1-1 By: Wentworth S.B. No. 1016
1-2 (In the Senate - Filed March 9, 1999; March 10, 1999, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 12, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; April 12, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1016 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of real estate brokers, salespersons,
1-11 and inspectors and to the administration of certain recovery funds;
1-12 providing administrative penalties.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Subsection (a), Section 6, The Real Estate
1-15 License Act (Article 6573a, Vernon's Texas Civil Statutes), is
1-16 amended to read as follows:
1-17 (a) A person desiring to act as a real estate broker in this
1-18 state shall file an application for a license with the commission
1-19 on a form prescribed by the commission. A broker desiring to
1-20 engage a person to participate in real estate brokerage activity
1-21 may [shall] join the person in filing an application for an active
1-22 [a] salesperson license on a form prescribed by the commission. [A
1-23 person previously licensed as a broker may apply for inactive
1-24 status.] A person [previously licensed as a salesperson] may apply
1-25 for a salesperson license on inactive status without the
1-26 participation of a broker. [The person must apply for inactive
1-27 status on a form prescribed by the commission not later than the
1-28 first anniversary of the date of the expiration of the broker or
1-29 salesperson license.]
1-30 SECTION 2. Subsections (a), (b), and (e), Section 7, The
1-31 Real Estate License Act (Article 6573a, Vernon's Texas Civil
1-32 Statutes), are amended to read as follows:
1-33 (a) Competency as referred to in Section 6 of this Act shall
1-34 be established by an examination prepared by or contracted for by
1-35 the commission. The examination shall be given at such times and
1-36 at such places within the state as the commission shall prescribe.
1-37 The examination shall be of scope sufficient in the judgment of the
1-38 commission to determine that a person is competent to act as a real
1-39 estate broker or salesperson in a manner to protect the interest of
1-40 the public. The examination for a salesperson license shall be
1-41 less exacting and less stringent than the examination for a broker
1-42 license. The commission shall furnish each applicant with study
1-43 material and references on which the examination shall be based.
1-44 When an applicant for a real estate license fails a qualifying
1-45 examination, the applicant may apply for reexamination by filing a
1-46 request therefor together with the proper fee. The examination
1-47 requirement must be satisfied not later than six months after the
1-48 date on which the application for a license is filed. A license
1-49 applicant who fails the examination four consecutive times in
1-50 connection with the same application may not apply for
1-51 reexamination or submit a new license application before the 180th
1-52 day after the date the applicant failed the fourth examination.
1-53 Courses of study required for a license may include but are not
1-54 limited to the following, which shall be considered core real
1-55 estate courses for all purposes of this Act:
1-56 (1) Principles of Real Estate (or equivalent) shall
1-57 include but not be limited to an overview of licensing as a real
1-58 estate broker and salesperson, ethics of practice, titles to and
1-59 conveyancing of real estate, legal descriptions, deeds,
1-60 encumbrances and liens, distinctions between personal and real
1-61 property, appraisal, finance and regulations, closing procedures,
1-62 real estate mathematics, and at least three classroom hours of
1-63 instruction on federal, state, and local laws relating to housing
1-64 discrimination, housing credit discrimination, and community
2-1 reinvestment.
2-2 (2) Real Estate Appraisal (or equivalent) shall
2-3 include but not be limited to the central purposes and functions of
2-4 an appraisal, social and economic determinant of value, appraisal
2-5 case studies, cost, market data and income approaches to value
2-6 estimates, final correlations, and reporting.
2-7 (3) Real Estate Law (or equivalent) shall include but
2-8 not be limited to legal concepts of real estate, land description,
2-9 real property rights and estates in land, contracts, conveyances,
2-10 encumbrances, foreclosures, recording procedures, and evidence of
2-11 titles.
2-12 (4) Real Estate Finance (or equivalent) shall include
2-13 but not be limited to monetary systems, primary and secondary money
2-14 markets, sources of mortgage loans, federal government programs,
2-15 loan applications, processes and procedures, closing costs,
2-16 alternative financial instruments, equal credit opportunity acts,
2-17 community reinvestment act, and state housing agency.
2-18 (5) Real Estate Marketing (or equivalent) shall
2-19 include but not be limited to real estate professionalism and
2-20 ethics, characteristics of successful salespersons, time
2-21 management, psychology of marketing, listing procedures,
2-22 advertising, negotiating and closing, financing, and the Deceptive
2-23 Trade Practices-Consumer Protection Act, as amended, Section 17.01
2-24 et seq., Business & Commerce Code.
2-25 (6) Real Estate Mathematics (or equivalent) shall
2-26 include but not be limited to basic arithmetic skills and review of
2-27 mathematical logic, percentages, interest, time-valued money,
2-28 depreciation, amortization, proration, and estimation of closing
2-29 statements.
2-30 (7) Real Estate Brokerage (or equivalent) shall
2-31 include but not be limited to law of agency, planning and
2-32 organization, operational policies and procedures, recruiting,
2-33 selection and training of personnel, records and control, and real
2-34 estate firm analysis and expansion criteria.
2-35 (8) Property Management (or equivalent) shall include
2-36 but not be limited to role of property manager, landlord policies,
2-37 operational guidelines, leases, lease negotiations, tenant
2-38 relations, maintenance, reports, habitability laws, and the Fair
2-39 Housing Act.
2-40 (9) Real Estate Investments (or equivalent) shall
2-41 include but not be limited to real estate investment
2-42 characteristics, techniques of investment analysis, time-valued
2-43 money, discounted and nondiscounted investment criteria, leverage,
2-44 tax shelters depreciation, and applications to property tax.
2-45 (10) Law of Agency (or equivalent) shall include but
2-46 not be limited to the principal-agent and master-servant
2-47 relationships, the authority of an agent, the termination of an
2-48 agent's authority, the fiduciary and other duties of an agent,
2-49 employment law, deceptive trade practices, listing or buying
2-50 representation procedures, and the disclosure of agency.
2-51 (11) Law of Contracts (or equivalent) shall include
2-52 the elements of a contract, offer and acceptance, the statute of
2-53 frauds, specific performance and remedies for breach, unauthorized
2-54 practice of law, commission rules relating to use of adopted forms,
2-55 and owner disclosure requirements.
2-56 (b) The commission by rule may:
2-57 (1) prescribe the content of core real estate courses
2-58 listed in Subsection (a) of this section; and
2-59 (2) establish the title and content of additional core
2-60 real estate courses.
2-61 (e) Each applicant for a salesperson license shall furnish
2-62 the commission satisfactory evidence of having completed 12
2-63 semester hours, or equivalent classroom hours, of postsecondary
2-64 education, eight [six] hours of which must be completed in core
2-65 real estate courses, of which a minimum of two hours must be
2-66 completed in Principles of Real Estate as described in Subsection
2-67 (a)(1) of this section, a minimum of two hours must be completed in
2-68 Law of Agency as described in Subsection (a)(10) of this section,
2-69 and a minimum of two hours must be completed in Law of Contracts as
3-1 described in Subsection (a)(11) of this section. The remaining
3-2 four [six] hours must [shall] be completed in core real estate
3-3 courses or related courses. As a condition for the first renewal
3-4 of a salesperson license, the applicant shall furnish the
3-5 commission satisfactory evidence of having completed a minimum of
3-6 14 semester hours, or equivalent classroom hours, 10 [eight] hours
3-7 of which must be completed in core real estate courses. As a
3-8 condition for the second renewal of a salesperson license, the
3-9 applicant shall furnish the commission satisfactory evidence of
3-10 having completed a minimum of 16 semester hours, or equivalent
3-11 classroom hours, 12 [10] hours of which must be completed in core
3-12 real estate courses. As a condition for the third renewal of a
3-13 salesperson license, the applicant shall furnish the commission
3-14 satisfactory evidence of having completed a minimum of 18 semester
3-15 hours, or equivalent classroom hours, 14 [12] hours of which must
3-16 be completed in core real estate courses.
3-17 SECTION 3. Subsections (c) and (f), Section 8, The Real
3-18 Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
3-19 are amended to read as follows:
3-20 (c) If the commission determines at any time that [on
3-21 December 31 of any year] the balance remaining in the real estate
3-22 recovery trust account [fund] is less than $1 million, each real
3-23 estate broker and each real estate salesperson, on the next renewal
3-24 of the license, shall pay, in addition to the license renewal fee,
3-25 a fee of $10, which shall be deposited in the real estate recovery
3-26 trust account [fund], or a pro rata share of the amount necessary
3-27 to bring the trust account [fund] to $1.7 million, whichever is
3-28 less. If on December 31 of any year the balance remaining in the
3-29 real estate recovery trust account [fund] is more than $3.5 million
3-30 or more than the total amount of claims paid from the trust account
3-31 [fund] during the previous four fiscal years, whichever is greater,
3-32 the amount of money in excess of the greater amount shall be
3-33 transferred to the general revenue fund. Notwithstanding any other
3-34 provision of this Act, to ensure that sufficient money is available
3-35 to pay anticipated claims on the trust account, the commission may
3-36 provide by rule for the collection of assessments at times and
3-37 under conditions other than those specified by this Act.
3-38 (f) The court shall proceed on the application forthwith.
3-39 On the hearing on the application, the aggrieved person is required
3-40 to show that:
3-41 (1) the judgment is based on facts allowing recovery
3-42 under Subsection (a) of this section;
3-43 (2) the person is not a spouse of the debtor, or the
3-44 personal representative of the spouse; and the person is not a
3-45 registrant under Section 9A of this Act or a real estate broker or
3-46 salesperson, as defined by this Act, who is seeking to recover a
3-47 real estate commission or any compensation in the transaction or
3-48 transactions for which the application for payment is made;
3-49 (3) [the person has obtained a judgment under
3-50 Subsection (e) of this section that is not subject to a stay or
3-51 discharge in bankruptcy, stating the amount of the judgment and the
3-52 amount owing on the judgment at the date of the application;]
3-53 [(4)] based on the best available information, the
3-54 judgment debtor lacks sufficient attachable assets in this state or
3-55 any other state to satisfy the judgment; and
3-56 (4) [(5)] the amount that may be realized from the
3-57 sale of real or personal property or other assets liable to be sold
3-58 or applied in satisfaction of the judgment and the balance
3-59 remaining due on the judgment after application of the amount that
3-60 may be realized.
3-61 SECTION 4. Section 11, The Real Estate License Act (Article
3-62 6573a, Vernon's Texas Civil Statutes), is amended to read as
3-63 follows:
3-64 Sec. 11. The commission shall charge and collect the
3-65 following fees:
3-66 (1) a fee not to exceed $100 for the filing of an
3-67 original application for a real estate broker license;
3-68 (2) a fee not to exceed $100 for annual renewal of a
3-69 real estate broker license;
4-1 (3) a fee not to exceed $50 for the filing of an
4-2 original application for a real estate salesperson license;
4-3 (4) a fee not to exceed $50 for annual renewal of a
4-4 real estate salesperson license;
4-5 (5) a fee not to exceed $50 for an application for a
4-6 license examination;
4-7 (6) a fee not to exceed $20 for filing a request for a
4-8 license for each additional office or place of business;
4-9 (7) a fee not to exceed $20 for filing a request for a
4-10 license or certificate of registration for a change of place of
4-11 business, change of name, return to active status, or change of
4-12 sponsoring broker;
4-13 (8) a fee not to exceed $20 for filing a request to
4-14 replace a license or certificate of registration lost or destroyed;
4-15 (9) a fee not to exceed $400 for filing an application
4-16 for approval of an education program under Section 7(f) of this
4-17 Act;
4-18 (10) a fee not to exceed $200 a year for operation of
4-19 an education program under Section 7(f) of this Act;
4-20 (11) a fee of $20 [$15] for transcript evaluation;
4-21 (12) a fee not to exceed $10 for preparing a license
4-22 or registration history;
4-23 (13) a fee not to exceed $50 for the filing of an
4-24 application for a moral character determination;
4-25 (14) an annual fee of $20 from each real estate broker
4-26 and each registrant under Section 9A of this Act to be transmitted
4-27 to Texas A&M University for the Texas Real Estate Research Center
4-28 as provided by Section 5(m) of this Act;
4-29 (15) an annual fee of $17.50 from each real estate
4-30 salesperson to be transmitted to Texas A&M University for the Texas
4-31 Real Estate Research Center as provided by Section 5(m) of this
4-32 Act;
4-33 (16) an annual fee of $80 from each registrant under
4-34 Section 9A of this Act; and
4-35 (17) any fee authorized under Section 8 of this Act
4-36 for the real estate recovery trust account [fund].
4-37 SECTION 5. Subsection (a), Section 15, The Real Estate
4-38 License Act (Article 6573a, Vernon's Texas Civil Statutes), is
4-39 amended to read as follows:
4-40 (a) The commission may, on its own motion, and shall, on the
4-41 signed complaint in writing of any person [a consumer or service
4-42 recipient], provided the complaint, or the complaint together with
4-43 evidence, documentary or otherwise, presented in connection with
4-44 the complaint, provides reasonable cause, investigate the actions
4-45 and records of a real estate broker or real estate salesperson.
4-46 The commission may suspend or revoke a license issued under the
4-47 provisions of this Act or take other disciplinary action authorized
4-48 by this Act at any time when it has been determined that:
4-49 (1) the licensee has entered a plea of guilty or nolo
4-50 contendere to, or been found guilty of, or been convicted of, a
4-51 felony, in which fraud is an essential element, and the time for
4-52 appeal has elapsed or the judgment or conviction has been affirmed
4-53 on appeal, irrespective of an order granting probation following
4-54 such conviction, suspending the imposition of sentence;
4-55 (2) the licensee has procured, or attempted to
4-56 procure, a real estate license, for the licensee or a salesperson,
4-57 by fraud, misrepresentation or deceit, or by making a material
4-58 misstatement of fact in an application for a real estate license;
4-59 (3) the licensee, when selling, buying, trading, or
4-60 renting real property in the licensee's own name, engaged in
4-61 misrepresentation or dishonest or fraudulent action;
4-62 (4) the licensee has failed within a reasonable time
4-63 to make good a check issued to the commission after the commission
4-64 has mailed a request for payment by certified mail to the
4-65 licensee's last known business address as reflected by the
4-66 commission's records;
4-67 (5) the licensee has disregarded or violated a
4-68 provision of this Act;
4-69 (6) the licensee, while performing an act constituting
5-1 an act of a broker or salesperson, as defined by this Act, has been
5-2 guilty of:
5-3 (A) making a material misrepresentation, or
5-4 failing to disclose to a potential purchaser any latent structural
5-5 defect or any other defect known to the broker or salesperson.
5-6 Latent structural defects and other defects do not refer to trivial
5-7 or insignificant defects but refer to those defects that would be a
5-8 significant factor to a reasonable and prudent purchaser in making
5-9 a decision to purchase;
5-10 (B) making a false promise of a character likely
5-11 to influence, persuade, or induce any person to enter into a
5-12 contract or agreement when the licensee could not or did not intend
5-13 to keep such promise;
5-14 (C) pursuing a continued and flagrant course of
5-15 misrepresentation or making of false promises through agents,
5-16 salespersons, advertising, or otherwise;
5-17 (D) failing to make clear, to all parties to a
5-18 transaction, which party the licensee is acting for, or receiving
5-19 compensation from more than one party except with the full
5-20 knowledge and consent of all parties;
5-21 (E) failing within a reasonable time properly to
5-22 account for or remit money coming into the licensee's possession
5-23 which belongs to others, or commingling money belonging to others
5-24 with the licensee's own funds;
5-25 (F) paying a commission or fees to or dividing a
5-26 commission or fees with anyone not licensed as a real estate broker
5-27 or salesperson in this state or in any other state for compensation
5-28 for services as a real estate agent;
5-29 (G) failing to specify a definite termination
5-30 date that is not subject to prior notice in a contract, other than
5-31 a contract to perform property management services, in which the
5-32 licensee agrees to perform services for which a license is required
5-33 under this Act;
5-34 (H) accepting, receiving, or charging an
5-35 undisclosed commission, rebate, or direct profit on expenditures
5-36 made for a principal;
5-37 (I) soliciting, selling, or offering for sale
5-38 real property under a scheme or program that constitutes a lottery
5-39 or deceptive practice;
5-40 (J) acting in the dual capacity of broker and
5-41 undisclosed principal in a transaction;
5-42 (K) guaranteeing, authorizing, or permitting a
5-43 person to guarantee that future profits will result from a resale
5-44 of real property;
5-45 (L) placing a sign on real property offering it
5-46 for sale, lease, or rent without the written consent of the owner
5-47 or the owner's authorized agent;
5-48 (M) inducing or attempting to induce a party to
5-49 a contract of sale or lease to break the contract for the purpose
5-50 of substituting in lieu thereof a new contract;
5-51 (N) negotiating or attempting to negotiate the
5-52 sale, exchange, lease, or rental of real property with an owner,
5-53 lessor, buyer, or tenant, knowing that the owner, lessor, buyer, or
5-54 tenant had a written outstanding contract, granting exclusive
5-55 agency in connection with the transaction to another real estate
5-56 broker;
5-57 (O) offering real property for sale or for lease
5-58 without the knowledge and consent of the owner or the owner's
5-59 authorized agent, or on terms other than those authorized by the
5-60 owner or the owner's authorized agent;
5-61 (P) publishing, or causing to be published, an
5-62 advertisement including, but not limited to, advertising by
5-63 newspaper, radio, television, Internet, or other display which is
5-64 misleading, or which is likely to deceive the public, or which in
5-65 any manner tends to create a misleading impression, or which fails
5-66 to identify the person causing the advertisement to be published as
5-67 a licensed real estate broker or agent;
5-68 (Q) having knowingly withheld from or inserted
5-69 in a statement of account or invoice, a statement that made it
6-1 inaccurate in a material particular;
6-2 (R) publishing or circulating an unjustified or
6-3 unwarranted threat of legal proceedings, or other action;
6-4 (S) establishing an association, by employment
6-5 or otherwise, with an unlicensed person who is expected or required
6-6 to act as a real estate licensee, or aiding or abetting or
6-7 conspiring with a person to circumvent the requirements of this
6-8 Act;
6-9 (T) failing or refusing on demand to furnish
6-10 copies of a document pertaining to a transaction dealing with real
6-11 estate to a person whose signature is affixed to the document;
6-12 (U) failing to advise a purchaser in writing
6-13 before the closing of a transaction that the purchaser should
6-14 either have the abstract covering the real estate which is the
6-15 subject of the contract examined by an attorney of the purchaser's
6-16 own selection, or be furnished with or obtain a policy of title
6-17 insurance;
6-18 (V) conduct which constitutes dishonest
6-19 dealings, bad faith, or untrustworthiness;
6-20 (W) acting negligently or incompetently in
6-21 performing an act for which a person is required to hold a real
6-22 estate license;
6-23 (X) disregarding or violating a provision of
6-24 this Act;
6-25 (Y) failing within a reasonable time to deposit
6-26 money received as escrow agent in a real estate transaction, either
6-27 in trust with a title company authorized to do business in this
6-28 state, or in a custodial, trust, or escrow account maintained for
6-29 that purpose in a banking institution authorized to do business in
6-30 this state;
6-31 (Z) disbursing money deposited in a custodial,
6-32 trust, or escrow account, as provided in Subsection (Y) before the
6-33 transaction concerned has been consummated or finally otherwise
6-34 terminated; or
6-35 (AA) discriminating against an owner, potential
6-36 purchaser, lessor, or potential lessee on the basis of race, color,
6-37 religion, sex, national origin, or ancestry, including directing
6-38 prospective home buyers or lessees interested in equivalent
6-39 properties to different areas according to the race, color,
6-40 religion, sex, national origin, or ancestry of the potential owner
6-41 or lessee;
6-42 (7) the licensee has failed or refused on demand to
6-43 produce a document, book, or record in the licensee's possession
6-44 concerning a real estate transaction conducted by the licensee for
6-45 inspection by the commission or its authorized personnel or
6-46 representative;
6-47 (8) the licensee has failed within a reasonable time
6-48 to provide information requested by the commission as a result of a
6-49 formal or informal complaint to the commission which would indicate
6-50 a violation of this Act; or
6-51 (9) the licensee has failed without just cause to
6-52 surrender to the rightful owner, on demand, a document or
6-53 instrument coming into the licensee's possession.
6-54 SECTION 6. Subsection (e), Section 15B, The Real Estate
6-55 License Act (Article 6573a, Vernon's Texas Civil Statutes), is
6-56 amended to read as follows:
6-57 (e) The commission may authorize a commission employee to
6-58 file a signed written complaint against a licensee and to conduct
6-59 an investigation if:
6-60 (1) a judgment against the licensee has been paid from
6-61 a recovery fund established under this Act;
6-62 (2) the licensee is convicted of a criminal offense
6-63 that may constitute grounds for the suspension or revocation of the
6-64 licensee's license; [or]
6-65 (3) the licensee fails to make good a check issued to
6-66 the commission;
6-67 (4) the licensee fails to comply with a commission
6-68 rule adopted under Section 7A(g) of this Act; or
6-69 (5) the licensee fails to provide, within a reasonable
7-1 time, information requested by the commission in connection with an
7-2 application for the renewal of a license.
7-3 SECTION 7. Subsections (a), (b), (d), (h), (j), (m), and
7-4 (o), Section 19A, The Real Estate License Act (Article 6573a,
7-5 Vernon's Texas Civil Statutes), are amended to read as follows:
7-6 (a) If a person [licensed under this Act] violates this Act
7-7 or a rule or order adopted by the commission under this Act, the
7-8 commission may assess an administrative penalty against the person
7-9 as provided by this section.
7-10 (b) The penalty for each violation shall be set in an amount
7-11 not to exceed $1,000 a day. Each day a violation continues or
7-12 occurs may be considered a separate violation for the purpose of
7-13 the assessment of a penalty.
7-14 (d) If, after investigation of a possible violation and the
7-15 facts surrounding that possible violation, the administrator
7-16 determines that a violation has occurred, the administrator may
7-17 issue a violation report stating the facts on which the conclusion
7-18 that a violation occurred is based, recommending that an
7-19 administrative penalty under this section be imposed on the person
7-20 charged, and recommending the amount of that proposed penalty. The
7-21 administrator shall base the recommended amount of the proposed
7-22 penalty on the seriousness of the violation determined by the
7-23 consideration of the factors set forth in Subsection (c) of this
7-24 section. The commission may authorize the administrator to
7-25 delegate to another employee of the commission the administrator's
7-26 authority to act under this section.
7-27 (h) If the person charged requests a hearing or fails to
7-28 timely respond to the notice, the administrator shall set a hearing
7-29 and give notice of the hearing. The hearing shall be held by a
7-30 hearing examiner designated by the administrator. The hearing
7-31 examiner shall make findings of fact and conclusions of law and
7-32 promptly issue to the commission a proposal for decision as to the
7-33 occurrence of the violation, including a recommendation as to the
7-34 amount of the proposed penalty if a penalty is warranted. Based on
7-35 the findings of fact, conclusions of law, and recommendations of
7-36 the hearing examiner, the commission by order may find a violation
7-37 has occurred and may assess a penalty or may find that no violation
7-38 has occurred. All proceedings under this subsection are subject to
7-39 Chapter 2001, Government Code. The commission may authorize the
7-40 hearing examiner to conduct the hearing and to enter a final
7-41 decision [the Administrative Procedure and Texas Register Act
7-42 (Article 6252-13a, Vernon's Texas Civil Statutes)].
7-43 (j) Within the 30-day period immediately following the date
7-44 on which the order becomes final as provided by Chapter 2001,
7-45 Government Code [Subsection (c), Section 16, Administrative
7-46 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
7-47 Civil Statutes)], the person charged with the penalty shall:
7-48 (1) pay the penalty in full; or
7-49 (2) if the person files a petition for judicial review
7-50 contesting either the amount of the penalty or the fact of the
7-51 violation or contesting both the fact of the violation and the
7-52 amount of the penalty:
7-53 (A) forward the amount to the administrator for
7-54 placement in an escrow account; or
7-55 (B) in lieu of payment into escrow, post with
7-56 the administrator a supersedeas bond in a form approved by the
7-57 administrator for the amount of the penalty, the bond to be
7-58 effective until all judicial review of the order or decision is
7-59 final.
7-60 (m) Judicial review of the order or decision of the
7-61 commission assessing the penalty shall be under the substantial
7-62 evidence rule and shall be instituted by filing a petition with a
7-63 district court in Travis County, as provided by Chapter 2001,
7-64 Government Code [Section 19, Administrative Procedure and Texas
7-65 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)].
7-66 (o) A penalty collected under this section for a violation
7-67 by a person licensed as a real estate broker or salesperson shall
7-68 be deposited in the real estate recovery trust account [fund]. A
7-69 penalty collected under this section for a violation by a person
8-1 licensed or registered as a real estate inspector shall be
8-2 deposited in the real estate inspection recovery trust fund. A
8-3 penalty collected under this section for a violation by a person
8-4 who is not licensed under this Act shall be deposited either in the
8-5 real estate recovery trust account or in the real estate inspection
8-6 recovery trust fund.
8-7 SECTION 8. Subdivision (1), Subsection (h), Section 23, The
8-8 Real Estate License Act (Article 6573a, Vernon's Texas Civil
8-9 Statutes), is amended to read as follows:
8-10 (1) The commission shall charge and collect reasonable
8-11 and necessary fees to recover the cost of administering this
8-12 section as follows:
8-13 (A) a fee not to exceed $75 for the filing of an
8-14 original application for a license as an apprentice inspector;
8-15 (B) a fee not to exceed $125 for the filing of
8-16 an original application for a license as a real estate inspector;
8-17 (C) a fee not to exceed $150 for the filing of
8-18 an original application for a license as a professional inspector;
8-19 (D) a fee not to exceed $125 for the annual
8-20 license renewal of an apprentice inspector;
8-21 (E) a fee not to exceed $175 for the annual
8-22 license renewal of a real estate inspector;
8-23 (F) a fee not to exceed $200 for the annual
8-24 license renewal of a professional inspector;
8-25 (G) a fee not to exceed $100 for taking a
8-26 license examination; [and]
8-27 (H) a fee not to exceed $20 for a request for a
8-28 change of place of business or to replace a lost or destroyed
8-29 license; and
8-30 (I) a fee not to exceed $20 for filing a request
8-31 for a change of name on a license, return to active status, or
8-32 change in sponsoring professional inspector.
8-33 SECTION 9. Subdivision (1), Subsection (i), Section 23, The
8-34 Real Estate License Act (Article 6573a, Vernon's Texas Civil
8-35 Statutes), is amended to read as follows:
8-36 (1) The commission shall prescribe the licensing
8-37 examinations, which shall be prepared by or contracted for by the
8-38 commission. A licensing examination shall evaluate competency in
8-39 the subject matter of all required core real estate inspection
8-40 courses. The licensing examination shall be offered not less often
8-41 than once every two months in Austin. If a license applicant fails
8-42 the examination, the applicant may apply for reexamination by
8-43 filing a request with the commission and paying the examination
8-44 fee. Each license applicant must satisfy the examination
8-45 requirement not later than six months after the date on which the
8-46 license application is filed. A license applicant who fails to
8-47 satisfy the examination requirement within six months after the
8-48 date on which the license application is filed must submit a new
8-49 license application with the commission and pay the examination fee
8-50 to be eligible for examination. If a license applicant fails the
8-51 examination four [three] consecutive times in connection with the
8-52 same application, the applicant may not apply for reexamination or
8-53 submit a new license application with the commission for six months
8-54 from the date the applicant [he] failed the last examination.
8-55 SECTION 10. Subsection (k), Section 23, The Real Estate
8-56 License Act (Article 6573a, Vernon's Texas Civil Statutes), is
8-57 amended to read as follows:
8-58 (k) Continuing education programs. The commission shall
8-59 recognize, prepare, or administer continuing education programs for
8-60 inspectors. Participation in the programs is mandatory. A real
8-61 estate inspector must submit satisfactory evidence to the
8-62 commission of successful completion of at least eight [four]
8-63 classroom hours of core real estate inspection courses annually
8-64 before a licensed renewal is issued. A professional inspector must
8-65 submit satisfactory evidence to the commission of successful
8-66 completion of at least 16 [eight] classroom hours of core [related]
8-67 real estate inspection courses annually before a license renewal is
8-68 issued.
8-69 SECTION 11. Subdivisions (3), (7), and (15), Subsection (o),
9-1 Section 23 The Real Estate License Act (Article 6573a, Vernon's
9-2 Texas Civil Statutes), are amended to read as follows:
9-3 (3) If at any time [on December 31 of any year] the
9-4 balance remaining in the real estate inspection recovery trust fund
9-5 is less than $300,000, each inspector, on the next renewal of the
9-6 person's license, shall pay, in addition to the license renewal
9-7 fee, a fee of $75, or a pro rata share of the amount necessary to
9-8 bring the fund to $450,000, whichever is less, which shall be
9-9 deposited in the real estate inspection recovery trust fund.
9-10 Notwithstanding any other provision of this Act, to ensure that
9-11 sufficient money is available to pay anticipated claims on the
9-12 fund, the commission may provide by rule for the collection of
9-13 assessments at times and under conditions other than those
9-14 specified by this Act.
9-15 (7) The court shall proceed on the application
9-16 forthwith. On the hearing on the application, the aggrieved person
9-17 is required to show:
9-18 (A) that the judgment is based on facts allowing
9-19 recovery under Subdivision (1) of this subsection;
9-20 (B) that the person is not a spouse of the
9-21 debtor or the personal representative of the spouse and the person
9-22 is not an inspector, as defined by this section;
9-23 (C) [that the person has obtained a judgment
9-24 under Subdivision (6) of this subsection that is not subject to a
9-25 stay or discharge in bankruptcy, stating the amount of the judgment
9-26 and the amount owing on the judgment at the date of the
9-27 application;]
9-28 [(D)] that based on the best information
9-29 available, the judgment debtor lacks sufficient attachable assets
9-30 in this state or any other state to satisfy the judgment; and
9-31 (D) [(E)] the amount that may be realized from
9-32 the sale of real or personal property or other assets liable to be
9-33 sold or applied in satisfaction of the judgment and the balance
9-34 remaining due on the judgment after application of the amount that
9-35 may be realized.
9-36 (15) Notwithstanding any other provision, payments
9-37 from the real estate inspection recovery trust fund are subject to
9-38 the following conditions and limitations:
9-39 (A) payments may be made only pursuant to an
9-40 order of a court of competent jurisdiction, as provided by
9-41 Subdivision (6) of this subsection, and in the manner prescribed by
9-42 this subsection;
9-43 (B) payments for claims, including attorney
9-44 fees, interest, and court costs, arising out of the same
9-45 transaction shall be limited in the aggregate to $10,000 [$7,500]
9-46 regardless of the number of claimants; and
9-47 (C) payments for claims based on judgments
9-48 against a licensed inspector may not exceed in the aggregate
9-49 $30,000 [$15,000] until the fund has been reimbursed by the
9-50 licensee for all amounts paid.
9-51 SECTION 12. (a) Except as otherwise provided by this
9-52 section, this Act takes effect September 1, 1999.
9-53 (b) Subsection (e), Section 7, The Real Estate License Act
9-54 (Article 6573a, Vernon's Texas Civil Statutes), as amended by this
9-55 Act, applies only to an application filed on or after January 1,
9-56 2000. An application filed before January 1, 2000, is governed by
9-57 the law existing immediately before this Act takes effect.
9-58 (c) Subsection (k), Section 23, The Real Estate License Act
9-59 (Article 6573a, Vernon's Texas Civil Statutes), as amended by this
9-60 Act, applies only to continuing education requirements for the
9-61 renewal of an inspector license on or after December 31, 1999.
9-62 (d) Subdivision (15), Subsection (o), Section 23, The Real
9-63 Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
9-64 as amended by this Act, applies only to a cause of action that
9-65 accrues on or after the effective date of this Act. A cause of
9-66 action that accrues before the effective date of this Act is
9-67 governed by the law in effect on the date the cause of action
9-68 accrued, and that law is continued in effect for that purpose.
9-69 SECTION 13. Section 11, The Real Estate License Act (Article
10-1 6573a, Vernon's Texas Civil Statutes), as amended by this Act,
10-2 applies only to a fee for a transcript that is evaluated on or
10-3 after the effective date of this Act. A fee for a transcript
10-4 evaluated before the effective date of this Act is governed by the
10-5 law in effect on the date the transcript was evaluated, and that
10-6 law is continued in effect for that purpose.
10-7 SECTION 14. Subsection (a), Section 19A, The Real Estate
10-8 License Act (Article 6573a, Vernon's Texas Civil Statutes), as
10-9 amended by this Act, applies only to a violation that occurs on or
10-10 after the effective date of this Act. A violation that occurs
10-11 before the effective date of this Act is governed by the law in
10-12 effect on the date the violation occurred, and that law is
10-13 continued in effect for that purpose.
10-14 * * * * *