. (V.A.C.S. Art. 8871, Sec. 2(c).)
Sec. 2051.104. SUPPLEMENTAL APPLICATION REQUIREMENTS. (a) An applicant for registration that is a corporation, association, partnership, or another entity other than a sole proprietorship or an individual shall attach to the application for registration under Section 2051.102 or the renewal application under Section 2051.108 the name and address of each individual who recruits or solicits an athlete to enter into an agent contract, a financial services contract, or a professional sports services contract with the corporation, association, partnership, or other entity.
(b) A registered athlete agent that changes the individuals identified under Subsection (a) shall, not later than the 30th day after the date the change is made, file with the secretary of state a statement showing the change.
(c) The secretary may prescribe forms for the statements required under this section. (V.A.C.S. Art. 8871, Secs. 2(k), (l), (m).)
Sec. 2051.105. DENIAL OF APPLICATION. (a) The secretary of state shall deny an application for registration if the applicant has been convicted of:
(1) a felony; or
(2) a misdemeanor involving moral turpitude.
(b) Judicial review of a denial of an application for registration under Subsection (a) is by trial de novo and is subject to Section 2001.173, Government Code. (V.A.C.S. Art. 8871, Sec. 3(e) (part).)
Sec. 2051.106. TEMPORARY OR PROVISIONAL REGISTRATION. The secretary of state may issue a temporary or provisional certificate of registration that is valid for not more than 90 days to an applicant for registration or renewal of registration if the applicant's application has been made and the registration process has not been completed. (V.A.C.S. Art. 8871, Sec. 2(g).)
Sec. 2051.107. REGISTRATION DURATION; EXPIRATION. (a) Except as provided by Subsection (b), a certificate of registration issued under this chapter is valid for a period of not more than one year from the date of issuance.
(b) The secretary of state, by rule, may adopt a system under which certificates of registration expire on various dates during the year. (V.A.C.S. Art. 8871, Sec. 2(d) (part).)
Sec. 2051.108. REGISTRATION RENEWAL. (a) An applicant for renewal of registration must apply on a form prescribed by the secretary of state.
(b) A renewal application must include:
(1) the name and address of each athlete for whom the athlete agent is performing professional services for compensation on the date of the renewal application;
(2) the name and address of each athlete for whom the athlete agent has performed professional services for compensation during the three years immediately preceding the date of the renewal application but for whom the athlete agent is not performing professional services on the date of the renewal application; and
(3) any other information prescribed by the secretary of state.
(c) A renewal application under this section must be accompanied by an appropriate renewal fee.
(d) If a certificate of registration expires earlier than the anniversary of the date of issuance, the renewal fee that must accompany a renewal application under this section shall be prorated according to the number of months that the registration is valid. (V.A.C.S. Art. 8871, Secs. 2(d) (part), (e).)
[Sections 2051.109-2051.150 reserved for expansion]
SUBCHAPTER D. ATHLETE AGENT BOND
Sec. 2051.151. BOND DEPOSIT. (a) An athlete agent shall, before entering into a financial services contract with an athlete, deposit with the secretary of state a surety bond, in the amount of $100,000, payable to the state and conditioned on:
(1) the athlete agent complying with this chapter;
(2) the payment of money owed to an individual or group of individuals when the athlete agent or the athlete agent's representative or agent receives the money; and
(3) the payment of damages to an athlete caused by the intentional misrepresentation, fraud, deceit, or unlawful or negligent act or omission of the athlete agent or of the athlete agent's representative or employee while acting within the scope of the financial services contract.
(b) An athlete agent shall maintain a bond deposited under Subsection (a) for not less than two years after the date that the athlete agent ceases to provide financial services to an athlete.
(c) This section does not limit the amount of damages recoverable in a suit filed against an athlete agent to the amount of the bond. (V.A.C.S. Art. 8871, Sec. 2(h).)
Sec. 2051.152. CANCELLATION OF BOND; SUSPENSION OF CERTIFICATE. (a) Not later than the 30th day after the date an athlete agent receives a notice of cancellation from the surety of a bond deposited under Section 2051.151, the athlete agent shall file a new bond with the secretary of state.
(b) The secretary shall suspend the certificate of registration of an athlete agent who fails to file a new bond as required by Subsection (a) until a new bond is filed. (V.A.C.S. Art. 8871, Sec. 2(i).)
Sec. 2051.153. EXEMPTION FROM BOND REQUIREMENTS FOR AGENT ONLY CONTRACTS. This subchapter does not apply to an athlete agent who enters into only an agent contract with an athlete. (V.A.C.S. Art. 8871, Sec. 2(j).)
[Sections 2051.154-2051.200 reserved for expansion]
SUBCHAPTER E. FORM, CONTENT, AND FILING OF CERTAIN CONTRACTS
Sec. 2051.201. CONTRACT FORM. A registered athlete agent must use a form approved by the secretary of state for any agent contract or financial services contract. (V.A.C.S. Art. 8871, Sec. 5(a).)
Sec. 2051.202. CONTRACT SIGNING. An athlete may sign an athlete agent contract at any time as permitted by the national association for the promotion and regulation of intercollegiate athletics of which the athlete's institution of higher education is a member. (V.A.C.S. Art. 8871, Sec. 7(d).)
Sec. 2051.203. CONTRACT REQUIREMENTS RELATING TO FEES AND SERVICES. (a) An agent contract or a financial services contract must include:
(1) a schedule of fees; and
(2) a description of the professional services that the athlete agent will perform for the athlete.
(b) A registered athlete agent may charge a fee only as provided by the schedule of fees in the contract.
(c) A change in the schedule of fees in a contract takes effect on the seventh day after the date on which the athlete agent files with the secretary of state a copy of the contract as required by Section 2051.205(b). (V.A.C.S. Art. 8871, Secs. 5(b) (part), (c) (part).)
Sec. 2051.204. CONTRACT REQUIREMENTS RELATING TO NOTICE. (a) An agent contract or a financial services contract must include the following notice:
NOTICE TO CLIENT
(1) THIS ATHLETE AGENT IS REGISTERED WITH THE SECRETARY OF STATE OF THE STATE OF TEXAS. REGISTRATION WITH THE SECRETARY OF STATE DOES NOT IMPLY APPROVAL OR ENDORSEMENT BY THE SECRETARY OF STATE OF THE COMPETENCE OF THE ATHLETE AGENT OR OF THE SPECIFIC TERMS AND CONDITIONS OF THIS CONTRACT.
(2) DO NOT SIGN THIS CONTRACT UNTIL YOU HAVE READ IT OR IF IT CONTAINS BLANK SPACES.
(3) IF YOU DECIDE THAT YOU DO NOT WISH TO PURCHASE THE SERVICES OF THE ATHLETE AGENT, YOU MAY CANCEL THIS CONTRACT BY NOTIFYING THE ATHLETE AGENT IN WRITING OF YOUR DESIRE TO CANCEL THE CONTRACT NOT LATER THAN THE 16TH DAY AFTER THE DATE ON WHICH YOU SIGN THIS CONTRACT.
(b) The notice required under Subsection (a) must be:
(1) printed in not less than 10-point typeface; and
(2) boldfaced, capitalized, underlined, or otherwise set apart from the surrounding provisions of the contract to make the notice conspicuous. (V.A.C.S. Art. 8871, Sec. 5(b) (part).)
Sec. 2051.205. FILING REQUIREMENTS. (a) A registered athlete agent shall, not later than the fifth day after the date an athlete signs an agent contract or financial services contract, file a copy of the contract with:
(1) the secretary of state; and
(2) if the athlete is a student at an institution of higher education, the athletic director of the athlete's institution.
(b) If the schedule of fees in an agent or financial services contract is changed, the athlete agent shall file with the secretary a copy of the changed contract. (V.A.C.S. Art. 8871, Secs. 5(c) (part), (e).)
Sec. 2051.206. MULTIYEAR CONTRACT FEE. (a) This section applies only to a multiyear professional sports services contract negotiated by a registered athlete agent.
(b) A registered athlete agent may not collect during a 12-month period a fee that exceeds the amount an athlete will receive during that same 12-month period under the professional sports services contract negotiated by the athlete agent. (V.A.C.S. Art. 8871, Sec. 5(d).)
[Sections 2051.207-2051.250 reserved for expansion]
SUBCHAPTER F. IMPLEMENTATION STANDARDS OF INSTITUTIONS
OF HIGHER EDUCATION
Sec. 2051.251. ADOPTION OF IMPLEMENTATION STANDARDS. (a) An institution of higher education shall adopt standards relating to the implementation of this chapter, including specific guidelines governing the athlete agent interview program sponsored by the institution under Section 2051.301.
(b) Guidelines adopted under Subsection (a) relating to the athlete agent interview program must specify:
(1) the scheduling of interview periods;
(2) the duration of an interview period;
(3) the location on the institution's campus for conducting interviews; and
(4) any terms or conditions under which an athlete agent may contact an athlete during an interview period. (V.A.C.S. Art. 8871, Sec. 7(f) (part).)
Sec. 2051.252. APPROVAL AND FILING OF STANDARDS. (a) After adopting implementation standards under Section 2051.251, an institution of higher education shall:
(1) submit the standards to the institution's athletic council or other analogous body for approval; and
(2) file a copy of the approved standards with the secretary of state not later than the 30th day after the date the standards are approved under Subdivision (1).
(b) If an institution of higher education amends the implementation standards, the institution shall, not later than the 30th day after the date the amendment is effective, file a copy of the amended standards with the secretary. (V.A.C.S. Art. 8871, Sec. 7(f) (part).)
Sec. 2051.253. DESIGNATION OF COMPLIANCE COORDINATOR. An institution of higher education shall:
(1) designate an individual to serve as a compliance coordinator for that institution; and
(2) report the name of the compliance coordinator to the secretary of state in a manner prescribed by the secretary. (V.A.C.S. Art. 8871, Sec. 7(e) (part).)
Sec. 2051.254. WRITTEN REQUEST FOR IMPLEMENTATION STANDARDS. On receipt of a written request from a registered athlete agent, the secretary of state or a compliance coordinator designated under Section 2051.253 shall provide a copy of the implementation standards adopted by an institution of higher education under Section 2051.251. (V.A.C.S. Art. 8871, Secs. 3(c) (part), 7(e) (part).)
Sec. 2051.255. NOTIFICATION OF AVAILABILITY OF IMPLEMENTATION STANDARDS. (a) The secretary of state shall notify each registered athlete agent in writing of the availability, on request, under Section 2051.254 of a copy of the implementation standards of each institution of higher education.
(b) Notice under Subsection (a) must include a statement that:
(1) the standards adopted by an institution of higher education specify the policies of that institution relating to the time, place, and duration of athlete agent interviews conducted on the institution's campus; and
(2) each institution of higher education has a designated compliance coordinator who the athlete agent may contact for additional information. (V.A.C.S. Art. 8871, Sec. 7(b).)
Sec. 2051.256. WRITTEN REQUEST FOR COMPLIANCE COORDINATORS. On receipt of a written request from a registered athlete agent, the secretary of state shall provide a copy of the names of the compliance coordinators designated under Section 2051.253. (V.A.C.S. Art. 8871, Sec. 3(c) (part).)
[Sections 2051.257-2051.300 reserved for expansion]
SUBCHAPTER G. ATHLETE AGENT INTERVIEW PROGRAM
Sec. 2051.301. ATHLETE AGENT INTERVIEW PROGRAM. (a) Each institution of higher education shall sponsor an athlete agent interview program on the institution's campus.
(b) A registered athlete agent may interview an athlete during an interview program to discuss:
(1) financial services and advice offered by the athlete agent; and
(2) the athlete agent's representation of the athlete relating to marketing the athlete's athletic ability and reputation.
(c) The compliance coordinator or secretary of state shall, not later than the 30th day before the date on which an interview program sponsored under this section begins, notify each registered athlete agent in writing of the interview program. (V.A.C.S. Art. 8871, Secs. 7(a) (part), (e) (part).)
Sec. 2051.302. COMPLIANCE COORDINATOR'S DUTIES. Each compliance coordinator designated under Section 2051.253 shall:
(1) establish the schedule for the athlete agent interview program sponsored under Section 2051.301 by the coordinator's institution of higher education;
(2) not later than the 30th day before the date on which the athlete agent interview program begins, notify each registered athlete agent, in writing, of the interview program, unless the secretary of state provides notification under Section 2051.301(c); and
(3) ensure that the coordinator's institution of higher education and the athletes attending the institution comply with this chapter and the rules adopted under this chapter. (V.A.C.S. Art. 8871, Sec. 7(e) (part).)
Sec. 2051.303. TIME AND DURATION OF INTERVIEW PROGRAM. An athlete agent interview program sponsored under this subchapter:
(1) may not continue for more than 30 consecutive business days as determined by the athlete's institution of higher education; and
(2) must be conducted during the off-season period before the completion of the athlete's final year of eligibility. (V.A.C.S. Art. 8871, Sec. 7(c) (part).)
Sec. 2051.304. COMPLIANCE WITH INTERVIEW GUIDELINES. An athlete agent shall strictly comply with the guidelines adopted under Section 2051.251 relating to the time, place, and duration of an athlete agent interview program. (V.A.C.S. Art. 8871, Sec. 7(c) (part).)
[Sections 2051.305-2051.350 reserved for expansion]
SUBCHAPTER H. RESTRICTION OF AGENT'S PRACTICE
Sec. 2051.351. PROHIBITIONS. (a) An athlete agent may not:
(1) publish or cause to be published:
(A) false, fraudulent, or misleading information; or
(B) a false, fraudulent, or misleading:
(i) representation;
(ii) notice; or
(iii) advertisement;
(2) provide false information;
(3) make a false promise or representation relating to employment;
(4) divide fees with or receive compensation from:
(A) a person exempt from registration under this chapter under Section 2051.005; or
(B) a professional sports league or franchise, including a representative or employee of the league or franchise;
(5) enter into a written or oral agreement with an employee of an institution of higher education in which the athlete agent offers a thing of value to the employee for the referral of clients by the employee;
(6) offer a thing of value to induce the athlete to enter into an agreement with the athlete agent in which the athlete agent will represent the athlete; and
(7) except as provided by this chapter, before an athlete completes the athlete's last intercollegiate football or basketball contest:
(A) directly contact the athlete; or
(B) enter into an oral or written agreement with the athlete for the athlete agent to represent the athlete.
(b) This section does not prohibit:
(1) an athlete agent from sending written materials to an athlete relating to the professional credentials or services of the athlete agent if the athlete agent simultaneously sends a copy of the materials to the athletic director of the athlete's institution of higher education or the athletic director's designee; or
(2) an athlete or an athlete's parent or legal guardian from contacting an athlete agent to schedule a meeting with the athlete agent to assess:
(A) the agent's professional proficiency in:
(i) representing the athlete; or
(ii) marketing the athlete's athletic ability or reputation; or
(B) the financial services offered by the athlete agent.
(c) If an athlete agent is contacted by an athlete or the athlete's parent or legal guardian to schedule a meeting to discuss the services offered by the athlete agent, the athlete agent shall, before meeting with the athlete or the athlete's parent or legal guardian, notify the athletic director of the athlete's institution of higher education or the athletic director's designee of the proposed meeting. (V.A.C.S. Art. 8871, Secs. 6(b), (c), (d).)
Sec. 2051.352. RECORDKEEPING REQUIREMENT. (a) An athlete agent shall maintain a record of:
(1) each athlete represented by the athlete agent, including:
(A) the name and address of the athlete;
(B) fees paid by the athlete; and
(C) services performed by the athlete agent for the athlete; and
(2) travel and entertainment expenses incurred by the athlete agent, including expenses for:
(A) food and beverages;
(B) hospitality rooms;
(C) sporting events;
(D) theater and music events; and
(E) transportation, lodging, and admission relating to entertainment.
(b) A record of travel and entertainment expenses maintained under Subsection (a)(2) must state:
(1) the nature of the expense;
(2) the amount of the expense;
(3) the purpose of the expense;
(4) the date and place of the expense; and
(5) the name of each person on whose behalf the expenditure was made.
(c) An athlete agent shall provide a copy of a record maintained under this section to the secretary of state on request. (V.A.C.S. Art. 8871, Secs. 10(a), (b).)
Sec. 2051.353. DISCLOSURE REQUIREMENT. An athlete agent shall disclose the athlete agent's name and address in any advertising used by the athlete agent. (V.A.C.S. Art. 8871, Sec. 6(a).)
Sec. 2051.354. AGENT LIABILITY FOR VIOLATION OF CHAPTER. A registered or unregistered athlete agent who violates this chapter may be subject to:
(1) an administrative penalty imposed under Subchapter J;
(2) forfeiture of the right to payment for a thing of value that the athlete agent gives to an athlete to induce the athlete to enter into a contract;
(3) a refund of consideration paid to the athlete agent; and
(4) payment of reasonable attorney's fees and court costs incurred by an athlete who files suit against an athlete agent for violation of this chapter. (V.A.C.S. Art. 8871, Sec. 8(a).)
[Sections 2051.355-2051.400 reserved for expansion]
SUBCHAPTER I. INVESTIGATION OF AGENTS BY
SECRETARY OF STATE
Sec. 2051.401. INVESTIGATIVE AUTHORITY: SUBPOENA AND SUMMONS. (a) The secretary of state may issue a subpoena or summons to compel:
(1) the attendance and testimony of a witness; or
(2) the production of:
(A) a book;
(B) an account;
(C) a record;
(D) a magnetic or electronic recording;
(E) a paper;
(F) a contract;
(G) correspondence; or
(H) any other record that the secretary determines is relevant or material to an investigation under this chapter.
(b) If the secretary issues a subpoena or summons under Subsection (a), the secretary, or an officer designated by the secretary, may:
(1) administer an oath;
(2) examine a witness; and
(3) receive evidence.
(c) Information and evidence obtained by the secretary under this section is:
(1) confidential and not open to public inspection, except by a court order; and
(2) exempt from disclosure under Chapter 552, Government Code. (V.A.C.S. Art. 8871, Sec. 10A(a).)
Sec. 2051.402. SERVICE OF PROCESS. (a) The secretary of state, the secretary's authorized agent, a sheriff, or a constable may serve a subpoena or summons issued by the secretary of state under Section 2051.401:
(1) on an individual by:
(A) delivering an executed copy of the subpoena or summons to the individual; or
(B) mailing an executed copy of the subpoena or summons by registered or certified mail, return receipt requested, to the individual's:
(i) place of residence; or
(ii) principal place of business; and
(2) on an entity by delivering or mailing a duly executed copy of the subpoena or summons to an individual for which service would be appropriate in a civil suit under state law.
(b) Proof of service of process under this section consists of:
(1) a verified return showing the manner of service; or
(2) if the service is made by registered or certified mail, return receipt requested, the return receipt. (V.A.C.S. Art. 8871, Sec. 10A(b).)
Sec. 2051.403. ENFORCEMENT OF SUBPOENA AND SUMMONS. (a) The secretary of state shall refer a person who fails or refuses to comply with a subpoena or summons issued by the secretary under Section 2051.401 to the attorney general for enforcement.
(b) On receipt of a referral under Subsection (a), the attorney general may apply to a district court of Travis County for an order requiring compliance.
(c) On receipt of an application for an order under Subsection (b), a district court:
(1) shall order compliance if the court determines that good cause exists for the issuance of the subpoena or summons; and
(2) may modify those requirements of the subpoena or summons that the court determines are unreasonable. (V.A.C.S. Art. 8871, Sec. 10A(c) (part).)
Sec. 2051.404. INTERROGATORIES. (a) Except as provided by Subsection (b), the secretary of state may serve interrogatories on an athlete, compliance coordinator, or any person subject to this chapter, or an officer, director, partner, or associate of the person, if the interrogatories are reasonable and necessary to conduct an investigation under this chapter.
(b) The secretary may not serve interrogatories on an athlete who is not represented by an attorney.
(c) Interrogatories served under Subsection (a) must be answered:
(1) completely;
(2) in writing;
(3) under oath;
(4) not later than the 30th day after the date the interrogatories are mailed, or within a time period determined by the secretary; and
(5) by the individual to whom the interrogatories are directed or, if the interrogatories are directed to an entity, by an authorized representative of the entity.
(d) If the answers to interrogatories served under Subsection (a) disclose a violation of this chapter, the secretary shall take disciplinary action as provided by Section 2051.405.
(e) The interrogatories and answers to the interrogatories are:
(1) confidential and not open to public inspection, except by a court order; and
(2) exempt from disclosure under Chapter 552, Government Code.
(f) The secretary may disclose confidential information to a governmental authority or a quasi-governmental authority. (V.A.C.S. Art. 8871, Secs. 10A(d), (e), (f), (g).)
Sec. 2051.405. DISCIPLINARY PROCEDURES; INJUNCTIONS. (a) If the secretary of state determines that a person has violated this chapter, the secretary shall:
(1) refer the violation to the attorney general for prosecution; and
(2) take appropriate disciplinary action, including:
(A) denying an application for registration; or
(B) suspending or revoking a certificate of registration.
(b) If the secretary determines that a person is violating or is threatening to violate this chapter, the secretary or the attorney general may file suit in district court in Travis County to enjoin the violation or threatened violation.
(c) Judicial review of a denial, suspension, revocation, or other disciplinary action taken under Subsection (a) is by trial de novo and is subject to Section 2001.173, Government Code. (V.A.C.S. Art. 8871, Secs. 3(b), (e) (part).)
[Sections 2051.406-2051.450 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 2051.451. ADMINISTRATIVE PENALTY. (a) If the secretary of state determines that a person regulated under this chapter has violated this chapter or a rule adopted under this chapter in a manner that constitutes a ground for disciplinary action under Section 2051.405, the secretary may assess an administrative penalty against the person as provided by this subchapter.
(b) The secretary shall determine the amount of a penalty assessed under Subsection (a), except that the amount may not exceed $25,000.
(c) In determining the amount of a penalty under Subsection (b), the secretary shall consider the seriousness of the violation. (V.A.C.S. Art. 8871, Secs. 9(a), (b).)
Sec. 2051.452. INVESTIGATION AND PRELIMINARY REPORT. (a) If, after examining a possible violation, including facts relating to the violation, the secretary of state determines that a person has committed a violation of this chapter, the secretary shall issue a preliminary report stating:
(1) the facts on which the determination is based; and
(2) that an administrative penalty will be imposed, including the amount of the penalty.
(b) The secretary shall, not later than the 10th day after the date a preliminary report is issued under Subsection (a), send to the person who is the subject of the report:
(1) a copy of the report; and
(2) notice that the person may request a hearing under Section 2051.453. (V.A.C.S. Art. 8871, Sec. 9(c) (part).)
Sec. 2051.453. PAYMENT OR REQUEST FOR HEARING. (a) A person who is the subject of a preliminary report issued under Section 2051.452 shall, not later than the 20th day after the date the report is sent:
(1) pay the administrative penalty to the secretary of state; or
(2) request in writing from the secretary a hearing relating to:
(A) the alleged violation; or
(B) the amount of the penalty.
(b) A person who fails to pay the penalty or request a hearing as required by Subsection (a) waives the right to request a hearing under this chapter. (V.A.C.S. Art. 8871, Secs. 9(c) (part), (d) (part).)
Sec. 2051.454. HEARING. (a) If the secretary of state determines at a hearing conducted under Chapter 2001, Government Code, that a person has violated this chapter, the secretary shall:
(1) notify the person in writing of:
(A) the secretary's findings; and
(B) the amount of the administrative penalty; and
(2) enter an order requiring the person to pay the penalty.
(b) A person shall, not later than the 30th day after receiving notice under Subsection (a):
(1) pay the penalty to the secretary; or
(2) forward the penalty to the secretary for deposit in an escrow account and request judicial review of:
(A) the secretary's findings; or
(B) the amount of the penalty. (V.A.C.S. Art. 8871, Secs. 9(d) (part), (e) (part).)
Sec. 2051.455. JUDICIAL REVIEW. If judicial review requested under Section 2051.454 reveals that a person has not violated this chapter or that the administrative penalty assessed against a person should be reduced, the secretary of state shall, not later than the 30th day after the date the judicial determination becomes final, return the appropriate amount of the penalty to the person. (V.A.C.S. Art. 8871, Sec. 9(e) (part).)
Sec. 2051.456. RECOVERY OF ADMINISTRATIVE PENALTY. On request by the secretary of state, the attorney general may file suit against a person to recover a penalty assessed under Section 2051.451. (V.A.C.S. Art. 8871, Sec. 9(g).)
[Sections 2051.457-2051.500 reserved for expansion]
SUBCHAPTER K. CRIMINAL PENALTY
Sec. 2051.501. CRIMINAL OFFENSE. (a) An athlete agent commits an offense if the agent intentionally or knowingly violates this chapter or a rule under this chapter.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 8871, Sec. 8(c).)
[Sections 2051.502-2051.550 reserved for expansion]
SUBCHAPTER L. CIVIL SUIT BY INSTITUTION OF HIGHER EDUCATION
Sec. 2051.551. CIVIL SUIT. An institution of higher education adversely affected by an athlete agent's violation of this chapter may file suit against the athlete agent for damages. (V.A.C.S. Art. 8871, Sec. 8A(a).)
Sec. 2051.552. ADVERSELY AFFECTED. An institution of higher education is adversely affected by an athlete agent's violation of this chapter if:
(1) the athlete agent's violation causes a national association for the promotion and regulation of intercollegiate athletics to disqualify or suspend the institution from participating in intercollegiate sports contests; and
(2) the disqualification or suspension of the institution causes the institution to:
(A) lose revenue from media coverage of sports contests;
(B) lose the right to grant athletic scholarships in the sport in which the institution is disqualified or suspended;
(C) lose the right to recruit athletes; or
(D) otherwise suffer an adverse financial impact. (V.A.C.S. Art. 8871, Sec. 8A(b).)
Sec. 2051.553. RECOVERY. An institution of higher education that prevails in a civil suit filed under Section 2051.551 may recover:
(1) actual damages;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees. (V.A.C.S. Art. 8871, Sec. 8A(c).)
CHAPTER 2052. COMBATIVE SPORTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2052.001. LEGISLATIVE DECLARATION
Sec. 2052.002. DEFINITIONS
[Sections 2052.003-2052.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT AND
COMMISSIONER
Sec. 2052.051. ADMINISTRATION OF CHAPTER
Sec. 2052.052. RULES
Sec. 2052.053. INVESTIGATIVE AUTHORITY
Sec. 2052.054. CONTINUING EDUCATION
[Sections 2052.055-2052.100 reserved for expansion]
SUBCHAPTER C. LICENSING, REGISTRATION, AND PERMITS
Sec. 2052.101. BOXING PROMOTER LICENSE
Sec. 2052.102. BOXING PROMOTER LICENSE APPLICATION
REQUIREMENTS
Sec. 2052.103. ELIMINATION TOURNAMENT BOXING PROMOTER LICENSE
APPLICATION REQUIREMENTS
Sec. 2052.104. ELIMINATION TOURNAMENT BOXING PROMOTER
ANNUAL LICENSE FEE
Sec. 2052.105. WRESTLING PROMOTER REGISTRATION
Sec. 2052.106. WRESTLING PROMOTER APPLICATION REQUIREMENTS
Sec. 2052.107. OTHER BOXING LICENSES
Sec. 2052.108. APPLICATION REQUIREMENTS FOR OTHER
LICENSES
Sec. 2052.109. SURETY BOND
Sec. 2052.110. LICENSE AND BONDING EXCEPTIONS
Sec. 2052.111. DENIAL OF APPLICATION
Sec. 2052.112. RECIPROCITY AGREEMENT
Sec. 2052.113. LICENSE AND PERMIT REQUIRED FOR CLOSED
CIRCUIT BOXING TELECAST
[Sections 2052.114-2052.150 reserved for expansion]
SUBCHAPTER D. GROSS RECEIPTS TAX
Sec. 2052.151. IMPOSITION AND RATE OF TAX
Sec. 2052.152. TAX REPORT AND PAYMENT
Sec. 2052.153. CLOSED CIRCUIT TELECAST
Sec. 2052.154. CERTAIN AMATEUR EVENTS
[Sections 2052.155-2052.200 reserved for expansion]
SUBCHAPTER E. REGULATION OF ELIMINATION TOURNAMENTS
Sec. 2052.201. GENERAL RULES
Sec. 2052.202. CONTESTANT PARTICIPATION
Sec. 2052.203. ELIMINATION TOURNAMENT BOXING PROMOTER
RESPONSIBILITIES
Sec. 2052.204. ELIMINATION TOURNAMENT RINGSIDE PHYSICIAN
Sec. 2052.205. NEGATIVE PREGNANCY TEST RESULT
Sec. 2052.206. WEIGHT CATEGORIES
Sec. 2052.207. RING REQUIREMENTS
[Sections 2052.208-2052.250 reserved for expansion]
SUBCHAPTER F. OTHER COMBATIVE SPORT REGULATIONS
Sec. 2052.251. BOXING GLOVES
Sec. 2052.252. CERTAIN AMATEUR EVENTS
Sec. 2052.253. KICKBOXING
[Sections 2052.254-2052.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY PROCEDURES; CRIMINAL OFFENSE
Sec. 2052.301. REVOCATION AND SUSPENSION OF LICENSE OR
PERMIT
Sec. 2052.302. FORFEITURE OF PURSE
Sec. 2052.303. CIVIL PENALTY; INJUNCTION
Sec. 2052.304. PETITION FOR REVIEW
Sec. 2052.305. SERVICE OF PROCESS
Sec. 2052.306. CERTIFICATION OF RECORD
Sec. 2052.307. JUDICIAL REVIEW
Sec. 2052.308. APPEAL
Sec. 2052.309. CRIMINAL OFFENSE
CHAPTER 2052. COMBATIVE SPORTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2052.001. LEGISLATIVE DECLARATION. This chapter shall be liberally construed and applied to promote its underlying purposes. (V.A.C.S. Art. 8501-1, Sec. 2 (part).)
Sec. 2052.002. DEFINITIONS. In this chapter:
(1) "Boxing" includes kickboxing, in which a person delivers blows with any part of the arm below the shoulder, including the hand, and any part of the leg below the hip, including the foot.
(2) "Boxing promoter" means a person who arranges, advertises, or conducts a boxing event.
(3) "Championship tournament" means a state, regional, national, or international elimination tournament in which the winners of elimination tournaments compete for a championship in each weight category.
(4) "Commissioner" means the commissioner of licensing and regulation or the commissioner's designated representative.
(5) "Department" means the Texas Department of Licensing and Regulation.
(6) "Elimination tournament" means a boxing contest in which elimination tournament contestants compete in a series of matches until not more than one contestant remains in any weight category.
(7) "Elimination tournament boxing promoter" means a person who arranges, advertises, or conducts an elimination tournament.
(8) "Elimination tournament contestant" means a person who competes in an elimination tournament.
(9) "Exhibition" means a boxing or wrestling skills demonstration.
(10) "Event" means a contest, match, or exhibition.
(11) "Judge" means a person who is:
(A) located at ringside during a boxing match; and
(B) responsible for scoring the performances of the participants in the match.
(12) "Local tournament" means an elimination tournament in which only a resident of this state may compete.
(13) "Professional boxer" means a person who competes in a boxing event in this state conducted for a purse or compensation.
(14) "Referee" means a person who:
(A) is present in the ring during a boxing event; and
(B) exercises general supervision of the event.
(15) "Regional tournament" means an elimination tournament in which a contestant from outside of the immediate area in which the tournament is conducted may compete against local contestants.
(16) "Wrestling promoter" means a person who arranges, advertises, or conducts a wrestling event. (V.A.C.S. Art. 8501-1, Secs. 3(1), (2), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16); New.)
[Sections 2052.003-2052.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT AND
COMMISSIONER
Sec. 2052.051. ADMINISTRATION OF CHAPTER. The department shall administer this chapter. (V.A.C.S. Art. 8501-1, Sec. 4(a) (part).)
Sec. 2052.052. RULES. (a) The commissioner shall adopt reasonable and necessary rules to administer this chapter.
(b) The commissioner may adopt rules:
(1) governing professional kickboxing contests and exhibitions; and
(2) establishing reasonable qualifications for an applicant seeking a license from the department under this chapter. (V.A.C.S. Art. 8501-1, Secs. 4(c) (part), 10(a).)
Sec. 2052.053. INVESTIGATIVE AUTHORITY. (a) The commissioner shall investigate allegations of activity that may violate this chapter.
(b) The commissioner may enter, at a reasonable time, a place of business or an establishment in which activity alleged to violate this chapter may occur. The commissioner is not required to give advance notice before entering. (V.A.C.S. Art. 8501-1, Secs. 4(a) (part), (b).)
Sec. 2052.054. CONTINUING EDUCATION. (a) The commissioner may recognize, prepare, or administer continuing education programs for persons licensed under this chapter.
(b) Participation in a continuing education program under Subsection (a) is voluntary. (V.A.C.S. Art. 8501-1, Sec. 10A.)
[Sections 2052.055-2052.100 reserved for expansion]
SUBCHAPTER C. LICENSING, REGISTRATION, AND PERMITS
Sec. 2052.101. BOXING PROMOTER LICENSE. A person may not act as a boxing promoter or an elimination tournament boxing promoter unless the person holds a license issued under this chapter. (V.A.C.S. Art. 8501-1, Sec. 8(a) (part).)
Sec. 2052.102. BOXING PROMOTER LICENSE APPLICATION REQUIREMENTS. (a) An applicant for a boxing promoter's license under this chapter must apply on a form furnished by the commissioner.
(b) An application must be accompanied by:
(1) a license fee in an amount set by the commission; and
(2) a surety bond:
(A) subject to approval by the commissioner; and
(B) conditioned on the applicant's payment of the tax imposed under Section 2052.151.
(c) The commissioner shall establish the amount of the surety bond required under Subsection (b). The bond amount may not be less than $300. (V.A.C.S. Art. 8501-1, Sec. 8(b).)
Sec. 2052.103. ELIMINATION TOURNAMENT BOXING PROMOTER LICENSE APPLICATION REQUIREMENTS. (a) An applicant for an elimination tournament boxing promoter's license under this chapter must apply on a form furnished by the commissioner.
(b) An application must be accompanied by an application fee of not more than $1,000 and, if the applicant charges a fee for admission to the elimination tournament or awards a trophy, prize, including a prize of money, or other item of value of more than $50 to a contestant winning the elimination tournament:
(1) a $50,000 surety bond subject to approval by the commissioner and conditioned on the applicant's payment of:
(A) the tax imposed under Section 2052.151; and
(B) a claim against the applicant as described by Section 2052.109(a)(3); and
(2) proof of not less than $10,000 accidental death or injury insurance coverage for each contestant participating in the elimination tournament. (V.A.C.S. Art. 8501-1, Secs. 8(g), (h).)
Sec. 2052.104. ELIMINATION TOURNAMENT BOXING PROMOTER ANNUAL LICENSE FEE. The annual fee for an elimination tournament boxing promoter's license may not exceed $1,000. (V.A.C.S. Art. 8501-1, Sec. 8(i).)
Sec. 2052.105. WRESTLING PROMOTER REGISTRATION. A person may not act as a wrestling promoter unless the person is registered with the secretary of state under this chapter. (V.A.C.S. Art. 8501-1, Sec. 8(a) (part).)
Sec. 2052.106. WRESTLING PROMOTER APPLICATION REQUIREMENTS. (a) Registration as a wrestling promoter must be made on a form furnished by the secretary of state.
(b) A registration must be accompanied by:
(1) a registration fee prescribed by the secretary of state in an amount reasonably necessary to cover the costs of administering the wrestling promoters registration program; and
(2) a $5,000 surety bond to be filed with the secretary of state. (V.A.C.S. Art. 8501-1, Sec. 8(c).)
Sec. 2052.107. OTHER BOXING LICENSES. Unless a person holds a license issued under this chapter, the person may not act as a:
(1) professional boxer;
(2) manager of a professional boxer;
(3) referee;
(4) judge;
(5) second;
(6) timekeeper; or
(7) matchmaker. (V.A.C.S. Art. 8501-1, Sec. 9(a).)
Sec. 2052.108. APPLICATION REQUIREMENTS FOR OTHER LICENSES. (a) An application for a license under Section 2052.107 must be made on a form furnished by the commissioner.
(b) An application must be accompanied by the required license fee. (V.A.C.S. Art. 8501-1, Sec. 9(b).)
Sec. 2052.109. SURETY BOND. (a) A surety bond required under this subchapter must:
(1) be issued by a company authorized to conduct business in this state;
(2) comply with the applicable requirements of the Insurance Code;
(3) be payable to the state for use by the state or a political subdivision that establishes that the boxing or wrestling promoter is liable to it for damages, penalties, taxes, or other expenses resulting from promotional activities conducted in this state; and
(4) be open to more than one claim, except that the claims may not exceed the face value of the bond.
(b) A person required to file a surety bond under this subchapter shall file a new bond annually.
(c) A company that issues a bond shall notify the department in writing of the cancellation of the bond not later than the 30th day before the date on which the bond is canceled. (V.A.C.S. Art. 8501-1, Secs. 8(d), (e), (f).)
Sec. 2052.110. LICENSE AND BONDING EXCEPTIONS. The licensing and bonding requirements of this subchapter do not apply to:
(1) a boxing event in which the participants do not receive a money remuneration, purse, or prize for their performances or services if the event is promoted, conducted, or maintained by:
(A) an educational institution;
(B) a law enforcement organization;
(C) a Texas National Guard Unit; or
(D) an amateur athletic organization recognized by the commissioner;
(2) a nonprofit amateur athletic association chartered under the law of this state, including a membership club affiliated with the association located within this state and recognized by the commissioner;
(3) an event conducted by a college, school, or university that is part of the institution's athletic program in which only students of different educational institutions participate; or
(4) an event in which only members of a troop, battery, company, or unit of the Texas National Guard or a law enforcement agency participate. (V.A.C.S. Art. 8501-1, Secs. 7(a), (b).)
Sec. 2052.111. DENIAL OF APPLICATION. The commissioner may deny an application for a license if:
(1) the applicant does not meet the qualifications for the license; or
(2) after conducting an investigation and a hearing, the commissioner determines that the applicant has violated this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 8501-1, Secs. 4(c) (part), 10(b).)
Sec. 2052.112. RECIPROCITY AGREEMENT. The commissioner may waive a license requirement under this subchapter if the applicant holds a license issued by another state that has a reciprocity agreement with this state. (V.A.C.S. Art. 8501-1, Sec. 10(c).)
Sec. 2052.113. LICENSE AND PERMIT REQUIRED FOR CLOSED CIRCUIT BOXING TELECAST. A person who exhibits in this state a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast in which a fee is charged for admission to the telecast must:
(1) hold a boxing promoter's license under this chapter; and
(2) obtain a permit for the closed circuit telecast. (V.A.C.S. Art. 8501-1, Sec. 11(b) (part).)
[Sections 2052.114-2052.150 reserved for expansion]
SUBCHAPTER D. GROSS RECEIPTS TAX
Sec. 2052.151. IMPOSITION AND RATE OF TAX. (a) A tax is imposed on a person who:
(1) conducts a boxing event, including an elimination tournament, in which a fee is charged for admission to the event;
(2) exhibits in this state a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast, in which a fee is charged for admission to the telecast; or
(3) conducts or sponsors an amateur boxing event, other than an event exempt from licensing under Section 2052.110(2), (3), or (4), in which a fee is charged for admission to the event.
(b) The rate of the tax is three percent of the gross receipts obtained from the event. (V.A.C.S. Art. 8501-1, Secs. 7(c) (part), 11(a) (part), (b) (part).)
Sec. 2052.152. TAX REPORT AND PAYMENT. (a) A person on whom a tax is imposed under Section 2052.151, not later than 72 hours after the end of the event or telecast for which the tax is due, shall submit to the department a verified report on a form furnished by the department stating:
(1) the number of tickets sold to the event;
(2) the ticket prices charged; and
(3) the amount of gross receipts obtained from the event.
(b) The person shall attach to the report a cashier's check or money order payable to this state in the amount of the tax imposed on the event covered by the report.
(c) The department may audit a report filed under Subsection (b). (V.A.C.S. Art. 8501-1, Secs. 7(c) (part); 11(a) (part), (b) (part), (d).)
Sec. 2052.153. CLOSED CIRCUIT TELECAST. A person exhibiting a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast in which a fee is charged for admission to the exhibition:
(1) must:
(A) be a boxing promoter; and
(B) obtain a permit for each telecast exhibited; and
(2) shall comply with the tax provisions of Section 2052.151. (V.A.C.S. Art. 8501-1, Sec. 11(b).)
Sec. 2052.154. CERTAIN AMATEUR EVENTS. A person shall comply with the tax requirements imposed under Section 2052.151 if the person:
(1) conducts or sponsors an amateur boxing event, except an event conducted under Section 2052.110(2), (3), or (4); and
(2) charges an event admission fee. (V.A.C.S. Art. 8501-1, Sec. 7(c) (part).)
[Sections 2052.155-2052.200 reserved for expansion]
SUBCHAPTER E. REGULATION OF ELIMINATION TOURNAMENTS
Sec. 2052.201. GENERAL RULES. (a) An elimination tournament may only be conducted as a one-night or two-night event.
(b) An elimination tournament match consists of three one-minute rounds with an interval of at least one minute between rounds.
(c) The standing-eight-count and the three-knock-down rules apply to an elimination tournament.
(d) An elimination tournament contestant must be randomly matched with an opponent in the same weight category as the contestant during the preliminary round of an elimination tournament. (V.A.C.S. Art. 8501-1, Secs. 15(a), (g), (h), (i).)
Sec. 2052.202. CONTESTANT PARTICIPATION. (a) An elimination tournament contestant may not participate in more than:
(1) one match during the first night of a two-night elimination tournament other than a championship tournament; or
(2) two matches during the first night of a two-night championship tournament.
(b) An elimination tournament contestant may participate in any number of matches during the second night of a two-night elimination tournament.
(c) Except as provided by Subsection (d), an elimination tournament boxing promoter may permit an elimination tournament contestant who does not win a match during the first night of a two-night elimination tournament to participate in the tournament during the second night of the tournament.
(d) An elimination tournament contestant who is knocked out during the tournament may not continue to participate in the tournament. (V.A.C.S. Art. 8501-1, Secs. 15(b), (c), (d), (e), (f).)
Sec. 2052.203. ELIMINATION TOURNAMENT BOXING PROMOTER RESPONSIBILITIES. (a) An elimination tournament boxing promoter shall require that each elimination tournament contestant:
(1) be at least 18 years old and younger than 36 years old;
(2) submit proof that the contestant has received proper training, including a written description of the contestant's training program during the 28 days before the elimination tournament;
(3) have no professional boxing experience;
(4) have fewer than six boxing match wins during the preceding five years that are recognized by an amateur boxing organization that is recognized under department rules for this purpose;
(5) use 16-ounce gloves; and
(6) wear the following protective gear provided by the promoter:
(A) except as provided by Subsection (b), headgear approved by the department;
(B) a mouthpiece; and
(C) a groin guard or kidney-groin guard approved by the department.
(b) The elimination tournament boxing promoter of a local, regional, or championship elimination tournament is not required to require that each elimination tournament contestant wear headgear approved by the department if the promoter under department rules notifies the commissioner of the decision not to use the approved headgear. (V.A.C.S. Art. 8501-1, Secs. 16(a), (b).)
Sec. 2052.204. ELIMINATION TOURNAMENT RINGSIDE PHYSICIAN. (a) An elimination tournament boxing promoter shall provide a ringside physician for each elimination tournament.
(b) An elimination tournament ringside physician shall:
(1) perform a complete medical examination of each elimination tournament contestant at the tournament's location before the tournament begins;
(2) remain at ringside at all times during a scheduled elimination tournament match;
(3) offer solutions to boxing-related medical problems to the elimination tournament boxing promoter and contestants;
(4) examine each elimination tournament contestant between matches;
(5) immediately before the second night of a two-night elimination tournament, perform a complete physical examination of each elimination tournament contestant who is scheduled to participate during the second night; and
(6) immediately notify the elimination tournament boxing promoter if the physician disqualifies an elimination tournament contestant. (V.A.C.S. Art. 8501-1, Secs. 16(c), 17.)
Sec. 2052.205. NEGATIVE PREGNANCY TEST RESULT. A female elimination tournament contestant may not participate in an elimination tournament unless the contestant provides the ringside physician with proof of a negative pregnancy test result. (V.A.C.S. Art. 8501-1, Sec. 18.)
Sec. 2052.206. WEIGHT CATEGORIES. (a) The weight categories for an elimination tournament are:
(1) less than 112 pounds;
(2) 112 pounds or more and less than 119 pounds;
(3) 119 pounds or more and less than 127 pounds;
(4) 127 pounds or more and less than 136 pounds;
(5) 136 pounds or more and less than 148 pounds;
(6) 148 pounds or more and less than 161 pounds;
(7) 161 pounds or more and less than 176 pounds;
(8) 176 pounds or more and less than 190 pounds; and
(9) 190 pounds or more.
(b) An elimination tournament contestant may not compete in a weight category other than the contestant's weight category as listed under Subsection (a) unless the contestant:
(1) competes in the next heavier weight category for the contestant; and
(2) the contestant's weight is within three percent of the minimum weight for that next heavier weight category. (V.A.C.S. Art. 8501-1, Sec. 19.)
Sec. 2052.207. RING REQUIREMENTS. (a) An elimination tournament match must be conducted in a square ring. Each side of the ring must be not less than 16 feet or more than 24 feet in length.
(b) The floor of the ring must be:
(1) three-fourths inch thick; and
(2) padded with one-inch thick closed-cell foam material. (V.A.C.S. Art. 8501-1, Sec. 20.)
[Sections 2052.208-2052.250 reserved for expansion]
SUBCHAPTER F. OTHER COMBATIVE SPORT REGULATIONS
Sec. 2052.251. BOXING GLOVES. A boxing event contestant, other than an elimination tournament contestant under Subchapter E, shall wear eight-ounce boxing gloves, unless the commissioner by rule requires or permits a contestant to wear heavier gloves. (V.A.C.S. Art. 8501-1, Sec. 6A.)
Sec. 2052.252. CERTAIN AMATEUR EVENTS. (a) This section applies to an amateur boxing event, other than an elimination tournament subject to Subchapter E, in which a fee is charged for admission to the event.
(b) The event may take place only if the commissioner approves the event not later than seven days before the date the event begins.
(c) Each entry in the event must be filed with the amateur organization not later than the third day before the date the event begins.
(d) The amateur organization shall determine the amateur standing of the event contestants.
(e) The event is subject to the supervision of the commissioner.
(f) All profits from the event must be used to develop amateur athletics.
(g) Only a referee or judge licensed under this chapter may participate in the event.
(h) Each contestant participating in the event must be examined by a licensed physician within a reasonable time before the event begins. A licensed physician must be present at ringside during the entire event.
(i) A professional boxer licensed under this chapter may not participate in any capacity in the event. (V.A.C.S. Art. 8501-1, Sec. 7(c) (part).)
Sec. 2052.253. KICKBOXING. A professional kickboxing event must be fought on the basis of the contestants' best efforts. (V.A.C.S. Art. 8501-1, Sec. 4(c) (part).)
[Sections 2052.254-2052.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY PROCEDURES; CRIMINAL OFFENSE
Sec. 2052.301. REVOCATION AND SUSPENSION OF LICENSE OR PERMIT. The commissioner may revoke or suspend the license or permit of a license or permit holder under this chapter for violating this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 8501-1, Sec. 4(c) (part).)
Sec. 2052.302. FORFEITURE OF PURSE. The commissioner may order a boxer or manager to forfeit to this state a purse in an amount of not more than $1,000 for violating this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 8501-1, Sec. 4(d) (part).)
Sec. 2052.303. CIVIL PENALTY; INJUNCTION. (a) A court may assess a civil penalty against a person who violates this chapter or a rule adopted under this chapter. The amount of the penalty may not exceed $1,000 for each violation.
(b) The attorney general or the department may file a civil suit to:
(1) assess and recover a civil penalty under Subsection (a); or
(2) enjoin a person who violates or threatens to violate this chapter or a rule adopted under this chapter from continuing the violation or threat.
(c) Venue for a suit filed under Subsection (b) is in a district court in Travis County.
(d) A civil penalty assessed under this section shall be paid to this state. (V.A.C.S. Art. 8501-1, Secs. 6(b), (c).)
Sec. 2052.304. PETITION FOR REVIEW. (a) A person may seek review of a decision or an order of the commissioner under this chapter by filing a petition for review in a district court in Travis County not later than the 30th day after the date on which the decision or order of the commissioner is final if the person is:
(1) a party to an administrative hearing in which the decision or order is issued; and
(2) aggrieved by the decision or order.
(b) The filing of a petition for review under Subsection (a) does not stay the effect of the decision or order of the commissioner that is the subject of the petition. The commissioner or the district court in which the petition for review is filed may order a stay on appropriate terms.
(c) If a stay is ordered under Subsection (b), a supersedeas bond is not required. (V.A.C.S. Art. 8501-1, Sec. 5(a) (part).)
Sec. 2052.305. SERVICE OF PROCESS. A petition for review filed under Section 2052.304 must be served on:
(1) the commissioner; and
(2) all parties of record to a hearing before the commissioner that relates to the matter for which the petition for review is filed. (V.A.C.S. Art. 8501-1, Sec. 5(a) (part).)
Sec. 2052.306. CERTIFICATION OF RECORD. (a) On receipt of a petition for review served under Section 2052.305, the commissioner, not later than the date on which the answer to the petition must be filed or the date on which the record is made available to the commissioner, whichever date is later, shall certify to the district court in which the petition is filed the record of the proceedings to which the petition relates.
(b) The petitioner shall pay the costs of preparing and certifying the record under this section.
(c) On final determination of the review, the district court shall order payment of the costs described under Subsection (b) as part of the costs in the case. (V.A.C.S. Art. 8501-1, Sec. 5(a) (part).)
Sec. 2052.307. JUDICIAL REVIEW. (a) A district court reviewing a decision or an order of the commissioner under this subchapter shall try the action without a jury in the same manner as a civil action, except that evidence is not admissible unless the evidence was presented at the hearing or noticed in the record of the hearing before the commissioner. The petitioner has the burden of proof in the action.
(b) The court may:
(1) affirm the decision or order of the commissioner; or
(2) remand the matter to the commissioner for further proceedings. (V.A.C.S. Art. 8501-1, Sec. 5(a) (part).)
Sec. 2052.308. APPEAL. (a) The petitioner or commissioner may appeal a final judgment of a court conducting a review under this subchapter in the same manner as a civil action.
(b) The commissioner is not required to file an appeal bond. (V.A.C.S. Art. 8501-1, Sec. 5(a) (part).)
Sec. 2052.309. CRIMINAL OFFENSE. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 8501-1, Sec. 6(a).)
CHAPTER 2053. RIDING STABLES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2053.001. DEFINITIONS
Sec. 2053.002. EXEMPTIONS
[Sections 2053.003-2053.010 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 2053.011. STANDARDS
Sec. 2053.012. GENERAL DUTIES OF BOARD
Sec. 2053.013. POWERS AND DUTIES OF DEPARTMENT
[Sections 2053.014-2053.020 reserved for expansion]
SUBCHAPTER C. REGISTRATION
Sec. 2053.021. REGISTRATION REQUIRED
Sec. 2053.022. APPLICATION REQUIREMENTS
Sec. 2053.023. CONDITION OF REGISTRATION; FEES
Sec. 2053.024. REGISTRATION DURATION
[Sections 2053.025-2053.030 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT AND DISCIPLINARY PROCEDURES
Sec. 2053.031. INSPECTIONS
Sec. 2053.032. DENIAL OF APPLICATION
Sec. 2053.033. REVOCATION OR SUSPENSION OF CERTIFICATE
OF REGISTRATION
Sec. 2053.034. SEIZURE OF ANIMALS
Sec. 2053.035. AUCTION
Sec. 2053.036. INFORMAL DISPOSITION
Sec. 2053.037. APPEAL
Sec. 2053.038. CRIMINAL OFFENSE
CHAPTER 2053. RIDING STABLES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2053.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commissioner" means the commissioner of public health.
(3) "Department" means the Texas Department of Health.
(4) "Riding stable" means an establishment open to the public that maintains one or more equine animals available for hire for recreational riding or driving. (Health and Safety Code, Secs. 827.001(1), (2), (3), (5).)
Sec. 2053.002. EXEMPTIONS. This chapter does not apply to:
(1) a youth camp regulated under Chapter 141, Health and Safety Code; or
(2) a person operating a riding stable under a concession contract in a national park located in this state. (Health and Safety Code, Sec. 827.002.)
[Sections 2053.003-2053.010 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
Sec. 2053.011. STANDARDS. The board shall establish standards for the operation of riding stables that are designed to ensure the:
(1) maintenance of sanitary conditions at facilities that keep equine animals;
(2) facilities' proper ventilation;
(3) humane care and treatment of the animals, including adequate nutrition and water; and
(4) exercise of reasonable care to protect the health of the animals and to prevent the spread of disease among the animals. (Health and Safety Code, Sec. 827.004(a).)
Sec. 2053.012. GENERAL DUTIES OF BOARD. The board may:
(1) adopt rules it considers necessary to carry out this chapter; and
(2) enter into a contract or other agreement necessary to carry out this chapter. (Health and Safety Code, Secs. 827.004(b), (c).)
Sec. 2053.013. POWERS AND DUTIES OF DEPARTMENT. (a) The department may use fees collected under this chapter only for the administration and enforcement of this chapter.
(b) The department may use any available funds to pay for material, equipment, and services covered by a contract or other agreement entered into by the board. (Health and Safety Code, Secs. 827.004(d), 827.010.)
[Sections 2053.014-2053.020 reserved for expansion]
SUBCHAPTER C. REGISTRATION
Sec. 2053.021. REGISTRATION REQUIRED. A person may not operate a riding stable unless the person holds a certificate of registration issued by the department for each location at which the person operates a stable. (Health and Safety Code, Sec. 827.003(a).)
Sec. 2053.022. APPLICATION REQUIREMENTS. (a) An applicant for registration or renewal of registration must apply on a form prescribed by the board.
(b) An application must be accompanied by:
(1) a nonrefundable application or renewal fee; and
(2) a signed statement issued by a veterinarian licensed to practice in this state verifying that the veterinarian:
(A) inspected the facility that is the subject of the application not earlier than the 90th day before the date on which the application is made; and
(B) found that the facility complies with the standards established by the board under Section 2053.011.
(c) An applicant shall select and compensate the inspecting veterinarian.
(d) A certificate of registration may not be transferred. (Health and Safety Code, Secs. 827.003(b) (part), (d).)
Sec. 2053.023. CONDITION OF REGISTRATION; FEES. (a) An applicant for registration or renewal of registration must, before the issuance or renewal of registration, meet standards established by the board relating to:
(1) the humane care and treatment of equine animals;
(2) health and disease control affecting the animals;
(3) housing the animals;
(4) sanitation for the animals; and
(5) control of the animals.
(b) The board shall establish reasonable fees for registration and renewal of registration that are sufficient to pay the costs of administering the registration program established under this chapter. (Health and Safety Code, Secs. 827.003(b) (part), (c).)
Sec. 2053.024. REGISTRATION DURATION. A certificate of registration issued or renewed under this chapter is valid for two years from the date of issuance or renewal. (Health and Safety Code, Sec. 827.003(b) (part).)
[Sections 2053.025-2053.030 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT AND DISCIPLINARY PROCEDURES
Sec. 2053.031. INSPECTIONS. (a) The department or an agent employed under Subsection (b) may enter a facility or other premise regulated under this chapter, at a reasonable time, to determine if the facility or other premise complies with the standards established by the board if the department has reasonable grounds to believe that the standards have been violated.
(b) The department shall:
(1) employ agents to conduct inspections under Subsection (a); and
(2) prescribe qualifications for the agents. (Health and Safety Code, Sec. 827.005.)
Sec. 2053.032. DENIAL OF APPLICATION. (a) The commissioner may not issue a certificate of registration to an applicant on finding, after an inspection conducted under Section 2053.031, that the applicant does not comply with the minimum standards established by the board.
(b) If the commissioner denies an application under Subsection (a), the commissioner shall:
(1) notify the applicant in writing of the denial and the reasons for the denial; and
(2) if the applicant requests a hearing on the denial, conduct a hearing not later than the 31st day after the date the commissioner receives the request.
(c) The commissioner may not issue a certificate of registration to an applicant on finding, after a hearing under Subsection (b)(2), that the applicant does not comply with the minimum standards established by the board. (Health and Safety Code, Sec. 827.006(a).)
Sec. 2053.033. REVOCATION OR SUSPENSION OF CERTIFICATE OF REGISTRATION. (a) The commissioner shall notify a person that a hearing will be held not later than the 31st day after the date on which notice is given on finding, after an inspection conducted under Section 2053.031, that the person fails to comply with the minimum standards established by the board.
(b) The commissioner may suspend a person's certificate of registration until the hearing on finding that the person's failure to comply with the standards constitutes a gross violation of the standards. A suspension under this subsection may not continue for more than 31 days.
(c) The commissioner shall revoke a person's certificate of registration on finding at a hearing that the person has failed to comply with the minimum standards. (Health and Safety Code, Secs. 827.006(b), (c).)
Sec. 2053.034. SEIZURE OF ANIMALS. (a) If the commissioner suspends or revokes a person's certificate of registration under Section 2053.033, the commissioner may apply to a justice of the peace for an order requiring a sheriff, or other peace officer, to seize animals kept at the person's riding stable.
(b) A justice of the peace shall issue an order under Subsection (a) on finding probable cause to believe that any animal kept at the person's riding stable is in danger of being harmed by a gross violation of the standards established by the board.
(c) An employee of the department may accompany a peace officer to a riding stable while the officer executes an order issued under this section. (Health and Safety Code, Secs. 827.007(a), (b).)
Sec. 2053.035. AUCTION. (a) If, after a hearing is conducted under Section 2053.033, the department revokes a person's certificate of registration, the commissioner shall order the animals kept at the person's riding stable to be sold at a public auction, unless the revocation is reversed under Section 2053.037 before the date of the auction.
(b) Proceeds from the auction shall be used to pay the expenses incurred in conducting the auction. Proceeds remaining after the payment of expenses shall be paid to the person whose certificate of registration is revoked.
(c) A person who has a certificate of registration revoked under Section 2053.033, or the person's agent, may not participate in an auction ordered under Subsection (a).
(d) If the commissioner is unable to sell an animal at an auction ordered under Subsection (a), the commissioner may:
(1) destroy the animal in a humane manner; or
(2) give the animal to a nonprofit animal shelter, pound, or society for the protection of animals. (Health and Safety Code, Secs. 827.007(c), (d), (e).)
Sec. 2053.036. INFORMAL DISPOSITION. This subchapter does not preclude a person registered under this chapter and the department from making an informal disposition of a matter using an agreed order. (Health and Safety Code, Sec. 827.008.)
Sec. 2053.037. APPEAL. A person who has been denied an application for registration or renewal of registration under Section 2053.032 or whose certificate of registration has been revoked under Section 2053.033 may seek judicial review of the denial or revocation as provided by Chapter 2001, Government Code. (Health and Safety Code, Sec. 827.009.)
Sec. 2053.038. CRIMINAL OFFENSE. (a) A person commits an offense if the person knowingly operates a riding stable in violation of Section 2053.021.
(b) An offense under this section is a Class B misdemeanor.
(c) A person commits a separate offense for each day the person engages in conduct prohibited by Subsection (a). (Health and Safety Code, Sec. 827.011.)
[Chapters 2054-2100 reserved for expansion]
SUBTITLE C. ARTS AND MUSIC
CHAPTER 2101. CONSIGNMENT OF ART WORKS
Sec. 2101.001. SHORT TITLE
Sec. 2101.002. DEFINITIONS
Sec. 2101.003. CONSIGNED ART EXEMPT FROM CERTAIN LIENS
OR CLAIMS
CHAPTER 2101. CONSIGNMENT OF ART WORKS
Sec. 2101.001. SHORT TITLE. This chapter may be cited as the Artists' Consignment Act. (V.A.C.S. Art. 9018, Sec. 1.)
Sec. 2101.002. DEFINITIONS. In this chapter:
(1) "Art" means a commonly recognized art form, including a painting, sculpture, drawing, work of graphic art, pottery, weaving, batik, macrame, or quilt.
(2) "Art dealer" means a person in the business of selling works of art.
(3) "Artist" means the creator of a work of art or, if the creator is dead, the creator's estate.
(4) "Creditor" has the meaning assigned by Section 1.201, Business & Commerce Code.
(5) "Person" means an individual, partnership, corporation, or association. (V.A.C.S. Art. 9018, Sec. 2.)
Sec. 2101.003. CONSIGNED ART EXEMPT FROM CERTAIN LIENS OR CLAIMS. (a) Notwithstanding any provision of the Business & Commerce Code, a work of art delivered to an art dealer for exhibition or sale and the proceeds from the dealer's sale of the work of art are not subject to a claim, lien, or security interest of a creditor of the dealer.
(b) This section applies to the proceeds of a sale of a work of art regardless of whether the art dealer or another person purchased the work. (V.A.C.S. Art. 9018, Sec. 3.)
CHAPTER 2102. COLLECTION OF ROYALTIES ON NONDRAMATIC
MUSICAL WORKS
Sec. 2102.001. DEFINITIONS
Sec. 2102.002. APPLICATION OF CHAPTER
Sec. 2102.003. REQUIRED DISCLOSURES
Sec. 2102.004. REQUIRED CONTRACT TERMS
Sec. 2102.005. IMPROPER COLLECTIONS PRACTICES
Sec. 2102.006. ENFORCEMENT
CHAPTER 2102. COLLECTION OF ROYALTIES ON NONDRAMATIC
MUSICAL WORKS
Sec. 2102.001. DEFINITIONS. In this chapter:
(1) "Copyright owner" means the owner of a copyright of a nondramatic musical work recognized and enforceable under federal copyright laws (17 U.S.C. Section 101 et seq.).
(2) "Performing rights society" means an association or corporation that licenses the public performance of nondramatic musical works for copyright owners, including the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc. (SESAC).
(3) "Proprietor" means the owner or operator of a retail establishment in this state where the public may assemble and where nondramatic musical works may be performed, broadcast, or otherwise transmitted, including a restaurant, inn, bar, tavern, or other similar place of business.
(4) "Royalty" means a fee payable to a performing rights society for public performance rights. (V.A.C.S. Art. 851-D, Sec. 2.)
Sec. 2102.002. APPLICATION OF CHAPTER. This chapter does not apply to:
(1) a contract:
(A) between a performing rights society and a broadcaster licensed by the Federal Communications Commission; or
(B) with a cable operator, programmer, or other transmission service;
(2) conduct engaged in for the enforcement of Section 35.94, Business & Commerce Code; or
(3) the owner of a copyright of a motion picture or an audiovisual work. (V.A.C.S. Art. 851-D, Sec. 7.)
Sec. 2102.003. REQUIRED DISCLOSURES. A performing rights society may not contract or offer to contract for the payment of royalties by a proprietor unless, at the time of the offer or any subsequent time, but not later than 72 hours before the execution of the contract, the performing rights society provides the proprietor, in writing, the following:
(1) rates and terms of royalties to be collected under the contract;
(2) at the proprietor's request, the opportunity to review the most current available list of the members or affiliates represented by the society;
(3) notice that the society will make available, on the proprietor's written request and at the proprietor's sole expense, the most current available list of the copyrighted musical works in the performing rights society's repertory; and
(4) notice that the society will identify the method for securing the list. (V.A.C.S. Art. 851-D, Sec. 3.)
Sec. 2102.004. REQUIRED CONTRACT TERMS. A contract between a performing rights society and a proprietor for the payment of royalties executed in this state must:
(1) be in writing;
(2) be signed by the parties; and
(3) include the following information:
(A) the proprietor's name and business address;
(B) the name and location of each place of business to which the contract applies;
(C) the name and address of the performing rights society;
(D) the duration of the contract; and
(E) the rates and terms of royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of the contract. (V.A.C.S. Art. 851-D, Sec. 4.)
Sec. 2102.005. IMPROPER COLLECTIONS PRACTICES. A performing rights society or the society's agent or employee may not collect or attempt to collect from a proprietor licensed by that society a royalty payment except as provided by a contract executed under this chapter. (V.A.C.S. Art. 851-D, Sec. 5.)
Sec. 2102.006. ENFORCEMENT. A person aggrieved by a violation of this chapter may:
(1) bring an action to recover actual damages and reasonable attorney's fees; and
(2) seek an injunction or other remedy available at law or in equity. (V.A.C.S. Art. 851-D, Sec. 6.)
CHAPTER 2103. LICENSING AND PERFORMING FEES FOR CERTAIN
RECORDINGS
Sec. 2103.001. DEFINITION
Sec. 2103.002. RELIANCE ON LABELING INFORMATION
Sec. 2103.003. ASSIGNMENT OF RIGHTS
Sec. 2103.004. DISCHARGE OF OBLIGATION
Sec. 2103.005. NOTICE OF ASSIGNMENT OR TRANSFER
CHAPTER 2103. LICENSING AND PERFORMING FEES FOR CERTAIN
RECORDINGS
Sec. 2103.001. DEFINITION. In this chapter, "playing a recording" includes performing, broadcasting, or televising a recording. (New.)
Sec. 2103.002. RELIANCE ON LABELING INFORMATION. A person playing a recording requiring the payment of a licensing or performing fee may rely on the information on the label of the recording for paying or accounting for the fees unless notice that complies with Section 2103.005 is given to the person. (V.A.C.S. Art. 179c, Sec. 1 (part).)
Sec. 2103.003. ASSIGNMENT OF RIGHTS. An assignment or transfer of the rights to a licensing or performing fee for a recording is not binding on a person playing the recording unless a notice that complies with Section 2103.005 is given to the person. (V.A.C.S. Art. 179c, Sec. 2 (part).)
Sec. 2103.004. DISCHARGE OF OBLIGATION. A person's payment of a licensing or performing fee under the applicable agreement operates as a discharge of any other licensing or performing fee for the playing of a recording if the payment is made:
(1) in reliance on the label information on the recording; or
(2) under the terms of the last notice received that complies with Section 2103.005. (V.A.C.S. Art. 179c, Secs. 1 (part), 2 (part).)
Sec. 2103.005. NOTICE OF ASSIGNMENT OR TRANSFER. A notice of an assignment or transfer under this chapter must state, in writing:
(1) the identity of the recording to which the notice applies;
(2) the name and address of the assignee or transferee; and
(3) the effective date of the assignment or transfer. (V.A.C.S. Art. 179c, Sec. 3.)
CHAPTER 2104. REGULATION OF OUTDOOR MUSIC FESTIVALS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2104.001. DEFINITIONS
[Sections 2104.002-2104.050 reserved for expansion]
SUBCHAPTER B. PROMOTER REGISTRATION
Sec. 2104.051. PROMOTER REGISTRATION
[Sections 2104.052-2104.100 reserved for expansion]
SUBCHAPTER C. OUTDOOR MUSIC FESTIVAL PERMIT
Sec. 2104.101. FESTIVAL PERMIT APPLICATION
Sec. 2104.102. HEALTH REPORT
Sec. 2104.103. HEARING
Sec. 2104.104. DECISION ON PERMIT APPLICATION
Sec. 2104.105. EFFECT OF PERMIT
Sec. 2104.106. PERMIT REVOCATION
Sec. 2104.107. APPEAL
[Sections 2104.108-2104.150 reserved for expansion]
SUBCHAPTER D. PENALTIES
Sec. 2104.151. PROHIBITED ACTS; CRIMINAL OFFENSE
CHAPTER 2104. REGULATION OF OUTDOOR MUSIC FESTIVALS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2104.001. DEFINITIONS. In this chapter:
(1) "Outdoor music festival" means any form of musical entertainment provided by live performances that occurs on two or more consecutive days or on any two days during a three-day period if:
(A) more than 5,000 persons attend any performance;
(B) any performer or audience member is not within a permanent structure; and
(C) the performance occurs outside the boundaries of a municipality.
(2) "Promoter" means a person who attempts to organize or promote an outdoor music festival, or to solicit funds for the organization or promotion of an outdoor music festival. (V.A.C.S. Art. 9003, Sec. 1.)
[Sections 2104.002-2104.050 reserved for expansion]
SUBCHAPTER B. PROMOTER REGISTRATION
Sec. 2104.051. PROMOTER REGISTRATION. (a) A promoter shall register with the county clerk of the county in which the outdoor music festival is to be held.
(b) The registration must include:
(1) the name and address of:
(A) the promoter; and
(B) each of the promoter's associates or employees assisting in the promotion of the festival; and
(2) a statement indicating whether the promoter, or an associate or employee of the promoter, has been convicted of a crime involving the misappropriation of funds, theft, burglary, or robbery.
(c) The promoter must submit a $5 registration fee with the registration.
(d) The registration must be verified by the promoter and be based on the promoter's best information and belief. (V.A.C.S. Art. 9003, Sec. 3.)
[Sections 2104.052-2104.100 reserved for expansion]
SUBCHAPTER C. OUTDOOR MUSIC FESTIVAL PERMIT
Sec. 2104.101. FESTIVAL PERMIT APPLICATION. (a) A promoter shall, before the 60th day before the date the promoter holds an outdoor music festival, file a permit application with the county clerk of the county in which the festival is to be held.
(b) The application must include:
(1) the name and address of:
(A) the promoter; and
(B) each of the promoter's associates or employees assisting in the promotion of the festival;
(2) a financial statement of the promoter and a statement specifying the sources and amounts of capital being supplied for the festival;
(3) a description of the festival location;
(4) the name and address of the owner of the festival location;
(5) a statement describing the terms and conditions of the agreement allowing the promoter to use the festival location;
(6) the dates and times of the festival;
(7) the maximum number of persons the promoter will allow to attend the festival;
(8) a statement describing the promoter's plan to control the number of persons attending the festival;
(9) a description of the agreement between the promoter and each performer who is scheduled to appear at the festival; and
(10) a complete statement describing the promoter's festival preparations to comply with the minimum standards of sanitation and health prescribed by Chapter 341, Health and Safety Code.
(c) The promoter shall submit a $5 filing fee with the permit application.
(d) The permit application must be verified by the promoter and be based on the promoter's best information and belief. (V.A.C.S. Art. 9003, Sec. 4.)
Sec. 2104.102. HEALTH REPORT. (a) On the filing of a permit application under Section 2104.101, the county clerk shall forward a copy of the application to the county health officer.
(b) The county health officer shall make a written report to the commissioners court. A report made under this subsection must:
(1) state whether the county health officer believes that the preparations described in the application would, if carried out, be sufficient to:
(A) protect the community and the persons attending the outdoor music festival from health dangers; and
(B) avoid a violation of Chapter 341, Health and Safety Code; and
(2) be filed with the county clerk before the second day before the date of the hearing on the permit application.
(c) The county health officer shall be present at the hearing on the permit application and may be called to testify by a person having an interest in the permit. (V.A.C.S. Art. 9003, Sec. 5.)
Sec. 2104.103. HEARING. (a) The commissioners court shall set a date and time for a hearing on the permit application.
(b) The hearing must be held:
(1) after the 15th day after the date the permit application is filed; and
(2) before the 30th day before the date set for the first performance of the outdoor music festival.
(c) A promoter is entitled to at least 10 days notice before the hearing date.
(d) Any person may appear at the hearing and testify for or against the grant of the permit. (V.A.C.S. Art. 9003, Sec. 6.)
Sec. 2104.104. DECISION ON PERMIT APPLICATION. The commissioners court shall grant a permit application filed under Section 2104.101 unless, by a majority vote, the court finds, from a preponderance of the evidence presented at the hearing, that:
(1) the permit application contains false or misleading information;
(2) required information is omitted from the application;
(3) the promoter does not have sufficient financial backing or stability to:
(A) carry out the preparations described in the application; or
(B) ensure the faithful performance of the promoter's agreements;
(4) the preparations described in the application are insufficient to:
(A) protect the community or the persons attending the outdoor music festival from health dangers; or
(B) avoid a violation of Chapter 341, Health and Safety Code;
(5) the times of the festival and the festival location create a substantial danger of congestion and disruption of other lawful activities in the immediate vicinity of the festival;
(6) the preparations described in the application are insufficient to limit the number of persons attending the festival to the maximum number stated in the application; or
(7) the promoter does not have adequate agreements with performers to ensure with reasonable certainty that persons advertised to perform at the festival will appear. (V.A.C.S. Art. 9003, Sec. 7.)
Sec. 2104.105. EFFECT OF PERMIT. A permit issued under this chapter authorizes the promoter to hold an outdoor music festival at a specified location at specified times. (V.A.C.S. Art. 9003, Sec. 8.)
Sec. 2104.106. PERMIT REVOCATION. (a) At any time before the fifth day before the date of the first performance of the outdoor music festival, the commissioners court may, after reasonable notice to the promoter and a hearing, revoke the permit on a finding, by a majority of the court, that:
(1) the preparations for the event will not be completed in time for the first performance; and
(2) the failure to carry out the preparations will result in a serious threat to the health of the community or persons attending the festival.
(b) A permit may not be revoked during the period beginning with the fifth day before the date of the first performance of the festival and ending with the final day of the festival. (V.A.C.S. Art. 9003, Sec. 9.)
Sec. 2104.107. APPEAL. (a) A person affected by an action of the commissioners court in granting, denying, or revoking a permit issued under this chapter may appeal the action by filing a petition in a district court in the county in which the commissioners court presides.
(b) The district court shall review the action of the commissioners court under the substantial evidence rule.
(c) An appeal under this section does not suspend an action of the commissioners court unless the district court orders a suspension. (V.A.C.S. Art. 9003, Sec. 10.)
[Sections 2104.108-2104.150 reserved for expansion]
SUBCHAPTER D. PENALTIES
Sec. 2104.151. PROHIBITED ACTS; CRIMINAL OFFENSE. (a) A person may not act as a promoter of an outdoor music festival unless the person registers with the county clerk of the county in which the festival is to be held.
(b) A person may not direct, control, or participate in the direction or control of an outdoor music festival unless the festival is authorized by a permit issued under this chapter.
(c) A person commits an offense if the person violates this section.
(d) An offense under this section is a misdemeanor punishable by:
(1) confinement in a county jail for a term not to exceed 30 days;
(2) a fine not to exceed $1,000; or
(3) both the fine and confinement. (V.A.C.S. Art. 9003, Secs. 2, 11.)
CHAPTER 2105. REGULATION OF TALENT AGENCIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2105.001. DEFINITIONS
Sec. 2105.002. POWERS AND DUTIES OF DEPARTMENT
[Sections 2105.003-2105.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION REQUIREMENTS
Sec. 2105.051. REGISTRATION REQUIRED
Sec. 2105.052. REGISTRATION STATEMENT
Sec. 2105.053. REGISTRATION FEE
Sec. 2105.054. CERTIFICATE ISSUANCE
Sec. 2105.055. TERM; RENEWAL
Sec. 2105.056. DISCIPLINARY ACTION
[Sections 2105.057-2105.100 reserved for expansion]
SUBCHAPTER C. DUTIES OF TALENT AGENCIES
Sec. 2105.101. REGISTRATION STATEMENT; COPY,
INSPECTION, AND UPDATE
Sec. 2105.102. DISPLAY OF CERTIFICATE
Sec. 2105.103. CONSUMER INFORMATION
Sec. 2105.104. AGENCY RECORDS
Sec. 2105.105. ARTIST FUNDS
Sec. 2105.106. MAINTENANCE OF BOND
Sec. 2105.107. NOTIFICATION OF LEGAL ACTION
[Sections 2105.108-2105.150 reserved for expansion]
SUBCHAPTER D. CONTRACTS WITH ARTISTS
Sec. 2105.151. GENERAL REQUIREMENTS
Sec. 2105.152. CONTRACT CANCELLATION; REFUND
Sec. 2105.153. VOID CONTRACT
[Sections 2105.154-2105.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES
Sec. 2105.201. ADVANCE FEES; SPLITTING FEES
Sec. 2105.202. REQUIREMENT TO USE CERTAIN SERVICES
PROHIBITED
[Sections 2105.203-2105.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT
Sec. 2105.251. DECEPTIVE TRADE PRACTICE
Sec. 2105.252. INJUNCTIVE RELIEF
Sec. 2105.253. CRIMINAL OFFENSE
CHAPTER 2105. REGULATION OF TALENT AGENCIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2105.001. DEFINITIONS. In this chapter:
(1) "Artist" means:
(A) an actor who performs in or a director of a motion picture, theatrical, radio, television, or other entertainment production;
(B) a musician or musical director;
(C) a writer;
(D) a cinematographer;
(E) a composer, lyricist, or arranger of musical compositions;
(F) a model; or
(G) another individual who performs analogous professional services in a motion picture, theatrical, radio, television, or other entertainment production.
(2) "Commissioner" means the commissioner of licensing and regulation.
(3) "Department" means the Texas Department of Licensing and Regulation.
(4) "Model" means an individual who performs professional services as a:
(A) fashion model;
(B) model for commercial photography or demonstration of products for advertising purposes; or
(C) host for a convention or other special event.
(5) "Person" means an individual, corporation, organization, business trust, estate, trust, partnership, association, or any other private legal entity.
(6) "Talent agency" means a person engaged in the business of obtaining or attempting to obtain employment for artists, including a person that counsels or directs an artist in the development of the artist's professional career. (V.A.C.S. Art. 5221a-9, Sec. 1.)
Sec. 2105.002. POWERS AND DUTIES OF DEPARTMENT. (a) The department shall:
(1) prescribe application forms for original and renewal certificates of registration;
(2) set application and registration fees in amounts that are reasonable and necessary to defray the costs of administering this chapter; and
(3) adopt rules as necessary to implement this chapter.
(b) The department may:
(1) adopt rules as necessary to administer the registration program created under this chapter; and
(2) take other action as necessary to enforce this chapter. (V.A.C.S. Art. 5221a-9, Secs. 3, 6(b).)
[Sections 2105.003-2105.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION REQUIREMENTS
Sec. 2105.051. REGISTRATION REQUIRED. A person may not operate a talent agency in this state unless the person holds a certificate of registration issued by the department under this chapter for each location at which the person operates a talent agency. (V.A.C.S. Art. 5221a-9, Sec. 2(a).)
Sec. 2105.052. REGISTRATION STATEMENT. (a) An applicant for a certificate of registration must file a registration statement with the department.
(b) The registration statement must contain:
(1) the name and address of the talent agency;
(2) the address of each location at which the applicant proposes to operate a talent agency;
(3) the name and address of each person who directly or indirectly owns or controls 10 percent or more of the outstanding shares of stock of the talent agency;
(4) a description of the type of services offered by the talent agency; and
(5) a full and complete disclosure of any litigation relating to the operation of a talent agency brought against the talent agency or an owner, officer, or director of the talent agency if the litigation:
(A) was completed not later than three years before the date the registration statement is filed; or
(B) is pending on the filing date.
(c) A registration statement must be accompanied by a surety bond in the amount of $10,000 that is:
(1) payable to the state; and
(2) conditioned on faithful compliance with this chapter. (V.A.C.S. Art. 5221a-9, Secs. 4(a), 5(a) (part).)
Sec. 2105.053. REGISTRATION FEE. The department may charge a talent agency a reasonable fee not to exceed $100 to cover the cost of filing a registration statement or an update of a registration statement. (V.A.C.S. Art. 5221a-9, Sec. 6(a).)
Sec. 2105.054. CERTIFICATE ISSUANCE. The department shall issue a certificate of registration to a talent agency that:
(1) files a complete registration statement;
(2) posts the required surety bond; and
(3) pays the required registration fee. (V.A.C.S. Art. 5221a-9, Sec. 7.)
Sec. 2105.055. TERM; RENEWAL. (a) A certificate of registration is valid for one year after the date of issuance.
(b) At least 30 days before the expiration date of a certificate of registration, the department shall notify, in writing, the certificate holder of the impending expiration.
(c) A certificate holder may renew a certificate of registration by paying the renewal fee and complying with other renewal requirements prescribed by department rule before the expiration date of the certificate. The department shall issue a renewal certificate to the certificate holder at the time of renewal. (V.A.C.S. Art. 5221a-9, Sec. 8.)
Sec. 2105.056. DISCIPLINARY ACTION. (a) The department may deny, suspend, revoke, or reinstate a certificate of registration.
(b) The department shall adopt rules establishing:
(1) grounds for taking disciplinary action under Subsection (a); and
(2) procedures for taking disciplinary action.
(c) A disciplinary action relating to the suspension or revocation of a certificate of registration is governed by Chapter 2001, Government Code.
(d) A person whose certificate of registration has been revoked may not apply for a new certificate of registration before the first anniversary of the date of the revocation. (V.A.C.S. Art. 5221a-9, Sec. 11.)
[Sections 2105.057-2105.100 reserved for expansion]
SUBCHAPTER C. DUTIES OF TALENT AGENCIES
Sec. 2105.101. REGISTRATION STATEMENT; COPY, INSPECTION, AND UPDATE. (a) A talent agency shall maintain a copy of the registration statement filed under Section 2105.052 in the agency's records.
(b) The talent agency shall permit an artist, on request, to inspect the agency's registration statement if the artist uses or proposes to use the services of the agency.
(c) A talent agency shall update the registration statement if a material change occurs in the information contained in the statement. (V.A.C.S. Art. 5221a-9, Secs. 4(b) (part), (c).)
Sec. 2105.102. DISPLAY OF CERTIFICATE. A certificate holder shall display the holder's certificate of registration in a conspicuous place in the holder's principal office. (V.A.C.S. Art. 5221a-9, Sec. 9(a).)
Sec. 2105.103. CONSUMER INFORMATION. A certificate holder shall display, in the holder's principal office, a sign provided by the department that contains:
(1) the department's name;
(2) the mailing address and telephone number of the department's main office; and
(3) a statement informing consumers that a complaint against a talent agency registered under this chapter may be directed to the department. (V.A.C.S. Art. 5221a-9, Sec. 9(b).)
Sec. 2105.104. AGENCY RECORDS. A certificate holder shall maintain records relating to the operation of the talent agency as required by department rule. (V.A.C.S. Art. 5221a-9, Sec. 10(a).)
Sec. 2105.105. ARTIST FUNDS. (a) A certificate holder receiving funds on behalf of an artist shall deposit those funds in an account maintained in a financial institution covered by federal deposit insurance.
(b) Funds deposited under this section may be disbursed only as prescribed by department rule. (V.A.C.S. Art. 5221a-9, Sec. 10(b).)
Sec. 2105.106. MAINTENANCE OF BOND. (a) A certificate holder shall maintain the bond required by Section 2105.052 until the second anniversary of the date the certificate holder ceases to operate as a talent agency in this state.
(b) The requirements of Section 2105.052(c) and this section do not limit the recovery of damages to the amount of the surety bond. (V.A.C.S. Art. 5221a-9, Secs. 5(a) (part), (b).)
Sec. 2105.107. NOTIFICATION OF LEGAL ACTION. If a legal action relating to the operation of a talent agency is brought against the agency or an owner, officer, or director of the agency, the agency shall notify the department, in writing, not later than the 10th day after the date the agency receives notice of the action. (V.A.C.S. Art. 5221a-9, Sec. 4(b) (part).)
[Sections 2105.108-2105.150 reserved for expansion]
SUBCHAPTER D. CONTRACTS WITH ARTISTS
Sec. 2105.151. GENERAL REQUIREMENTS. (a) A contract entered into between a talent agency and an artist for the purchase of services from the agency must:
(1) be in writing; and
(2) be signed by the artist.
(b) The contract constitutes the entire agreement between the talent agency and the artist.
(c) A talent agency must deliver a fully completed copy of a contract to an artist who purchases services from the agency before the contract is signed. (V.A.C.S. Art. 5221a-9, Sec. 12(a).)
Sec. 2105.152. CONTRACT CANCELLATION; REFUND. (a) An artist who purchases services from a talent agency may cancel the contract before the fourth business day after the date the contract is signed by notifying the agency in writing of the cancellation.
(b) Written notification is considered given if the notification is mailed by certified mail to the principal office of the talent agency not later than midnight of the third business day.
(c) If an artist cancels a contract as provided by this section, the talent agency shall refund to the artist any money received from the artist under the contract. (V.A.C.S. Art. 5221a-9, Sec. 12(b).)
Sec. 2105.153. VOID CONTRACT. A contract covered by Section 2105.151 is void if the contract:
(1) does not comply with this chapter; or
(2) is entered into in reliance on a fraudulent or misleading representation, notice, or advertisement of the talent agency. (V.A.C.S. Art. 5221a-9, Sec. 13(a).)
[Sections 2105.154-2105.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED PRACTICES
Sec. 2105.201. ADVANCE FEES; SPLITTING FEES. (a) In this section, "fee" includes:
(1) money or other valuable consideration paid or promised to be paid for a service rendered by a person operating as a talent agency;
(2) money received by a talent agency in excess of the amount paid by the agency for transportation, transfer of baggage, or board and lodging for an applicant for employment as an artist; or
(3) the difference between the amount received by a talent agency for furnishing an artist for an entertainment production, exhibition, or performance and the amount the talent agency pays to the artist.
(b) A talent agency may not:
(1) charge, as a condition of registering an applicant or representing an artist, a registration or advance fee; or
(2) split or share fees with a person who is not registered under this chapter. (V.A.C.S. Art. 5221a-9, Secs. 2(b) (part), (c), (d).)
Sec. 2105.202. REQUIREMENT TO USE CERTAIN SERVICES PROHIBITED. A talent agency may not require an applicant or artist to subscribe to or use a specific publication, video or audio tape, postcard service, advertisement service, resume service, photographer, or acting or modeling school or workshop. (V.A.C.S. Art. 5221a-9, Sec. 2(b) (part).)
[Sections 2105.203-2105.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT
Sec. 2105.251. DECEPTIVE TRADE PRACTICE. (a) A violation of this chapter is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code.
(b) A public or private right or remedy prescribed by Chapter 17, Business & Commerce Code, may be used to enforce this section. (V.A.C.S. Art. 5221a-9, Sec. 13(b).)
Sec. 2105.252. INJUNCTIVE RELIEF. (a) If it appears that a person is violating or threatening to violate this chapter, a department rule, or an order of the commissioner related to this chapter, the commissioner may bring an action for injunctive relief to restrain the person from engaging in or continuing the violation.
(b) An action brought under this section must be filed in district court in Travis County.
(c) The commissioner may recover reasonable expenses, including court costs, attorney's fees, witness fees, and deposition expenses, incurred in obtaining injunctive relief under this section. (V.A.C.S. Art. 5221a-9, Sec. 14.)
Sec. 2105.253. CRIMINAL OFFENSE. (a) A person commits an offense if the person knowingly violates this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 5221a-9, Sec. 15.)
[Chapters 2106-2150 reserved for expansion]
SUBTITLE D. OTHER AMUSEMENTS AND ENTERTAINMENT
CHAPTER 2151. REGULATION OF AMUSEMENT RIDES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2151.001. SHORT TITLE
Sec. 2151.002. DEFINITIONS
[Sections 2151.003-2151.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
Sec. 2151.051. GENERAL POWERS AND DUTIES
Sec. 2151.052. FEES
Sec. 2151.053. INFORMATION REQUEST
[Sections 2151.054-2151.100 reserved for expansion]
SUBCHAPTER C. OPERATION OF AMUSEMENT RIDES
Sec. 2151.101. REQUIREMENTS FOR OPERATION
Sec. 2151.102. INSPECTION REQUIREMENTS
Sec. 2151.103. INJURY REPORTS
Sec. 2151.104. ACCESS TO RIDES
[Sections 2151.105-2151.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT PROVISIONS
Sec. 2151.151. INJUNCTION
Sec. 2151.152. OTHER LOCAL ENFORCEMENT ACTIONS
Sec. 2151.153. CRIMINAL PENALTIES
CHAPTER 2151. REGULATION OF AMUSEMENT RIDES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2151.001. SHORT TITLE. This chapter may be cited as the Amusement Ride Safety Inspection and Insurance Act. (V.T.I.C. Art. 21.60, Sec. 1.)
Sec. 2151.002. DEFINITIONS. In this chapter:
(1) "Amusement ride" means a mechanical device that carries passengers along, around, or over a fixed or restricted course or within a defined area for the purpose of giving the passengers amusement, pleasure, or excitement. The term does not include:
(A) a coin-operated ride that:
(i) is manually, mechanically, or electrically operated;
(ii) is customarily placed in a public location; and
(iii) does not normally require the supervision or services of an operator; or
(B) nonmechanized playground equipment, including a swing, seesaw, stationary spring-mounted animal feature, rider-propelled merry-go-round, climber, playground slide, trampoline, and physical fitness device.
(2) "Class A amusement ride" means an amusement ride designed primarily for use by children younger than 13 years of age.
(3) "Class B amusement ride" means an amusement ride that is not a Class A amusement ride.
(4) "Department" means the Texas Department of Insurance. (V.T.I.C. Art. 21.60, Sec. 2.)
[Sections 2151.003-2151.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
Sec. 2151.051. GENERAL POWERS AND DUTIES. The department shall administer and enforce this chapter. (V.T.I.C. Art. 21.60, Sec. 3(a) (part).)
Sec. 2151.052. FEES. (a) The department shall establish reasonable and necessary fees, in an amount not to exceed $20 per year, for each amusement ride covered by this chapter.
(b) An amusement ride that consists of two or more self-propelled, four-wheeled vehicles designed to be operated independently and to carry fewer than three persons, including go-carts, is a single amusement ride. (V.T.I.C. Art. 21.60, Secs. 3(a) (part), (b).)
Sec. 2151.053. INFORMATION REQUEST. (a) The department may request information from a sponsor, lessor, landowner, or other person responsible for an amusement ride being offered for use by the public concerning whether insurance required by this chapter is in effect on that amusement ride.
(b) The person shall respond to the information request not later than the 15th day after the date the request is made. (V.T.I.C. Art. 21.60, Sec. 6.)
[Sections 2151.054-2151.100 reserved for expansion]
SUBCHAPTER C. OPERATION OF AMUSEMENT RIDES
Sec. 2151.101. REQUIREMENTS FOR OPERATION. (a) A person may not operate an amusement ride unless the person:
(1) has had the amusement ride inspected at least once a year by an insurer or a person with whom the insurer has contracted;
(2) obtains a written certificate from the insurer or person with whom the insurer has contracted stating that the amusement ride:
(A) has been inspected;
(B) meets the standards for insurance coverage; and
(C) is covered by the insurance required by Subdivision (3);
(3) has an insurance policy currently in effect written by an insurance company authorized to do business in this state or by a surplus lines insurer, as defined by Article 1.14-2, Insurance Code, or has an independently procured policy subject to Article 1.14-1, Insurance Code, insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride in an amount of not less than:
(A) $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides; and
(B) $1,000,000 per occurrence for Class B amusement rides;
(4) files with the department, as required by this chapter, the inspection certificate and the insurance policy or a photocopy of the certificate or policy authorized by the department; and
(5) files with each sponsor, lessor, landowner, or other person responsible for the amusement ride being offered for use by the public a certificate stating that the insurance required by Subdivision (3) is in effect.
(b) The inspection certificate and the insurance policy must be filed with the department before July 1 of each year, except that if an amusement ride is inspected more than once a year, the inspection certificate must be filed not later than the 15th day after the date of each inspection. (V.T.I.C. Art. 21.60, Secs. 4(a) (part), 5.)
Sec. 2151.102. INSPECTION REQUIREMENTS. (a) The inspection required by Section 2151.101(a) must test for stress-related and wear-related damage of the critical parts of a ride that the department determines:
(1) are reasonably subject to failure as the result of stress and wear; and
(2) could cause injury to a member of the public as a result of a failure.
(b) If at any time the inspection reveals that an amusement ride does not meet the insurer's underwriting standards, the insurer shall notify the owner or operator.
(c) If repair or replacement of equipment is required, it is the responsibility of the owner or operator to make the repair or install the replacement equipment before the amusement ride is offered for public use. (V.T.I.C. Art. 21.60, Secs. 4(a)(1) (part), (b).)
Sec. 2151.103. INJURY REPORTS. (a) In this section, "medical treatment" includes treatment administered by a physician or by registered professional personnel under the standing orders of a physician. The term does not include first-aid treatment, the onetime treatment and subsequent observation of minor scratches, cuts, burns, splinters, and other minor injuries that do not ordinarily require medical care, even if that treatment is provided by a physician or registered professional personnel.
(b) A person operating an amusement ride shall maintain accurate records of each injury caused by the ride that results in death or requires medical treatment.
(c) The operator shall file an injury report with the department on a quarterly basis. The report shall be made on a form prescribed by the department and shall include a description of each injury caused by a ride that results in death or requires medical treatment.
(d) If no reportable injuries occur in a quarter, the operator is not required to file an injury report. (V.T.I.C. Art. 21.60, Sec. 4(c).)
Sec. 2151.104. ACCESS TO RIDES. An owner or operator of an amusement ride may deny entry to the ride to any person if, in the owner's or operator's opinion, the entry may jeopardize the safety of the person or of other amusement ride patrons. (V.T.I.C. Art. 21.60, Sec. 7.)
[Sections 2151.105-2151.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT PROVISIONS
Sec. 2151.151. INJUNCTION. The district attorney of a county in which an amusement ride is operated or, on request of the commissioner of insurance, the attorney general or an agent of the attorney general, may seek an injunction against a person operating an amusement ride in violation of this chapter. (V.T.I.C. Art. 21.60, Sec. 8.)
Sec. 2151.152. OTHER LOCAL ENFORCEMENT ACTIONS. A municipal or county law enforcement official may determine compliance with Section 2151.101, 2151.102, or 2151.103 in conjunction with the department and may commence an action to enforce this chapter. (V.T.I.C. Art. 21.60, Sec. 9(e).)
Sec. 2151.153. CRIMINAL PENALTIES. (a) A person commits an offense if the person fails to comply with any requirement of Section 2151.101, 2151.102, and 2151.103.
(b) A person commits an offense if the person:
(1) is a sponsor, lessor, landowner, or other person responsible for an amusement ride being offered for use by the public; and
(2) does not provide the information required under Section 2151.053 or provides false information under Section 2151.053.
(c) An offense under this section is a Class C misdemeanor.
(d) Each day a violation of this chapter is committed constitutes a separate offense. (V.T.I.C. Art. 21.60, Secs. 9(a), (b), (c), (d).)
CHAPTER 2152. REGULATION OF CIRCUSES, CARNIVALS,
AND ZOOS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2152.001. DEFINITIONS
Sec. 2152.002. EXEMPTION FROM REGULATION
[Sections 2152.003-2152.050 reserved for expansion]
SUBCHAPTER B. BOARD POWERS AND DUTIES
Sec. 2152.051. RULEMAKING AUTHORITY
Sec. 2152.052. OPERATING STANDARDS
Sec. 2152.053. BOARD INSPECTIONS
Sec. 2152.054. FEES
Sec. 2152.055. CONTRACTS
[Sections 2152.056-2152.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 2152.101. LICENSE REQUIRED
Sec. 2152.102. APPLICATION
Sec. 2152.103. LICENSE ISSUANCE
Sec. 2152.104. LICENSE RENEWAL
[Sections 2152.105-2152.150 reserved for expansion]
SUBCHAPTER D. LICENSE DENIAL, SUSPENSION, OR
REVOCATION
Sec. 2152.151. DENIAL OF LICENSE
Sec. 2152.152. REVOCATION OR SUSPENSION OF LICENSE
Sec. 2152.153. JUDICIAL REVIEW
Sec. 2152.154. INFORMAL DISPOSITION
[Sections 2152.155-2152.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT
Sec. 2152.201. SEIZURE AND SALE OF ANIMALS
Sec. 2152.202. CRIMINAL PENALTY
CHAPTER 2152. REGULATION OF CIRCUSES, CARNIVALS,
AND ZOOS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2152.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Circus" or "carnival" means a commercial variety show featuring animal acts for public entertainment.
(3) "Commissioner" means the commissioner of health.
(4) "Department" means the Texas Department of Health.
(5) "Person" means an individual, association, partnership, corporation, trust, estate, joint-stock company, foundation, or political subdivision.
(6) "Zoo" means any mobile or stationary premises where living animals that normally live in a wild state are kept primarily for display to the public. (Health and Safety Code Sec. 824.001.)
Sec. 2152.002. EXEMPTION FROM REGULATION. This chapter does not apply to:
(1) a circus, carnival, or zoo licensed under the federal Animal Welfare Act (7 U.S.C. Section 2131 et seq.) and that furnishes proof to the commissioner that it is inspected by the federal agency administering that act at least once each calendar year;
(2) a zoo:
(A) operated by a political subdivision of this state or a child-care institution; or
(B) accredited by the American Association of Zoological Parks and Aquariums;
(3) a premises where nonindigenous ruminants are bred and raised; or
(4) an organization sponsoring, and all persons participating in, an exhibition of a domestic livestock show or rodeo. (Health and Safety Code Sec. 824.002.)
[Sections 2152.003-2152.050 reserved for expansion]
SUBCHAPTER B. BOARD POWERS AND DUTIES
Sec. 2152.051. RULEMAKING AUTHORITY. The board shall adopt rules necessary to administer this chapter. (Health and Safety Code Sec. 824.013.)
Sec. 2152.052. OPERATING STANDARDS. (a) The board shall adopt standards for the operation of circuses, carnivals, and zoos that promote humane conditions for animals and protect the public health and safety.
(b) The standards must include provisions relating to housing and sanitation, animal health and disease control, and control, care, and transportation of animals.
(c) In adopting and enforcing standards under this section, the board may consult experts and persons concerned with the welfare of animals in circuses, carnivals, and zoos. (Health and Safety Code Sec. 824.005.)
Sec. 2152.053. BOARD INSPECTIONS. (a) The board shall inspect circuses, carnivals, and zoos to determine if they comply with the standards adopted under Section 2152.052.
(b) The board or its agents may enter at reasonable times to conduct an inspection under this section.
(c) The board shall prescribe the qualifications for its agents employed to conduct an inspection under this section. (Health and Safety Code Sec. 824.008.)
Sec. 2152.054. FEES. (a) The board shall prescribe the amount of each type of fee required by this chapter.
(b) A fee received by the board under this chapter is not refundable.
(c) During the period beginning on August 31 and ending on September 10 of each year, the board shall file with the governor an annual financial report relating to the administration of this chapter.
(d) If the funds in the circus, carnival, and zoo licensing fund at the beginning of the state fiscal year plus the fees anticipated for that year exceed the probable costs of administering this chapter during that year, the board shall reduce the fees required by this chapter by the amount necessary to eliminate the projected surplus.
(e) All expenses for the administration of this chapter shall be paid from fees collected by the board under this chapter. (Health and Safety Code Secs. 824.015(a), (c), (d), (e), (f).)
Sec. 2152.055. CONTRACTS. (a) The board may enter into contracts or agreements necessary to administer this chapter.
(b) Under a contract or agreement, the board may pay for materials, equipment, or services from any available funds. (Health and Safety Code Sec. 824.014.)
[Sections 2152.056-2152.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 2152.101. LICENSE REQUIRED. A person may not operate a circus, carnival, or zoo unless the person holds a license issued under this chapter for the circus, carnival, or zoo. (Health and Safety Code Sec. 824.003.)
Sec. 2152.102. APPLICATION. To be licensed under this chapter, a person must:
(1) submit to the board a written application on a form prescribed by the board;
(2) furnish information requested by the board; and
(3) pay an application fee. (Health and Safety Code Sec. 824.004.)
Sec. 2152.103. LICENSE ISSUANCE. (a) The board shall issue a license under this chapter to an applicant who:
(1) complies with Section 2152.102;
(2) meets the standards adopted under Section 2152.052; and
(3) pays a license fee.
(b) A license issued under this chapter is valid for:
(1) two years from the date of issuance; or
(2) a lesser period determined appropriate by the board for circuses that are not resident in this state and that are not exempt under Section 2152.002(1). (Health and Safety Code Sec. 824.006.)
Sec. 2152.104. LICENSE RENEWAL. (a) A license holder may renew the license by submitting to the board before the expiration date of the license a renewal fee and a renewal application on a form prescribed by the board.
(b) The board shall issue a renewed license to a license holder who complies with Subsection (a) and meets the standards adopted under Section 2152.052. (Health and Safety Code Sec. 824.007.)
[Sections 2152.105-2152.150 reserved for expansion]
SUBCHAPTER D. LICENSE DENIAL, SUSPENSION, OR REVOCATION
Sec. 2152.151. DENIAL OF LICENSE. (a) If the commissioner determines after the inspection required under Section 2152.053 that an applicant for a license has failed to comply with the standards adopted under Section 2152.052, the commissioner shall refuse to issue the license and shall give the applicant written notice of the decision and the reasons for the decision.
(b) Not later than the 31st day after the date the notice is received, the applicant may submit to the commissioner a written request for a hearing on the license denial. The commissioner shall conduct the hearing not later than the 31st day after the date the request is received.
(c) If after the hearing the commissioner determines that the applicant has failed to comply with the standards, the commissioner shall refuse to issue the license. (Health and Safety Code Sec. 824.009(a).)
Sec. 2152.152. REVOCATION OR SUSPENSION OF LICENSE. (a) If the commissioner determines after the inspection required under Section 2152.053 that a license holder has failed to comply with the standards adopted under Section 2152.052, the commissioner shall give written notice to the license holder of a revocation hearing to be held not later than the 31st day after the date the notice is given.
(b) If after the hearing the commissioner determines that the license holder has failed to comply with the standards, the commissioner shall revoke the license.
(c) In addition to the proceedings described in Subsections (a) and (b), if the commissioner determines after inspection that a license holder has committed gross violations of the standards, the commissioner may, after giving written notice to the license holder, suspend the license for not more than 31 days pending the revocation hearing. (Health and Safety Code Secs. 824.009(b), (c).)
Sec. 2152.153. JUDICIAL REVIEW. A person whose application for a license is denied or whose license is revoked is entitled to judicial review in accordance with Chapter 2001, Government Code. (Health and Safety Code Sec. 824.012.)
Sec. 2152.154. INFORMAL DISPOSITION. Sections 2152.151, 2152.152, and 2152.201 do not preclude an informal disposition of the matter by an agreement between a license holder and the board. (Health and Safety Code Sec. 824.011.)
[Sections 2152.155-2152.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT
Sec. 2152.201. SEIZURE AND SALE OF ANIMALS. (a) If a license is suspended or revoked, the commissioner may seek a writ from a justice of the peace serving the justice precinct in which the circus, carnival, or zoo is located ordering the sheriff or other peace officer to seize any of the animals being kept on the premises of the circus, carnival, or zoo operated by the person whose license was suspended or revoked.
(b) The justice of the peace shall issue the writ if the justice finds probable cause to believe that any of the animals are in danger of being harmed by a gross violation of the licensing standards.
(c) The board's employees may accompany the peace officer executing the writ. The department may rent, lease, or acquire facilities for keeping impounded animals.
(d) If the license is revoked and the commissioner's decision becomes final, the commissioner shall order a public sale by auction of the seized animals.
(e) Proceeds from the sale shall be applied first to the expenses incurred in conducting the sale. The commissioner shall return any excess proceeds to the person whose license is revoked.
(f) The person whose license was revoked or the person's agent may not participate in the auction. (Health and Safety Code Sec. 824.010.)
Sec. 2152.202. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 2152.101.
(b) An offense under this section is a Class C misdemeanor. (Health and Safety Code Sec. 824.016.)
CHAPTER 2153. COIN-OPERATED MACHINES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2153.001. PURPOSE
Sec. 2153.002. DEFINITIONS
Sec. 2153.003. CONSTRUCTION OF CHAPTER CONSISTENT WITH OTHER
LAW
Sec. 2153.004. EXEMPT MACHINES
Sec. 2153.005. EXEMPT CORPORATIONS AND ASSOCIATIONS
Sec. 2153.006. PRIVATE OWNERSHIP EXEMPT
Sec. 2153.007. EXEMPT COMMON CARRIERS
Sec. 2153.008. EXEMPT OWNERS OR EXHIBITORS
[Sections 2153.009-2153.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF COMPTROLLER
Sec. 2153.051. GENERAL DUTIES OF COMPTROLLER
Sec. 2153.052. RULEMAKING AUTHORITY
Sec. 2153.053. DISCIPLINARY AUTHORITY
Sec. 2153.054. RECORDS OF COMPLAINTS
Sec. 2153.055. PUBLIC INTEREST INFORMATION
Sec. 2153.056. DELEGATION AUTHORIZED
Sec. 2153.057. INTERAGENCY COOPERATION
Sec. 2153.058. DEPOSIT OF REVENUE
[Sections 2153.059-2153.100 reserved for expansion]
SUBCHAPTER C. CONFIDENTIALITY OF CERTAIN INFORMATION
Sec. 2153.101. INFORMATION FROM LICENSE APPLICATION
Sec. 2153.102. INFORMATION MADE AVAILABLE TO COMPTROLLER
Sec. 2153.103. INFORMATION FROM EXAMINATION
[Sections 2153.104-2153.150 reserved for expansion]
SUBCHAPTER D. LICENSE OR REGISTRATION
Sec. 2153.151. LICENSE OR REGISTRATION REQUIRED
Sec. 2153.152. TYPES OF LICENSES
Sec. 2153.153. LICENSE APPLICATION REQUIREMENTS
Sec. 2153.154. LICENSE FEE
Sec. 2153.155. TERMS OF LICENSE
Sec. 2153.156. REGISTRATION CERTIFICATE REQUIRED
Sec. 2153.157. REGISTRATION CERTIFICATE APPLICATION
REQUIREMENTS
Sec. 2153.158. CONTENTS OF REGISTRATION CERTIFICATE
Sec. 2153.159. DISPLAY OF LICENSE OR CERTIFICATE
Sec. 2153.160. RELOCATION OF MACHINE
Sec. 2153.161. EXPIRATION OF LICENSE OR REGISTRATION
Sec. 2153.162. LICENSE AND REGISTRATION RENEWAL
Sec. 2153.163. EXTENSION OF CERTAIN LICENSES
[Sections 2153.164-2153.200 reserved for expansion]
SUBCHAPTER E. PROVISIONS RELATING TO TRANSACTION OF BUSINESS
Sec. 2153.201. REQUIRED OWNER RECORDS
Sec. 2153.202. REQUIRED LICENSE HOLDER RECORDS AND
REPORTING
Sec. 2153.203. RECORD OF CREDIT TRANSACTION
Sec. 2153.204. REQUIRED CONTRACT PROVISION
Sec. 2153.205. REIMBURSEMENT FOR TAXES AND FEES
[Sections 2153.206-2153.250 reserved for expansion]
SUBCHAPTER F. CREDIT TRANSACTIONS
Sec. 2153.251. RULEMAKING AUTHORITY OF COMMISSIONER
Sec. 2153.252. AUTHORIZED CREDIT EXTENSIONS
Sec. 2153.253. NOTIFICATION REQUIRED
Sec. 2153.254. WRITTEN AGREEMENT REQUIRED
Sec. 2153.255. CONSIDERATION
Sec. 2153.256. EXAMINATION; SCOPE
Sec. 2153.257. FEES AND EXPENSES
Sec. 2153.258. CRIMINAL OFFENSE; VIOLATION OF SUBCHAPTER
[Sections 2153.259-2153.300 reserved for expansion]
SUBCHAPTER G. LICENSE AND REGISTRATION DENIAL AND
DISCIPLINARY PROCEEDINGS
Sec. 2153.301. DEFINITION
Sec. 2153.302. MANDATORY DENIAL OF GENERAL BUSINESS
LICENSE
Sec. 2153.303. MANDATORY DENIAL OF LICENSE FOR FAILURE TO
COMPLY WITH CERTAIN PROVISIONS
Sec. 2153.304. MANDATORY DISCIPLINARY ACTION BASED ON
NONPAYMENT
Sec. 2153.305. DISCRETIONARY DISCIPLINARY ACTION
Sec. 2153.306. DETERMINATION HEARING
Sec. 2153.307. JUDICIAL REVIEW
[Sections 2153.308-2153.350 reserved for expansion]
SUBCHAPTER H. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 2153.351. CONSENT TO ENTRY
Sec. 2153.352. SEALING OF MACHINES
Sec. 2153.353. INJUNCTION
Sec. 2153.354. CIVIL PENALTY
Sec. 2153.355. CRIMINAL OFFENSE; GENERAL VIOLATIONS
Sec. 2153.356. CRIMINAL OFFENSE; OPERATING WITHOUT A LICENSE
OR REGISTRATION CERTIFICATE
Sec. 2153.357. CRIMINAL OFFENSE; OBTAINING A LICENSE BY
FRAUD
Sec. 2153.358. CRIMINAL OFFENSE; FAILURE TO REPORT OR
PROVIDE INFORMATION
Sec. 2153.359. CRIMINAL OFFENSE; PROHIBITED TRANSACTIONS
Sec. 2153.360. CRIMINAL OFFENSE; REMOVAL OF TAX PERMIT
Sec. 2153.361. CRIMINAL OFFENSE; SEALED MACHINES
Sec. 2153.362. CRIMINAL OFFENSE; DISCLOSURE OF
CONFIDENTIAL INFORMATION
[Sections 2153.363-2153.400 reserved for expansion]
SUBCHAPTER I. STATE OCCUPATION TAX
Sec. 2153.401. IMPOSITION OF TAX
Sec. 2153.402. EXEMPTION
Sec. 2153.403. PRORATED TAX
Sec. 2153.404. COLLECTION
Sec. 2153.405. REFUND OR CREDIT PROHIBITED
Sec. 2153.406. TAX PERMIT
Sec. 2153.407. APPLICABILITY OF TAX CODE
[Sections 2153.408-2153.450 reserved for expansion]
SUBCHAPTER J. COUNTY AND MUNICIPAL REGULATION
Sec. 2153.451. IMPOSITION OF OCCUPATION TAX AUTHORIZED
Sec. 2153.452. ZONING
Sec. 2153.453. SEALING AUTHORIZED; RELEASE FEE
CHAPTER 2153. COIN-OPERATED MACHINES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2153.001. PURPOSE. The purpose of this chapter is to provide comprehensive and uniform statewide regulation of music and skill or pleasure coin-operated machines. (V.A.C.S. Art. 8817, Sec. 1.)
Sec. 2153.002. DEFINITIONS. In this chapter:
(1) "Coin-operated machine" means any kind of machine or device operated by or with a coin, metal slug, token, or check, including a music or skill or pleasure coin-operated machine.
(2) "Commissioner" means the Consumer Credit Commissioner.
(3) "Financial interest" includes a legal or equitable interest, including the ownership of shares or bonds of a corporation.
(4) "Music coin-operated machine" means any kind of coin-operated machine, including a phonograph, piano, or graphophone, that:
(A) dispenses music or is used to dispense music;
(B) is operated by inserting a coin, metal slug, token, or check; and
(C) is not an amusement machine designed exclusively for a child.
(5) "Operator" means a person who exhibits or displays, or permits to be exhibited or displayed, a coin-operated machine in this state in a place of business that is not owned by the person.
(6) "Owner" means a person who owns a coin-operated machine in this state.
(7) "Person" includes an individual, association, trustee, receiver, partnership, corporation, or organization or a manager, agent, servant, or employee of an individual, association, trustee, receiver, partnership, corporation, or organization.
(8) "Service coin-operated machine" means any kind of machine or device, including a pay toilet or telephone, that dispenses only a service. The term does not include a machine or device that dispenses merchandise, music, skill, or pleasure.
(9) "Skill or pleasure coin-operated machine" means any kind of coin-operated machine that dispenses, or is used or is capable of being used to dispense or afford, amusement, skill, or pleasure or is operated for any purpose, other than for dispensing only merchandise, music, or service. The term:
(A) includes a marble machine, marble table machine, marble shooting machine, miniature racetrack machine, miniature football machine, miniature golf machine, miniature bowling machine, billiard or pool game, or machine or device that dispenses merchandise or commodities or plays music in connection with or in addition to dispensing skill or pleasure; and
(B) does not include an amusement machine designed exclusively for a child. (V.A.C.S. Art. 8801, Subdivs. (1), (2), (3), (4), (5), (6); Art. 8817, Secs. 1(a), 2; New.)
Sec. 2153.003. CONSTRUCTION OF CHAPTER CONSISTENT WITH OTHER LAW. This chapter does not authorize or permit the keeping, exhibition, operation, display, or maintenance of a machine, device, or table prohibited by the constitution of this state or the Penal Code. (V.A.C.S. Art. 8809.)
Sec. 2153.004. EXEMPT MACHINES. This chapter does not apply to:
(1) a stamp vending machine;
(2) a service coin-operated machine; or
(3) if subject to an occupation or gross receipts tax, a:
(A) gas meter;
(B) food vending machine;
(C) confection vending machine;
(D) beverage vending machine;
(E) merchandise vending machine; or
(F) cigarette vending machine. (V.A.C.S. Art. 8803.)
Sec. 2153.005. EXEMPT CORPORATIONS AND ASSOCIATIONS. (a) A corporation or association owning, leasing, or renting a music or skill or pleasure coin-operated machine is exempt from Subchapter D if:
(1) the corporation or association is organized and operated exclusively for religious, charitable, educational, or benevolent purposes;
(2) the corporation's or association's net earnings do not inure to the benefit of a private shareholder or individual; and
(3) the corporation or association owns, leases, or rents the coin-operated machine:
(A) for the corporation's or association's exclusive use; and
(B) to further a purpose of the corporation or association.
(b) A tax may not be assessed against a corporation or an association exempt under this section if assessment of the tax is prohibited by other law. (V.A.C.S. Art. 8817, Sec. 8(3).)
Sec. 2153.006. PRIVATE OWNERSHIP EXEMPT. An individual who owns a music or skill or pleasure coin-operated machine for personal use and amusement in the individual's private residence is not required to obtain a license or pay a tax under this chapter. (V.A.C.S. Art. 8817, Sec. 8(4).)
Sec. 2153.007. EXEMPT COMMON CARRIERS. A person subject to regulation by the Railroad Commission of Texas is not required to obtain a license under this chapter if the person transports or stores in the course of the person's business a music or skill or pleasure coin-operated machine not owned by the person. (V.A.C.S. Art. 8817, Sec. 8(5).)
Sec. 2153.008. EXEMPT OWNERS OR EXHIBITORS. A person who owns or exhibits a coin-operated machine is exempt from the licensing and recordkeeping requirements of this chapter if the person:
(1) operates or exhibits the coin-operated machine only on premises occupied by the person and in connection with the person's business;
(2) does not own a coin-operated machine subject to the tax imposed under this chapter and located on the business premises of another person; and
(3) does not have a direct or indirect financial interest in the music or skill or pleasure coin-operated machine industry, except for ownership of the coin-operated machine operated or exhibited on premises occupied by the person. (V.A.C.S. Art. 8817, Sec. 16A(1).)
[Sections 2153.009-2153.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF COMPTROLLER
Sec. 2153.051. GENERAL DUTIES OF COMPTROLLER. (a) The comptroller shall administer this chapter.
(b) To administer this chapter, the comptroller may:
(1) issue a license or registration certificate;
(2) prescribe procedures for registering music and skill or pleasure coin-operated machines;
(3) prescribe methods for:
(A) securely attaching a tax permit to a coin-operated machine; and
(B) posting a license or registration certificate;
(4) prescribe the form and content of a:
(A) license application;
(B) registration certificate;
(C) tax permit;
(D) report specifying a coin-operated machine's location; and
(E) report of the consideration of each party to a contract relating to the placement of a coin-operated machine in an establishment owned by a person other than the license holder; and
(5) disclose confidential information to an appropriate official. (V.A.C.S. Art. 8817, Secs. 3 (part), 4 (part).)
Sec. 2153.052. RULEMAKING AUTHORITY. The comptroller may adopt rules necessary to administer this chapter, including rules:
(1) for enforcement of this chapter and collection of taxes and fees;
(2) providing due process to persons affected by this chapter; and
(3) governing procedure and evidence in the conduct of hearings under this chapter. (V.A.C.S. Art. 8807, Subsec. (1); Art. 8817, Sec. 4 (part).)
Sec. 2153.053. DISCIPLINARY AUTHORITY. (a) The comptroller may:
(1) conduct an investigation, hold a hearing, or take other necessary action to:
(A) ensure compliance with this chapter; or
(B) identify a violation of this chapter;
(2) conduct an investigation of a violation of this chapter, or a rule adopted under this chapter, committed by a person who owns, operates, exhibits, or displays a coin-operated machine in this state;
(3) deny an application for a license or registration certificate in accordance with Subchapter G; or
(4) impose sanctions, including suspending or revoking a person's license, registration certificate, or tax permit in accordance with Subchapter G.
(b) If the comptroller finds that a person has violated a penal provision of this chapter, the comptroller may file a complaint with the appropriate prosecuting attorney in the county in which the violation occurred. (V.A.C.S. Art. 8807, Subsec. (2); Art. 8817, Secs. 3 (part), 4 (part).)
Sec. 2153.054. RECORDS OF COMPLAINTS. (a) The comptroller shall maintain an information file about each complaint filed with the comptroller.
(b) If a written complaint is filed with the comptroller, the comptroller, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 8817, Sec. 20A.)
Sec. 2153.055. PUBLIC INTEREST INFORMATION. (a) The comptroller shall prepare information of consumer interest describing the regulatory functions of the comptroller relating to coin-operated machines and the procedures by which complaints are filed with and resolved by the comptroller.
(b) The comptroller shall make the information available to the public and to appropriate state agencies. (V.A.C.S. Art. 8817, Sec. 7A(1).)
Sec. 2153.056. DELEGATION AUTHORIZED. The comptroller may delegate to an authorized representative any authority provided to the comptroller under this chapter, including the authority to:
(1) conduct an investigation; and
(2) hold a hearing. (V.A.C.S. Art. 8817, Sec. 5.)
Sec. 2153.057. INTERAGENCY COOPERATION. (a) The comptroller shall use all agencies of the law available to the comptroller to enforce this chapter.
(b) A state agency shall:
(1) cooperate with the comptroller in connection with an investigation under this chapter; and
(2) provide the comptroller access to records and reports that are relevant to an investigation under this chapter and that are made confidential by other law. (V.A.C.S. Art. 8808 (part); Art. 8817, Sec. 6.)
Sec. 2153.058. DEPOSIT OF REVENUE. Except as provided by Section 2153.257, the comptroller shall deposit one-fourth of the revenue received under this chapter in the foundation school fund and three-fourths of the revenue received under this chapter in the general revenue fund. (V.A.C.S. Art. 8814 (part).)
[Sections 2153.059-2153.100 reserved for expansion]
SUBCHAPTER C. CONFIDENTIALITY OF CERTAIN INFORMATION
Sec. 2153.101. INFORMATION FROM LICENSE APPLICATION. (a) Except as provided by Subsection (b), information contained in a license application is confidential.
(b) After a license is issued under this chapter, the ownership statement contained in the license application is a public record. (V.A.C.S. Art. 8817, Sec. 12(7).)
Sec. 2153.102. INFORMATION MADE AVAILABLE TO COMPTROLLER. Except for information specifically designated as a public record, information derived from a book, record, report, or application required to be made available under this chapter to the comptroller or the attorney general:
(1) is confidential; and
(2) may be used only to enforce this chapter. (V.A.C.S. Art. 8817, Sec. 7(1).)
Sec. 2153.103. INFORMATION FROM EXAMINATION. Information obtained during an examination under Section 2153.256 is confidential. (V.A.C.S. Art. 8817, Sec. 26(4)(e) (part).)
[Sections 2153.104-2153.150 reserved for expansion]
SUBCHAPTER D. LICENSE OR REGISTRATION
Sec. 2153.151. LICENSE OR REGISTRATION REQUIRED. Except as otherwise provided by this chapter, a person may not engage in the business of manufacturing, owning, buying, selling, renting, leasing, trading, lending, furnishing to another, maintaining, transporting within this state, storing, or importing a music or skill or pleasure coin-operated machine unless the person holds a license or registration certificate issued under this subchapter. (V.A.C.S. Art. 8817, Sec. 8(1).)
Sec. 2153.152. TYPES OF LICENSES. (a) A license applicant may apply for a general business license, an import license, or a repair license.
(b) A general business license holder may engage in the business of manufacturing, owning, buying, selling, renting, leasing, trading, maintaining, transporting or exhibiting in this state, or storing a music or skill or pleasure coin-operated machine.
(c) An import license holder may engage in the business of importing, transporting, owning, buying, repairing, selling, or delivering a music or skill or pleasure coin-operated machine for sale or delivery in this state.
(d) A repair license holder may engage in the business of maintaining, transporting, or storing a music or skill or pleasure coin-operated machine. (V.A.C.S. Art. 8817, Sec. 15.)
Sec. 2153.153. LICENSE APPLICATION REQUIREMENTS. (a) A license applicant must file with the comptroller a license application that:
(1) contains a complete statement about the ownership of the business that is the subject of the application, including:
(A) the nature of the business entity; and
(B) except as provided by Subsection (b), the name and residence address of each person who has a financial interest in the business, including the nature, type, and extent of the interest;
(2) designates:
(A) an individual, as described by Subsection (c), responsible for maintaining a record of and reporting to the comptroller information as required by Section 2153.202; and
(B) an office located in this state where the applicant proposes to maintain the records required by this chapter, a rule adopted under this chapter, or other law;
(3) is accompanied by:
(A) a written statement executed by the individual designated under Subdivision (2) that the individual accepts the responsibility described by that subdivision; and
(B) a cashier's check or money order in an amount equal to the annual license fee under Section 2153.154;
(4) includes any other relevant information required by the comptroller; and
(5) states that the information contained in the application is true and correct.
(b) A corporate applicant is not required to include in the ownership statement under Subsection (a)(1) the name and residence address of a shareholder who holds less than 10 percent of the shares in the applicant's corporation.
(c) The individual designated under Subsection (a)(2) must be:
(1) the owner of the business;
(2) a partner of the business;
(3) an officer of the business;
(4) a trustee of the business;
(5) a receiver of the business; or
(6) an officer or principal member of the business. (V.A.C.S. Art. 8817, Secs. 12(1), (2) (part), (3), (4), (5), (6), (8), 13.)
Sec. 2153.154. LICENSE FEE. (a) The annual fee for a general business license is:
(1) $200 for an applicant with not more than 50 coin-operated machines;
(2) $400 for an applicant with at least 51 but not more than 200 coin-operated machines; and
(3) $500 for an applicant with more than 200 coin-operated machines.
(b) The annual fee for an import license is $500.
(c) The annual fee for a repair license is $50.
(d) The comptroller may not refund any part of a license fee after a license is issued.
(e) The comptroller may refund a license fee if the comptroller does not issue a license. The comptroller may deduct $25 to cover administrative costs. (V.A.C.S. Art. 8817, Secs. 16(1), (2), (3), (4).)
Sec. 2153.155. TERMS OF LICENSE. A license issued under this subchapter:
(1) is effective for only one business entity;
(2) does not vest any property or right in the license holder, except for the right to conduct the licensed business;
(3) may not be transferred or assigned; and
(4) is not subject to execution. (V.A.C.S. Art. 8817, Sec. 9(a) (part).)
Sec. 2153.156. REGISTRATION CERTIFICATE REQUIRED. (a) A person who is exempt under Section 2153.008 from the licensing and recordkeeping requirements of this chapter may not exhibit a coin-operated machine unless the machine is registered annually with the comptroller in accordance with this subchapter.
(b) A person required to register a machine under this section shall obtain a registration certificate each year. (V.A.C.S. Art. 8817, Sec. 16A(2) (part).)
Sec. 2153.157. REGISTRATION CERTIFICATE APPLICATION REQUIREMENTS. To obtain a registration certificate under this subchapter, a person must:
(1) file with the comptroller a registration application on a form prescribed by the comptroller; and
(2) pay a $150 registration fee to the comptroller for the business entity in which the owner exhibits the coin-operated machine that is the subject of the application. (V.A.C.S. Art. 8817, Secs. 16A(2) (part), (4).)
Sec. 2153.158. CONTENTS OF REGISTRATION CERTIFICATE. A registration certificate must:
(1) state the name and address of the location of the coin-operated machine that is the subject of the certificate; and
(2) certify that a tax permit is attached to the machine. (V.A.C.S. Art. 8817, Sec. 16A(2) (part).)
Sec. 2153.159. DISPLAY OF LICENSE OR CERTIFICATE. (a) A license holder shall prominently display the holder's license at the holder's place of business at all times. (V.A.C.S. Art. 8817, Sec. 11(1).)
(b) A registration certificate holder shall display a registration certificate at each location where the holder owns or exhibits a coin-operated machine. (V.A.C.S. Art. 8817, Sec. 11.)
Sec. 2153.160. RELOCATION OF MACHINE. A registration certificate holder shall notify the comptroller of a change in the location of a coin-operated machine registered under this subchapter by filing an amendment to the registration certificate with the comptroller not later than the 10th day after the date of the change. (V.A.C.S. Art. 8817, Sec. 16A(3).)
Sec. 2153.161. EXPIRATION OF LICENSE OR REGISTRATION. (a) A license issued under this chapter expires on the earlier of:
(1) December 31 of the year the license is issued; or
(2) the death or dissolution of the license holder.
(b) A registration certificate issued under this chapter expires on the first anniversary of the date of issuance. (V.A.C.S. Art. 8817, Secs. 9(a) (part), 16A(2) (part).)
Sec. 2153.162. LICENSE AND REGISTRATION RENEWAL. (a) A license or registration certificate holder may renew an unexpired license or registration by paying to the comptroller, before the expiration date of the license or registration, the required annual license or registration fee. An application for renewal must be made to the comptroller before December 1. A renewal application filed on or after December 1 but before the license or registration expires must be accompanied by a late fee of $50.
(b) A license or registration certificate holder may renew an expired license or registration under this subsection. If the license or registration has been expired for not more than 90 days, the person may renew the license or registration by paying to the comptroller a fee that is 1-1/2 times the amount of the annual license or registration fee. If the license or registration has been expired for more than 90 days but less than two years, the person may renew the license or registration by paying to the comptroller a fee that is two times the amount of the annual license or registration fee.
(c) A person whose license or registration has been expired for two years or more may not renew the license or registration. The person may obtain a new license or registration by complying with the requirements and procedures for obtaining an original license or registration. (V.A.C.S. Art. 8817, Secs. 9(b), 16(6), 16A(5), (6).)
Sec. 2153.163. EXTENSION OF CERTAIN LICENSES. (a) Except for good cause shown, the comptroller in writing shall permit a person who is the successor in interest to a business the license of which has expired to operate the business under the license as if the license has not expired if:
(1) the person requests an extension of the expired license;
(2) the license expired as a result of:
(A) the license holder's death or dissolution; or
(B) a condition involving receivership or bankruptcy; and
(3) the county judge in the county in which the business is located or a probate judge with jurisdiction over the matter certifies that the person is the successor to the licensed business.
(b) An extension of an expired license under this section:
(1) expires in the same manner a license expires; and
(2) is subject to suspension or cancellation in the same manner as any other license issued under this subchapter.
(c) A person whose extension of an expired license expires may not renew the license. The person may obtain a new license by complying with the requirements for obtaining an original license under this subchapter. (V.A.C.S. Art. 8817, Sec. 10.)
[Sections 2153.164-2153.200 reserved for expansion]
SUBCHAPTER E. PROVISIONS RELATING TO TRANSACTION OF BUSINESS
Sec. 2153.201. REQUIRED OWNER RECORDS. (a) An owner shall maintain a complete and itemized record of each coin-operated machine the owner purchases, receives, possesses, handles, exhibits, or displays in this state in accordance with accepted auditing and accounting practices.
(b) A record required under Subsection (a) must:
(1) be available at all times for inspection by the attorney general, the comptroller, or an authorized representative of the attorney general or comptroller;
(2) include information relating to:
(A) the kind of each machine;
(B) the date each machine is:
(i) acquired or received in this state; and
(ii) placed in operation;
(C) the location of each machine, including the:
(i) county;
(ii) municipality, if any; and
(iii) street or rural route number;
(D) the name and complete address of each operator of each machine;
(E) if the owner is an individual, the full name and address of the owner; and
(F) if the owner is not an individual, the name and address of each principal officer or member of the owner; and
(3) be maintained:
(A) at a permanent address in this state designated on the application for a license under Section 2153.153; and
(B) until the second anniversary of the date the owner ceases ownership of the machine that is the subject of the record. (V.A.C.S. Art. 8810.)
Sec. 2153.202. REQUIRED LICENSE HOLDER RECORDS AND REPORTING. (a) A license holder shall maintain a record of and report to the comptroller information relating to each music or skill or pleasure coin-operated machine owned, possessed, or controlled by the license holder, including:
(1) the make, type, and serial number of each machine;
(2) the date each machine is placed in operation;
(3) the dates of the first and most recent registration of each machine;
(4) the specific location of each machine; and
(5) any change in machine ownership.
(b) A license holder shall:
(1) report to the comptroller the information required under this section:
(A) at intervals specified by the comptroller; and
(B) at any other time requested by the comptroller; and
(2) immediately notify the comptroller in writing of a change in ownership of a licensed business. (V.A.C.S. Art. 8817, Secs. 12(2) (part), 14(1).)
Sec. 2153.203. RECORD OF CREDIT TRANSACTION. (a) A license holder who extends or lends credit shall maintain in this state a record of the credit transaction in accordance with accepted accounting and auditing practices. The record must be sufficient to enable any competent person to determine if the license holder is in compliance with the requirements of this subchapter.
(b) The record must be preserved until the later of the fourth anniversary of the date the credit transaction occurred or the second anniversary of the date the final entry relating to the transaction is made. (V.A.C.S. Art. 8817, Sec. 26(4)(d).)
Sec. 2153.204. REQUIRED CONTRACT PROVISION. A written contract between an owner who holds a license issued under this chapter and an operator in this state must state the name, mailing address, and telephone number of the comptroller. (V.A.C.S. Art. 8817, Sec. 7A(2).)
Sec. 2153.205. REIMBURSEMENT FOR TAXES AND FEES. (a) The first money earned from the exhibition of a coin-operated amusement machine may be paid to the owner to reimburse the owner for payment of:
(1) the tax imposed for that year by Section 2153.401; and
(2) a tax authorized by Section 2153.451 and imposed for that year by a county or municipality.
(b) A portion of the money earned each year from the exhibition of a coin-operated machine shall be paid to the owner in an amount necessary to reimburse the owner for the next year's payment of:
(1) the tax imposed by Section 2153.401; and
(2) any other tax or fee imposed on the exhibition of the machine.
(c) An owner may not:
(1) agree or contract, or offer to agree to contract, to waive the reimbursement provided by Subsection (b); or
(2) agree or contract with a bailee or lessee of a coin-operated machine to compensate the bailee or lessee in an amount that exceeds 50 percent of the gross receipts earned from the exhibition of the machine after the reimbursement provided by Subsection (b).
(d) The comptroller shall revoke the license of a license holder who violates this section. (V.A.C.S. Art. 8802, Subsec. (2).)
[Sections 2153.206-2153.250 reserved for expansion]
SUBCHAPTER F. CREDIT TRANSACTIONS
Sec. 2153.251. RULEMAKING AUTHORITY OF COMMISSIONER. The commissioner may adopt rules necessary to enforce this subchapter. (V.A.C.S. Art. 8817, Sec. 26(4)(f) (part).)
Sec. 2153.252. AUTHORIZED CREDIT EXTENSIONS. A license holder may extend or lend credit to, or extend or lend credit on behalf of, a lessee or bailee of a music or skill or pleasure coin-operated machine only for a business or commercial purpose in accordance with this subchapter. (V.A.C.S. Art. 8817, Sec. 26(4) (part).)
Sec. 2153.253. NOTIFICATION REQUIRED. Before initially extending or lending credit, a license holder shall notify the commissioner of the license holder's intent to extend or lend credit in the conduct of the license holder's business. (V.A.C.S. Art. 8817, Sec. 26(4)(a).)
Sec. 2153.254. WRITTEN AGREEMENT REQUIRED. A license holder may extend or lend credit only if the credit transaction is evidenced by a written agreement that:
(1) is signed by the parties to the agreement; and
(2) specifies the:
(A) credit amount;
(B) consideration for the credit transaction; and
(C) terms governing repayment. (V.A.C.S. Art. 8817, Sec. 26(4)(c).)
Sec. 2153.255. CONSIDERATION. (a) In this section, "consideration" includes costs charged, contracted for, or received by a license holder or other person in connection with investigating, arranging, negotiating, procuring, guaranteeing, making, servicing, collecting, or enforcing a credit transaction or forbearance of money, credit, goods, things in action, or other service rendered, including aggregate interest, fees, bonuses, commissions, brokerage, discounts, and expenses. The term does not include court costs or attorney's fees as determined by a court.
(b) The consideration for a credit transaction authorized under Section 2153.252 may not be less than one-half percent or exceed interest or its equivalent at the rate of one and one-half percent per month, as determined by the United States Rule.
(c) Except as provided by Subsection (d), if the consideration directly or indirectly charged or received by a license holder for a credit transaction authorized under Section 2153.252 exceeds the amount of consideration permitted by Subsection (b):
(1) the consideration paid, whether payment of principal or interest or its equivalent, shall be refunded to the person; and
(2) the unpaid balance of the consideration is void.
(d) Subsection (c) does not apply if consideration is charged or collected in excess of the amount permitted by Subsection (b) and:
(1) the overcharge or over-collection is the result of:
(A) an accident; and
(B) a bona fide error; and
(2) the error is corrected on the date of discovery. (V.A.C.S. Art. 8817, Sec. 26(4)(b).)
Sec. 2153.256. EXAMINATION; SCOPE. (a) The commissioner or an authorized representative of the commissioner may examine a license holder's place of business and the license holder's transactions, books, accounts, papers, correspondence, or records relating to a credit transaction authorized under Section 2153.252:
(1) when the commissioner determines that an examination is necessary; or
(2) at the request of the attorney general or comptroller.
(b) In conducting an examination, the commissioner or an authorized representative of the commissioner may:
(1) freely access the office or place of business, including a file, safe, or vault, of the license holder;
(2) copy the license holder's books, accounts, papers, correspondence, and records; and
(3) administer an oath and examine a person under oath relating to a matter relevant to the examination. (V.A.C.S. Art. 8817, Sec. 26(4)(e) (part).)
Sec. 2153.257. FEES AND EXPENSES. (a) A license holder shall pay to the commissioner a fee assessed by the commissioner to cover the direct and indirect costs, including a proportionate share of general administrative expenses, of conducting an examination under Section 2153.256.
(b) A fee assessed by the commissioner under this section:
(1) shall be retained by the commissioner; and
(2) may not be deposited in the general revenue fund.
(c) The expenses incurred by the commissioner in conducting an examination under Section 2153.256 may be paid only from the fees assessed under this section and may not be charged against any other state fund. (V.A.C.S. Art. 8817, Sec. 26(4)(e) (part).)
Sec. 2153.258. CRIMINAL OFFENSE; VIOLATION OF SUBCHAPTER. (a) A person commits an offense if the person violates this subchapter.
(b) A license holder commits an offense if the person fails or refuses to comply with an examination under Section 2153.256.
(c) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 8817, Secs. 26(4)(e) (part), (5).)
[Sections 2153.259-2153.300 reserved for expansion]
SUBCHAPTER G. LICENSE AND REGISTRATION DENIAL AND
DISCIPLINARY PROCEEDINGS
Sec. 2153.301. DEFINITION. In this subchapter, "applicant," "license holder," or "registration certificate holder" includes:
(1) an individual;
(2) each partner of a partnership;
(3) each trustee of a trust;
(4) each receiver of a receivership;
(5) each officer, director, or member of an entity, including an association or corporation;
(6) each shareholder owning 25 percent or more of the shares of the corporation; and
(7) a business entity. (V.A.C.S. Art. 8817, Sec. 21.)
Sec. 2153.302. MANDATORY DENIAL OF GENERAL BUSINESS LICENSE. The comptroller may not issue a general business license if the comptroller finds that the applicant has been:
(1) finally convicted of a felony during the five years preceding the date of application; or
(2) placed on community supervision or released on parole for a felony conviction during the two years preceding the date of application. (V.A.C.S. Art. 8817, Sec. 19(1).)
Sec. 2153.303. MANDATORY DENIAL OF LICENSE FOR FAILURE TO COMPLY WITH CERTAIN PROVISIONS. The comptroller may not issue or renew a license if the applicant fails to:
(1) designate and maintain an office located in the state as required by Section 2153.153; or
(2) allow the comptroller to inspect records that the applicant is required to maintain under this chapter. (V.A.C.S. Art. 8817, Sec. 19(3).)
Sec. 2153.304. MANDATORY DISCIPLINARY ACTION BASED ON NONPAYMENT. The comptroller may not issue or renew and shall revoke or suspend a license or registration certificate if the applicant or license or registration certificate holder fails to pay outstanding fees, costs, penalties, or taxes to the state. (V.A.C.S. Art. 8817, Sec. 19(2).)
Sec. 2153.305. DISCRETIONARY DISCIPLINARY ACTION. (a) The comptroller may refuse to issue or renew or may suspend or revoke a license or registration certificate if:
(1) the applicant or license or registration certificate holder violates this chapter or a rule adopted under this chapter;
(2) the applicant or license or registration certificate holder fails to answer a question or makes a false statement in, or in connection with, an application;
(3) the applicant or license or registration certificate holder extends or lends credit without notifying the commissioner of the person's intent to extend or lend credit as required by Section 2153.253;
(4) the applicant or license or registration certificate holder uses coercion to accomplish a purpose or engage in conduct regulated by the comptroller; or
(5) the applicant or license or registration certificate holder enters into a contract or agreement with the owner of the location of a coin-operated machine and the contract or agreement contains any kind of restriction relating to the location owner's right to purchase, agree to purchase, or use a product, commodity, or service that is not regulated under this chapter.
(b) The comptroller shall suspend or revoke a license or registration certificate if failure to suspend or revoke the license or registration would be contrary to the intent and purpose of this chapter. (V.A.C.S. Art. 8817, Sec. 20(1).)
Sec. 2153.306. DETERMINATION HEARING. (a) An applicant for a license or registration certificate or a license or registration certificate holder is entitled to not less than 20 days' written notice and, if requested, a hearing in the following instances:
(1) after an application for an original or renewal license or registration certificate has been refused;
(2) before the comptroller may revoke a license or registration certificate; and
(3) before the comptroller may impose any other sanction under this chapter other than the sealing of a machine.
(b) Written notice required by Subsection (a) may:
(1) be personally served by the comptroller or the comptroller's authorized representative;
(2) be sent by United States certified mail addressed to the last known address of the applicant or license or registration certificate holder; or
(3) if, after due diligence, notice cannot be given as provided by Subdivision (1) or (2), be given by any reasonable method of notice prescribed by the comptroller calculated to inform a person of average intelligence and prudence in the conduct of the person's affairs, including publishing notice in a newspaper of general circulation in the area in which the applicant or license or registration holder conducts the person's business activities. (V.A.C.S. Art. 8817, Secs. 20(2), 22.)
Sec. 2153.307. JUDICIAL REVIEW. A person affected by a decision of the comptroller under this chapter may appeal the decision to a district court in Travis County. (V.A.C.S. Art. 8817, Sec. 24(1) (part).)
[Sections 2153.308-2153.350 reserved for expansion]
SUBCHAPTER H. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 2153.351. CONSENT TO ENTRY. Acceptance of a license or registration certificate constitutes consent that the comptroller or a peace officer may freely enter the licensed business premises of the license or registration certificate holder during normal business hours to ensure compliance with this chapter. (V.A.C.S. Art. 8817, Sec. 18.)
Sec. 2153.352. SEALING OF MACHINES. (a) The comptroller or an authorized representative of the comptroller may seal a coin-operated machine in a manner that prevents the full operation of the machine if:
(1) the license or registration certificate of the person exhibiting or displaying the machine is suspended or revoked;
(2) the owner fails to pay a tax on the machine; or
(3) the machine is not registered with the comptroller under this chapter.
(b) The comptroller shall charge a $50 fee to release a coin-operated machine sealed under this section. The fee shall be paid to the comptroller. (V.A.C.S. Art. 8813 (part).)
Sec. 2153.353. INJUNCTION. (a) The attorney general may commence an action, at the comptroller's request, against a person who does not hold a license or registration certificate to enjoin the person from engaging in the business of manufacturing, owning, selling, renting, leasing, trading, lending, furnishing to another, maintaining, transporting, storing, or importing a music or skill or pleasure coin-operated machine.
(b) Venue for a suit filed under Subsection (a) is in a district court in Travis County. (V.A.C.S. Art. 8817, Sec. 27.)
Sec. 2153.354. CIVIL PENALTY. (a) The comptroller may assess a penalty of not less than $50 or more than $2,000 against:
(1) an owner who permits a coin-operated machine under the owner's control to be operated, exhibited, or displayed in this state without a tax permit as required by Section 2153.406; or
(2) a person who:
(A) exhibits or displays a coin-operated machine in this state without a tax permit as required by Section 2153.406;
(B) exhibits or displays a coin-operated machine that is not registered;
(C) does not maintain the records required under this chapter;
(D) refuses or fails to make records available for inspection on request by the comptroller or an authorized representative of the comptroller;
(E) uses an artful device or deceptive practice to conceal a violation of this chapter;
(F) misleads the comptroller or an authorized representative of the comptroller in connection with the enforcement of this chapter; or
(G) violates this chapter or a rule adopted under this chapter.
(b) The comptroller may assess a penalty under this section for each day a violation occurs.
(c) A penalty assessed under this section may be recovered by:
(1) the comptroller in the same manner as is provided by Subtitle B, Title 2, Tax Code, for the recovery of delinquent taxes; or
(2) the attorney general in a suit filed in Travis County.
(d) A penalty assessed under this section is in addition to any other remedy authorized under this chapter. (V.A.C.S. Art. 8811.)
Sec. 2153.355. CRIMINAL OFFENSE; GENERAL VIOLATIONS. (a) A person commits an offense if the person:
(1) exhibits or displays a coin-operated machine in this state for which outstanding tax is due;
(2) falsifies, fails to maintain, or refuses or fails to make available to the comptroller or an authorized representative of the comptroller, on request, records of coin-operated machines that the person is required to maintain;
(3) uses an artful device or deceptive practice in this state to conceal a violation of this chapter;
(4) misleads the comptroller or an authorized representative of the comptroller in connection with the enforcement of this chapter;
(5) breaks a seal attached by the comptroller or an authorized representative of the comptroller under Section 2153.352 without the comptroller's approval;
(6) exhibits or displays a coin-operated machine that has a broken seal without the comptroller's approval;
(7) removes a coin-operated machine from the location where the comptroller affixed a seal to the machine; or
(8) violates this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 8812; Art. 8813 (part).)
Sec. 2153.356. CRIMINAL OFFENSE; OPERATING WITHOUT A LICENSE OR REGISTRATION CERTIFICATE. (a) A person commits an offense if the person knowingly violates Section 2153.151.
(b) An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 8817, Sec. 8(2) (part).)
Sec. 2153.357. CRIMINAL OFFENSE; OBTAINING A LICENSE BY FRAUD. (a) A person commits an offense if the person knowingly obtains or attempts to obtain a license by fraud, misrepresentation, or subterfuge.
(b) An offense under this section is a felony of the second degree. (V.A.C.S. Art. 8817, Sec. 8(2) (part).)
Sec. 2153.358. CRIMINAL OFFENSE; FAILURE TO REPORT OR PROVIDE INFORMATION. (a) A person commits an offense if the person intentionally:
(1) fails or refuses to report information to the comptroller as required by Section 2153.202; or
(2) withholds or conceals information required to be reported under Section 2153.202 from a person designated as responsible for reporting to the comptroller the information required under that section.
(b) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 8817, Secs. 14(2), (3), (4).)
Sec. 2153.359. CRIMINAL OFFENSE; PROHIBITED TRANSACTIONS. (a) A person commits an offense if the person:
(1) personally or by an agent, contracts orally or in writing to convey by lease, sublease, or other form an interest in real property if:
(A) the person has a financial interest in a business required to be licensed under this chapter; and
(B) the contract contains a provision that limits the other party's right to obtain a music or skill or pleasure coin-operated machine from any source; or
(2) obtains or attempts to obtain a contract of lease or bailment of a music or skill or pleasure coin-operated machine by coercion, threats, or intimidation, or through the commission of, or threat to commit, an act prohibited by a state penal law or Title 4, Finance Code.
(b) An offense under this section is a felony of the third degree. (V.A.C.S. Art. 8817, Secs. 26(1), (2), (3).)
Sec. 2153.360. CRIMINAL OFFENSE; REMOVAL OF TAX PERMIT. (a) A person may not remove or cause the removal of a tax permit from a music or skill or pleasure coin-operated machine.
(b) A person commits an offense if the person violates Subsection (a).
(c) An offense under this section is a Class B misdemeanor. (V.A.C.S. Art. 8817, Sec. 17.)
Sec. 2153.361. CRIMINAL OFFENSE; SEALED MACHINES. (a) A person commits an offense if the person:
(1) breaks a seal attached in the name of a county or municipality;
(2) exhibits or displays a coin-operated machine that has a broken seal; or
(3) removes from its location a coin-operated machine that has a broken seal.
(b) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 8815 (part).)
Sec. 2153.362. CRIMINAL OFFENSE; DISCLOSURE OF CONFIDENTIAL INFORMATION. (a) An employee of the comptroller or attorney general commits an offense if the employee discloses to an unauthorized person confidential information obtained under this chapter.
(b) An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 8817, Sec. 7(2).)
[Sections 2153.363-2153.400 reserved for expansion]
SUBCHAPTER I. STATE OCCUPATION TAX
Sec. 2153.401. IMPOSITION OF TAX. (a) An occupation tax is imposed on each coin-operated machine that an owner exhibits or displays, or permits to be exhibited or displayed in this state.
(b) The tax rate is $60 per year. (V.A.C.S. Art. 8802, Subsec. (1) (part).)
Sec. 2153.402. EXEMPTION. The tax imposed under this subchapter does not apply to an owner of a coin-operated machine or a machine that is exempt from the tax under another provision of this chapter or if the owner:
(1) holds an import license; and
(2) possesses the coin-operated machine for resale only. (V.A.C.S. Art. 8802, Subsec. (1) (part).)
Sec. 2153.403. PRORATED TAX. The tax on a coin-operated machine first exhibited or displayed in this state after March 31 is one-fourth of the tax imposed under Section 2153.401 for each quarter or partial quarter of the calendar year remaining after the date the owner first exhibits or displays the coin-operated machine. (V.A.C.S. Art. 8802, Subsec. (1) (part).)
Sec. 2153.404. COLLECTION. (a) The comptroller shall collect the tax.
(b) In collecting the tax, the comptroller may:
(1) collect the tax on a quarterly basis;
(2) establish procedures for quarterly collection of the tax; and
(3) establish dates on which the tax payment is due.
(c) An owner required to pay a tax under this section shall pay the tax to the comptroller by cashier's check or money order. (V.A.C.S. Art. 8802, Subsec. (1) (part); Art. 8808 (part).)
Sec. 2153.405. REFUND OR CREDIT PROHIBITED. The comptroller may not refund or assign credit for the tax imposed under this subchapter to an owner who ceases to exhibit or display a coin-operated machine before the end of the calendar year for which the tax is imposed. (V.A.C.S. Art. 8802, Subsec. (1) (part).)
Sec. 2153.406. TAX PERMIT. (a) The comptroller shall issue a tax permit to an owner who pays the tax.
(b) The comptroller may issue a duplicate tax permit to an owner if the owner's tax permit is lost, stolen, or destroyed. The fee for a duplicate permit is $5.
(c) Except as provided by Subsection (d), a tax permit shall be securely attached to the coin-operated machine for which the permit is issued in a manner that requires continued application of steam and water to remove the permit.
(d) A person may not attach a tax permit to a coin-operated machine that is exhibited or displayed if the machine is not registered with the comptroller under this chapter. (V.A.C.S. Art. 8802, Subsec. (3); Art. 8806; Art. 8808 (part).)
Sec. 2153.407. APPLICABILITY OF TAX CODE. Subtitle B, Title 2, Tax Code, applies to the administration, collection, and enforcement of taxes, penalties, and interest under this subchapter. (V.A.C.S. Art. 8802, Subsec. (1) (part).)
[Sections 2153.408-2153.450 reserved for expansion]
SUBCHAPTER J. COUNTY AND MUNICIPAL REGULATION
Sec. 2153.451. IMPOSITION OF OCCUPATION TAX AUTHORIZED. (a) A county or municipality may impose an occupation tax on a coin-operated machine in this state.
(b) The rate of the tax may not exceed one-fourth of the rate of the tax imposed under Section 2153.401. (V.A.C.S. Art. 8814 (part).)
Sec. 2153.452. ZONING. (a) For purposes of zoning, a political subdivision of this state shall treat the exhibition of a music or skill or pleasure coin-operated machine in the same manner as the political subdivision treats the principal use of the property where the machine is exhibited.
(b) Subsection (a) does not prohibit a municipality from restricting the exhibition of a coin-operated amusement machine within 300 feet of a church, school, or hospital. (V.A.C.S. Art. 8814 (part).)
Sec. 2153.453. SEALING AUTHORIZED; RELEASE FEE. A county or municipality that imposes an occupation tax on a coin-operated machine may:
(1) seal a coin-operated machine if the tax imposed is not paid; and
(2) charge a fee of not more than $5 for the release of a sealed coin-operated machine. (V.A.C.S. Art. 8815 (part).)
CHAPTER 2154. REGULATION OF FIREWORKS AND
FIREWORKS DISPLAYS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2154.001. DEFINITIONS
Sec. 2154.002. EXEMPTIONS
Sec. 2154.003. PERMISSIBLE FIREWORKS
Sec. 2154.004. EFFECT OF CHAPTER ON LOCAL REGULATION
[Sections 2154.005-2154.050 reserved for expansion]
SUBCHAPTER B. COMMISSIONER'S POWERS AND DUTIES
Sec. 2154.051. COMMISSIONER'S POWERS AND DUTIES
Sec. 2154.052. RULES
Sec. 2154.053. RULES RESTRICTING COMPETITIVE BIDDING
OR ADVERTISING
Sec. 2154.054. ADVISORY COUNCIL
[Sections 2154.055-2154.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 2154.101. GENERAL REQUIREMENTS
Sec. 2154.102. WAIVER OF EXAMINATION REQUIREMENT
Sec. 2154.103. EXAMINATION RESULTS
Sec. 2154.104. DUPLICATE LICENSE; LICENSE CHANGES
Sec. 2154.105. LICENSE EXPIRATION DATE
Sec. 2154.106. LICENSE RENEWAL
[Sections 2154.107-2154.150 reserved for expansion]
SUBCHAPTER D. TYPES OF LICENSES
Sec. 2154.151. MANUFACTURER'S LICENSE
Sec. 2154.152. DISTRIBUTOR'S LICENSE
Sec. 2154.153. JOBBER'S LICENSE
Sec. 2154.154. PYROTECHNIC OPERATOR'S LICENSE
Sec. 2154.155. PYROTECHNIC SPECIAL EFFECTS OPERATOR'S
LICENSE
[Sections 2154.156-2154.200 reserved for expansion]
SUBCHAPTER E. PERMIT REQUIREMENTS
Sec. 2154.201. GENERAL REQUIREMENTS
Sec. 2154.202. RETAIL FIREWORKS PERMIT
Sec. 2154.203. AGRICULTURAL, INDUSTRIAL, AND
WILDLIFE CONTROL PERMIT
Sec. 2154.204. PUBLIC DISPLAY PERMIT
Sec. 2154.205. INSURANCE REQUIREMENT FOR PUBLIC DISPLAY
PERMIT
Sec. 2154.206. INSPECTION OF PUBLIC FIREWORKS DISPLAY
[Sections 2154.207-2154.250 reserved for expansion]
SUBCHAPTER F. PROHIBITED ACTS
Sec. 2154.251. PROHIBITED USE OF FIREWORKS
Sec. 2154.252. CERTAIN SALES OF FIREWORKS PROHIBITED
[Sections 2154.253-2154.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY ACTIONS; PENALTIES
Sec. 2154.301. DISCIPLINARY POWERS OF COMMISSIONER
Sec. 2154.302. DISCIPLINARY HEARING
Sec. 2154.303. PENALTIES
Sec. 2154.304. SEIZURE OF ILLEGAL FIREWORKS
CHAPTER 2154. REGULATION OF FIREWORKS AND
FIREWORKS DISPLAYS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2154.001. DEFINITIONS. In this chapter:
(1) "Commissioner" means the commissioner of insurance of Texas.
(2) "Department" means the United States Department of Transportation.
(3) "Distributor" means a person who:
(A) imports fireworks into this state; or
(B) sells fireworks to:
(i) a jobber, retailer, or other distributor for resale; or
(ii) a holder of a single public display permit, a multiple public display permit, or another fireworks permit.
(4) "Fire prevention officer" means a chief of a fire department, a fire marshal, a county fire marshal, a sheriff, a constable, another local enforcement officer primarily responsible for fire prevention, or, if there is no local fire authority, the state fire marshal.
(5) "Fireworks" means a composition or device:
(A) designed for entertainment to produce a visible or audible effect by combustion, explosion, deflagration, or detonation; and
(B) defined by 49 C.F.R. Section 173.56(j) (1996).
(6) "Fireworks 1.3G" means a large fireworks device:
(A) primarily designed to produce visible or audible effects by combustion, deflagration, or detonation; and
(B) classified as a 1.3G explosive by the department in 49 C.F.R. Part 173 (1996).
(7) "Fireworks 1.4G" means a small fireworks device:
(A) primarily designed to produce visible or audible effects by combustion, deflagration, or detonation;
(B) that complies with the construction, labeling, and chemical composition requirements of the United States Consumer Product Safety Commission in 16 C.F.R. Part 1507 (1996), or the most recently adopted version of that rule; and
(C) that is classified by the department in 49 C.F.R. Part 173 (1996).
(8) "Illegal fireworks" means a fireworks device manufactured, distributed, or sold in violation of this chapter.
(9) "Indoor or proximate display" means a pyrotechnic display involving the ignition of Fireworks 1.3G or Fireworks 1.4G for public amusement where an audience is closer to the pyrotechnic devices than permitted by NFPA 1123 Code of Fireworks Display. The term does not include the use of Fireworks 1.4G by a retail consumer for private or personal amusement.
(10) "Insurance agent" means:
(A) a person, firm, or corporation licensed under Article 1.14-2 or 21.14, Insurance Code;
(B) a salaried, state, or special agent; and
(C) a person authorized to represent an insurance fund or pool created by a city, county, or other political subdivision of the state under Chapter 791, Government Code.
(11) "Jobber" means a person who purchases fireworks only for resale to retailers.
(12) "Manufacturer" means a person, firm, corporation, or association who makes fireworks.
(13) "Person" means an individual or entity, including an owner, manager, officer, employee, or occupant.
(14) "Public display" means the igniting of Fireworks 1.3G for public or private amusement.
(15) "Pyrotechnic operator" means an individual who, by experience, training, and examination, has demonstrated the necessary skill and ability for safely assembling, discharging, and supervising public displays of Fireworks 1.3G or Fireworks 1.4G.
(16) "Pyrotechnic special effects operator" means an individual who, by experience, training, and examination, has demonstrated the necessary skill and ability for safely assembling, discharging, and supervising proximate displays of Fireworks 1.3G or Fireworks 1.4G.
(17) "Retailer" means a person who purchases fireworks for resale only to the general public.
(18) "Sale" means selling or offering for sale merchandise, equipment, or service, at wholesale or retail, to the public or to any person, for an agreed sum of money or other consideration.
(19) "State fire marshal" means the chief law enforcement officer of the state charged with the responsibility of fire prevention. (V.T.I.C. Art. 5.43-4, Sec. 1.)
Sec. 2154.002. EXEMPTIONS. This chapter does not apply to:
(1) a toy pistol, toy cane, toy gun, or other device that uses paper or plastic caps in sheets, strips, rolls, or individual caps that contain not more than an average of 25 hundredths of a grain of explosive composition per cap and that is packed and shipped under 49 C.F.R. Part 173 (1996);
(2) a model rocket or model rocket motor designed, sold, and used to propel recoverable aero models;
(3) a propelling or expelling charge consisting of a mixture of sulfur, charcoal, and potassium nitrate;
(4) novelties or trick noisemakers;
(5) the sale, at wholesale, of any type of fireworks by a resident manufacturer, distributor, importer, or jobber if the fireworks are intended for shipment directly out of state under department regulations;
(6) the sale or use of, in emergency situations, pyrotechnic signaling devices or distress signals for marine, aviation, or highway use;
(7) the use of a fusee or a railway torpedo by a railroad;
(8) the sale of blank cartridges for:
(A) use in a radio, television, film, or theater production;
(B) a signal or ceremonial purpose in an athletic event; or
(C) an industrial purpose; or
(9) the use of a pyrotechnic device by a military organization. (V.T.I.C. Art. 5.43-4, Sec. 4.)
Sec. 2154.003. PERMISSIBLE FIREWORKS. (a) Except as provided by Subsection (b), Fireworks 1.4G are permissible fireworks.
(b) The following are not permissible fireworks:
(1) sky rockets or "bottle rockets" with:
(A) a total propellant charge of less than four grams;
(B) a casing size of less than five-eighths of an inch for the outside diameter and less than 3-1/2 inches in length; and
(C) an overall length, including stick, of less than 15 inches; and
(2) other fireworks determined not acceptable by the United States Consumer Product Safety Commission.
(c) The term "bottle rocket" may not be used in association with the advertisement or sale of fireworks. (V.T.I.C. Art. 5.43-4, Sec. 2.)
Sec. 2154.004. EFFECT OF CHAPTER ON LOCAL REGULATION. (a) A municipal or county ordinance, order, or rule in effect on January 2, 1986, is not invalidated by this chapter.
(b) This chapter does not limit or restrict the authority of a county, where specifically authorized by law, or municipality to enact an ordinance or order prohibiting or further regulating fireworks. (V.T.I.C. Art. 5.43-4, Sec. 3.)
[Sections 2154.005-2154.050 reserved for expansion]
SUBCHAPTER B. COMMISSIONER'S POWERS AND DUTIES
Sec. 2154.051. COMMISSIONER'S POWERS AND DUTIES. (a) The commissioner shall:
(1) determine reasonable criteria and qualifications for licenses and permits;
(2) set license and permit fees;
(3) determine the qualifications and examination requirements for pyrotechnics operators; and
(4) establish a procedure for reporting and processing complaints.
(b) The commissioner may, after notice and opportunity for hearing, increase or decrease the limits of insurance coverage. (V.T.I.C. Art. 5.43-4, Secs. 16(b), (c), 18(a) (part).)
Sec. 2154.052. RULES. (a) The commissioner:
(1) shall administer this chapter through the state fire marshal; and
(2) may issue rules to administer this chapter in compliance with Section 2154.054.
(b) The commissioner shall adopt and the state fire marshal shall administer rules the commissioner considers necessary for the protection, safety, and preservation of life and property, including rules regulating:
(1) the issuance of licenses and permits to persons engaged in manufacturing, selling, storing, possessing, or transporting fireworks in this state;
(2) the conduct of public fireworks displays; and
(3) the safe storage of Fireworks 1.3G and Fireworks 1.4G.
(c) The commissioner shall adopt rules for applications for licenses and permits.
(d) In adopting a rule, the commissioner may use standards recognized by federal law or regulation and standards published by a nationally recognized standards-making organization.
(e) A rule may not be adopted under this chapter that is more restrictive than a rule in effect on September 1, 1998, without specific statutory authority. (V.T.I.C. Art. 5.43-4, Secs. 5, 16(a), 18(a) (part).)
Sec. 2154.053. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commissioner may not adopt rules restricting advertising or competitive bidding by a license or permit holder under this chapter except to prohibit false, misleading, or deceptive practices.
(b) The commissioner may not include in the rules to prohibit false, misleading, or deceptive practices a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the holder's personal appearance or the use of a holder's voice in an advertisement;
(3) relates to the size or duration of an advertisement by the holder; or
(4) restricts the holder's advertisement under a trade name. (V.T.I.C. Art. 5.43-4, Sec. 16A.)
Sec. 2154.054. ADVISORY COUNCIL. (a) The commissioner shall establish an advisory council to assist the commissioner in administering this chapter.
(b) The council is composed of five members who are representatives from the fireworks industry.
(c) The Texas Pyrotechnic Association may, on request by the commissioner, recommend individuals for appointment to the council.
(d) A council member serves at the will of the commissioner.
(e) The council shall periodically review rules relating to this chapter and recommend changes in the rules to the commissioner.
(f) Notwithstanding Section 2001.031, Government Code, the commissioner shall submit all proposed changes and additions to the rules that relate to administration of this chapter to the council for development. If the commissioner does not approve a rule developed by the council, the commissioner shall indicate to the council the reasons that the commissioner did not approve the rule and return the rule to the council for further development. (V.T.I.C. Art. 5.43-4, Sec. 5B.)
[Sections 2154.055-2154.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 2154.101. GENERAL REQUIREMENTS. (a) A person must obtain an appropriate license to:
(1) engage in the business of manufacturing, distributing, jobbing, or importing fireworks to be sold or used in this state; or
(2) supervise or conduct public fireworks displays.
(b) A person who is younger than 21 years of age may not be issued a pyrotechnic operator's license. The minimum age of a person issued another license under Subchapter D is 18 years of age.
(c) A person may not:
(1) transfer a license; or
(2) obtain or attempt to obtain a license by fraudulent representation.
(d) A person may not alter or deface a license. An altered or defaced license is void. (V.T.I.C. Art. 5.43-4, Secs. 6(a); 11 (part); 17(e) (part), (f) (part), (h) (part).)
Sec. 2154.102. WAIVER OF EXAMINATION REQUIREMENT. The commissioner may waive an examination requirement for an applicant with a valid license from another state if, in the commissioner's opinion, the license requirements of the other state are substantially equivalent to those of this state. (V.T.I.C. Art. 5.43-4, Sec. 13.)
Sec. 2154.103. EXAMINATION RESULTS. (a) The state fire marshal shall notify each examinee of the results of the examination not later than the 30th day after the date an examination is administered.
(b) If the examination is conducted, graded, or reviewed by a testing service, the state fire marshal shall notify the examinee of the result of the examination not later than the 14th day after the date the state fire marshal receives the result from the testing service.
(c) If the notice of the examination result will be delayed for longer than 90 days after the examination date, the state fire marshal shall notify the examinee of the reason for the delay before the 90th day.
(d) If requested in writing by a person who fails the licensing examination, the state fire marshal shall send the person an analysis of the person's performance on the examination. (V.T.I.C. Art. 5.43-4, Sec. 12.)
Sec. 2154.104. DUPLICATE LICENSE; LICENSE CHANGES. A person must be charged a fee in an amount not to exceed $20 for a duplicate license issued by the commissioner and for any requested change to a license. (V.T.I.C. Art. 5.43-4, Sec. 6(g).)
Sec. 2154.105. LICENSE EXPIRATION DATE. (a) The commissioner by rule may provide for different expiration dates for the various types of licenses.
(b) If the expiration date of a license is less than one year from the date of its issuance or anniversary date, the license fee shall be prorated on the basis of the number of months during which the license is valid. The total annual fee is payable each time the license is renewed. (V.T.I.C. Art. 5.43-4, Sec. 7(b).)
Sec. 2154.106. LICENSE RENEWAL. (a) A license holder may renew an unexpired license by paying the required renewal fee to the state fire marshal any time before the license expires.
(b) Not later than the 30th day before the expiration date of a license, the state fire marshal shall send written notice of the impending license expiration to the license holder at the license holder's last known address.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the state fire marshal the required annual fee and an additional amount equal to one-half of the original license fee.
(d) A person whose license has been expired for more than 90 days but less than two years may renew the license by paying to the state fire marshal all unpaid annual fees and an additional amount equal to the original license fee.
(e) A person may not renew a license that has been expired for two years or more. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license.
(f) This section does not prevent the state fire marshal from denying or refusing to renew a license for any reason provided by law or the rules of the commissioner. (V.T.I.C. Art. 5.43-4, Sec. 7(a).)
[Sections 2154.107-2154.150 reserved for expansion]
SUBCHAPTER D. TYPES OF LICENSES
Sec. 2154.151. MANUFACTURER'S LICENSE. (a) A person manufacturing, storing, possessing, and selling fireworks constructed by that person must have a manufacturer's license.
(b) The commissioner shall set and collect an annual manufacturer's license fee in an amount not to exceed $1,000.
(c) A licensed manufacturer may sell:
(1) Fireworks 1.4G only to a licensed distributor or jobber; and
(2) Fireworks 1.3G only to a licensed distributor or pyrotechnic operator, or to a fireworks public display permit holder for use in public fireworks displays in this state.
(d) A licensed manufacturer may manufacture, store, possess, and sell an item other than a permissible firework if the item is only for sale and delivery to authorized persons in a state in which the item is permissible.
(e) A licensed manufacturer may be required to submit samples of all fireworks to the state fire marshal for approval. (V.T.I.C. Art. 5.43-4, Secs. 6(b), 17(a) (part).)
Sec. 2154.152. DISTRIBUTOR'S LICENSE. (a) A person must be a licensed distributor if the person:
(1) imports into this state or stores, possesses, and sells Fireworks 1.3G to a licensed pyrotechnic operator or distributor or to a single public display, multiple public display, or agricultural, industrial, and wildlife control fireworks permit holder; or
(2) imports or stores, possesses, and sells Fireworks 1.4G to a licensed jobber, retailer, or distributor in this state.
(b) The commissioner shall set and collect an annual distributor's license fee in an amount not to exceed $1,500. (V.T.I.C. Art. 5.43-4, Sec. 6(c).)
Sec. 2154.153. JOBBER'S LICENSE. (a) A person must be a licensed jobber if the person stores, possesses, and sells Fireworks 1.4G only to retailers in this state.
(b) The commissioner shall set and collect an annual jobber's license fee in an amount not to exceed $1,000. (V.T.I.C. Art. 5.43-4, Sec. 6(d).)
Sec. 2154.154. PYROTECHNIC OPERATOR'S LICENSE. (a) A person must be a licensed pyrotechnic operator if the person assembles, conducts, and supervises public fireworks displays using Fireworks 1.3G.
(b) The commissioner shall set and collect an annual pyrotechnic operator's license fee in an amount not to exceed $100.
(c) To qualify for a pyrotechnic operator's license, a person must take and pass an examination, if required, conducted by the commissioner through the state fire marshal's office.
(d) A person shall be charged a nonrefundable initial examination fee in an amount not to exceed $30. A person shall be charged a nonrefundable fee in an amount not to exceed $20 for each reexamination. (V.T.I.C. Art. 5.43-4, Sec. 6(e).)
Sec. 2154.155. PYROTECHNIC SPECIAL EFFECTS OPERATOR'S LICENSE. (a) A person must be a licensed pyrotechnic special effects operator if the person assembles, conducts, and supervises proximate displays using Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standard of the Use of Pyrotechnics Before a Proximate Audience.
(b) The commissioner shall set and collect an annual pyrotechnic special effects operator's license fee in an amount not to exceed $100.
(c) To qualify for a pyrotechnic special effects operator's license, a person must take and pass an examination, if required, conducted by the commissioner through the state fire marshal's office.
(d) A person shall be charged a nonrefundable initial examination fee in an amount not to exceed $30. A person shall be charged a nonrefundable fee in an amount not to exceed $20 for each reexamination. (V.T.I.C. Art. 5.43-4, Sec. 6(f).)
[Sections 2154.156-2154.200 reserved for expansion]
SUBCHAPTER E. PERMIT REQUIREMENTS
Sec. 2154.201. GENERAL REQUIREMENTS. (a) A person who is younger than 21 years of age may not be issued a public fireworks display permit. A person who is younger than 18 years of age may not be issued another permit under this subchapter.
(b) A person may not:
(1) transfer a permit issued under this subchapter; or
(2) obtain or attempt to obtain a permit under this subchapter by fraudulent representation.
(c) A person may not alter or deface a permit. An altered or defaced permit is void. (V.T.I.C. Art. 5.43-4, Secs. 11 (part), 17(e) (part), (f) (part), (h) (part).)
Sec. 2154.202. RETAIL FIREWORKS PERMIT. (a) A person selling fireworks directly to the public must annually obtain a nonrenewable retail fireworks permit for each retail location.
(b) The commissioner shall set and collect a retail fireworks permit fee in an amount not to exceed $20.
(c) A retail fireworks permit may be purchased from a licensed manufacturer, distributor, or jobber or from the state fire marshal's office.
(d) A licensed manufacturer, distributor, or jobber may obtain retail fireworks permits from the commissioner at any time. The commissioner shall provide permits in books containing 20 permits each. Each permit must be clearly printed with the year, date, and permit number. The manufacturer, distributor, or jobber shall keep a record of all permits issued and shall submit the record to the commissioner through the state fire marshal in the manner required by the commissioner.
(e) A retail fireworks permit expires on January 31 each year and is not renewable.
(f) An outdated permit may be exchanged for a current permit only in the year following the permit's expiration.
(g) A retail fireworks permit holder may sell fireworks only to the public, and only during periods:
(1) beginning June 24 and ending at midnight on July 4; and
(2) beginning December 20 and ending at midnight on January 1 of the following year. (V.T.I.C. Art. 5.43-4, Sec. 8.)
Sec. 2154.203. AGRICULTURAL, INDUSTRIAL, AND WILDLIFE CONTROL PERMIT. (a) The commissioner shall set and collect a permit fee in an amount not to exceed $50 for a permit to use Fireworks 1.3G for agricultural, industrial, or wildlife control purposes.
(b) The applicant must specify the exact purpose for which the fireworks are to be used before a permit may be issued.
(c) A permit expires one year from the date of issuance and is not renewable. (V.T.I.C. Art. 5.43-4, Sec. 10.)
Sec. 2154.204. PUBLIC DISPLAY PERMIT. (a) The commissioner shall set and collect a permit fee in an amount not to exceed $50 for a Fireworks 1.3G single public display permit. The permit shall be obtained from the commissioner through the state fire marshal.
(b) A single public fireworks display permit is valid for only one public fireworks display to be held during the hours and on the date or alternate date, if provided, stated on the permit and is not renewable.
(c) A person conducting multiple fireworks displays at a single location may be issued a multiple public display permit. The commissioner shall set and collect an annual multiple public display permit fee in an amount not to exceed $400.
(d) The holder of a multiple public display permit is not required to obtain a single public display permit. A multiple public display permit is valid for one year from the date of issuance and is not renewable.
(e) This chapter does not limit the authority of the state fire marshal to inspect the location of the display or to require appropriate fire protection measures.
(f) The commissioner shall adopt by reference the provisions of:
(1) NFPA 1123, Code for Fireworks Display, 1995 Edition, as rules governing public displays; and
(2) NFPA 1126, Standards for the Use of Pyrotechnics Before a Proximate Audience, 1996 Edition, as rules governing indoor displays. (V.T.I.C. Art. 5.43-4, Sec. 9.)
Sec. 2154.205. INSURANCE REQUIREMENT FOR PUBLIC DISPLAY PERMIT. (a) In addition to any other requirements, an applicant for a public display permit must submit to the state fire marshal evidence of a general liability insurance policy in an amount of not less than $500,000 unless the commissioner increases or decreases the amount under Section 2154.051. A multiple public display permit or single public display permit may not be issued without evidence of general liability insurance as required by this section.
(b) The policy shall be conditioned to pay the amount of money the insured becomes obligated to pay as damages because of bodily injury and property damage caused by an occurrence involving the insured or the insured's servant, officer, agent, or employee in the conduct of a public fireworks display.
(c) Evidence of the liability insurance policy required by this section must be in the form of a certificate of insurance issued by an insurer authorized to do business in this state and countersigned by an insurance agent licensed in this state.
(d) A certificate of insurance for surplus lines coverage obtained under Article 1.14-2, Insurance Code, through a licensed Texas surplus lines agent resident in this state may be filed with the commissioner as evidence of coverage required by this section.
(e) An insurer may not cancel a certificate of insurance issued under this section unless the insurer gives the state fire marshal notice of intent to cancel as required by the commissioner.
(f) This section may be satisfied by a city, county, or other political subdivision presenting proof of its participation in a self-insurance fund or other fund created under Chapter 791, Government Code, covering the liability requirements under this chapter. (V.T.I.C. Art. 5.43-4, Sec. 15.)
Sec. 2154.206. INSPECTION OF PUBLIC FIREWORKS DISPLAY. (a) In this section, "appropriate fire prevention officer" means a person with fire prevention authority in a particular jurisdiction.
(b) A person planning to make a public fireworks display shall submit, under rules adopted by the commissioner, a written application to the state fire marshal for a permit.
(c) An appropriate fire prevention officer, as designated or approved by the state fire marshal, shall make a site investigation to determine whether a proposed fireworks display is of a nature or in a location that may be hazardous to property or dangerous to any person. The officer may, in the exercise of reasonable discretion, approve or disapprove the display site and may impose reasonable conditions on the display.
(d) After inspecting the proposed display site, the fire prevention officer shall notify the state fire marshal of the results of the inspection, and the state fire marshal shall determine if a permit is to be issued. (V.T.I.C. Art. 5.43-4, Sec. 14.)
[Sections 2154.207-2154.250 reserved for expansion]
SUBCHAPTER F. PROHIBITED ACTS
Sec. 2154.251. PROHIBITED USE OF FIREWORKS. (a) A person may not:
(1) explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
(2) sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
(3) explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
(4) ignite or discharge fireworks in or from a motor vehicle;
(5) place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
(6) conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
(7) conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
(8) sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.
(b) A person may not manufacture, distribute, sell, or use fireworks in a public fireworks display or for agricultural, industrial, or wildlife control purposes without an appropriate license or permit. Fireworks manufactured, distributed, sold, or used without an appropriate license or permit are illegal fireworks. (V.T.I.C. Art. 5.43-4, Secs. 17(b), (f) (part).)
Sec. 2154.252. CERTAIN SALES OF FIREWORKS PROHIBITED. (a) Unless the fireworks conform to the standards of the United States Consumer Product Safety Commission and the department, a person in this state may not:
(1) sell the fireworks at retail;
(2) offer the fireworks for retail sale;
(3) possess the fireworks for retail sale in this state; or
(4) transport, use, or explode the fireworks in this state.
(b) A person may offer for sale to the general public Fireworks 1.4G only at authorized retail locations. All mail order sales of Fireworks 1.4G are prohibited.
(c) Fireworks may not be sold or offered for sale to children under 12 years of age or to an intoxicated or incompetent person. A person selling fireworks at retail shall make a reasonable effort to determine that potential purchasers of fireworks are of the minimum age required by this subsection.
(d) A licensed manufacturer, distributor, jobber, or importer may not sell fireworks to a person who does not hold a license or permit. (V.T.I.C. Art. 5.43-4, Secs. 17(a) (part), (c), (d), (g).)
[Sections 2154.253-2154.300 reserved for expansion]
SUBCHAPTER G. DISCIPLINARY ACTIONS; PENALTIES
Sec. 2154.301. DISCIPLINARY POWERS OF COMMISSIONER. (a) The commissioner may, through the state fire marshal, suspend, revoke, or refuse to issue or renew a license or permit if the commissioner finds that any provision of this chapter, or any rule adopted under this chapter, has been violated.
(b) A person who has a license or permit revoked may not reapply for the license or permit earlier than one year from the date of revocation. A person reapplying under this subsection must request a public hearing on the reissuance of the license or permit and has the burden of proving that a license or permit should be granted. (V.T.I.C. Art. 5.43-4, Secs. 18(b), (c), (d).)
Sec. 2154.302. DISCIPLINARY HEARING. (a) If the state fire marshal proposes to suspend, revoke, or refuse to renew a person's license or permit, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.
(b) Disciplinary proceedings are governed by Chapter 2001, Government Code.
(c) Rules of practice adopted by the commissioner applicable to the disciplinary proceedings may not conflict with the rules adopted by the State Office of Administrative Hearings. (V.T.I.C. Art. 5.43-4, Sec. 18A.)
Sec. 2154.303. PENALTIES. (a) A person commits an offense if the person violates Section 2154.101(b), (c)(2), or (d), 2154.151(e), or 2154.201(a), (b)(2), or (c) or Subchapter F.
(b) An offense under this section is a Class B misdemeanor.
(c) Each day a violation occurs or continues constitutes a separate offense.
(d) Venue under this section is in the county in which the offense is committed or in Travis County.
(e) If the commissioner determines that a violation of this chapter creates a threat to the public safety, the commissioner may bring suit in the district court of the county in which the person who committed the offense resides or has an office to enjoin the person from engaging in the prohibited activity. The commissioner is not required to give bond as a condition to the issuance of injunctive relief. (V.T.I.C. Art. 5.43-4, Secs. 19(a), (b), (c), (d), (e).)
Sec. 2154.304. SEIZURE OF ILLEGAL FIREWORKS. (a) The state fire marshal, a fire chief, a fire marshal, their deputies, or a peace officer may seize illegal fireworks. Fireworks seized in the enforcement of this chapter shall be kept in the custody of the seizing agent or the sheriff of the county in which the fireworks were seized.
(b) The owner of the seized fireworks may file an action contesting the seizure in a district court in the county in which the fireworks were seized.
(c) Not later than the 30th day after the hearing on the seizure, the court may authorize the return of part or all of the confiscated fireworks. The court shall order any fireworks not returned to be destroyed. If an action contesting the seizure is not filed by the 30th day after the seizure, the seizing agent or the sheriff shall destroy the fireworks. (V.T.I.C. Art. 5.43-4, Sec. 19(f).)
CHAPTER 2155. HOTELS AND BOARDINGHOUSES
SUBCHAPTER A. NOTIFICATION OF LODGING RATES
Sec. 2155.001. ROOM RATE INFORMATION
Sec. 2155.002. CRIMINAL PENALTIES
[Sections 2155.003-2155.050 reserved for expansion]
SUBCHAPTER B. LIABILITY FOR PERSONAL PROPERTY ON PREMISES
Sec. 2155.051. DEFINITION
Sec. 2155.052. LIABILITY FOR VALUABLES
Sec. 2155.053. GRATUITOUS BAILEE
CHAPTER 2155. HOTELS AND BOARDINGHOUSES
SUBCHAPTER A. NOTIFICATION OF LODGING RATES
Sec. 2155.001. ROOM RATE INFORMATION. (a) A hotel owner or keeper shall post a card or sign in a conspicuous place in each hotel room stating:
(1) the daily room rate; and
(2) the date the card or sign was posted.
(b) An increase in the daily room rate is not effective until the 30th day after the date a card or sign with the increased rate is posted.
(c) The owner or keeper of a hotel having 20 or more rooms shall give a guest assigned a room a ticket showing the daily room rate being charged for the room. The room rate on the ticket must conform with the rate posted under Subsection (a). (V.A.C.S. Arts. 4596b (part), 4596c (part).)
Sec. 2155.002. CRIMINAL PENALTIES. (a) A hotel owner or keeper commits an offense if the person does not post a room rate as required by Section 2155.001(a).
(b) A hotel owner, keeper, or employee commits an offense if the person does not give a guest a ticket as required by Section 2155.001(c).
(c) A hotel owner, keeper, or employee commits an offense if the person knowingly charges a guest a room rate for a room that is more than the posted rate for that room. Each day an excessive rate is charged is a separate offense.
(d) An offense under Subsection (a) or (c) is a misdemeanor punishable by:
(1) a fine of not less than $25 or more than $100;
(2) confinement in jail for a term not to exceed 30 days; or
(3) both a fine and confinement.
(e) An offense under Subsection (b) is a misdemeanor punishable by a fine of not more than $100. (V.A.C.S. Arts. 4596b (part), 4596c (part).)
[Sections 2155.003-2155.050 reserved for expansion]
SUBCHAPTER B. LIABILITY FOR PERSONAL PROPERTY ON PREMISES
Sec. 2155.051. DEFINITION. In this subchapter, "hotel" means a business, including an inn or rooming house, that furnishes food, lodging, or both food and lodging to a person applying and paying for the service. (V.A.C.S. Art. 4596.)
Sec. 2155.052. LIABILITY FOR VALUABLES. (a) This section applies only to a hotel, apartment hotel, or boardinghouse keeper who:
(1) continuously maintains a metal safe or vault in the keeper's hotel, apartment hotel, or boardinghouse that is in good order and fit for the custody of money, jewelry, silver or gold articles, precious stones, personal ornaments, or documents; and
(2) keeps suitable locks or bolts on the guests' sleeping room doors and proper fastenings on the transom and window of guest rooms.
(b) A hotel, apartment hotel, or boardinghouse keeper is not liable for a loss or injury suffered by a guest from the loss of valuables in an amount of more than $50 if:
(1) the valuables could reasonably have been kept in the safe or vault of the hotel, apartment hotel, or boardinghouse;
(2) the loss or injury does not occur through the negligence or wrongdoing of the keeper or an employee of the hotel, apartment hotel, or boardinghouse; and
(3) a printed copy of this section is posted on the door of the guest's sleeping room.
(c) Subsection (b) does not apply if:
(1) the guest offered to deliver the valuables to the hotel, apartment hotel, or boardinghouse keeper for custody in the safe or vault; and
(2) the hotel, apartment hotel, boarding hotel, or boardinghouse keeper did not:
(A) deposit the valuables in the safe or vault; and
(B) issue a receipt for the valuables. (V.A.C.S. Art. 4592.)
Sec. 2155.053. GRATUITOUS BAILEE. (a) A hotel, apartment hotel, or boardinghouse keeper may hold a person's property, including baggage, at the keeper's option and at the property owner's risk if the property owner:
(1) forwards the property to the hotel, apartment hotel, or boardinghouse before becoming a guest;
(2) leaves the property in the hotel, apartment hotel, or boardinghouse lobby before checking the property or becoming a guest; or
(3) allows the property to remain in the hotel, apartment hotel, or boardinghouse after the innkeeper and guest relationship has ceased and without checking the property.
(b) If a person checks property at a hotel, apartment hotel, or boardinghouse and leaves the property at the hotel, apartment hotel, or boardinghouse free of charge for one week without being a guest, the hotel, apartment hotel, or boardinghouse keeper may, absent a special agreement, continue to hold the property after the first week at the property owner's risk. (V.A.C.S. Art. 4593.)
CHAPTER 2156. THEATERS
Sec. 2156.001. DEFINITION
Sec. 2156.002. OTHER REGULATION PERMITTED
Sec. 2156.003. RIGHTS OF THEATER OWNERS
Sec. 2156.004. RECORDKEEPING; OFFENSE
Sec. 2156.005. DISCRIMINATION AGAINST REPUTABLE PRODUCTIONS;
OFFENSE
Sec. 2156.006. FORFEITURE OF LEASE
CHAPTER 2156. THEATERS
Sec. 2156.001. DEFINITION. In this chapter, "theater" means a building constructed, equipped, and used for public performances or the production and exhibition of plays, dramas, or operas for which an admission fee is charged. The term includes an opera house or playhouse. (V.A.C.S. Arts. 178 (part), 178a.)
Sec. 2156.002. OTHER REGULATION PERMITTED. A theater may be regulated by ordinance or other law. (V.A.C.S. Art. 178 (part).)
Sec. 2156.003. RIGHTS OF THEATER OWNERS. A theater owner or lessee may:
(1) assign seats to theater patrons; and
(2) refuse admission to objectionable persons. (V.A.C.S. Art. 178 (part).)
Sec. 2156.004. RECORDKEEPING; OFFENSE. (a) A person in charge of a theater, including a theater owner, lessee, or manager, shall:
(1) keep, in convenient form, a list of all bookings of shows for the theater and the specific dates of the bookings; and
(2) show the list, on request, to a person desiring in good faith to lease or rent the theater for a public performance or the production and exhibition of a play, drama, or opera.
(b) A person commits an offense if the person violates Subsection (a).
(c) An offense under Subsection (b) is a misdemeanor punishable by a fine of not more than $20 or less than $10.
(d) Each failure or refusal to comply with Subsection (a) is a separate offense. (V.A.C.S. Art. 178d.)
Sec. 2156.005. DISCRIMINATION AGAINST REPUTABLE PRODUCTIONS; OFFENSE. (a) A person who is in charge of and manages a theater, including a theater owner or lessee, or a representative of an owner or lessee, may not discriminate against reputable theaters, operas, shows, or other productions.
(b) A person who is in charge of and manages a theater, including a theater owner or lessee, or a representative of an owner or lessee, commits an offense if the person fails and refuses to rent or lease the theater for one or more performances of any reputable theater, opera, or show on terms that may not be considered unreasonable, extortionate, or prohibitive to the agent, manager, proprietor, or representative of the theater, opera, or show.
(c) An offense under Subsection (b) is a misdemeanor and the person:
(1) shall be fined not more than $500 or less than $100; and
(2) may be committed to not more than 10 days in jail.
(d) Each violation of Subsection (b) is a separate offense.
(e) Fifty percent of a fine collected under Subsection (c) shall be paid to the complainant. The remainder of the fine shall be paid to the jury fund of the county where the suit was brought.
(f) It is a defense to prosecution under Subsection (b) that, at the time of the application to lease or rent the theater, the person in charge of the theater shows that:
(1) the theater had, in good faith, already been leased or rented; and
(2) other bookings had been made for the date or dates applied for in good faith and not with the intention of evading this chapter. (V.A.C.S. Arts. 178b, 178c.)
Sec. 2156.006. FORFEITURE OF LEASE. A theater's lessee or a lessee's assigns forfeit the lease and any rights and privileges under the lease if the person:
(1) does not comply with the law governing theaters; or
(2) is convicted of an offense under Section 2156.005. (V.A.C.S. Art. 179.)
CHAPTER 2157. REGULATION OF MOTION PICTURE THEATERS
Sec. 2157.001. INTERPRETATION OF CONTRACTS
Sec. 2157.002. VENUE FOR CERTAIN SUITS
Sec. 2157.003. REPORTS ON THEATER ATTENDANCE
CHAPTER 2157. REGULATION OF MOTION PICTURE THEATERS
Sec. 2157.001. INTERPRETATION OF CONTRACTS. An agreement relating to the distribution of a film shown in any theater in this state or the licensing of a motion picture or film shown in any theater in this state is to be construed under state law. (V.A.C.S. Art. 179b, Sec. 1.)
Sec. 2157.002. VENUE FOR CERTAIN SUITS. (a) Venue of a suit arising out of an agreement described by Section 2157.001 is in the county in which:
(1) the film was licensed to be shown; or
(2) the principal office of the exhibitor under the agreement is located.
(b) A provision of the agreement attempting to establish venue in a place other than as provided by Subsection (a) is void. (V.A.C.S. Art. 179b, Sec. 2.)
Sec. 2157.003. REPORTS ON THEATER ATTENDANCE. (a) A private or confidential investigator employed to determine the attendance at or the number of paid admissions for a motion picture theater performance shall furnish to the owner or general manager of the theater:
(1) a report of the investigator's findings on the day after the date of the determination; and
(2) a written copy of the investigator's findings or report not later than the third day after the date of the determination.
(b) If an investigator does not comply with Subsection (a), evidence obtained by the investigator and the investigator's testimony is not admissible as evidence in any court or other proceeding. (V.A.C.S. Art. 179a.)
SECTION 1. CONFORMING AMENDMENT. Chapter 88, Education Code, is amended to codify Article 8892, Revised Statutes, by adding Subchapter I to read as follows:
SUBCHAPTER I. TEXAS VETERINARY MEDICAL DIAGNOSTIC LABORATORY
Sec. 88.701. TEXAS VETERINARY MEDICAL DIAGNOSTIC LABORATORY. (a) The Texas Veterinary Medical Diagnostic Laboratory is a state agency under the jurisdiction and supervision of the board.
(b) The agency is not a part of The Texas A&M University System.
Sec. 88.702. EXECUTIVE DIRECTOR AND EMPLOYEES. (a) The board shall staff the Texas Veterinary Medical Diagnostic Laboratory with an executive director and other employees necessary for the agency to properly function.
(b) The executive director and employees are eligible to participate in the retirement systems and personnel benefits available to employees of The Texas A&M University System. (V.A.C.S. Art. 8892.)
SECTION 2. CONFORMING AMENDMENT. Section 411.119, Government Code, is amended to read as follows:
Sec. 411.119. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: TEXAS BOARD OF PRIVATE INVESTIGATORS AND PRIVATE SECURITY AGENCIES. The Texas Board of Private Investigators and Private Security Agencies is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is:
(1) an applicant for a license, registration, or security officer commission under
Chapter 1702, Occupations Code [the Private Investigators and Private Security Agencies Act
(Article 4413(29bb), Vernon's Texas Civil Statutes)]; [or]
(2) an applicant for a position regulated under that chapter; or
(3) a license holder regulated under that chapter [Act]. (V.A.C.S.
Art. 4413(29bb), Sec. 39(a) (part).)
SECTION 3. CONFORMING AMENDMENT. Chapter 122, Health and Safety Code, is amended to codify Chapter 169, Acts of the 40th Legislature, Regular Session, 1927 (Article 4528a, Vernon's Texas Civil Statutes), by adding Section 122.008 to read as follows:
Sec. 122.008. EMPLOYMENT FOR PUBLIC SCHOOLS AND COMPENSATION. (a) The commissioners court of a county may employ one or more registered nurses to visit the public schools in the county.
(b) A nurse employed under Subsection (a) shall:
(1) investigate the health conditions and sanitary surroundings of the schools and the personal, physical, and health condition of students in the schools;
(2) cooperate with the Texas Department of Health and local health authorities; and
(3) perform other duties required by the commissioners court. (V.A.C.S. Art. 4528a, Sec. 1.)
SECTION 4. CONFORMING AMENDMENT. Subtitle H, Title 2, Health and Safety Code, is amended by adding Chapter 170 to read as follows:
CHAPTER 170. PROHIBITED ACTS REGARDING ABORTION
Sec. 170.001. DEFINITIONS. In this chapter:
(1) "Abortion" means an act involving the use of an instrument, medicine, drug, or other substance or device developed to terminate the pregnancy of a woman if the act is done with an intention other than to:
(A) increase the probability of a live birth of the unborn child of the woman;
(B) preserve the life or health of the child; or
(C) remove a dead fetus.
(2) "Physician" means an individual licensed to practice medicine in this state.
(3) "Viable" means the stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case, an unborn child possesses the capacity to live outside its mother's womb after its premature birth from any cause. The term does include a fetus whose biparietal diameter is less than 60 millimeters. (V.A.C.S. Art. 4495b, Sec. 4.011(a).)
Sec. 170.002. PROHIBITED ACTS; EXEMPTION. (a) Except as provided by Subsection (b), a person may not intentionally or knowingly perform an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy.
(b) Subsection (a) does not prohibit a person from performing an abortion if at the time of the abortion the person is a physician and concludes in good faith according to the physician's best medical judgment that:
(1) the fetus is not a viable fetus and the pregnancy is not in the third trimester;
(2) the abortion is necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the woman; or
(3) the fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures.
(c) A physician who performs an abortion that, according to the physician's best medical judgment at the time of the abortion, is to abort a viable unborn child during the third trimester of the pregnancy shall certify in writing to the department, on a form prescribed by the department, the medical indications supporting the physician's judgment that the abortion was authorized by Subsection (b)(2) or (3). The certification must be made not later than the 30th day after the date the abortion was performed. (V.A.C.S. Art. 4495b, Secs. 4.011(b), (d), (f).)
SECTION 5. REPEALER. (a) The following Acts and articles as compiled in Vernon's Texas Civil Statutes are repealed: 178, 178a, 178b, 178c, 178d, 179, 179a, 179b, 179c, 179d, 179f as added by Chapter 957, Acts of the 71st Legislature, Regular Session, 1989, 179f as added by Chapter 1030, Acts of the 71st Legislature, Regular Session, 1989, 320b, 320d, 851-D, 1274, 1275, 1275a, 1276, 1277, 1278, 1279, 1280, 2372p-3, 4413(29bb), 4413(29cc), 4495b, 4495b-1, 4495d, 4505a, 4505b, 4505c, 4512.7, 4512b, 4512b(1), 4512b(2), 4512c, 4512c-1, 4512d, 4512e, 4512e-1, 4512g, 4512h, 4512i, 4512j, 4512k, 4512l, 4512m, 4512n, 4512o, 4512p, 4513, 4513a, 4514, 4515, 4517, 4518, 4519, 4519a, 4520, 4521, 4522, 4523, 4524A, 4524B, 4524C, 4524D, 4525, 4525.1, 4525.2, 4525.3, 4525.4, 4525.5, 4525.6, 4525a, 4525b, 4525c, 4525d, 4525e, 4526, 4526b, 4527, 4527a, 4527b, 4527c, 4527d, 4528, 4528a, 4528c, 4529e, 4542a-1, 4542c, 4543, 4543a, 4543b, 4544, 4544a, 4545, 4545a, 4547, 4547a, 4548, 4548a, 4548b, 4548c, 4548d, 4548e, 4548f, 4548g, 4548h, 4548i, 4548j, 4548k, 4549, 4549a, 4549b, 4549-1, 45491.1, 4549-2, 4550, 4550a, 4550b, 4550c, 4551, 4551a, 4551b, 4551c, 4551d, 4551e, 4551e-1, 4551f, 4551g, 4551h, 4551i, 4551j, 4551k, 4551l, 4551m, 4551n, 4551o, 4551-1, 4552-1.01, 4552-1.02, 4552-1.03, 4552-2.01, 4552-2.01a, 4552-2.02, 4552-2.03, 4552-2.04, 4552-2.05, 4552-2.06, 4552-2.07, 4552-2.08, 4552-2.09, 4552-2.10, 4552-2.11, 4552-2.12, 4552-2.13, 4552-2.14, 4552-2.15, 4552-2.16, 4552-2.17, 4552-2.18, 4552-2.19, 4552-3.01, 4552-3.02, 4552-3.03, 4552-3.03B, 4552-3.04, 4552-3.05, 4552-3.06, 4552-3.07, 4552-3.08, 4552-3.09, 4552-3.10, 4552-4.01, 4552-4.01A, 4552-4.01B, 4552-4.02, 4552-4.03, 4552-4.04, 4552-4.05, 4552-4.06, 4552-4.07, 4552-4.08, 4552-4.09, 4552-5.01, 4552-5.02, 4552-5.03, 4552-5.04, 4552-5.05, 4552-5.06, 4552-5.07, 4552-5.08, 4552-5.09, 4552-5.10, 4552-5.11, 4552-5.12, 4552-5.13, 4552-5.14, 4552-5.15, 4552-5.16, 4552-5.17, 4552-5.18, 4552-5.19, 4552-5.20, 4552-5.21, 4552-6.01, 4552-7.01, 4552-7.02, 4552-A, 4566-1.01, 4566-1.01A, 4566-1.02, 4566-1.03, 4566-1.04, 4566-1.04A, 4566-1.04B, 4566-1.05, 4566-1.06, 4566-1.08, 4566-1.09, 4566-1.09A, 4566-1.10, 4566-1.11, 4566-1.12, 4566-1.12A, 4566-1.12B, 4566-1.13, 4566-1.13A, 4566-1.14, 4566-1.14A, 4566-1.15, 4566-1.16, 4566-1.16A, 4566-1.16B, 4566-1.17, 4566-1.19, 4567, 4567a, 4567b, 4567c, 4567d, 4567e, 4568, 4568a, 4568b, 4568c, 4568d, 4569, 4569a, 4570, 4571, 4571a, 4571b, 4573, 4573a, 4573b, 4573c, 4573d, 4573e, 4573f, 4574, 4575, 4575a, 4575b, 4575c, 4575d, 4576, 4582, 4582b, 4590c-1, 4590e, 4592, 4593, 4594, 4595, 4596, 4596b, 4596c, 5221a-9, 5221h, 5221i, 5221l, 6252-13c, 6252-13d, 6252-16d, 8402, 8403, 8404, 8405, 8406, 8407a, 8451a, 8501-1, 8700, 8801, 8802, 8803, 8805, 8806, 8807, 8808, 8809, 8810, 8811, 8812, 8813, 8814, 8815, 8816, 8817, 8851, 8871, 8890, 8891, 8892, 8920, 9003, 9018, 9023, 9023b, 9023c, 9024, 9027, and 9100.
(b) The following are repealed:
(1) Chapter 415, Government Code;
(2) Subchapter I, Chapter 161, Health and Safety Code;
(3) Chapters 824 and 827, Health and Safety Code;
(4) Chapter 50, Human Resources Code; and
(5) Articles 5.43-4 and 21.60, Insurance Code.
SECTION 6. LEGISLATIVE INTENT OF NO SUBSTANTIVE CHANGE. This Act is enacted under Section 43, Article III, Texas Constitution. This Act is intended as a recodification only, and no substantive change in law is intended by this Act.
SECTION 7. EFFECTIVE DATE. This Act takes effect September 1, 1999.
SECTION 8. EMERGENCY. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.
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President of the Senate Speaker of the House
I certify that H.B. No. 3155 was passed by the House on April 23, 1999, by a non-record vote; and that the House concurred in Senate amendments to H.B. No. 3155 on May 13, 1999, by a non-record vote.
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Chief Clerk of the House
I certify that H.B. No. 3155 was passed by the Senate, with amendments, on May 10, 1999, by the following vote: Yeas 30, Nays 0.
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Secretary of the Senate
APPROVED: _____________________
Date
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Governor