1-1 AN ACT
1-2 relating to the adoption of a nonsubstantive revision of statutes
1-3 relating to the licensing and regulation of certain professions and
1-4 business practices, including conforming amendments, repeals, and
1-5 penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. ADOPTION OF ENGINEERING, ARCHITECTURE, AND LAND
1-8 SURVEYING TITLE. The Occupations Code is amended by adding Title 6
1-9 to read as follows:
1-10 TITLE 6. REGULATION OF ENGINEERING, ARCHITECTURE, LAND
1-11 SURVEYING, AND RELATED PRACTICES
1-12 SUBTITLE A. REGULATION OF ENGINEERING AND RELATED PRACTICES
1-13 CHAPTER 1001. ENGINEERS
1-14 (Chapters 1002-1050 reserved for expansion)
1-15 SUBTITLE B. REGULATION OF ARCHITECTURE AND RELATED PRACTICES
1-16 CHAPTER 1051. ARCHITECTS
1-17 CHAPTER 1052. LANDSCAPE ARCHITECTS
1-18 CHAPTER 1053. INTERIOR DESIGNERS
1-19 (Chapters 1054-1070 reserved for expansion)
1-20 SUBTITLE C. REGULATION OF LAND SURVEYING AND RELATED PRACTICES
1-21 CHAPTER 1071. LAND SURVEYORS
1-22 TITLE 6. REGULATION OF ENGINEERING, ARCHITECTURE, LAND
1-23 SURVEYING, AND RELATED PRACTICES
1-24 SUBTITLE A. REGULATION OF ENGINEERING AND RELATED PRACTICES
2-1 CHAPTER 1001. ENGINEERS
2-2 SUBCHAPTER A. GENERAL PROVISIONS
2-3 Sec. 1001.001. SHORT TITLE
2-4 Sec. 1001.002. DEFINITIONS
2-5 Sec. 1001.003. PRACTICE OF ENGINEERING
2-6 Sec. 1001.004. LEGISLATIVE PURPOSE AND INTENT; LIBERAL
2-7 CONSTRUCTION OF CHAPTER
2-8 Sec. 1001.005. APPLICATION OF SUNSET ACT
2-9 (Sections 1001.006-1001.050 reserved for expansion)
2-10 SUBCHAPTER B. EXEMPTIONS
2-11 Sec. 1001.051. LIMITATION ON EXEMPTION
2-12 Sec. 1001.052. EMPLOYEE OF LICENSE HOLDER
2-13 Sec. 1001.053. PUBLIC WORKS
2-14 Sec. 1001.054. FEDERAL OFFICER OR EMPLOYEE
2-15 Sec. 1001.055. MECHANICAL, ELECTRICAL, OR OTHER EQUIPMENT
2-16 Sec. 1001.056. CONSTRUCTION OR REPAIR OF AND PLANS
2-17 FOR CERTAIN BUILDINGS
2-18 Sec. 1001.057. EMPLOYEE OF PRIVATE BUSINESS ENTITY OR
2-19 AFFILIATE
2-20 Sec. 1001.058. EMPLOYEE OF CERTAIN UTILITIES OR AFFILIATES
2-21 Sec. 1001.059. QUALIFIED SCIENTISTS
2-22 Sec. 1001.060. SOIL AND WATER CONSERVATION
2-23 Sec. 1001.061. TELEPHONE COMPANIES
2-24 Sec. 1001.062. CERTAIN EMPLOYEES WORKING FROM ENGINEER'S
2-25 PLANS
2-26 Sec. 1001.063. ARCHITECTS, LANDSCAPE ARCHITECTS, AND
2-27 INTERIOR DESIGNERS
3-1 Sec. 1001.064. STATE LAND SURVEYORS
3-2 (Sections 1001.065-1001.100 reserved for expansion)
3-3 SUBCHAPTER C. TEXAS BOARD OF PROFESSIONAL ENGINEERS
3-4 Sec. 1001.101. BOARD MEMBERSHIP
3-5 Sec. 1001.102. MEMBER ELIGIBILITY
3-6 Sec. 1001.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
3-7 Sec. 1001.104. TERMS; VACANCY
3-8 Sec. 1001.105. PARTICIPATION OF PUBLIC MEMBERS
3-9 Sec. 1001.106. GROUNDS FOR REMOVAL
3-10 Sec. 1001.107. PER DIEM; REIMBURSEMENT
3-11 Sec. 1001.108. OFFICERS
3-12 Sec. 1001.109. BOARD SECRETARY'S DUTIES AND SALARY
3-13 Sec. 1001.110. MEETINGS
3-14 Sec. 1001.111. FILING OF OATH
3-15 (Sections 1001.112-1001.150 reserved for expansion)
3-16 SUBCHAPTER D. BOARD PERSONNEL
3-17 Sec. 1001.151. PERSONNEL
3-18 Sec. 1001.152. CAREER LADDER PROGRAM; PERFORMANCE
3-19 EVALUATIONS
3-20 (Sections 1001.153-1001.200 reserved for expansion)
3-21 SUBCHAPTER E. BOARD POWERS AND DUTIES
3-22 Sec. 1001.201. GENERAL POWERS AND DUTIES
3-23 Sec. 1001.202. RULES
3-24 Sec. 1001.203. RULES RESTRICTING ADVERTISING OR
3-25 COMPETITIVE BIDDING
3-26 Sec. 1001.204. FEES
3-27 Sec. 1001.205. REDUCED FEES: ELDERLY, DISABLED,
4-1 INACTIVE STATUS
4-2 Sec. 1001.206. FEE INCREASE
4-3 Sec. 1001.207. STANDARDS OF CONDUCT AND ETHICS
4-4 Sec. 1001.208. ROSTER OF ENGINEERS
4-5 Sec. 1001.209. REGISTER OF APPLICANTS
4-6 Sec. 1001.210. CONTINUING EDUCATION PROGRAMS
4-7 Sec. 1001.211. RECORDS
4-8 Sec. 1001.212. CONFIDENTIALITY OF CERTAIN INFORMATION
4-9 RELATED TO LICENSE APPLICATION
4-10 Sec. 1001.213. SUBPOENA
4-11 (Sections 1001.214-1001.250 reserved for expansion)
4-12 SUBCHAPTER F. CONSUMER INTEREST INFORMATION AND
4-13 COMPLAINT PROCEDURES
4-14 Sec. 1001.251. CONSUMER INTEREST INFORMATION
4-15 Sec. 1001.252. COMPLAINTS
4-16 Sec. 1001.253. COMPLAINT INFORMATION
4-17 (Sections 1001.254-1001.300 reserved for expansion)
4-18 SUBCHAPTER G. LICENSE REQUIREMENTS
4-19 Sec. 1001.301. LICENSE REQUIRED
4-20 Sec. 1001.302. LICENSE ELIGIBILITY REQUIREMENTS
4-21 Sec. 1001.303. APPLICATION FOR LICENSE
4-22 Sec. 1001.304. EXAMINATION
4-23 Sec. 1001.305. WAIVER OF EXAMINATION REQUIREMENT
4-24 Sec. 1001.306. EXAMINATION RESULTS
4-25 Sec. 1001.307. REEXAMINATION
4-26 Sec. 1001.308. ISSUANCE OF LICENSE
4-27 Sec. 1001.309. CERTIFICATION OR ENROLLMENT OF
5-1 ENGINEERS-IN-TRAINING
5-2 Sec. 1001.310. TEMPORARY OR PROVISIONAL LICENSE
5-3 Sec. 1001.311. APPLICATION BY NONRESIDENT
5-4 Sec. 1001.312. REPLACEMENT LICENSE
5-5 (Sections 1001.313-1001.350 reserved for expansion)
5-6 SUBCHAPTER H. LICENSE RENEWAL
5-7 Sec. 1001.351. ANNUAL RENEWAL REQUIRED
5-8 Sec. 1001.352. NOTICE OF LICENSE EXPIRATION
5-9 Sec. 1001.353. PROCEDURE FOR RENEWAL
5-10 (Sections 1001.354-1001.400 reserved for expansion)
5-11 SUBCHAPTER I. PRACTICE OF ENGINEERING
5-12 Sec. 1001.401. USE OF SEAL
5-13 Sec. 1001.402. ENFORCEMENT BY CERTAIN PUBLIC OFFICIALS
5-14 Sec. 1001.403. PROFESSIONAL IDENTIFICATION
5-15 Sec. 1001.404. ELIGIBILITY FOR APPOINTED STATE
5-16 POSITION
5-17 Sec. 1001.405. PRACTICE BY BUSINESS ENTITY; REGISTRATION
5-18 Sec. 1001.406. GRADUATE ENGINEERS
5-19 Sec. 1001.407. CONSTRUCTION OF CERTAIN PUBLIC WORKS
5-20 (Sections 1001.408-1001.450 reserved for expansion)
5-21 SUBCHAPTER J. PROHIBITED PRACTICES AND
5-22 DISCIPLINARY PROCEDURES
5-23 Sec. 1001.451. DISCIPLINARY POWERS OF BOARD
5-24 Sec. 1001.452. GROUNDS FOR DISCIPLINARY ACTION
5-25 Sec. 1001.453. REVIEW OF LICENSE HOLDER'S STATUS
5-26 Sec. 1001.454. RIGHT TO HEARING
5-27 Sec. 1001.455. APPEAL OF LICENSE REVOCATION
6-1 Sec. 1001.456. REISSUANCE OF REVOKED LICENSE
6-2 (Sections 1001.457-1001.500 reserved for expansion)
6-3 SUBCHAPTER K. ADMINISTRATIVE PENALTY
6-4 Sec. 1001.501. IMPOSITION OF ADMINISTRATIVE PENALTY
6-5 Sec. 1001.502. AMOUNT OF ADMINISTRATIVE PENALTY
6-6 Sec. 1001.503. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
6-7 Sec. 1001.504. COLLECTION OF PENALTY
6-8 Sec. 1001.505. DETERMINATION BY COURT
6-9 Sec. 1001.506. REMITTANCE OF PENALTY AND INTEREST
6-10 Sec. 1001.507. DISPOSITION OF PENALTY
6-11 Sec. 1001.508. ADMINISTRATIVE PROCEDURE
6-12 (Sections 1001.509-1001.550 reserved for expansion)
6-13 SUBCHAPTER L. OTHER PENALTIES AND
6-14 ENFORCEMENT PROVISIONS
6-15 Sec. 1001.551. INJUNCTION
6-16 Sec. 1001.552. CRIMINAL PENALTY
6-17 Sec. 1001.553. REPORT OF VIOLATION
6-18 Sec. 1001.554. PRESENTATION OF COMPLAINTS BY BOARD;
6-19 ASSISTANCE AT TRIAL
6-20 Sec. 1001.555. ATTORNEY GENERAL AS LEGAL ADVISOR;
6-21 REPRESENTATION BY ATTORNEY GENERAL
6-22 Sec. 1001.556. APPEAL BOND
6-23 CHAPTER 1001. ENGINEERS
6-24 SUBCHAPTER A. GENERAL PROVISIONS
6-25 Sec. 1001.001. SHORT TITLE. This chapter may be cited as The
6-26 Texas Engineering Practice Act. (V.A.C.S. Art. 3271a, Sec. 1.)
6-27 Sec. 1001.002. DEFINITIONS. In this chapter:
7-1 (1) "Board" means the Texas Board of Professional
7-2 Engineers.
7-3 (2) "Engineer" means a person licensed to engage in
7-4 the practice of engineering in this state. (V.A.C.S. Art. 3271a,
7-5 Secs. 2(1), (3).)
7-6 Sec. 1001.003. PRACTICE OF ENGINEERING. (a) In this
7-7 section:
7-8 (1) "Design coordination" includes the review and
7-9 coordination of technical submissions prepared by others, including
7-10 the work of other professionals working with or under the direction
7-11 of an engineer with professional regard for the ability of each
7-12 professional involved in a multidisciplinary effort.
7-13 (2) "Engineering survey" includes any survey activity
7-14 required to support the sound conception, planning, design,
7-15 construction, maintenance, or operation of an engineered project.
7-16 The term does not include the surveying of real property or other
7-17 activity regulated under Chapter 1071.
7-18 (b) In this chapter, "practice of engineering" means the
7-19 performance of or an offer or attempt to perform any public or
7-20 private service or creative work, the adequate performance of which
7-21 requires engineering education, training, and experience in
7-22 applying special knowledge or judgment of the mathematical,
7-23 physical, or engineering sciences to that service or creative work.
7-24 (c) The practice of engineering includes:
7-25 (1) consultation, investigation, evaluation, analysis,
7-26 planning, engineering for program management, providing an expert
7-27 engineering opinion or testimony, engineering for testing or
8-1 evaluating materials for construction or other engineering use, and
8-2 mapping;
8-3 (2) design, conceptual design, or conceptual design
8-4 coordination of engineering works or systems;
8-5 (3) development or optimization of plans and
8-6 specifications for engineering works or systems;
8-7 (4) planning the use or alteration of land or water or
8-8 the design or analysis of works or systems for the use or
8-9 alteration of land or water;
8-10 (5) teaching an advanced engineering subject;
8-11 (6) responsible charge of engineering teaching or the
8-12 teaching of engineering;
8-13 (7) performing an engineering survey or study;
8-14 (8) engineering for construction, alteration, or
8-15 repair of real property;
8-16 (9) engineering for preparation of an operating or
8-17 maintenance manual;
8-18 (10) engineering for review of the construction or
8-19 installation of engineered works to monitor compliance with
8-20 drawings or specifications;
8-21 (11) a service, design, analysis, or other work
8-22 performed for a public or private entity in connection with a
8-23 utility, structure, building, machine, equipment, process, system,
8-24 work, project, or industrial or consumer product or equipment of a
8-25 mechanical, electrical, electronic, chemical, hydraulic, pneumatic,
8-26 geotechnical, or thermal nature; or
8-27 (12) any other professional service necessary for the
9-1 planning, progress, or completion of an engineering service.
9-2 (V.A.C.S. Art. 3271a, Secs. 2(4), (5), 4(a) (part).)
9-3 Sec. 1001.004. LEGISLATIVE PURPOSE AND INTENT; LIBERAL
9-4 CONSTRUCTION OF CHAPTER. (a) The legislature recognizes the vital
9-5 impact that the rapid advance of knowledge of the mathematical,
9-6 physical, and engineering sciences as applied in the practice of
9-7 engineering has on the lives, property, economy, and security of
9-8 state residents and the national defense.
9-9 (b) The purpose of this chapter is to:
9-10 (1) protect the public health, safety, and welfare;
9-11 (2) enable the state and the public to identify
9-12 persons authorized to practice engineering in this state; and
9-13 (3) fix responsibility for work done or services or
9-14 acts performed in the practice of engineering.
9-15 (c) The legislature intends that:
9-16 (1) the privilege of practicing engineering be
9-17 entrusted only to a person licensed and practicing under this
9-18 chapter;
9-19 (2) only a person licensed under this chapter may:
9-20 (A) engage in the practice of engineering;
9-21 (B) be represented in any way as any kind of
9-22 "engineer"; or
9-23 (C) make any professional use of the term
9-24 "engineer"; and
9-25 (3) this chapter be strictly complied with and
9-26 enforced.
9-27 (d) This chapter shall be liberally construed to carry out
10-1 the intent of the legislature.
10-2 (e) This chapter does not:
10-3 (1) prevent a person from identifying the person in
10-4 the name and trade of any engineers' labor organization with which
10-5 the person is affiliated;
10-6 (2) prohibit or otherwise restrict a person from
10-7 giving testimony or preparing an exhibit or document for the sole
10-8 purpose of being placed in evidence before an administrative or
10-9 judicial tribunal;
10-10 (3) repeal or amend a law affecting or regulating a
10-11 licensed state land surveyor; or
10-12 (4) affect or prevent the practice of any other
10-13 legally recognized profession by a member of the profession who is
10-14 licensed by the state or under the state's authority. (V.A.C.S.
10-15 Art. 3271a, Secs. 1.1 (part), 20(a) (part), (b), 25 (part).)
10-16 Sec. 1001.005. APPLICATION OF SUNSET ACT. The Texas Board of
10-17 Professional Engineers is subject to Chapter 325, Government Code
10-18 (Texas Sunset Act). Unless continued in existence as provided by
10-19 that chapter, the board is abolished and this chapter expires
10-20 September 1, 2003. (V.A.C.S. Art. 3271a, Sec. 3a.)
10-21 (Sections 1001.006-1001.050 reserved for expansion)
10-22 SUBCHAPTER B. EXEMPTIONS
10-23 Sec. 1001.051. LIMITATION ON EXEMPTION. An exemption under
10-24 this subchapter applies only to a person who is not directly or
10-25 indirectly represented to the public to be legally qualified to
10-26 engage in the practice of engineering. (V.A.C.S. Art. 3271a, Sec.
10-27 20(a) (part).)
11-1 Sec. 1001.052. EMPLOYEE OF LICENSE HOLDER. A person who is
11-2 an employee or subordinate of an engineer is exempt from the
11-3 licensing requirements of this chapter if the person's practice
11-4 does not include responsible charge of design or supervision.
11-5 (V.A.C.S. Art. 3271a, Sec. 20(a) (part).)
11-6 Sec. 1001.053. PUBLIC WORKS. The following work is exempt
11-7 from this chapter:
11-8 (1) a public work that involves structural,
11-9 electrical, or mechanical engineering, if the contemplated expense
11-10 for the completed project is $8,000 or less;
11-11 (2) a public work that does not involve structural,
11-12 electrical, or mechanical engineering, if the contemplated expense
11-13 for the completed project is $20,000 or less; or
11-14 (3) road maintenance or improvement undertaken by the
11-15 commissioners court of a county. (V.A.C.S. Art. 3271a, Sec.
11-16 19(b).)
11-17 Sec. 1001.054. FEDERAL OFFICER OR EMPLOYEE. An officer or
11-18 employee of the United States is exempt from the licensing
11-19 requirements of this chapter during the time the officer or
11-20 employee is engaged in the practice of engineering for the United
11-21 States in this state. (V.A.C.S. Art. 3271a, Sec. 20(a) (part).)
11-22 Sec. 1001.055. MECHANICAL, ELECTRICAL, OR OTHER EQUIPMENT.
11-23 (a) A person is exempt from the licensing requirements of this
11-24 chapter if the person is installing, operating, repairing, or
11-25 servicing a locomotive or stationary engine, steam boiler, diesel
11-26 engine, internal combustion engine, refrigeration compressor or
11-27 system, hoisting engine, electrical engine, air conditioning
12-1 equipment or system, or mechanical, electrical, electronic, or
12-2 communications equipment or apparatus.
12-3 (b) This exemption does not permit a person to:
12-4 (1) sign an engineering plan or specification if the
12-5 person is not an engineer; or
12-6 (2) use the term "engineer" or "engineering" in any
12-7 manner prohibited by this chapter. (V.A.C.S. Art. 3271a, Sec.
12-8 20(a) (part).)
12-9 Sec. 1001.056. CONSTRUCTION OR REPAIR OF AND PLANS FOR
12-10 CERTAIN BUILDINGS. (a) A person, sole proprietorship, firm,
12-11 partnership, joint stock association, or private corporation is
12-12 exempt from the licensing requirements of this chapter if:
12-13 (1) a representation that engineering services have
12-14 been or will be offered to the public is not made or implied; and
12-15 (2) the person or entity is erecting, constructing,
12-16 enlarging, altering, or repairing or is drawing plans or
12-17 specifications for:
12-18 (A) a private dwelling;
12-19 (B) apartments not exceeding eight units for
12-20 each building in the case of one-story buildings;
12-21 (C) apartments not exceeding four units for each
12-22 building and having a maximum height of two stories;
12-23 (D) a garage or other structure pertinent to a
12-24 building described by Paragraph (A), (B), or (C);
12-25 (E) a private building to be used exclusively
12-26 for:
12-27 (i) farm, ranch, or agricultural purposes;
13-1 or
13-2 (ii) storage of raw agricultural
13-3 commodities; or
13-4 (F) a building having no more than one story
13-5 that:
13-6 (i) is not a building exempt from the
13-7 licensing requirements of this chapter under Section 1001.053 or
13-8 subject to Section 1001.407;
13-9 (ii) has a total floor area of not more
13-10 than 5,000 square feet; and
13-11 (iii) does not contain a clear span
13-12 between supporting structures greater than 24 feet on the narrow
13-13 side.
13-14 (b) If a structure described by Subsections (a)(2)(F)(i) and
13-15 (ii) contains unsupported spans greater than 24 feet, only the
13-16 trusses, beams, or other roof supporting members must be engineered
13-17 or pre-engineered. (V.A.C.S. Art. 3271a, Sec. 20(a) (part).)
13-18 Sec. 1001.057. EMPLOYEE OF PRIVATE BUSINESS ENTITY OR
13-19 AFFILIATE. (a) A regular full-time employee of a private business
13-20 entity is exempt from the licensing requirements of this chapter
13-21 if:
13-22 (1) the employee performs services exclusively for the
13-23 business entity or an affiliate of that entity;
13-24 (2) the employee's services:
13-25 (A) are on or in connection with property:
13-26 (i) owned or leased by the business entity
13-27 or affiliate; or
14-1 (ii) in which the business entity or
14-2 affiliate has an interest, estate, or possessory right; or
14-3 (B) affect exclusively the property, products,
14-4 or interests of the business entity or affiliate; and
14-5 (3) the employee does not have the final authority to
14-6 approve, or the ultimate responsibility for, engineering designs,
14-7 plans, or specifications relating to the property or products that
14-8 are to be:
14-9 (A) incorporated into a fixed work, system, or
14-10 facility on the property of another; or
14-11 (B) made available to the public.
14-12 (b) This exemption includes the use of a job title or
14-13 personnel classification by the employee if the employee does not
14-14 use:
14-15 (1) the title or classification in connection with an
14-16 offer to the public to perform engineering services; and
14-17 (2) a name, title, or word that tends to convey the
14-18 impression that a person not licensed under this chapter is
14-19 offering to the public to perform engineering services.
14-20 (c) A person who claims an exemption under this section and
14-21 who is determined to have directly or indirectly represented the
14-22 person as legally qualified to engage in the practice of
14-23 engineering may not claim an exemption until the 10th anniversary
14-24 of the date the person made that representation. (V.A.C.S.
14-25 Art. 3271a, Secs. 20(a) (part), (g).)
14-26 Sec. 1001.058. EMPLOYEE OF CERTAIN UTILITIES OR AFFILIATES.
14-27 (a) A regular full-time employee of a privately owned public
15-1 utility or cooperative utility or of the utility's affiliate is
15-2 exempt from the licensing requirements of this chapter if the
15-3 employee:
15-4 (1) performs services exclusively for the utility or
15-5 affiliate; and
15-6 (2) does not have the final authority to approve, or
15-7 the ultimate responsibility for, engineering designs, plans, or
15-8 specifications that are to be:
15-9 (A) incorporated into fixed works, systems, or
15-10 facilities on the property of others; or
15-11 (B) made available to the public.
15-12 (b) This exemption includes the use of a job title or
15-13 personnel classification by the employee if the employee does not
15-14 use:
15-15 (1) the title or classification in connection with an
15-16 offer to the public to perform engineering services; and
15-17 (2) a name, title, or word that tends to convey the
15-18 impression that a person not licensed under this chapter is
15-19 offering to the public to perform engineering services.
15-20 (c) A person who claims an exemption under this section and
15-21 who is determined to have directly or indirectly represented the
15-22 person as legally qualified to engage in the practice of
15-23 engineering may not claim an exemption until the 10th anniversary
15-24 of the date the person made that representation. (V.A.C.S.
15-25 Art. 3271a, Secs. 20(a) (part), (g).)
15-26 Sec. 1001.059. QUALIFIED SCIENTISTS. A qualified scientist
15-27 engaged in scientific research and investigation of the physical or
16-1 natural sciences is exempt from the licensing requirements of this
16-2 chapter. This exemption includes the usual work and activities of a
16-3 meteorologist, seismologist, geologist, chemist, geochemist,
16-4 physicist, or geophysicist. (V.A.C.S. Art. 3271a, Sec. 20(a)
16-5 (part).)
16-6 Sec. 1001.060. SOIL AND WATER CONSERVATION. Agricultural
16-7 work performed in carrying out soil and water conservation
16-8 practices is exempt from this chapter. (V.A.C.S. Art. 3271a, Sec.
16-9 20(c).)
16-10 Sec. 1001.061. TELEPHONE COMPANIES. (a) An operating
16-11 telephone company, an affiliate of the company, or an employee of
16-12 the company or affiliate is exempt from this chapter with respect
16-13 to any plan, design, specification, or service that relates
16-14 strictly to the science and art of telephony.
16-15 (b) This exemption includes the use of a job title or
16-16 personnel classification by a person included under Subsection (a)
16-17 if the person does not use:
16-18 (1) the title or classification in connection with an
16-19 offer to the public to perform engineering services; and
16-20 (2) a name, title, or word that tends to convey the
16-21 impression that a person not licensed under this chapter is
16-22 offering to the public to perform engineering services. (V.A.C.S.
16-23 Art. 3271a, Sec. 20(d).)
16-24 Sec. 1001.062. CERTAIN EMPLOYEES WORKING FROM ENGINEER'S
16-25 PLANS. (a) A regular full-time employee of a private business
16-26 entity who is engaged in erecting, constructing, enlarging,
16-27 altering, repairing, rehabilitating, or maintaining an improvement
17-1 to real property in accordance with plans or specifications that
17-2 have an engineer's seal is exempt from this chapter.
17-3 (b) This exemption includes the use of a job title or
17-4 personnel classification by the employee if the employee does not
17-5 use the title or classification in connection with an offer to the
17-6 public to perform engineering services. (V.A.C.S. Art. 3271a, Sec.
17-7 20(f).)
17-8 Sec. 1001.063. ARCHITECTS, LANDSCAPE ARCHITECTS, AND
17-9 INTERIOR DESIGNERS. This chapter or a rule adopted under this
17-10 chapter does not prevent or otherwise restrict a person licensed as
17-11 an architect under Chapter 1051, a landscape architect under
17-12 Chapter 1052, or an interior designer under Chapter 1053 from
17-13 performing an act, service, or work that is within the definition
17-14 of the person's practice under those chapters. (V.A.C.S.
17-15 Art. 3271a, Sec. 20(e).)
17-16 Sec. 1001.064. STATE LAND SURVEYORS. A licensed state land
17-17 surveyor is exempt from this chapter in performing a state land
17-18 surveyor's duties. (V.A.C.S. Art. 3271a, Sec. 25 (part).)
17-19 (Sections 1001.065-1001.100 reserved for expansion)
17-20 SUBCHAPTER C. TEXAS BOARD OF PROFESSIONAL ENGINEERS
17-21 Sec. 1001.101. BOARD MEMBERSHIP. (a) The Texas Board of
17-22 Professional Engineers consists of nine members appointed by the
17-23 governor with the advice and consent of the senate as follows:
17-24 (1) six engineers; and
17-25 (2) three members who represent the public.
17-26 (b) Appointments to the board shall be made without regard
17-27 to the race, creed, sex, religion, or national origin of the
18-1 appointee. (V.A.C.S. Art. 3271a, Sec. 3 (part).)
18-2 Sec. 1001.102. MEMBER ELIGIBILITY. (a) A person is not
18-3 eligible for appointment as a public member of the board if the
18-4 person or the person's spouse:
18-5 (1) is licensed by an occupational regulatory agency
18-6 in the field of engineering;
18-7 (2) is employed by or participates in the management
18-8 of an agency or business entity related to the field of
18-9 engineering; or
18-10 (3) has a financial interest other than as a consumer
18-11 in a business entity related to the field of engineering.
18-12 (b) An engineer member of the board must:
18-13 (1) be a citizen of the United States and a resident
18-14 of this state for at least 10 years before the date of appointment;
18-15 and
18-16 (2) have been engaged in the practice of engineering
18-17 for at least 10 years before the date of appointment.
18-18 (c) For purposes of Subsection (b)(2), a person who has
18-19 graduated from an approved engineering school may be considered to
18-20 have engaged in the practice of engineering for two years.
18-21 (V.A.C.S. Art. 3271a, Sec. 4(a) (part).)
18-22 Sec. 1001.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) A
18-23 member or employee of the board may not be:
18-24 (1) an officer, employee, or paid consultant of a
18-25 trade association in the engineering industry; or
18-26 (2) related within the second degree by affinity or
18-27 consanguinity, as determined under Chapter 573, Government Code, to
19-1 a person who is an officer, employee, or paid consultant of a trade
19-2 association in the engineering industry.
19-3 (b) A person may not serve as a member of the board or act
19-4 as the general counsel to the board if the person is required to
19-5 register as a lobbyist under Chapter 305, Government Code.
19-6 (V.A.C.S. Art. 3271a, Secs. 4(b), (c).)
19-7 Sec. 1001.104. TERMS; VACANCY. (a) Board members serve
19-8 staggered six-year terms, with the terms of one-third of the
19-9 members expiring each odd-numbered year.
19-10 (b) If a vacancy occurs during a member's term, the governor
19-11 shall appoint a replacement to fill the unexpired term. (V.A.C.S.
19-12 Art. 3271a, Secs. 3 (part), 6(a).)
19-13 Sec. 1001.105. PARTICIPATION OF PUBLIC MEMBERS. (a) The
19-14 board by majority vote may limit the participation of public
19-15 members in evaluating license applications.
19-16 (b) This section does not apply to the evaluation of license
19-17 applications at an official meeting of the board. (V.A.C.S.
19-18 Art. 3271a, Sec. 4(d).)
19-19 Sec. 1001.106. GROUNDS FOR REMOVAL. (a) It is a ground for
19-20 removal from the board that a member:
19-21 (1) does not have at the time of appointment the
19-22 qualifications required by Section 1001.102;
19-23 (2) does not maintain during service on the board the
19-24 qualifications required by Section 1001.102;
19-25 (3) violates a prohibition established by Section
19-26 1001.103; or
19-27 (4) is absent from more than half of the regularly
20-1 scheduled meetings held in a calendar year, excluding meetings held
20-2 while the person was not a member.
20-3 (b) The validity of an action of the board is not affected
20-4 by the fact that it is taken when a ground for removal of a board
20-5 member exists. (V.A.C.S. Art. 3271a, Secs. 6(b), (c).)
20-6 Sec. 1001.107. PER DIEM; REIMBURSEMENT. (a) A board member
20-7 is entitled to receive a per diem as set by the General
20-8 Appropriations Act for each day that the member engages in the
20-9 business of the board.
20-10 (b) A board member may not receive reimbursement for travel
20-11 expenses, including expenses for meals and lodging, other than
20-12 transportation expenses. A member is entitled to reimbursement for
20-13 transportation expenses as provided by the General Appropriations
20-14 Act. (V.A.C.S. Art. 3271a, Sec. 5 (part).)
20-15 Sec. 1001.108. OFFICERS. The board shall elect annually from
20-16 its members a presiding officer, an assistant presiding officer,
20-17 and a secretary. (V.A.C.S. Art. 3271a, Sec. 7(a) (part).)
20-18 Sec. 1001.109. BOARD SECRETARY'S DUTIES AND SALARY. (a) The
20-19 secretary of the board shall give to the governor a surety bond in
20-20 the amount of $2,500. The board shall pay the premium on the bond.
20-21 (b) The secretary shall receive and account for all money
20-22 received under this chapter.
20-23 (c) The secretary is entitled to a salary as determined by
20-24 the board in addition to compensation and expenses provided for in
20-25 this subchapter. The salary may not exceed the salary paid for
20-26 similar work in other departments. (V.A.C.S. Art. 3271a, Sec. 9
20-27 (part).)
21-1 Sec. 1001.110. MEETINGS. The board shall hold at least two
21-2 regular meetings each year. Special meetings shall be held at the
21-3 time provided by the board's bylaws. (V.A.C.S. Art. 3271a, Sec.
21-4 7(a) (part).)
21-5 Sec. 1001.111. FILING OF OATH. Before assuming the duties of
21-6 office, each board member shall file with the secretary of state a
21-7 copy of the constitutional oath of office taken by the member.
21-8 (V.A.C.S. Art. 3271a, Sec. 3 (part).)
21-9 (Sections 1001.112-1001.150 reserved for expansion)
21-10 SUBCHAPTER D. BOARD PERSONNEL
21-11 Sec. 1001.151. PERSONNEL. (a) The board shall employ
21-12 clerical or other assistants as necessary to perform the board's
21-13 work.
21-14 (b) A salary paid under this section may not exceed the
21-15 salary paid for similar work in other departments. (V.A.C.S.
21-16 Art. 3271a, Sec. 9 (part).)
21-17 Sec. 1001.152. CAREER LADDER PROGRAM; PERFORMANCE
21-18 EVALUATIONS. (a) The executive director or the executive
21-19 director's designee shall develop an intra-agency career ladder
21-20 program. The program must require intra-agency posting of each
21-21 nonentry level position with the board at least 10 days before the
21-22 date of any public posting.
21-23 (b) The executive director or the executive director's
21-24 designee shall develop a system of annual performance evaluations
21-25 of the board's employees based on measurable job tasks. All merit
21-26 pay authorized by the executive director must be based on the
21-27 system established under this subsection. (V.A.C.S. Art. 3271a,
22-1 Secs. 7(c), (d).)
22-2 (Sections 1001.153-1001.200 reserved for expansion)
22-3 SUBCHAPTER E. BOARD POWERS AND DUTIES
22-4 Sec. 1001.201. GENERAL POWERS AND DUTIES. (a) The board
22-5 shall administer and enforce this chapter.
22-6 (b) The board may spend money for any purpose the board
22-7 considers reasonably necessary for the proper performance of its
22-8 duties under this chapter. (V.A.C.S. Art. 3271a, Secs. 3 (part), 9
22-9 (part), 23(b) (part).)
22-10 Sec. 1001.202. RULES. The board may adopt and enforce any
22-11 rule or bylaw necessary to perform its duties, govern its
22-12 proceedings, and regulate the practice of engineering. (V.A.C.S.
22-13 Art. 3271a, Sec. 8(a) (part).)
22-14 Sec. 1001.203. RULES RESTRICTING ADVERTISING OR COMPETITIVE
22-15 BIDDING. (a) The board by rule may restrict competitive bidding.
22-16 (b) The board may not adopt a rule restricting advertising
22-17 by a person licensed under this chapter except to prohibit false,
22-18 misleading, or deceptive practices by the person.
22-19 (c) The board may not include in its rules to prohibit
22-20 false, misleading, or deceptive practices a rule that:
22-21 (1) restricts the person's use of any medium for
22-22 advertising;
22-23 (2) restricts the person's personal appearance or use
22-24 of the person's voice in an advertisement;
22-25 (3) relates to the size or duration of an
22-26 advertisement by the person; or
22-27 (4) restricts the person's advertisement under a trade
23-1 name. (V.A.C.S. Art. 3271a, Sec. 8(b).)
23-2 Sec. 1001.204. FEES. (a) The board shall establish
23-3 reasonable and necessary fees for the administration of this
23-4 chapter in amounts not to exceed:
23-5 (1) license fee .................................. $50
23-6 (2) annual renewal fee ........................... $75
23-7 (3) reciprocal license fee ....................... $50
23-8 (4) duplicate license ............................ $5
23-9 (5) engineer-in-training certificate ............. $15
23-10 (6) roster of engineers .......................... $10
23-11 (7) examination fee ............................. $200
23-12 (8) registration fee for engineering firm ....... $100
23-13 (b) Fee revenue may not exceed the amount reasonable and
23-14 necessary to administer this chapter.
23-15 (c) General revenue of the state may not be used to pay the
23-16 costs of administering this chapter in an amount that exceeds the
23-17 amount of fees received under this chapter. (V.A.C.S. Art. 3271a,
23-18 Secs. 5 (part), 13(b), (c).)
23-19 Sec. 1001.205. REDUCED FEES: ELDERLY, DISABLED, INACTIVE
23-20 STATUS. (a) For purposes of this section, a person is disabled if
23-21 the person has a mental or physical impairment that substantially
23-22 limits the ability of the person to earn a living as an engineer,
23-23 other than an impairment caused by a current addiction to the use
23-24 of alcohol or an illegal drug or controlled substance.
23-25 (b) The board by rule may adopt reduced license fees and
23-26 annual renewal fees for engineers who are:
23-27 (1) at least 65 years of age; or
24-1 (2) disabled and not actively engaged in the practice
24-2 of engineering.
24-3 (c) A person entitled to reduced fees under Subsection
24-4 (b)(2) shall notify the board that the person has resumed the
24-5 active practice of engineering not later than the 15th day after
24-6 the date the person resumes active practice. (V.A.C.S. Art. 3271a,
24-7 Secs. 13(d), (e).)
24-8 Sec. 1001.206. FEE INCREASE. (a) The fee for a license
24-9 under this chapter, for the annual renewal of that license, and for
24-10 a reciprocal license under this chapter is increased by $200.
24-11 (b) Of each fee increase collected, $50 shall be deposited
24-12 in the foundation school fund and $150 shall be deposited in the
24-13 general revenue fund.
24-14 (c) The fee increase imposed by Subsection (a) does not
24-15 apply to an engineer who:
24-16 (1) meets the qualifications for an exemption under
24-17 Section 1001.057 or 1001.058 but does not claim that exemption; or
24-18 (2) is disabled as described by Section 1001.205.
24-19 (V.A.C.S. Art. 3271a, Secs. 13B(a), (b) (part), (c).)
24-20 Sec. 1001.207. STANDARDS OF CONDUCT AND ETHICS. The board
24-21 may establish standards of conduct and ethics for engineers in
24-22 keeping with the purposes and intent of this chapter and to ensure
24-23 strict compliance with and enforcement of this chapter. (V.A.C.S.
24-24 Art. 3271a, Sec. 8(a) (part).)
24-25 Sec. 1001.208. ROSTER OF ENGINEERS. (a) The board shall
24-26 prepare and publish a roster of persons, including business
24-27 entities, licensed, registered, certified, or enrolled by the
25-1 board. The roster shall include the name, business address, and
25-2 other identifying information required by board rule.
25-3 (b) The board shall make the roster available to the public
25-4 without cost in an online computer database format.
25-5 (c) The board shall provide a physical copy of the roster on
25-6 request and may charge a reproduction and shipping fee for
25-7 providing a physical copy of the roster. (V.A.C.S. Art. 3271a,
25-8 Sec. 11.)
25-9 Sec. 1001.209. REGISTER OF APPLICANTS. The board shall
25-10 maintain a register of license applications that shows:
25-11 (1) the name, age, and residence of each applicant;
25-12 (2) the date of the application;
25-13 (3) the applicant's place of business;
25-14 (4) the applicant's educational and other
25-15 qualifications;
25-16 (5) whether an examination was required;
25-17 (6) whether the applicant was issued or denied a
25-18 license;
25-19 (7) the date of board action; and
25-20 (8) any other information the board considers
25-21 necessary. (V.A.C.S. Art. 3271a, Sec. 10(a) (part).)
25-22 Sec. 1001.210. CONTINUING EDUCATION PROGRAMS. The board may
25-23 recognize, prepare, or administer continuing education programs for
25-24 persons regulated by the board under this chapter. Participation
25-25 in the programs is voluntary. (V.A.C.S. Art. 3271a, Sec. 8(c).)
25-26 Sec. 1001.211. RECORDS. (a) The board shall maintain a
25-27 record of its proceedings.
26-1 (b) The board's records shall be available to the public at
26-2 all times.
26-3 (c) The board's records are prima facie evidence of the
26-4 proceedings of the board set forth in the records. A transcript of
26-5 the records certified by the secretary of the board under seal is
26-6 admissible in evidence with the same effect as if it were the
26-7 original. (V.A.C.S. Art. 3271a, Sec. 10(a) (part).)
26-8 Sec. 1001.212. CONFIDENTIALITY OF CERTAIN INFORMATION
26-9 RELATED TO LICENSE APPLICATION. (a) A statement made by a person
26-10 providing a reference for an applicant and other pertinent
26-11 information compiled by or submitted to the board relating to an
26-12 applicant for a license under this chapter is privileged and
26-13 confidential.
26-14 (b) Information described by Subsection (a) may be used
26-15 only by the board or its employees or agents who are directly
26-16 involved in the application or licensing process. The information
26-17 is not subject to discovery, subpoena, or other disclosure.
26-18 (V.A.C.S. Art. 3271a, Sec. 26.)
26-19 Sec. 1001.213. SUBPOENA. (a) The board may request and, if
26-20 necessary, compel by subpoena:
26-21 (1) the attendance of a witness for examination under
26-22 oath; and
26-23 (2) the production for inspection or copying of
26-24 records, documents, and other evidence relevant to the
26-25 investigation of an alleged violation of this chapter.
26-26 (b) The board, acting through the attorney general, may
26-27 bring an action to enforce a subpoena issued under Subsection (a)
27-1 against a person who fails to comply with the subpoena.
27-2 (c) Venue for an action brought under Subsection (b) is in a
27-3 district court in:
27-4 (1) Travis County; or
27-5 (2) the county in which the board may hold a hearing.
27-6 (d) The court shall order compliance with the subpoena if
27-7 the court finds that good cause exists to issue the subpoena.
27-8 (V.A.C.S. Art. 3271a, Sec. 8(d) (part).)
27-9 (Sections 1001.214-1001.250 reserved for expansion)
27-10 SUBCHAPTER F. CONSUMER INTEREST INFORMATION AND
27-11 COMPLAINT PROCEDURES
27-12 Sec. 1001.251. CONSUMER INTEREST INFORMATION. (a) The board
27-13 shall prepare information of consumer interest describing the
27-14 regulatory functions of the board and the procedures by which
27-15 consumer complaints are filed with and resolved by the board.
27-16 (b) The board shall make the information available to the
27-17 public and appropriate state agencies. (V.A.C.S. Art. 3271a, Sec.
27-18 22B.)
27-19 Sec. 1001.252. COMPLAINTS. The board shall adopt rules that
27-20 permit the board to receive and investigate a confidential
27-21 complaint against a license holder or other person who may have
27-22 violated this chapter. The board shall maintain the
27-23 confidentiality of the complaint during the investigation.
27-24 (V.A.C.S. Art. 3271a, Sec. 22A(c).)
27-25 Sec. 1001.253. COMPLAINT INFORMATION. (a) The board shall
27-26 keep an information file about each complaint relating to a license
27-27 holder filed with the board.
28-1 (b) If a written complaint relating to a license holder is
28-2 filed with the board, the board, at least quarterly and until final
28-3 disposition of the complaint, shall notify the parties to the
28-4 complaint of the status of the complaint unless the notice would
28-5 jeopardize an undercover investigation. (V.A.C.S. Art. 3271a,
28-6 Secs. 22A(a), (b).)
28-7 (Sections 1001.254-1001.300 reserved for expansion)
28-8 SUBCHAPTER G. LICENSE REQUIREMENTS
28-9 Sec. 1001.301. LICENSE REQUIRED. (a) A person may not
28-10 engage in the practice of engineering unless the person holds a
28-11 license issued under this chapter.
28-12 (b) A person may not, unless the person holds a license
28-13 issued under this chapter, directly or indirectly use or cause to
28-14 be used as a professional, business, or commercial identification,
28-15 title, name, representation, claim, asset, or means of advantage or
28-16 benefit any of, or a variation or abbreviation of, the following
28-17 terms:
28-18 (1) "engineer";
28-19 (2) "professional engineer";
28-20 (3) "licensed engineer";
28-21 (4) "registered engineer";
28-22 (5) "registered professional engineer";
28-23 (6) "licensed professional engineer"; or
28-24 (7) "engineered."
28-25 (c) A person may not directly or indirectly use or cause to
28-26 be used an abbreviation, word, symbol, slogan, or sign that tends
28-27 or is likely to create an impression with the public that the
29-1 person is qualified or authorized to engage in the practice of
29-2 engineering unless the person holds a license and is practicing
29-3 under this chapter.
29-4 (d) A person may not receive any fee or compensation or the
29-5 promise of any fee or compensation for engaging in the practice of
29-6 engineering unless the person holds a license issued under this
29-7 chapter.
29-8 (e) A person, sole proprietorship, firm, partnership,
29-9 association, or corporation that engages in or offers or attempts
29-10 to engage in conduct described by this section is conclusively
29-11 presumed to be engaged in the practice of engineering. (V.A.C.S.
29-12 Art. 3271a, Sec. 1.2.)
29-13 Sec. 1001.302. LICENSE ELIGIBILITY REQUIREMENTS. (a) An
29-14 applicant for a license under this chapter must submit evidence
29-15 satisfactory to the board showing at least that the applicant has:
29-16 (1) graduated from:
29-17 (A) an engineering curriculum approved by the
29-18 board as having satisfactory standing; or
29-19 (B) an engineering or related science curriculum
29-20 at a recognized institution of higher education, other than a
29-21 curriculum approved by the board under Paragraph (A);
29-22 (2) passed the examination requirements prescribed by
29-23 the board; and
29-24 (3) engaged in the active practice of engineering for
29-25 at least:
29-26 (A) four years, if the applicant graduated from
29-27 a curriculum described by Subdivision (1)(A); or
30-1 (B) eight years, if the applicant graduated from
30-2 a curriculum described by Subdivision (1)(B).
30-3 (b) To satisfy the requirement of Subsection (a)(3), an
30-4 applicant must submit a specific record showing engineering work of
30-5 a character satisfactory to the board indicating that the applicant
30-6 is competent to be placed in responsible charge of that work.
30-7 (c) For purposes of determining an applicant's
30-8 qualifications under Subsection (a)(3), the board:
30-9 (1) may consider the responsible charge of engineering
30-10 teaching as responsible charge of engineering work; and
30-11 (2) may not consider as active practice in engineering
30-12 work:
30-13 (A) the mere execution, as a contractor, of work
30-14 designed by an engineer; or
30-15 (B) the supervision, as a foreman or
30-16 superintendent, of the construction of work designed by an
30-17 engineer.
30-18 (d) A person is not eligible to be licensed as an engineer
30-19 unless the person is of good character and reputation.
30-20 (e) A person who has the necessary license qualifications
30-21 described by this chapter is eligible for the license regardless of
30-22 whether the person is practicing at the time the person applies for
30-23 the license. (V.A.C.S. Art. 3271a, Secs. 12(a), (b) (part), (c),
30-24 (d).)
30-25 Sec. 1001.303. APPLICATION FOR LICENSE. (a) An applicant
30-26 for a license under this chapter must submit a sworn application on
30-27 a form prescribed and provided by the board.
31-1 (b) The application must contain:
31-2 (1) personal information about the applicant, as
31-3 required by board rule;
31-4 (2) a description of the applicant's education;
31-5 (3) a detailed summary of the applicant's actual
31-6 engineering work;
31-7 (4) a description of any engineering license or
31-8 registration previously issued to the applicant and any denial,
31-9 revocation, or suspension of an engineering license or registration
31-10 held by the applicant;
31-11 (5) a description of any criminal offense of which the
31-12 applicant has been convicted; and
31-13 (6) at least five references from individuals having
31-14 personal knowledge of the applicant's character, reputation, and
31-15 general suitability for a license, of whom at least three must be
31-16 engineers having personal knowledge of the applicant's engineering
31-17 experience. (V.A.C.S. Art. 3271a, Sec. 13(a).)
31-18 Sec. 1001.304. EXAMINATION. (a) The board shall administer
31-19 examinations to determine the qualifications of applicants for a
31-20 license.
31-21 (b) The board shall prescribe the scope of the examination
31-22 and the methods of procedure with special reference to an
31-23 applicant's ability to design and supervise engineering works to
31-24 ensure the safety of life, health, and property.
31-25 (c) On payment of the examination fee, the board shall
31-26 administer an oral or written examination to a qualified applicant
31-27 at a time and place determined by the board. (V.A.C.S. Art. 3271a,
32-1 Sec. 14(a) (part).)
32-2 Sec. 1001.305. WAIVER OF EXAMINATION REQUIREMENT. The board
32-3 by rule may waive all or part of the examination requirement for an
32-4 applicant for the issuance or reissuance of a license. The board
32-5 may not waive the requirement unless the board first determines
32-6 that:
32-7 (1) the applicant possesses sufficient qualifications
32-8 to justify the waiver; and
32-9 (2) issuing or reissuing the license to the applicant
32-10 does not pose a threat to the public health, safety, or welfare.
32-11 (V.A.C.S. Art. 3271a, Sec. 12(e).)
32-12 Sec. 1001.306. EXAMINATION RESULTS. (a) The board shall
32-13 notify each examinee of the results of an examination not later
32-14 than the 30th day after the date the examination is administered.
32-15 If an examination is graded or reviewed by a national testing
32-16 service, the board shall notify each examinee of the results of the
32-17 examination not later than the 14th day after the date the board
32-18 receives the results from the testing service.
32-19 (b) If the notice of the results of an examination will be
32-20 delayed for longer than 90 days after the examination date, the
32-21 board shall notify each examinee of the reason for the delay before
32-22 the 90th day.
32-23 (c) If requested in writing by a person who fails the
32-24 examination, the board shall provide to the person an analysis of
32-25 the person's performance on the examination. (V.A.C.S. Art. 3271a,
32-26 Secs. 14(b), (c).)
32-27 Sec. 1001.307. REEXAMINATION. The board may permit
33-1 reexamination of an applicant on payment of an appropriate
33-2 reexamination fee in an amount set by the board. (V.A.C.S.
33-3 Art. 3271a, Sec. 14(a) (part).)
33-4 Sec. 1001.308. ISSUANCE OF LICENSE. (a) On payment of the
33-5 license fee, the board shall issue a license authorizing the
33-6 practice of engineering to an applicant who, in the board's
33-7 opinion, has met all the requirements of this subchapter.
33-8 (b) A license shall:
33-9 (1) show the full name of the license holder;
33-10 (2) have a serial number; and
33-11 (3) be signed by the presiding officer and the
33-12 secretary of the board under the board's seal.
33-13 (c) A license is evidence that the person named on the
33-14 license is entitled to all rights and privileges of an engineer.
33-15 (V.A.C.S. Art. 3271a, Sec. 15(a).)
33-16 Sec. 1001.309. CERTIFICATION OR ENROLLMENT OF
33-17 ENGINEERS-IN-TRAINING. (a) The board shall certify or enroll as
33-18 an engineer-in-training an applicant who meets the requirements of
33-19 Subsection (b) if the applicant is otherwise qualified.
33-20 (b) The board shall consider as minimum evidence that an
33-21 applicant is qualified for certification or enrollment as an
33-22 engineer-in-training if the applicant:
33-23 (1) complies with the education and character
33-24 requirements of Section 1001.302; and
33-25 (2) has passed the board's eight-hour written
33-26 examination in the fundamentals of engineering.
33-27 (c) The fee for an engineer-in-training certificate or
34-1 enrollment must accompany the application.
34-2 (d) The certification or enrollment of an
34-3 engineer-in-training is valid for eight years. (V.A.C.S.
34-4 Art. 3271a, Sec. 12.1.)
34-5 Sec. 1001.310. TEMPORARY OR PROVISIONAL LICENSE. The board
34-6 by rule may adopt standards and procedures for issuing a temporary
34-7 or provisional license under this chapter. (V.A.C.S. Art. 3271a,
34-8 Sec. 20A.)
34-9 Sec. 1001.311. APPLICATION BY NONRESIDENT. A person who
34-10 holds a license or certificate of registration issued by another
34-11 state or a foreign country may apply for a license in this state.
34-12 (V.A.C.S. Art. 3271a, Sec. 21.)
34-13 Sec. 1001.312. REPLACEMENT LICENSE. The board, subject to
34-14 board rules, may issue a new license to replace a license that is
34-15 lost, destroyed, or mutilated. (V.A.C.S. Art. 3271a, Sec. 22(d)
34-16 (part).)
34-17 (Sections 1001.313-1001.350 reserved for expansion)
34-18 SUBCHAPTER H. LICENSE RENEWAL
34-19 Sec. 1001.351. ANNUAL RENEWAL REQUIRED. (a) The board shall
34-20 provide for the annual renewal of a license or registration issued
34-21 under this chapter.
34-22 (b) The board by rule may adopt a system under which
34-23 licenses and registrations expire on various dates during the year
34-24 and shall adjust renewal dates accordingly. (V.A.C.S. Art. 3271a,
34-25 Sec. 16.1.)
34-26 Sec. 1001.352. NOTICE OF LICENSE EXPIRATION. Not later than
34-27 one month before the expiration date of a person's license, the
35-1 board shall mail to the person at the last address the person
35-2 provided to the board written notice of the license expiration date
35-3 and the amount of the annual renewal fee for the license. (V.A.C.S.
35-4 Art. 3271a, Sec. 16(a).)
35-5 Sec. 1001.353. PROCEDURE FOR RENEWAL. (a) A person may
35-6 renew an unexpired license by paying the required renewal fee to
35-7 the board before the expiration date of the license.
35-8 (b) A person whose license has been expired for 90 days or
35-9 less may renew the license by paying to the board the required
35-10 renewal fee and a penalty fee set by the board.
35-11 (c) A person whose license has been expired for more than 90
35-12 days but less than two years may renew the license by paying to the
35-13 board all unpaid renewal fees and a penalty fee set by the board.
35-14 (d) A person whose license has been expired for two years or
35-15 more may not renew the license. The person may obtain a new
35-16 license by complying with the requirements and procedures for
35-17 obtaining an original license that are in effect at the time the
35-18 person applies. (V.A.C.S. Art. 3271a, Secs. 16(b), (c), (d), (e).)
35-19 (Sections 1001.354-1001.400 reserved for expansion)
35-20 SUBCHAPTER I. PRACTICE OF ENGINEERING
35-21 Sec. 1001.401. USE OF SEAL. (a) On receiving a license, a
35-22 license holder shall obtain a seal in a design authorized by the
35-23 board, showing the license holder's name and the legend "Licensed
35-24 Professional Engineer" or "Registered Professional Engineer."
35-25 (b) A plan, specification, plat, or report issued by a
35-26 license holder must include the license holder's seal placed on the
35-27 document.
36-1 (c) A person may not place a seal on a document if the
36-2 license of the license holder named on the seal has expired or has
36-3 been suspended or revoked. (V.A.C.S. Art. 3271a, Sec. 15(b).)
36-4 Sec. 1001.402. ENFORCEMENT BY CERTAIN PUBLIC OFFICIALS. A
36-5 public official of the state or of a political subdivision of the
36-6 state who is responsible for enforcing laws that affect the
36-7 practice of engineering may accept a plan, specification, or other
36-8 related document only if the plan, specification, or other document
36-9 was prepared by an engineer, as evidenced by the engineer's seal.
36-10 (V.A.C.S. Art. 3271a, Sec. 15(c) (part).)
36-11 Sec. 1001.403. PROFESSIONAL IDENTIFICATION. A person
36-12 licensed under this chapter shall use the term "Engineer,"
36-13 "Professional Engineer," or "P.E." in the professional use of the
36-14 person's name on a sign, directory, listing, document, contract,
36-15 pamphlet, stationery, advertisement, signature, or another similar
36-16 written or printed form of identification. (V.A.C.S. Art. 3271a,
36-17 Sec. 1.3.)
36-18 Sec. 1001.404. ELIGIBILITY FOR APPOINTED STATE POSITION. An
36-19 engineer is eligible to hold any appointive engineering position
36-20 with the state. (V.A.C.S. Art. 3271a, Sec. 12(b) (part).)
36-21 Sec. 1001.405. PRACTICE BY BUSINESS ENTITY; REGISTRATION.
36-22 (a) In this section, "business entity" includes a sole
36-23 proprietorship, firm, partnership, corporation, or joint stock
36-24 association.
36-25 (b) A business entity may not engage in the practice of
36-26 engineering in this state unless:
36-27 (1) the business entity is registered with the board;
37-1 and
37-2 (2) the practice is carried on only by engineers.
37-3 (c) A business entity may register under this section by
37-4 filing an application with the board on a form provided by the
37-5 board. In addition to any other information required by board
37-6 rule, the application must list the name and address of each
37-7 officer or director of the business entity and each engineer who
37-8 engages in the practice of engineering on behalf of the business
37-9 entity.
37-10 (d) The registration of a business entity issued under this
37-11 section expires on the first anniversary of the date the
37-12 registration is issued. The registration may be renewed by the
37-13 filing of an updated application under Subsection (c).
37-14 (e) A business entity may not represent to the public that
37-15 it is engaged in the practice of engineering under any business
37-16 name or use or cause to be used the term "engineer,"
37-17 "engineering," "engineering services," "engineering company,"
37-18 "engineering, inc.," "professional engineers," "licensed engineer,"
37-19 "registered engineer," "licensed professional engineer,"
37-20 "registered professional engineer," or "engineered," or any
37-21 abbreviation or variation of those terms, or directly or indirectly
37-22 use or cause to be used any of those terms in combination with
37-23 other words, letters, signs, or symbols as a part of any sign,
37-24 directory, listing, contract, document, pamphlet, stationery,
37-25 advertisement, signature, or business name unless:
37-26 (1) the business entity is registered under this
37-27 section;
38-1 (2) the business entity is actively engaged in the
38-2 practice of engineering; and
38-3 (3) each service, work, or act performed by the
38-4 business entity that is part of the practice of engineering is
38-5 either personally performed by an engineer or directly supervised
38-6 by an engineer who is a regular full-time employee of the business
38-7 entity.
38-8 (f) This section does not prohibit an engineer from
38-9 performing engineering services on a part-time basis. (V.A.C.S.
38-10 Art. 3271a, Secs. 17, 18; New.)
38-11 Sec. 1001.406. GRADUATE ENGINEERS. A graduate of a public
38-12 university recognized by the American Association of Colleges and
38-13 Universities has the right to:
38-14 (1) disclose any college degree received by the
38-15 person; and
38-16 (2) use the term "graduate engineer" on the person's
38-17 stationery or business cards or in personal communications of any
38-18 character. (V.A.C.S. Art. 3271a, Sec. 1.1 (part).)
38-19 Sec. 1001.407. CONSTRUCTION OF CERTAIN PUBLIC WORKS. The
38-20 state or a political subdivision of the state may not construct a
38-21 public work involving engineering in which the public health,
38-22 welfare, or safety is involved, unless:
38-23 (1) the engineering plans, specifications, and
38-24 estimates have been prepared by an engineer; and
38-25 (2) the engineering construction is to be performed
38-26 under the direct supervision of an engineer. (V.A.C.S. Art. 3271a,
38-27 Sec. 19(a).)
39-1 (Sections 1001.408-1001.450 reserved for expansion)
39-2 SUBCHAPTER J. PROHIBITED PRACTICES AND DISCIPLINARY
39-3 PROCEDURES
39-4 Sec. 1001.451. DISCIPLINARY POWERS OF BOARD. On a
39-5 determination that a ground for disciplinary action exists under
39-6 Section 1001.452, the board may:
39-7 (1) deny an application for a license;
39-8 (2) revoke, suspend, or refuse to renew a license;
39-9 (3) probate the suspension of a license; or
39-10 (4) formally or informally reprimand a license holder.
39-11 (V.A.C.S. Art. 3271a, Secs. 8(a) (part), 22(a) (part).)
39-12 Sec. 1001.452. GROUNDS FOR DISCIPLINARY ACTION. A person is
39-13 subject to disciplinary action under Section 1001.451 for:
39-14 (1) a violation of this chapter or a board rule;
39-15 (2) fraud or deceit in obtaining a license;
39-16 (3) a documented instance of retaliation by an
39-17 applicant against an individual who has served as a reference for
39-18 that applicant;
39-19 (4) gross negligence, incompetency, or misconduct in
39-20 the practice of engineering; or
39-21 (5) a failure to timely provide plans or
39-22 specifications to the Texas Department of Licensing and Regulation
39-23 as required by Article 9102, Revised Statutes. (V.A.C.S.
39-24 Art. 3271a, Secs. 8(a) (part), 22(a) (part).)
39-25 Sec. 1001.453. REVIEW OF LICENSE HOLDER'S STATUS. (a) The
39-26 board by rule may review the status of a license holder the board
39-27 believes:
40-1 (1) may have been issued a license through fraud or
40-2 error; or
40-3 (2) may constitute a threat to the public health,
40-4 safety, or welfare.
40-5 (b) The board may suspend or revoke a license held by a
40-6 person whose status is reviewed under this section. (V.A.C.S.
40-7 Art. 3271a, Sec. 22(e).)
40-8 Sec. 1001.454. RIGHT TO HEARING. (a) If the board proposes
40-9 to suspend or revoke a person's license, the person is entitled to
40-10 a hearing.
40-11 (b) Proceedings for the suspension or revocation of a
40-12 license are governed by Chapter 2001, Government Code. (V.A.C.S.
40-13 Art. 3271a, Sec. 22(c).)
40-14 Sec. 1001.455. APPEAL OF LICENSE REVOCATION. A person whose
40-15 license has been revoked may file suit to annul or vacate the
40-16 board's order revoking the license. The person may file the suit
40-17 in the district court of the county in which:
40-18 (1) the person resides; or
40-19 (2) the alleged conduct that is the ground for
40-20 revocation occurred. (V.A.C.S. Art. 3271a, Sec. 22(b).)
40-21 Sec. 1001.456. REISSUANCE OF REVOKED LICENSE. The board may
40-22 reissue a license to a person whose license has been revoked if the
40-23 board has sufficient reason to reissue the license. At least six
40-24 board members must vote for reissuance of the license. A new
40-25 license may be issued in accordance with board rules. (V.A.C.S.
40-26 Art. 3271a, Sec. 22(d) (part).)
40-27 (Sections 1001.457-1001.500 reserved for expansion)
41-1 SUBCHAPTER K. ADMINISTRATIVE PENALTY
41-2 Sec. 1001.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
41-3 board may impose an administrative penalty on a person who violates
41-4 this chapter or a rule adopted or order issued under this chapter.
41-5 (V.A.C.S. Art. 3271a, Sec. 22C(a) (part).)
41-6 Sec. 1001.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
41-7 amount of an administrative penalty may not exceed $3,000 for each
41-8 violation. Each day a violation continues or occurs is a separate
41-9 violation for purposes of imposing a penalty.
41-10 (b) The amount of the penalty shall be based on:
41-11 (1) the seriousness of the violation, including:
41-12 (A) the nature, circumstances, extent, and
41-13 gravity of the prohibited act; and
41-14 (B) the hazard or potential hazard created to
41-15 the health, safety, or economic welfare of the public;
41-16 (2) the economic harm to property or the environment
41-17 caused by the violation;
41-18 (3) the history of previous violations;
41-19 (4) the amount necessary to deter a future violation;
41-20 (5) efforts or resistance to efforts to correct the
41-21 violation; and
41-22 (6) any other matter that justice may require.
41-23 (c) The board may include in the amount of the penalty the
41-24 actual costs of investigating and prosecuting the violation.
41-25 (V.A.C.S. Art. 3271a, Secs. 22C(a) (part), (b), (c).)
41-26 Sec. 1001.503. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
41-27 (a) Not later than the 30th day after the date the board's order
42-1 becomes final, the person shall:
42-2 (1) pay the administrative penalty;
42-3 (2) pay the penalty and file a petition for judicial
42-4 review contesting the occurrence of the violation, the amount of
42-5 the penalty, or both; or
42-6 (3) without paying the penalty, file a petition for
42-7 judicial review contesting the occurrence of the violation, the
42-8 amount of the penalty, or both.
42-9 (b) Within the 30-day period, a person who acts under
42-10 Subsection (a)(3) may:
42-11 (1) stay enforcement of the penalty by:
42-12 (A) paying the penalty to the court for
42-13 placement in an escrow account; or
42-14 (B) giving to the court a supersedeas bond that
42-15 is approved by the court and that is:
42-16 (i) for the amount of the penalty; and
42-17 (ii) effective until judicial review of
42-18 the board's order is final; or
42-19 (2) request the court to stay enforcement of the
42-20 penalty by:
42-21 (A) filing with the court an affidavit of the
42-22 person stating that the person is financially unable to pay the
42-23 penalty and is financially unable to give the supersedeas bond; and
42-24 (B) giving a copy of the affidavit to the
42-25 executive director by certified mail.
42-26 (c) If the executive director receives a copy of an
42-27 affidavit under Subsection (b)(2), the executive director may file
43-1 with the court a contest to the affidavit not later than the fifth
43-2 day after the date the copy is received.
43-3 (d) The court shall hold a hearing on the facts alleged in
43-4 the affidavit as soon as practicable and shall stay enforcement of
43-5 the penalty on finding that the alleged facts are true. The person
43-6 who files an affidavit has the burden of proving that the person is
43-7 financially unable to pay the penalty or give a supersedeas bond.
43-8 (V.A.C.S. Art. 3271a, Secs. 22C(e), (f), (g).)
43-9 Sec. 1001.504. COLLECTION OF PENALTY. If the person does not
43-10 pay the administrative penalty and the enforcement of the penalty
43-11 is not stayed, the executive director may refer the matter to the
43-12 attorney general for collection. (V.A.C.S. Art. 3271a, Sec.
43-13 22C(h).)
43-14 Sec. 1001.505. DETERMINATION BY COURT. (a) If a court
43-15 sustains the determination that a violation occurred, the court may
43-16 uphold or reduce the amount of the administrative penalty and order
43-17 the person to pay the full or reduced penalty.
43-18 (b) If a court does not sustain the determination that a
43-19 violation occurred, the court shall order that an administrative
43-20 penalty is not owed. (V.A.C.S. Art. 3271a, Sec. 22C(j).)
43-21 Sec. 1001.506. REMITTANCE OF PENALTY AND INTEREST. (a) If,
43-22 after judicial review, the administrative penalty is reduced or
43-23 not imposed by the court, the court shall:
43-24 (1) order the appropriate amount, plus accrued
43-25 interest, be remitted to the person if the person paid the penalty;
43-26 or
43-27 (2) order the release of the bond:
44-1 (A) if the person gave a supersedeas bond and
44-2 the penalty is not upheld by the court; or
44-3 (B) after the person pays the penalty if the
44-4 person gave a supersedeas bond and the penalty is reduced.
44-5 (b) The interest paid under Subsection (a)(1) is at the rate
44-6 charged on loans to depository institutions by the New York Federal
44-7 Reserve Bank. The interest shall be paid for the period beginning
44-8 on the date the penalty is paid and ending on the date the penalty
44-9 is remitted. (V.A.C.S. Art. 3271a, Sec. 22C(k).)
44-10 Sec. 1001.507. DISPOSITION OF PENALTY. The part of an
44-11 administrative penalty that represents the costs incurred by the
44-12 board in investigating and prosecuting the violation may be
44-13 appropriated only to the board to reimburse the board for
44-14 performance of its regulatory functions. (V.A.C.S. Art. 3271a,
44-15 Sec. 22C(l) (part).)
44-16 Sec. 1001.508. ADMINISTRATIVE PROCEDURE. (a) A proceeding
44-17 under this subchapter is subject to Chapter 2001, Government Code.
44-18 (b) The board shall adopt rules of procedure for imposing an
44-19 administrative penalty. The rules must conform to the requirements
44-20 of Chapter 2001, Government Code. (V.A.C.S. Art. 3271a, Secs.
44-21 22C(d), (m).)
44-22 (Sections 1001.509-1001.550 reserved for expansion)
44-23 SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
44-24 Sec. 1001.551. INJUNCTION. (a) In addition to any other
44-25 action authorized by law, the board may bring an action in the
44-26 board's name to enjoin a person from violating this chapter or a
44-27 board rule.
45-1 (b) An action under this section must be brought in a
45-2 district court of Travis County.
45-3 (c) To sustain an action under this section, the board is
45-4 not required to allege or prove that:
45-5 (1) an adequate remedy at law does not exist; or
45-6 (2) substantial or irreparable damage would result
45-7 from the continued violation.
45-8 (d) In an action for an injunction under this section, the
45-9 defendant may assert and prove as a complete defense to the action
45-10 that the board deprived the defendant of a license by a board
45-11 action or proceeding that was:
45-12 (1) arbitrary or capricious;
45-13 (2) contrary to law; or
45-14 (3) conducted without due process of law.
45-15 (e) Either party to an action under this section may appeal
45-16 to the appellate court with jurisdiction of the action. (V.A.C.S.
45-17 Art. 3271a, Secs. 8(a) (part), 8a.)
45-18 Sec. 1001.552. CRIMINAL PENALTY. (a) A person commits an
45-19 offense if the person:
45-20 (1) engages in the practice of engineering without
45-21 being licensed or exempted from the licensing requirement under
45-22 this chapter;
45-23 (2) violates this chapter;
45-24 (3) presents or attempts to use as the person's own
45-25 the license or seal of another; or
45-26 (4) gives false evidence of any kind to the board or
45-27 a board member in obtaining a license.
46-1 (b) An offense under this section is a Class A misdemeanor.
46-2 (V.A.C.S. Art. 3271a, Sec. 23(a).)
46-3 Sec. 1001.553. REPORT OF VIOLATION. A public official shall
46-4 report a violation of this chapter to the proper authorities.
46-5 (V.A.C.S. Art. 3271a, Sec. 15(c) (part).)
46-6 Sec. 1001.554. PRESENTATION OF COMPLAINTS BY BOARD;
46-7 ASSISTANCE AT TRIAL. (a) A member of the board may present to a
46-8 prosecuting officer a complaint relating to a violation of this
46-9 chapter.
46-10 (b) The board through its members, officers, counsel, and
46-11 agents and subject to the control of the prosecuting officer may
46-12 assist in the trial of a case involving an alleged violation of
46-13 this chapter. (V.A.C.S. Art. 3271a, Sec. 23(b) (part).)
46-14 Sec. 1001.555. ATTORNEY GENERAL AS LEGAL ADVISOR;
46-15 REPRESENTATION BY ATTORNEY GENERAL. (a) The attorney general
46-16 shall:
46-17 (1) act as legal advisor of the board;
46-18 (2) provide legal assistance to the board as necessary
46-19 to enforce this chapter and make it effective; and
46-20 (3) represent the board in an action brought to
46-21 enforce this chapter.
46-22 (b) This section does not affect the duties of local
46-23 prosecuting officers. (V.A.C.S. Art. 3271a, Secs. 8(a) (part),
46-24 23(c).)
46-25 Sec. 1001.556. APPEAL BOND. The board is not required to
46-26 give an appeal bond in a cause arising under this chapter.
46-27 (V.A.C.S. Art. 3271a, Sec. 8(a) (part).)
47-1 (Chapters 1002-1050 reserved for expansion)
47-2 SUBTITLE B. REGULATION OF ARCHITECTURE AND RELATED PRACTICES
47-3 CHAPTER 1051. ARCHITECTS
47-4 SUBCHAPTER A. GENERAL PROVISIONS
47-5 Sec. 1051.001. DEFINITIONS
47-6 Sec. 1051.002. EFFECT ON MUNICIPALITY
47-7 Sec. 1051.003. ENFORCEMENT BY CERTAIN PUBLIC OFFICIALS
47-8 Sec. 1051.004. APPLICATION OF SUNSET ACT
47-9 (Sections 1051.005-1051.050 reserved for expansion)
47-10 SUBCHAPTER B. EXEMPTIONS
47-11 Sec. 1051.051. ACTIVITIES OF LICENSED ENGINEER
47-12 Sec. 1051.052. ACTIVITIES OF ARCHITECT OR ENGINEER
47-13 EMPLOYEE
47-14 Sec. 1051.053. LANDSCAPE ARCHITECTURE
47-15 Sec. 1051.054. INTERIOR DESIGN
47-16 Sec. 1051.055. EMPLOYEE OF CERTAIN UTILITIES OR AFFILIATES
47-17 Sec. 1051.056. ACTIVITIES OF CERTAIN PERSONS NOT REPRESENTED
47-18 TO BE ARCHITECTS
47-19 (Sections 1051.057-1051.100 reserved for expansion)
47-20 SUBCHAPTER C. TEXAS BOARD OF ARCHITECTURAL EXAMINERS
47-21 Sec. 1051.101. BOARD MEMBERSHIP
47-22 Sec. 1051.102. ELIGIBILITY OF PUBLIC MEMBERS
47-23 Sec. 1051.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
47-24 Sec. 1051.104. TERMS; VACANCY
47-25 Sec. 1051.105. GROUNDS FOR REMOVAL
47-26 Sec. 1051.106. PER DIEM; REIMBURSEMENT
47-27 Sec. 1051.107. OFFICERS
48-1 Sec. 1051.108. MEETINGS
48-2 Sec. 1051.109. OFFICE LOCATION
48-3 Sec. 1051.110. BOARD MEMBER ACTIVITIES
48-4 Sec. 1051.111. FILING OF OATH
48-5 (Sections 1051.112-1051.150 reserved for expansion)
48-6 SUBCHAPTER D. EXECUTIVE DIRECTOR AND PERSONNEL
48-7 Sec. 1051.151. EXECUTIVE DIRECTOR; DUTIES REGARDING MONEY
48-8 Sec. 1051.152. PERSONNEL
48-9 Sec. 1051.153. DIVISION OF RESPONSIBILITIES
48-10 Sec. 1051.154. QUALIFICATIONS AND STANDARDS OF CONDUCT
48-11 INFORMATION
48-12 Sec. 1051.155. CAREER LADDER PROGRAM; PERFORMANCE
48-13 EVALUATIONS
48-14 Sec. 1051.156. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
48-15 REPORT
48-16 (Sections 1051.157-1051.200 reserved for expansion)
48-17 SUBCHAPTER E. BOARD POWERS AND DUTIES
48-18 Sec. 1051.201. SCOPE OF ADMINISTRATIVE AUTHORITY
48-19 Sec. 1051.202. GENERAL RULEMAKING AUTHORITY
48-20 Sec. 1051.203. RULES RESTRICTING ADVERTISING OR
48-21 COMPETITIVE BIDDING
48-22 Sec. 1051.204. FEES
48-23 Sec. 1051.205. FEE INCREASE
48-24 Sec. 1051.206. EXAMINATION FEE SCHOLARSHIPS
48-25 Sec. 1051.207. SUBPOENA
48-26 Sec. 1051.208. PUBLIC RECORDS
48-27 Sec. 1051.209. BOARD SEAL
49-1 Sec. 1051.210. DESIGN AND APPROVAL OF ARCHITECT'S SEAL
49-2 (Sections 1051.211-1051.250 reserved for expansion)
49-3 SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
49-4 COMPLAINT PROCEDURES
49-5 Sec. 1051.251. PUBLIC INTEREST INFORMATION
49-6 Sec. 1051.252. COMPLAINTS
49-7 Sec. 1051.253. COMPLAINT INFORMATION
49-8 Sec. 1051.254. PUBLIC PARTICIPATION
49-9 (Sections 1051.255-1051.300 reserved for expansion)
49-10 SUBCHAPTER G. REGISTRATION REQUIREMENTS
49-11 Sec. 1051.301. REGISTRATION REQUIRED
49-12 Sec. 1051.302. USE OF ARCHITECT'S SEAL
49-13 Sec. 1051.303. CERTAIN PLANS OR SPECIFICATIONS TO BE
49-14 PREPARED ONLY BY ARCHITECT
49-15 Sec. 1051.304. EXAMINATION; ISSUANCE OF CERTIFICATE
49-16 Sec. 1051.305. ELIGIBILITY AND APPLICATION FOR EXAMINATION
49-17 Sec. 1051.306. EXAMINATION RESULTS
49-18 Sec. 1051.307. RECIPROCITY
49-19 (Sections 1051.308-1051.350 reserved for expansion)
49-20 SUBCHAPTER H. RENEWAL OF CERTIFICATE OF REGISTRATION
49-21 Sec. 1051.351. ANNUAL RENEWAL REQUIRED
49-22 Sec. 1051.352. NOTICE OF EXPIRATION
49-23 Sec. 1051.353. PROCEDURE FOR RENEWAL
49-24 Sec. 1051.354. FEE EXEMPTION FOR MILITARY PERSONNEL
49-25 Sec. 1051.355. INACTIVE STATUS
49-26 Sec. 1051.356. CONTINUING EDUCATION
49-27 (Sections 1051.357-1051.400 reserved for expansion)
50-1 SUBCHAPTER I. DISCIPLINARY PROCEDURES
50-2 Sec. 1051.401. DISCIPLINARY POWERS OF BOARD
50-3 Sec. 1051.402. GROUNDS FOR DISCIPLINARY ACTION
50-4 Sec. 1051.403. RIGHT TO HEARING; APPEAL
50-5 (Sections 1051.404-1051.450 reserved for expansion)
50-6 SUBCHAPTER J. ADMINISTRATIVE PENALTY
50-7 Sec. 1051.451. IMPOSITION OF ADMINISTRATIVE PENALTY
50-8 Sec. 1051.452. AMOUNT OF ADMINISTRATIVE PENALTY
50-9 Sec. 1051.453. REPORT AND NOTICE OF VIOLATION AND
50-10 ADMINISTRATIVE PENALTY
50-11 Sec. 1051.454. ADMINISTRATIVE PENALTY TO BE PAID OR
50-12 HEARING REQUESTED
50-13 Sec. 1051.455. HEARING
50-14 Sec. 1051.456. NOTICE OF BOARD ORDER
50-15 Sec. 1051.457. OPTIONS FOLLOWING BOARD ORDER: PAY OR
50-16 APPEAL
50-17 Sec. 1051.458. COLLECTION OF ADMINISTRATIVE PENALTY
50-18 Sec. 1051.459. JUDICIAL REVIEW
50-19 Sec. 1051.460. REMITTANCE OF ADMINISTRATIVE PENALTY
50-20 AND INTEREST
50-21 (Sections 1051.461-1051.500 reserved for expansion)
50-22 SUBCHAPTER K. OTHER PENALTIES AND
50-23 ENFORCEMENT PROVISIONS
50-24 Sec. 1051.501. GENERAL ENFORCEMENT AUTHORITY
50-25 Sec. 1051.502. INJUNCTIVE RELIEF
50-26 Sec. 1051.503. CRIMINAL PENALTY
50-27 Sec. 1051.504. CUMULATIVE EFFECT OF PROVISIONS
51-1 CHAPTER 1051. ARCHITECTS
51-2 SUBCHAPTER A. GENERAL PROVISIONS
51-3 Sec. 1051.001. DEFINITIONS. In this chapter:
51-4 (1) "Architect" means a person registered under this
51-5 chapter to engage in the practice of architecture.
51-6 (2) "Board" means the Texas Board of Architectural
51-7 Examiners.
51-8 (3) "Practice of architecture" means a service or
51-9 creative work that involves the application of the art and science
51-10 of developing design concepts, planning for functional
51-11 relationships and intended uses, and establishing the form,
51-12 appearance, aesthetics, and construction details for the
51-13 construction, enlargement, or alteration of a building or environs,
51-14 the proper application of which requires education, training, and
51-15 experience in those matters. (V.A.C.S. Art. 249a, Sec. 10(a)
51-16 (part); New.)
51-17 Sec. 1051.002. EFFECT ON MUNICIPALITY. This chapter does
51-18 not:
51-19 (1) preempt a municipal ordinance; or
51-20 (2) restrict or expand the authority of a
51-21 municipality. (V.A.C.S. Art. 249a, Sec. 17(b).)
51-22 Sec. 1051.003. ENFORCEMENT BY CERTAIN PUBLIC OFFICIALS. (a)
51-23 A public official of this state or of a political subdivision of
51-24 this state who is responsible for enforcing laws that affect the
51-25 practice of architecture may accept an architectural plan,
51-26 specification, or other related document only if the plan,
51-27 specification, or document is prepared by an architect, as
52-1 evidenced by the architect's seal.
52-2 (b) Subsection (a) does not apply to a plan, specification,
52-3 or document that is subject to an exemption from this chapter.
52-4 (V.A.C.S. Art. 249a, Sec. 17(a) (part).)
52-5 Sec. 1051.004. APPLICATION OF SUNSET ACT. The Texas Board
52-6 of Architectural Examiners is subject to Chapter 325, Government
52-7 Code (Texas Sunset Act). Unless continued in existence as provided
52-8 by that chapter, the board is abolished and this chapter expires
52-9 September 1, 2003. (V.A.C.S. Art. 249a, Sec. 2a.)
52-10 (Sections 1051.005-1051.050 reserved for expansion)
52-11 SUBCHAPTER B. EXEMPTIONS
52-12 Sec. 1051.051. ACTIVITIES OF LICENSED ENGINEER. (a) This
52-13 chapter and any rule adopted under this chapter do not limit the
52-14 right of an engineer licensed under Chapter 1001 to perform an act,
52-15 service, or work within the scope of the practice of engineering as
52-16 defined by that chapter.
52-17 (b) This chapter does not prohibit an engineer licensed
52-18 under Chapter 1001 from:
52-19 (1) planning and supervising work on:
52-20 (A) a construction project primarily intended
52-21 for engineering use, including a railroad, hydroelectric work, or
52-22 industrial plant; or
52-23 (B) a structure incidental to a construction
52-24 project described by Paragraph (A); or
52-25 (2) planning, designing, or supervising the
52-26 mechanical, electrical, or structural features of a building.
52-27 (c) This chapter does not prohibit an engineer who has an
53-1 architectural engineering degree from a public or private college
53-2 or university from using the title "architectural engineer."
53-3 (V.A.C.S. Art. 249a, Secs. 10(b) (part), (g), (j); 16(c).)
53-4 Sec. 1051.052. ACTIVITIES OF ARCHITECT OR ENGINEER EMPLOYEE.
53-5 This chapter does not limit a drafter, clerk of the works,
53-6 superintendent, or other employee of an architect or engineer from
53-7 acting under the architect's or engineer's instructions, control,
53-8 or supervision. (V.A.C.S. Art. 249a, Sec. 10(c).)
53-9 Sec. 1051.053. LANDSCAPE ARCHITECTURE. This chapter does
53-10 not:
53-11 (1) limit the practice of landscape architecture; or
53-12 (2) prohibit the use of the title "Landscape
53-13 Architect" by a qualified person. (V.A.C.S. Art. 249a, Sec. 10(e).)
53-14 Sec. 1051.054. INTERIOR DESIGN. This chapter does not:
53-15 (1) limit the practice of interior design; or
53-16 (2) prohibit the use of the title "Interior Designer"
53-17 by a qualified person. (V.A.C.S. Art. 249a, Sec. 10(f).)
53-18 Sec. 1051.055. EMPLOYEE OF CERTAIN UTILITIES OR AFFILIATES.
53-19 (a) This chapter does not limit the activities of a regular
53-20 full-time employee of a privately owned public utility or
53-21 cooperative utility or of the utility's affiliate who performs
53-22 services exclusively for the utility or the affiliate.
53-23 (b) This chapter does not limit the use of a job title or
53-24 personnel classification by an employee described by Subsection (a)
53-25 if the employee does not use:
53-26 (1) the title or classification in connection with an
53-27 offer to the public to perform architectural services; and
54-1 (2) a name, title, or other word that tends to convey
54-2 the impression that a person not registered under this chapter is
54-3 offering to the public to perform architectural services.
54-4 (V.A.C.S. Art. 249a, Sec. 10(d).)
54-5 Sec. 1051.056. ACTIVITIES OF CERTAIN PERSONS NOT REPRESENTED
54-6 TO BE ARCHITECTS. (a) This chapter does not apply to a person who
54-7 does not represent that the person is an architect or architectural
54-8 designer, or use another business or professional title that uses a
54-9 form of the word "architect," and who:
54-10 (1) engages in or is employed in the practice of
54-11 architecture solely as an officer or employee of the United States;
54-12 (2) is a legally qualified architect residing in
54-13 another state or country who:
54-14 (A) does not open or maintain an office in this
54-15 state; and
54-16 (B) complies with the requirements of Subsection
54-17 (b);
54-18 (3) prepares architectural plans and specifications
54-19 for or observes or supervises the alteration of a building, unless
54-20 the alteration involves a substantial structural or exitway change
54-21 to the building; or
54-22 (4) prepares the architectural plans and
54-23 specifications for or observes or supervises the construction,
54-24 enlargement, or alteration of a privately owned building that is:
54-25 (A) a building used primarily for:
54-26 (i) farm, ranch, or agricultural purposes;
54-27 or
55-1 (ii) storage of raw agricultural
55-2 commodities;
55-3 (B) a single-family or dual-family dwelling or a
55-4 building or appurtenance associated with the dwelling;
55-5 (C) a multifamily dwelling not exceeding a
55-6 height of two stories and not exceeding 16 units per building; or
55-7 (D) a building not exceeding a height of two
55-8 stories and not exceeding a square footage of 20,000 square feet.
55-9 (b) A person described by Subsection (a)(2) who agrees to
55-10 perform or represents that the person is able to perform a
55-11 professional service involved in the practice of architecture may
55-12 perform an architectural service in this state only if, in
55-13 performing the service, the person:
55-14 (1) employs an architect who is a resident of this
55-15 state as a consultant; or
55-16 (2) acts as a consultant of an architect in this
55-17 state. (V.A.C.S. Art. 249a, Sec. 14.)
55-18 (Sections 1051.057-1051.100 reserved for expansion)
55-19 SUBCHAPTER C. TEXAS BOARD OF ARCHITECTURAL EXAMINERS
55-20 Sec. 1051.101. BOARD MEMBERSHIP. (a) The Texas Board of
55-21 Architectural Examiners consists of nine members appointed by the
55-22 governor with the advice and consent of the senate as follows:
55-23 (1) four architect members;
55-24 (2) one interior designer member registered under
55-25 Chapter 1053;
55-26 (3) one landscape architect member registered under
55-27 Chapter 1052; and
56-1 (4) three members who represent the public, at least
56-2 one of whom is a person with a physical disability.
56-3 (b) Not more than one board member may be:
56-4 (1) a stockholder or owner of an interest in a school
56-5 or college that teaches architecture, interior design, or landscape
56-6 architecture; or
56-7 (2) an officer or a member of the faculty or the
56-8 governing board of a school or college that teaches architecture,
56-9 interior design, or landscape architecture.
56-10 (c) Except as provided by Subsection (a)(4), appointments to
56-11 the board shall be made without regard to the race, color,
56-12 disability, sex, religion, age, or national origin of the
56-13 appointee. (V.A.C.S. Art. 249a, Secs. 2(a), (b) (part), (c), (e).)
56-14 Sec. 1051.102. ELIGIBILITY OF PUBLIC MEMBERS. A person is
56-15 not eligible for appointment as a public member of the board if the
56-16 person or the person's spouse:
56-17 (1) is registered, certified, or licensed by an
56-18 occupational regulatory agency in the field of architecture,
56-19 interior design, or landscape architecture;
56-20 (2) is employed by or participates in the management
56-21 of a business entity or other organization regulated by the board
56-22 or receiving funds from the board;
56-23 (3) owns or controls, directly or indirectly, more
56-24 than a 10 percent interest in a business entity or other
56-25 organization regulated by the board or receiving funds from the
56-26 board; or
56-27 (4) uses or receives a substantial amount of tangible
57-1 goods, services, or funds from the board, other than compensation
57-2 or reimbursement authorized by law for board membership,
57-3 attendance, or expenses. (V.A.C.S. Art. 249a, Sec. 2(f).)
57-4 Sec. 1051.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)
57-5 In this section, "Texas trade association" means a nonprofit,
57-6 cooperative, and voluntarily joined association of business or
57-7 professional competitors in this state designed to assist its
57-8 members and its industry or profession in dealing with mutual
57-9 business or professional problems and in promoting their common
57-10 interest.
57-11 (b) An officer, employee, or paid consultant of a Texas
57-12 trade association in the field of architecture, interior design, or
57-13 landscape architecture may not be a member of the board and may not
57-14 be an employee of the board who is exempt from the state's position
57-15 classification plan or is compensated at or above the amount
57-16 prescribed by the General Appropriations Act for salary group B9 of
57-17 the position classification salary schedule.
57-18 (c) A person who is the spouse of an officer, manager, or
57-19 paid consultant of a Texas trade association in the field of
57-20 architecture, interior design, or landscape architecture may not be
57-21 a member of the board and may not be an employee of the board who
57-22 is exempt from the state's position classification plan or is
57-23 compensated at or above the amount prescribed by the General
57-24 Appropriations Act for salary group B9 of the position
57-25 classification salary schedule.
57-26 (d) A person may not serve as a board member or act as the
57-27 general counsel to the board if the person is required to register
58-1 as a lobbyist under Chapter 305, Government Code, because of the
58-2 person's activities for compensation on behalf of a profession
58-3 related to the board's operation. (V.A.C.S. Art. 249a, Secs. 2(g),
58-4 (h), (i); 4(b) (part).)
58-5 Sec. 1051.104. TERMS; VACANCY. (a) Board members serve
58-6 staggered six-year terms. The terms of three members expire on
58-7 January 31 of each odd-numbered year.
58-8 (b) If a vacancy occurs during a member's term, the governor
58-9 shall appoint a replacement to fill the unexpired term. (V.A.C.S.
58-10 Art. 249a, Sec. 2(b) (part).)
58-11 Sec. 1051.105. GROUNDS FOR REMOVAL. (a) It is a ground for
58-12 removal from the board that a member:
58-13 (1) does not have at the time of appointment the
58-14 qualifications required by Section 1051.101 or 1051.102;
58-15 (2) does not maintain during service on the board the
58-16 qualifications required by Section 1051.101 or 1051.102;
58-17 (3) violates a prohibition established by Section
58-18 1051.103;
58-19 (4) cannot, because of illness or disability,
58-20 discharge the member's duties for a substantial part of the
58-21 member's term; or
58-22 (5) is absent from more than half of the regularly
58-23 scheduled board meetings that the member is eligible to attend
58-24 during a calendar year, unless the absence is excused by a majority
58-25 vote of the board.
58-26 (b) The validity of an action of the board is not affected
58-27 by the fact that it is taken when a ground for removal of a board
59-1 member exists.
59-2 (c) If the executive director has knowledge that a potential
59-3 ground for removal exists, the executive director shall notify the
59-4 presiding officer of the board of the ground. The presiding
59-5 officer shall then notify the governor that a potential ground for
59-6 removal exists. (V.A.C.S. Art. 249a, Secs. 2(j), (k), (l).)
59-7 Sec. 1051.106. PER DIEM; REIMBURSEMENT. (a) A board member
59-8 is entitled to receive a per diem for each day that the member
59-9 engages in board business.
59-10 (b) A board member is entitled to receive reimbursement for
59-11 travel expenses, including food, lodging, and transportation
59-12 expenses. (V.A.C.S. Art. 249a, Sec. 4A.)
59-13 Sec. 1051.107. OFFICERS. (a) The governor shall designate
59-14 one board member as presiding officer to serve in that capacity at
59-15 the pleasure of the governor.
59-16 (b) Each January, the board shall elect from its members an
59-17 assistant presiding officer.
59-18 (c) The board shall appoint a secretary-treasurer of the
59-19 board to serve at the pleasure of the board. The
59-20 secretary-treasurer may be, but is not required to be, a member of
59-21 the board.
59-22 (d) Before discharging any duties as secretary-treasurer,
59-23 the secretary-treasurer must file with the comptroller a bond of
59-24 not less than $5,000 conditioned on the faithful performance of the
59-25 duties of the office. The bond must be:
59-26 (1) payable to the governor for the benefit of the
59-27 board;
60-1 (2) in a form approved by the attorney general;
60-2 (3) executed by a surety company; and
60-3 (4) approved by the board.
60-4 (e) The premium on the secretary-treasurer's bond shall be
60-5 paid from the general revenue fund. (V.A.C.S. Art. 249a, Sec.
60-6 3(a) (part).)
60-7 Sec. 1051.108. MEETINGS. (a) The board shall hold at least
60-8 two regular meetings each year at a time and place determined by
60-9 the board to:
60-10 (1) transact its business; and
60-11 (2) examine each applicant for registration under this
60-12 chapter.
60-13 (b) Special meetings of the board must be called by the
60-14 presiding officer or, if the presiding officer is absent from the
60-15 state or is unable to act, by the assistant presiding officer.
60-16 (V.A.C.S. Art. 249a, Secs. 5(a) (part), 6(a) (part).)
60-17 Sec. 1051.109. OFFICE LOCATION. The board shall maintain an
60-18 office in Austin. (V.A.C.S. Art. 249a, Sec. 4(b) (part).)
60-19 Sec. 1051.110. BOARD MEMBER ACTIVITIES. Membership on the
60-20 board does not prohibit a member from performing any work or
60-21 providing any service on a state, county, municipal, or other
60-22 public building or work for a fee or other direct compensation.
60-23 (V.A.C.S. Art. 249a, Sec. 2(d).)
60-24 Sec. 1051.111. FILING OF OATH. Before assuming the duties of
60-25 office, each board member shall file with the secretary of state a
60-26 copy of the constitutional oath of office taken by the member.
60-27 (V.A.C.S. Art. 249a, Sec. 3(a) (part).)
61-1 (Sections 1051.112-1051.150 reserved for expansion)
61-2 SUBCHAPTER D. EXECUTIVE DIRECTOR AND PERSONNEL
61-3 Sec. 1051.151. EXECUTIVE DIRECTOR; DUTIES REGARDING MONEY.
61-4 (a) The board may employ an executive director to conduct the
61-5 affairs of the board under the board's direction. The executive
61-6 director shall receive a salary in an amount determined by the
61-7 board.
61-8 (b) The executive director shall receive and account for any
61-9 money derived, including any fee collected, under this chapter.
61-10 (V.A.C.S. Art. 249a, Secs. 4(a) (part), (b) (part).)
61-11 Sec. 1051.152. PERSONNEL. The board shall employ clerical
61-12 and other assistants as necessary to properly perform the board's
61-13 work. (V.A.C.S. Art. 249a, Sec. 4(b) (part).)
61-14 Sec. 1051.153. DIVISION OF RESPONSIBILITIES. The board
61-15 shall develop and implement policies that clearly define the
61-16 respective responsibilities of the board and the staff of the
61-17 board. (V.A.C.S. Art. 249a, Sec. 5A(e).)
61-18 Sec. 1051.154. QUALIFICATIONS AND STANDARDS OF CONDUCT
61-19 INFORMATION. The board shall provide, as often as necessary, to
61-20 its members and employees information regarding their:
61-21 (1) qualifications for office or employment under this
61-22 chapter; and
61-23 (2) responsibilities under applicable laws relating to
61-24 standards of conduct for state officers or employees. (V.A.C.S.
61-25 Art. 249a, Sec. 5A(d).)
61-26 Sec. 1051.155. CAREER LADDER PROGRAM; PERFORMANCE
61-27 EVALUATIONS. (a) The executive director or the executive
62-1 director's designee shall develop an intra-agency career ladder
62-2 program. The program must require intra-agency postings of all
62-3 nonentry level positions concurrently with any public posting.
62-4 (b) The executive director or the executive director's
62-5 designee shall develop a system of annual performance evaluations.
62-6 All merit pay for board employees must be based on the system
62-7 established under this subsection. (V.A.C.S. Art. 249a, Secs.
62-8 5A(f), (g).)
62-9 Sec. 1051.156. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
62-10 REPORT. (a) The executive director or the executive director's
62-11 designee shall prepare and maintain a written policy statement to
62-12 ensure implementation of an equal employment opportunity program
62-13 under which all personnel transactions are made without regard to
62-14 race, color, disability, sex, religion, age, or national origin.
62-15 The policy statement must include:
62-16 (1) personnel policies, including policies relating to
62-17 recruitment, evaluation, selection, appointment, training, and
62-18 promotion of personnel;
62-19 (2) a comprehensive analysis of the board workforce
62-20 that meets federal and state guidelines;
62-21 (3) procedures by which a determination can be made of
62-22 significant underuse in the board workforce of all persons for whom
62-23 federal or state guidelines encourage a more equitable balance; and
62-24 (4) reasonable methods to appropriately address those
62-25 areas of significant underuse.
62-26 (b) A policy statement prepared under Subsection (a) must:
62-27 (1) cover an annual period;
63-1 (2) be updated at least annually; and
63-2 (3) be filed with the governor.
63-3 (c) The governor shall deliver a biennial report to the
63-4 legislature based on the information received under Subsection (b).
63-5 The report may be made separately or as a part of other biennial
63-6 reports made to the legislature. (V.A.C.S. Art. 249a, Secs. 5A(a),
63-7 (b), (c).)
63-8 (Sections 1051.157-1051.200 reserved for expansion)
63-9 SUBCHAPTER E. BOARD POWERS AND DUTIES
63-10 Sec. 1051.201. SCOPE OF ADMINISTRATIVE AUTHORITY. The powers
63-11 granted and duties delegated to the board under this chapter are in
63-12 addition to the powers granted and duties delegated to the board
63-13 under Chapters 1052 and 1053. (New.)
63-14 Sec. 1051.202. GENERAL RULEMAKING AUTHORITY. The board
63-15 shall adopt reasonable rules and bylaws as necessary to administer
63-16 or enforce this chapter, including rules regulating the practice of
63-17 architecture. (V.A.C.S. Art. 249a, Secs. 3(b) (part), 5(b),
63-18 7A(g).)
63-19 Sec. 1051.203. RULES RESTRICTING ADVERTISING OR COMPETITIVE
63-20 BIDDING. (a) Except as provided by Subsection (b) or (c), the
63-21 board may not adopt a rule restricting advertising or competitive
63-22 bidding by a person regulated by the board.
63-23 (b) The board may adopt rules restricting advertising or
63-24 competitive bidding to prohibit a false, misleading, or deceptive
63-25 practice. A rule adopted under this subsection may not:
63-26 (1) restrict the person's use of any advertising
63-27 medium;
64-1 (2) restrict the person's personal appearance or the
64-2 use of the person's voice in an advertisement;
64-3 (3) relate to the size or duration of an advertisement
64-4 by the person; or
64-5 (4) restrict the person's advertisement under a trade
64-6 name.
64-7 (c) The board shall adopt rules to prevent a person
64-8 regulated by the board from submitting a competitive bid to, or
64-9 soliciting a competitive bid on behalf of, a governmental entity
64-10 that is prohibited by Subchapter A, Chapter 2254, Government Code,
64-11 from making a selection or awarding a contract on the basis of
64-12 competitive bids. (V.A.C.S. Art. 249a, Sec. 5(d).)
64-13 Sec. 1051.204. FEES. (a) The board may set a fee for a
64-14 board action involving an administrative expense in an amount that
64-15 is reasonable and necessary to cover the cost of administering this
64-16 chapter, unless the amount of the fee is set by this chapter or by
64-17 the General Appropriations Act.
64-18 (b) The board shall set the required renewal fee for a
64-19 resident of this state in an amount that is equal to the amount
64-20 reasonable and necessary to cover administrative costs plus $10.
64-21 The required renewal fee for nonresidents shall be in an amount
64-22 determined by the board.
64-23 (c) The board may accept payment of a fee by electronic
64-24 means. The board may charge a fee to process the payment made by
64-25 electronic means. The board shall set the processing fee in an
64-26 amount that is reasonably related to the expense incurred by the
64-27 board in processing the payment made by electronic means, not to
65-1 exceed five percent of the amount of the fee for which the payment
65-2 is made. (V.A.C.S. Art. 249a, Secs. 3(h), 12(c).)
65-3 Sec. 1051.205. FEE INCREASE. (a) The fee for the issuance
65-4 of a certificate to an applicant possessing a license or
65-5 certificate to practice architecture in another state and the fee
65-6 for the renewal of a certificate under this chapter is increased by
65-7 $200.
65-8 (b) Of each fee increase collected, $50 shall be deposited
65-9 in the foundation school fund and $150 shall be deposited in the
65-10 general revenue fund. (V.A.C.S. Art. 249a, Secs. 4C(a), (b)
65-11 (part).)
65-12 Sec. 1051.206. EXAMINATION FEE SCHOLARSHIPS. (a) The board
65-13 shall administer scholarships to applicants for examination under
65-14 this chapter in a manner the board determines best serves the
65-15 public purpose of:
65-16 (1) promoting the professional needs of the state;
65-17 (2) increasing the number of highly trained and
65-18 educated architects available to serve the residents of the state;
65-19 (3) improving the state's business environment and
65-20 encouraging economic development; and
65-21 (4) identifying, recognizing, and supporting
65-22 outstanding applicants who plan to pursue careers in architecture.
65-23 (b) In determining what best serves the public purpose of
65-24 the scholarships as described by Subsection (a), the board shall
65-25 consider at least the financial need of each person who applies for
65-26 a scholarship under this section.
65-27 (c) The amount of the scholarship is the lesser of:
66-1 (1) $500; or
66-2 (2) the amount of the required examination fee.
66-3 (d) Scholarships under this section are funded by the $10
66-4 added to each renewal fee under Section 1051.204(b). The board may
66-5 not use more than 15 percent of the amount appropriated to the
66-6 board for scholarships under this section to pay the costs of
66-7 administering the scholarships. (V.A.C.S. Art. 249a, Secs. 7A(a)
66-8 (part), (c), (d), (e), (f).)
66-9 Sec. 1051.207. SUBPOENA. (a) The board may request and, if
66-10 necessary, compel by subpoena:
66-11 (1) the attendance of witnesses for examination under
66-12 oath; and
66-13 (2) the production for inspection or copying of
66-14 records, documents, and other evidence relevant to the
66-15 investigation of an alleged violation of this chapter.
66-16 (b) The board, acting through the attorney general, may
66-17 bring an action to enforce a subpoena issued under Subsection (a)
66-18 against a person who fails to comply with the subpoena.
66-19 (c) Venue for an action brought under Subsection (b) is in a
66-20 district court in:
66-21 (1) Travis County; or
66-22 (2) any county in which the board may conduct a
66-23 hearing.
66-24 (d) The court shall order compliance with the subpoena if
66-25 the court finds that good cause exists to issue the subpoena.
66-26 (V.A.C.S. Art. 249a, Sec. 3(j).)
66-27 Sec. 1051.208. PUBLIC RECORDS. (a) The secretary-treasurer
67-1 of the board shall keep records of all board proceedings and all
67-2 money received or spent by the board.
67-3 (b) The records must include:
67-4 (1) a record of:
67-5 (A) each issuance or renewal of a certificate of
67-6 registration; and
67-7 (B) each refusal to issue or renew a certificate
67-8 of registration;
67-9 (2) the name and, if known, the place of residence of
67-10 each architect; and
67-11 (3) the date and serial number of the architect's
67-12 certificate of registration.
67-13 (c) The records shall be open to public inspection at all
67-14 reasonable times. (V.A.C.S. Art. 249a, Sec. 3(c).)
67-15 Sec. 1051.209. BOARD SEAL. (a) The board shall adopt a
67-16 seal and shall use the seal on official documents.
67-17 (b) The design of the seal must include a five-pointed star
67-18 with a circular border and the words "Texas Board of Architectural
67-19 Examiners" within the border. (V.A.C.S. Art. 249a, Sec. 3(b)
67-20 (part).)
67-21 Sec. 1051.210. DESIGN AND APPROVAL OF ARCHITECT'S SEAL.
67-22 (a) The board shall prescribe and approve the seal to be used by
67-23 an architect.
67-24 (b) The design of the seal must be the same as the design
67-25 used by the board, except that the words "Registered Architect,
67-26 State of Texas" must be used instead of "Texas Board of
67-27 Architectural Examiners." (V.A.C.S. Art. 249a, Sec. 9 (part).)
68-1 (Sections 1051.211-1051.250 reserved for expansion)
68-2 SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
68-3 COMPLAINT PROCEDURES
68-4 Sec. 1051.251. PUBLIC INTEREST INFORMATION. (a) The board
68-5 shall prepare information of public interest describing the
68-6 functions of the board and the procedures by which complaints are
68-7 filed with and resolved by the board. The information must include
68-8 information for prospective applicants regarding the qualifications
68-9 and requirements for registration under this chapter.
68-10 (b) The board shall make the information available to the
68-11 public and appropriate state agencies. (V.A.C.S. Art. 249a, Sec.
68-12 12B(b).)
68-13 Sec. 1051.252. COMPLAINTS. The board by rule shall
68-14 establish methods by which consumers and service recipients are
68-15 notified of the name, mailing address, and telephone number of the
68-16 board for the purpose of directing complaints to the board. The
68-17 board may provide for that notice:
68-18 (1) on each registration form, application, or written
68-19 contract for services of a person regulated under this chapter;
68-20 (2) on a sign prominently displayed in the place of
68-21 business of each person regulated under this chapter; or
68-22 (3) in a bill for service provided by a person
68-23 regulated under this chapter. (V.A.C.S. Art. 249a, Sec. 12B(a).)
68-24 Sec. 1051.253. COMPLAINT INFORMATION. (a) The board shall
68-25 keep an information file about each complaint filed with the board
68-26 that the board has authority to resolve.
68-27 (b) If a written complaint is filed with the board that the
69-1 board has the authority to resolve, the board, at least quarterly
69-2 and until final disposition of the complaint, shall notify the
69-3 parties to the complaint of the status of the complaint unless the
69-4 notice would jeopardize an undercover investigation. (V.A.C.S.
69-5 Art. 249a, Sec. 5(e).)
69-6 Sec. 1051.254. PUBLIC PARTICIPATION. (a) The board shall
69-7 develop and implement policies that provide the public with a
69-8 reasonable opportunity to appear before the board.
69-9 (b) The board shall prepare and maintain a written plan that
69-10 describes how a person who does not speak English or who has a
69-11 physical, mental, or developmental disability may be provided
69-12 access to the board's programs. (V.A.C.S. Art. 249a, Secs. 3(f),
69-13 (g).)
69-14 (Sections 1051.255-1051.300 reserved for expansion)
69-15 SUBCHAPTER G. REGISTRATION REQUIREMENTS
69-16 Sec. 1051.301. REGISTRATION REQUIRED. (a) A person may not
69-17 engage in the practice of architecture or offer or attempt to
69-18 engage in the practice of architecture unless the person is
69-19 registered under this chapter.
69-20 (b) A firm, partnership, corporation, or association,
69-21 including a firm, partnership, corporation, or joint stock
69-22 association engaged in the practice of engineering under Section
69-23 1001.405, may engage in the practice of architecture, represent to
69-24 the public that the entity is engaged in the practice of
69-25 architecture or is offering architectural services, or use the word
69-26 "architect" or "architecture" in any manner in its name only if any
69-27 practice of architecture or architectural service performed on
70-1 behalf of the entity is performed by or through a person registered
70-2 under this chapter. (V.A.C.S. Art. 249a, Secs. 1 (part), 10(a)
70-3 (part), (h), (i).)
70-4 Sec. 1051.302. USE OF ARCHITECT'S SEAL. (a) An architect
70-5 shall maintain a seal as approved by the board and shall stamp or
70-6 impress the seal on each drawing or specification issued from the
70-7 architect's office for use in this state.
70-8 (b) A person may not use or attempt to use an architect's
70-9 seal, a similar seal, or a replica of the seal, unless the use is
70-10 by or through an architect.
70-11 (c) An architect may not permit a person who is not an
70-12 architect to use the architect's seal without the architect's
70-13 personal supervision. (V.A.C.S. Art. 249a, Sec. 9 (part).)
70-14 Sec. 1051.303. CERTAIN PLANS OR SPECIFICATIONS TO BE
70-15 PREPARED ONLY BY ARCHITECT. (a) An architectural plan or
70-16 specification for any of the following may be prepared only by an
70-17 architect:
70-18 (1) a new building or modification of an existing
70-19 building intended for occupancy on a 24-hour basis by persons who
70-20 are receiving custodial care from the proprietor or operator of the
70-21 building, regardless of the number of stories or square footage of
70-22 the building;
70-23 (2) a new building having construction costs exceeding
70-24 $100,000 that is to be:
70-25 (A) constructed and owned by a state agency, a
70-26 political subdivision of this state, or any other public entity in
70-27 this state; and
71-1 (B) used for education, assembly, or office
71-2 occupancy; or
71-3 (3) an alteration or addition having construction
71-4 costs exceeding $50,000 that:
71-5 (A) is to be made to an existing building that:
71-6 (i) is owned by a state agency, a
71-7 political subdivision of this state, or any other public entity in
71-8 this state; and
71-9 (ii) is or will be used for education,
71-10 assembly, or office occupancy; and
71-11 (B) requires the removal, relocation, or
71-12 addition of a wall or partition or the alteration or addition of an
71-13 exit.
71-14 (b) This section does not prohibit an owner of a building
71-15 from choosing an architect or engineer as the prime design
71-16 professional for a building construction, alteration, or addition
71-17 project. (V.A.C.S. Art. 249a, Secs. 15, 16(a) (part), (b).)
71-18 Sec. 1051.304. EXAMINATION; ISSUANCE OF CERTIFICATE. The
71-19 board shall:
71-20 (1) examine each applicant for registration on any
71-21 architectural subject or procedure the board requires; and
71-22 (2) issue a certificate of registration to each
71-23 applicant who passes the examination. (V.A.C.S. Art. 249a, Secs.
71-24 6(a) (part), (b) (part).)
71-25 Sec. 1051.305. ELIGIBILITY AND APPLICATION FOR EXAMINATION.
71-26 (a) A person may apply for an examination under this chapter if
71-27 the person:
72-1 (1) is a graduate of a recognized university or
72-2 college of architecture approved by the board; and
72-3 (2) has satisfactory experience in architecture, in an
72-4 office or offices of one or more legally practicing architects, as
72-5 prescribed by board rule.
72-6 (b) The applicant must:
72-7 (1) present to the board:
72-8 (A) a diploma showing that the applicant meets
72-9 the education requirement established by Subsection (a)(1); and
72-10 (B) evidence acceptable to the board that the
72-11 applicant meets the experience requirement established by
72-12 Subsection (a)(2); and
72-13 (2) pay to the board a fee not to exceed $300 in an
72-14 amount set by the board as reasonable and necessary to cover the
72-15 cost of administering the examination. (V.A.C.S. Art. 249a, Secs.
72-16 6(b) (part), 7.)
72-17 Sec. 1051.306. EXAMINATION RESULTS. (a) The board shall
72-18 notify each examinee of the results of the examination within a
72-19 reasonable time not later than the 30th day after the date the
72-20 examination is administered. If an examination is graded or
72-21 reviewed by a national testing service, the board shall notify each
72-22 examinee of the results of the examination not later than the 30th
72-23 day after the date the board receives the results from the testing
72-24 service.
72-25 (b) If the notice of the results of an examination graded or
72-26 reviewed by a national testing service will be delayed for longer
72-27 than 90 days after the examination date, the board shall notify
73-1 each examinee of the reason for the delay before the 90th day.
73-2 (c) If requested in writing by a person who fails the
73-3 examination, the board shall provide to the person an analysis of
73-4 the person's performance on the examination. (V.A.C.S. Art. 249a,
73-5 Secs. 6(b) (part), (c), (d).)
73-6 Sec. 1051.307. RECIPROCITY. (a) The board may waive any
73-7 requirement for a certificate of registration for an applicant who
73-8 holds a license or certificate of registration issued by another
73-9 state that has:
73-10 (1) licensing or registration requirements
73-11 substantially equivalent to the requirements of this state; and
73-12 (2) legal requirements that extend similar privileges
73-13 to practice architecture in that other state to architects
73-14 registered in this state.
73-15 (b) An applicant under this section must:
73-16 (1) apply in the same manner and form as any other
73-17 applicant under this subchapter, except that the application must
73-18 be accompanied by a fee in an amount set by the board as reasonable
73-19 and necessary to cover the cost of processing and investigating the
73-20 application and issuing the certificate of registration; and
73-21 (2) provide the board with documents and other
73-22 evidence that substantiate the applicant's qualifications.
73-23 (V.A.C.S. Art. 249a, Sec. 8.)
73-24 (Sections 1051.308-1051.350 reserved for expansion)
73-25 SUBCHAPTER H. RENEWAL OF CERTIFICATE OF REGISTRATION
73-26 Sec. 1051.351. ANNUAL RENEWAL REQUIRED. (a) An original
73-27 certificate of registration is valid for the balance of the current
74-1 registration year and may be renewed annually. A certificate of
74-2 registration that has been renewed expires on the first anniversary
74-3 of the renewal date.
74-4 (b) The board by rule may adopt a system under which
74-5 certificates of registration expire on various dates during the
74-6 year. The board shall adjust the date for mailing notice of
74-7 expiration and the period for renewal according to the system
74-8 adopted by the board under this subsection.
74-9 (c) For a year in which the certificate of registration
74-10 expiration date is changed, renewal fees shall be prorated on a
74-11 monthly basis so that each certificate holder pays only that
74-12 portion of the fee that is allocable to the number of months
74-13 during which the certificate is valid. On renewal of the
74-14 certificate of registration on the new expiration date, the total
74-15 renewal fee is payable. (V.A.C.S. Art. 249a, Secs. 6(b) (part),
74-16 11(a), 12(a), (d) (part), 12A.)
74-17 Sec. 1051.352. NOTICE OF EXPIRATION. Not later than the
74-18 31st day before the expiration date of a person's certificate of
74-19 registration, the board shall send written notice of the impending
74-20 expiration to the person at the person's last known address
74-21 according to board records. (V.A.C.S. Art. 249a, Sec. 12(b).)
74-22 Sec. 1051.353. PROCEDURE FOR RENEWAL. (a) A person may
74-23 renew an unexpired certificate of registration by:
74-24 (1) paying the required renewal fee to the board
74-25 before the expiration date; and
74-26 (2) submitting proof satisfactory to the board of
74-27 compliance with the board's continuing education requirement.
75-1 (b) A person whose certificate of registration has been
75-2 expired for less than one year may renew the person's certificate
75-3 of registration by:
75-4 (1) paying to the board:
75-5 (A) any unpaid renewal fee; and
75-6 (B) a penalty fee in an amount determined by the
75-7 board; and
75-8 (2) submitting proof satisfactory to the board of
75-9 compliance with the board's continuing education requirement.
75-10 (c) The board may set a penalty fee for a person whose
75-11 certificate of registration has been expired for less than 90 days
75-12 in an amount that is different from the penalty fee for a person
75-13 whose certificate of registration has been expired for longer than
75-14 90 days but less than one year.
75-15 (d) The board shall issue a certificate of renewal of a
75-16 person's certificate of registration on receipt of:
75-17 (1) the required fees, as provided by this section;
75-18 and
75-19 (2) the required proof of compliance with the board's
75-20 continuing education requirement.
75-21 (e) If a person's certificate of registration has been
75-22 expired for one year or more, the board may revoke the certificate
75-23 of registration and enter the revocation in its official records.
75-24 The board may require an applicant for reinstatement of a
75-25 certificate of registration revoked under this subsection to pass
75-26 an examination prescribed by the board. If the person passes the
75-27 examination, the person's certificate of registration may be
76-1 reinstated on receipt of a fee in an amount determined by the
76-2 board. (V.A.C.S. Art. 249a, Secs. 12(d) (part), (e), (f), (g),
76-3 (h).)
76-4 Sec. 1051.354. FEE EXEMPTION FOR MILITARY PERSONNEL. (a) An
76-5 architect who is on active duty as a member of the United States
76-6 military is exempt from the payment of any fee during the person's
76-7 term of service if the person:
76-8 (1) is in good standing as an architect in this state;
76-9 or
76-10 (2) was in good standing as an architect in this state
76-11 at the time the person entered into military service.
76-12 (b) A person who is exempt from payment of a fee under
76-13 Subsection (a):
76-14 (1) is exempt for the remainder of the fiscal year
76-15 during which the person's active duty status expires; and
76-16 (2) is entitled to have the person's name continued on
76-17 the list of architects. (V.A.C.S. Art. 249a, Sec. 12(i).)
76-18 Sec. 1051.355. INACTIVE STATUS. (a) The board by rule
76-19 shall establish a procedure by which an architect may place the
76-20 person's certificate of registration on inactive status. The
76-21 person must apply for inactive status, on a form prescribed by the
76-22 board, before the person's certificate of registration expires.
76-23 (b) A person whose certificate of registration is on
76-24 inactive status must pay a renewal fee of $10 on a date and in a
76-25 manner prescribed by board rule.
76-26 (c) A person whose certificate of registration is on
76-27 inactive status may not perform any activity regulated under this
77-1 chapter.
77-2 (d) The board shall remove the person's certificate of
77-3 registration from inactive status if the person:
77-4 (1) requests in writing that the board remove the
77-5 person's certificate of registration from inactive status;
77-6 (2) pays an administrative fee; and
77-7 (3) complies with education or other requirements
77-8 established by board rule. (V.A.C.S. Art. 249a, Sec. 11A.)
77-9 Sec. 1051.356. CONTINUING EDUCATION. (a) The board shall
77-10 require continuing education programs as a condition for renewal of
77-11 a certificate of registration.
77-12 (b) The continuing education programs may include courses
77-13 relating to:
77-14 (1) health, safety, or welfare; or
77-15 (2) barrier-free design.
77-16 (c) The board may recognize the continuing education
77-17 programs of:
77-18 (1) a nationally acknowledged organization involved in
77-19 providing, recording, or approving postgraduate education; and
77-20 (2) any other sponsoring organization or individual
77-21 whose presentation is approved by the board as qualifying in design
77-22 or construction health, safety, or welfare.
77-23 (d) A person is exempt from the continuing education
77-24 requirements of this section if the person is, as of September 1,
77-25 1999, engaged in teaching architecture as a full-time faculty
77-26 member or other permanent employee of an institution of higher
77-27 education, as defined by Section 61.003, Education Code. (V.A.C.S.
78-1 Art. 249a, Secs. 3(e) (part), 12(j).)
78-2 (Sections 1051.357-1051.400 reserved for expansion)
78-3 SUBCHAPTER I. DISCIPLINARY PROCEDURES
78-4 Sec. 1051.401. DISCIPLINARY POWERS OF BOARD. (a) On a
78-5 determination that a ground for discipline exists under Section
78-6 1051.402, the board may:
78-7 (1) revoke or suspend a certificate of registration;
78-8 (2) place on probation a person whose certificate of
78-9 registration is suspended;
78-10 (3) reprimand the holder of a certificate of
78-11 registration; or
78-12 (4) impose an administrative penalty on a person under
78-13 Subchapter J.
78-14 (b) If the suspension of a person's certificate of
78-15 registration is probated, the board may require the person to:
78-16 (1) report regularly to the board on matters that are
78-17 the basis of the probation;
78-18 (2) limit practice to the areas prescribed by the
78-19 board; or
78-20 (3) continue or renew professional education until the
78-21 person attains a degree of skill satisfactory to the board in those
78-22 areas that are the basis of the probation. (V.A.C.S. Art. 249a,
78-23 Secs. 11(b) (part), (c).)
78-24 Sec. 1051.402. GROUNDS FOR DISCIPLINARY ACTION. A person is
78-25 subject to disciplinary action under Section 1051.401 for:
78-26 (1) a violation of this chapter or a board rule
78-27 adopted under this chapter;
79-1 (2) a failure to timely provide plans and
79-2 specifications to the Texas Department of Licensing and Regulation
79-3 as required by Article 9102, Revised Statutes;
79-4 (3) a cause for which the board may refuse to issue a
79-5 certificate of registration;
79-6 (4) gross incompetency;
79-7 (5) recklessness in the construction or alteration of
79-8 a building by an architect designing, planning, or observing the
79-9 construction or alteration; or
79-10 (6) dishonest practice by the holder of a certificate
79-11 of registration. (V.A.C.S. Art. 249a, Sec. 11(b) (part).)
79-12 Sec. 1051.403. RIGHT TO HEARING; APPEAL. (a) If the board
79-13 proposes to suspend or revoke a person's certificate of
79-14 registration, the person is entitled to a hearing. The board may
79-15 employ a hearings officer for this purpose.
79-16 (b) The board shall prescribe procedures by which a decision
79-17 to suspend or revoke a certificate of registration is made by or is
79-18 appealable to the board. (V.A.C.S. Art. 249a, Sec. 11(d).)
79-19 (Sections 1051.404-1051.450 reserved for expansion)
79-20 SUBCHAPTER J. ADMINISTRATIVE PENALTY
79-21 Sec. 1051.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The
79-22 board may impose an administrative penalty on a person who engages
79-23 in conduct for which the person is subject to disciplinary action
79-24 under Subchapter I, regardless of whether the person holds a
79-25 certificate of registration issued under this chapter. (V.A.C.S.
79-26 Art. 249a, Sec. 11(b) (part).)
79-27 Sec. 1051.452. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
80-1 amount of an administrative penalty may not exceed $1,000.
80-2 (b) In determining the amount of a penalty, the board shall
80-3 consider:
80-4 (1) the seriousness of the conduct that is the ground
80-5 for imposing the penalty, including:
80-6 (A) the nature, circumstances, extent, and
80-7 gravity of any relevant act or omission; and
80-8 (B) the hazard or potential hazard created to
80-9 the health or safety of the public;
80-10 (2) the economic damage to property caused by the
80-11 conduct;
80-12 (3) the history of previous grounds for imposing a
80-13 penalty on the person who engaged in the conduct;
80-14 (4) the amount necessary to deter future conduct that
80-15 is a ground for imposing a penalty;
80-16 (5) efforts to correct the conduct that is a ground
80-17 for imposing a penalty; and
80-18 (6) any other matter that justice may require.
80-19 (V.A.C.S. Art. 249a, Secs. 11(b) (part), (j).)
80-20 Sec. 1051.453. REPORT AND NOTICE OF VIOLATION AND
80-21 ADMINISTRATIVE PENALTY. (a) If, after investigating the facts
80-22 surrounding an alleged ground for imposing an administrative
80-23 penalty, the executive director determines that a ground exists for
80-24 imposing an administrative penalty, the executive director may
80-25 issue a report stating:
80-26 (1) the facts on which the determination is based; and
80-27 (2) the executive director's recommendation on the
81-1 imposition of an administrative penalty, including a recommendation
81-2 on the amount of the penalty.
81-3 (b) The executive director shall base the recommended amount
81-4 of the penalty on the seriousness of the ground for imposing the
81-5 penalty after considering the factors listed in Section 1051.452.
81-6 (c) Not later than the 14th day after the date the report is
81-7 issued, the executive director shall give written notice of the
81-8 report to the person on whom the penalty may be imposed. The
81-9 notice must:
81-10 (1) include a brief summary of the charges;
81-11 (2) state the amount of the recommended penalty; and
81-12 (3) inform the person of the person's right to a
81-13 hearing on the occurrence of a ground for imposing the penalty, the
81-14 amount of the penalty, or both. (V.A.C.S. Art. 249a, Secs. 11(e),
81-15 (f).)
81-16 Sec. 1051.454. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
81-17 REQUESTED. (a) Not later than the 20th day after the date the
81-18 person receives notice under Section 1051.453(c), the person may:
81-19 (1) accept the executive director's determination,
81-20 including the recommended administrative penalty; or
81-21 (2) request a hearing on the determination.
81-22 (b) If the person accepts the executive director's
81-23 determination, the board by order shall approve the determination
81-24 and impose the recommended penalty. (V.A.C.S. Art. 249a, Secs.
81-25 11(g), (h).)
81-26 Sec. 1051.455. HEARING. (a) If the person requests a
81-27 hearing or fails to respond timely to notice under Section
82-1 1051.453(c), the board shall set a hearing and give notice of the
82-2 hearing to the person.
82-3 (b) A proceeding under this section relating to an architect
82-4 is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 249a,
82-5 Sec. 11(i).)
82-6 Sec. 1051.456. NOTICE OF BOARD ORDER. The executive director
82-7 shall give notice of the board's order to the person on whom the
82-8 penalty is imposed. The notice must include:
82-9 (1) the findings of fact and conclusions of law,
82-10 separately stated;
82-11 (2) the amount of the administrative penalty ordered,
82-12 if any;
82-13 (3) a statement of the right of the person on whom the
82-14 penalty is imposed to judicial review of the board's order; and
82-15 (4) other information required by law. (V.A.C.S.
82-16 Art. 249a, Sec. 11(k).)
82-17 Sec. 1051.457. OPTIONS FOLLOWING BOARD ORDER: PAY OR APPEAL.
82-18 (a) If the person on whom an administrative penalty is imposed is
82-19 an architect, the board's order becomes final as provided by
82-20 Section 2001.144, Government Code. If the person does not hold a
82-21 certificate of registration issued by the board, the board's order
82-22 becomes final on the 20th day after the date the order is issued.
82-23 (b) Not later than the 30th day after the date the board's
82-24 order becomes final, the person shall:
82-25 (1) pay the administrative penalty in full; or
82-26 (2) file a petition for judicial review contesting the
82-27 occurrence of the ground for imposing a penalty, the amount of the
83-1 penalty, or both.
83-2 (c) Within the period prescribed by Subsection (b), a person
83-3 who acts under Subsection (b)(2) shall:
83-4 (1) pay the penalty to the board for placement in an
83-5 escrow account;
83-6 (2) post with the board a supersedeas bond that is in
83-7 a form approved by the board for the amount of the penalty and that
83-8 is effective until judicial review of the board's order is final;
83-9 or
83-10 (3) file with the board an affidavit of the person
83-11 stating that the person is financially unable to pay the penalty
83-12 and is financially unable to post the bond. (V.A.C.S. Art. 249a,
83-13 Secs. 11(l), (m).)
83-14 Sec. 1051.458. COLLECTION OF ADMINISTRATIVE PENALTY. If the
83-15 person on whom an administrative penalty is imposed does not meet
83-16 the requirements of Section 1051.457, the board may refer the
83-17 matter to the attorney general for enforcement. (V.A.C.S.
83-18 Art. 249a, Sec. 11(n).)
83-19 Sec. 1051.459. JUDICIAL REVIEW. Judicial review of the order
83-20 of the board imposing an administrative penalty is under the
83-21 substantial evidence rule and is instituted by filing a petition
83-22 with a district court in Travis County, as provided by Subchapter
83-23 G, Chapter 2001, Government Code. (V.A.C.S. Art. 249a, Sec.
83-24 11(o).)
83-25 Sec. 1051.460. REMITTANCE OF ADMINISTRATIVE PENALTY AND
83-26 INTEREST. (a) If, after judicial review, the administrative
83-27 penalty is reduced or not imposed by the court, the board shall:
84-1 (1) remit the appropriate amount plus accrued interest
84-2 to the person on whom the penalty is imposed, if the person paid
84-3 the penalty; or
84-4 (2) execute a release of the bond, if the person
84-5 posted a supersedeas bond.
84-6 (b) The interest remitted under Subsection (a)(1) is at the
84-7 rate charged on loans to depository institutions by the New York
84-8 Federal Reserve Bank. The interest shall be paid for the period
84-9 beginning on the date the penalty is paid and ending on the date
84-10 the penalty is remitted. (V.A.C.S. Art. 249a, Sec. 11(p).)
84-11 (Sections 1051.461-1051.500 reserved for expansion)
84-12 SUBCHAPTER K. OTHER PENALTIES AND
84-13 ENFORCEMENT PROVISIONS
84-14 Sec. 1051.501. GENERAL ENFORCEMENT AUTHORITY. (a) A
84-15 violation of this chapter shall be reported to the board.
84-16 (b) The board shall ensure that enforcement action is taken
84-17 against a person who violates this chapter. (V.A.C.S. Art. 249a,
84-18 Secs. 3(d), 17(c).)
84-19 Sec. 1051.502. INJUNCTIVE RELIEF. (a) The board may bring
84-20 an action in its name to enjoin or restrain a person from violating
84-21 this chapter, a rule adopted under this chapter, or another state
84-22 statute or rule relating to the practice of architecture.
84-23 (b) An action under this section must be brought in:
84-24 (1) the county in which the defendant resides; or
84-25 (2) the county in which the violation occurred or is
84-26 threatened to occur.
84-27 (c) In an action brought under this section, the board may
85-1 be represented by the attorney general, the district attorney or
85-2 the county attorney, and by other counsel as necessary. (V.A.C.S.
85-3 Art. 249a, Sec. 5(c) (part).)
85-4 Sec. 1051.503. CRIMINAL PENALTY. (a) A person commits an
85-5 offense if, in violation of this chapter, the person or a member of
85-6 the person's firm:
85-7 (1) engages in the practice of architecture, or offers
85-8 or attempts to engage in the practice of architecture, for a fee or
85-9 other direct compensation;
85-10 (2) prepares architectural plans and specifications
85-11 for and observes or supervises the construction, enlargement, or
85-12 alteration of a building for another person; or
85-13 (3) advertises or puts out a sign, card, or drawing
85-14 designating the person as an architect or architectural designer or
85-15 uses another business or professional title that uses a form of the
85-16 word "architect."
85-17 (b) An offense under this section is a misdemeanor
85-18 punishable by a fine of not less than $250 and not more than
85-19 $1,000. Each day of violation is a separate offense.
85-20 (c) In an action brought under this section, the board may
85-21 be represented by a district or county attorney or by other counsel
85-22 as necessary. (V.A.C.S. Art. 249a, Secs. 13(a), (b) (part).)
85-23 Sec. 1051.504. CUMULATIVE EFFECT OF PROVISIONS. An action or
85-24 penalty authorized by this subchapter is in addition to any other
85-25 action or penalty provided by law. (V.A.C.S. Art. 249a, Secs. 5(c)
85-26 (part), 13(b) (part).)
85-27 CHAPTER 1052. LANDSCAPE ARCHITECTS
86-1 SUBCHAPTER A. GENERAL PROVISIONS
86-2 Sec. 1052.001. DEFINITIONS
86-3 Sec. 1052.002. APPLICATION OF CHAPTER
86-4 Sec. 1052.003. EXEMPTIONS
86-5 (Sections 1052.004-1052.050 reserved for expansion)
86-6 SUBCHAPTER B. BOARD POWERS AND DUTIES
86-7 Sec. 1052.051. RULES AND FORMS
86-8 Sec. 1052.052. ENFORCEMENT
86-9 Sec. 1052.053. RULES RESTRICTING ADVERTISING OR
86-10 COMPETITIVE BIDDING
86-11 Sec. 1052.054. FEES
86-12 Sec. 1052.055. SUBPOENA
86-13 Sec. 1052.056. FORM AND DESIGN OF LANDSCAPE ARCHITECT'S
86-14 SEAL
86-15 Sec. 1052.057. STAFF
86-16 Sec. 1052.058. ATTORNEY GENERAL AS LEGAL ADVISOR
86-17 (Sections 1052.059-1052.100 reserved for expansion)
86-18 SUBCHAPTER C. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
86-19 Sec. 1052.101. PUBLIC INFORMATION PROGRAM
86-20 Sec. 1052.102. COMPLAINTS
86-21 Sec. 1052.103. COMPLAINT INFORMATION
86-22 Sec. 1052.104. CONTRACT REQUIREMENT
86-23 (Sections 1052.105-1052.150 reserved for expansion)
86-24 SUBCHAPTER D. REGISTRATION REQUIREMENTS
86-25 Sec. 1052.151. REGISTRATION REQUIRED
86-26 Sec. 1052.152. USE OF LANDSCAPE ARCHITECT'S SEAL
86-27 Sec. 1052.153. EXAMINATION
87-1 Sec. 1052.154. ELIGIBILITY FOR EXAMINATION; APPLICATION
87-2 Sec. 1052.155. EXAMINATION RESULTS
87-3 Sec. 1052.156. RECIPROCITY
87-4 (Sections 1052.157-1052.200 reserved for expansion)
87-5 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
87-6 Sec. 1052.201. ANNUAL RENEWAL REQUIRED
87-7 Sec. 1052.202. NOTICE OF EXPIRATION
87-8 Sec. 1052.203. PROCEDURE FOR RENEWAL
87-9 Sec. 1052.204. INACTIVE STATUS
87-10 Sec. 1052.205. CONTINUING EDUCATION
87-11 (Sections 1052.206-1052.250 reserved for expansion)
87-12 SUBCHAPTER F. DISCIPLINARY PROCEDURES
87-13 Sec. 1052.251. DISCIPLINARY POWERS OF BOARD
87-14 Sec. 1052.252. GROUNDS FOR DISCIPLINARY ACTION
87-15 Sec. 1052.253. RIGHT TO HEARING; APPEAL
87-16 (Sections 1052.254-1052.300 reserved for expansion)
87-17 SUBCHAPTER G. ADMINISTRATIVE PENALTY
87-18 Sec. 1052.301. IMPOSITION OF ADMINISTRATIVE PENALTY
87-19 Sec. 1052.302. AMOUNT OF ADMINISTRATIVE PENALTY
87-20 Sec. 1052.303. REPORT AND NOTICE OF VIOLATION AND
87-21 ADMINISTRATIVE PENALTY
87-22 Sec. 1052.304. ADMINISTRATIVE PENALTY TO BE PAID OR
87-23 HEARING REQUESTED
87-24 Sec. 1052.305. HEARING
87-25 Sec. 1052.306. NOTICE OF BOARD ORDER
87-26 Sec. 1052.307. OPTIONS FOLLOWING BOARD ORDER: PAY OR
87-27 APPEAL
88-1 Sec. 1052.308. COLLECTION OF ADMINISTRATIVE PENALTY
88-2 Sec. 1052.309. JUDICIAL REVIEW
88-3 Sec. 1052.310. REMITTANCE OF ADMINISTRATIVE PENALTY
88-4 AND INTEREST
88-5 CHAPTER 1052. LANDSCAPE ARCHITECTS
88-6 SUBCHAPTER A. GENERAL PROVISIONS
88-7 Sec. 1052.001. DEFINITIONS. In this chapter:
88-8 (1) "Board" means the Texas Board of Architectural
88-9 Examiners.
88-10 (2) "Landscape architect" means a person registered
88-11 under this chapter to practice landscape architecture.
88-12 (3) "Landscape architecture" means a professional
88-13 service performed in connection with the development of a land area
88-14 to the extent that the principal purpose of the service is to
88-15 arrange and modify the natural scenery for aesthetic effect while
88-16 considering the intended use of the land.
88-17 (4) "Person" means a natural person except as
88-18 otherwise specifically indicated.
88-19 (5) "Professional service" includes consultation,
88-20 investigation, research, supervision, and preparation of general
88-21 development and detailed design plans, studies, and specifications
88-22 concerning the arrangement of natural forms, features, and
88-23 plantings, including ground and water forms, vegetation,
88-24 circulation, walks, and other landscape features, to fulfill
88-25 aesthetic and functional requirements. The term does not include a
88-26 service or function within the practice of engineering,
88-27 architecture, or public surveying as defined by Chapter 1001, 1051,
89-1 or 1071. (V.A.C.S. Art. 249c, Secs. 1(a), (b), (c), (d).)
89-2 Sec. 1052.002. APPLICATION OF CHAPTER. This chapter does not
89-3 apply to or affect the laws relating to:
89-4 (1) an architect other than a landscape architect;
89-5 (2) a building designer;
89-6 (3) a professional engineer;
89-7 (4) a land surveyor; or
89-8 (5) a nurseryman. (V.A.C.S. Art. 249c, Sec. 2(a).)
89-9 Sec. 1052.003. EXEMPTIONS. (a) A person is exempt from
89-10 registration under this chapter if the person is:
89-11 (1) an agriculturist;
89-12 (2) an agronomist;
89-13 (3) a forester;
89-14 (4) a garden or lawn caretaker;
89-15 (5) a gardener or contract gardener;
89-16 (6) a grader or cultivator of land;
89-17 (7) a horticulturist;
89-18 (8) a nurseryman; or
89-19 (9) a person preparing plans for property owned by the
89-20 person.
89-21 (b) A person described by Subsection (a) may not use the
89-22 term "landscape architect" in a sign, card, listing, or
89-23 advertisement or otherwise represent the person to be a landscape
89-24 architect unless the person complies with this chapter. (V.A.C.S.
89-25 Art. 249c, Sec. 2(b).)
89-26 (Sections 1052.004-1052.050 reserved for expansion)
89-27 SUBCHAPTER B. BOARD POWERS AND DUTIES
90-1 Sec. 1052.051. RULES AND FORMS. The board may adopt rules
90-2 and prescribe forms necessary to administer this chapter. (V.A.C.S.
90-3 Art. 249c, Sec. 4(a).)
90-4 Sec. 1052.052. ENFORCEMENT. The board may enforce this
90-5 chapter or a rule adopted under this chapter in the manner provided
90-6 by Section 1051.502 for enforcement of Chapter 1051 or a rule
90-7 adopted under that chapter. (V.A.C.S. Art. 249c, Sec. 9(c).)
90-8 Sec. 1052.053. RULES RESTRICTING ADVERTISING OR COMPETITIVE
90-9 BIDDING. The board may not adopt a rule restricting advertising or
90-10 competitive bidding by a person registered under this chapter
90-11 except to prohibit a false, misleading, or deceptive practice by
90-12 the person. (V.A.C.S. Art. 249c, Sec. 8A.)
90-13 Sec. 1052.054. FEES. (a) The board may set a fee for a
90-14 board action involving an administrative expense in an amount that
90-15 is reasonable and necessary to cover the cost of administering this
90-16 chapter, unless the amount of the fee is set by this chapter or by
90-17 the General Appropriations Act.
90-18 (b) The board shall set the fee for renewal of a certificate
90-19 of registration in an amount that is reasonable and necessary to
90-20 defray administrative costs.
90-21 (c) The board may accept payment of a fee by electronic
90-22 means. The board may charge a fee to process the payment made by
90-23 electronic means. The board shall set the processing fee in an
90-24 amount that is reasonably related to the expense incurred by the
90-25 board in processing the payment made by electronic means, not to
90-26 exceed five percent of the amount of the fee for which the payment
90-27 is made. (V.A.C.S. Art. 249c, Secs. 4(b), 7(c).)
91-1 Sec. 1052.055. SUBPOENA. (a) The board may request and, if
91-2 necessary, compel by subpoena:
91-3 (1) the attendance of witnesses for examination under
91-4 oath; and
91-5 (2) the production for inspection or copying of
91-6 records, documents, and other evidence relevant to the
91-7 investigation of an alleged violation of this chapter.
91-8 (b) The board, acting through the attorney general, may
91-9 bring an action to enforce a subpoena issued under Subsection (a)
91-10 against a person who fails to comply with the subpoena.
91-11 (c) Venue for an action brought under Subsection (b) is in a
91-12 district court in:
91-13 (1) Travis County; or
91-14 (2) any county in which the board may conduct a
91-15 hearing.
91-16 (d) The court shall order compliance with the subpoena if
91-17 the court finds that good cause exists to issue the subpoena.
91-18 (V.A.C.S. Art. 249c, Sec. 11.)
91-19 Sec. 1052.056. FORM AND DESIGN OF LANDSCAPE ARCHITECT'S
91-20 SEAL. (a) The board shall prescribe the form of the seal to be
91-21 used by a landscape architect.
91-22 (b) The design of the seal must be the same as the design
91-23 used by the board, except that the words "Registered Landscape
91-24 Architect, State of Texas" must be used instead of "Texas Board of
91-25 Architectural Examiners." (V.A.C.S. Art. 249c, Sec. 8D(b).)
91-26 Sec. 1052.057. STAFF. The board may employ staff necessary
91-27 to administer this chapter. (V.A.C.S. Art. 249c, Sec. 3.)
92-1 Sec. 1052.058. ATTORNEY GENERAL AS LEGAL ADVISOR. The
92-2 attorney general shall act as legal advisor to the board and shall
92-3 provide legal assistance necessary to enforce this chapter. This
92-4 section does not relieve a local prosecuting attorney of any duty
92-5 under the law. (V.A.C.S. Art. 249c, Sec. 9(b).)
92-6 (Sections 1052.059-1052.100 reserved for expansion)
92-7 SUBCHAPTER C. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
92-8 Sec. 1052.101. PUBLIC INFORMATION PROGRAM. (a) The board
92-9 shall establish a program to inform the public about the practice
92-10 and regulation of landscape architecture in this state. The
92-11 program must include information to inform prospective applicants
92-12 about the qualifications and requirements for registration under
92-13 this chapter.
92-14 (b) As part of the program, the board shall:
92-15 (1) prescribe and distribute a standard complaint form
92-16 in a manner the board considers appropriate; and
92-17 (2) make the information compiled under this section
92-18 available to the public and appropriate state agencies. (V.A.C.S.
92-19 Art. 249c, Sec. 8C(b).)
92-20 Sec. 1052.102. COMPLAINTS. (a) A resident of this state may
92-21 file with the board a written statement charging a landscape
92-22 architect with a ground for discipline. The statement must be
92-23 verified.
92-24 (b) On receiving a complaint under Subsection (a), the board
92-25 shall investigate the charge to determine whether the charge
92-26 supports imposition of a disciplinary sanction. (V.A.C.S.
92-27 Art. 249c, Sec. 8(c).)
93-1 Sec. 1052.103. COMPLAINT INFORMATION. (a) The board shall
93-2 keep an information file about each complaint filed with the board
93-3 relating to a landscape architect.
93-4 (b) If a written complaint is filed with the board relating
93-5 to a landscape architect, the board, at least quarterly and until
93-6 final disposition of the complaint, shall inform the person filing
93-7 the complaint of the status of the complaint. (V.A.C.S. Art. 249c,
93-8 Sec. 8B.)
93-9 Sec. 1052.104. CONTRACT REQUIREMENT. In each written
93-10 contract in which a landscape architect agrees to practice
93-11 landscape architecture in this state, the landscape architect shall
93-12 include the board's mailing address and telephone number and a
93-13 statement that the board has jurisdiction over a person registered
93-14 under this chapter. (V.A.C.S. Art. 249c, Sec. 8C(a).)
93-15 (Sections 1052.105-1052.150 reserved for expansion)
93-16 SUBCHAPTER D. REGISTRATION REQUIREMENTS
93-17 Sec. 1052.151. REGISTRATION REQUIRED. A person may not
93-18 represent the person to be a landscape architect unless the person
93-19 holds a certificate of registration as a landscape architect issued
93-20 by the board or is exempt from registration under this chapter.
93-21 (V.A.C.S. Art. 249c, Secs. 1(a), 5(a) (part), 9(a) (part).)
93-22 Sec. 1052.152. USE OF LANDSCAPE ARCHITECT'S SEAL. (a) A
93-23 landscape architect shall maintain a seal as described by Section
93-24 1052.056 and shall stamp or impress the seal on each drawing or
93-25 specification issued from the landscape architect's office for use
93-26 in this state.
93-27 (b) A person may not use or attempt to use a landscape
94-1 architect's seal, a similar seal, or a replica of the seal unless
94-2 the use is by or through a landscape architect.
94-3 (c) A landscape architect may not permit a person who is not
94-4 a landscape architect to use the landscape architect's seal without
94-5 the landscape architect's personal supervision.
94-6 (d) A person may not present or attempt to use as the
94-7 person's own the seal of another person. (V.A.C.S. Art. 249c, Secs.
94-8 8D(a), (c), (d); 9(a) (part).)
94-9 Sec. 1052.153. EXAMINATION. (a) A person must pass an
94-10 examination prescribed by the board to receive a certificate of
94-11 registration as a landscape architect.
94-12 (b) The board shall prescribe the scope of the examination
94-13 and the methods of procedure with special reference to the
94-14 applicant's ability that will ensure the safety of the public
94-15 welfare and property rights.
94-16 (c) The board shall approve the examination.
94-17 (d) The board shall administer the examination at its office
94-18 in Austin or at another location designated by the board. (V.A.C.S.
94-19 Art. 249c, Sec. 5(a) (part).)
94-20 Sec. 1052.154. ELIGIBILITY FOR EXAMINATION; APPLICATION. (a)
94-21 A person may apply for examination under this chapter if the
94-22 person:
94-23 (1) is a graduate of a landscape architecture
94-24 educational program recognized and approved by the board; and
94-25 (2) has satisfactory experience in landscape
94-26 architecture as required by board rule.
94-27 (b) The application must be accompanied by a fee set by the
95-1 board in an amount that is reasonable and necessary to defray
95-2 administrative costs. (V.A.C.S. Art. 249c, Sec. 5(a) (part).)
95-3 Sec. 1052.155. EXAMINATION RESULTS. (a) The board shall
95-4 notify each examinee of the results of the examination not later
95-5 than the 30th day after the date the examination is administered.
95-6 If an examination is graded or reviewed by a national testing
95-7 service, the board shall notify each examinee of the results of the
95-8 examination not later than the 30th day after the date the board
95-9 receives the results from the testing service.
95-10 (b) If the notice of the results of an examination graded or
95-11 reviewed by a national testing service will be delayed for longer
95-12 than 90 days after the examination date, the board shall notify
95-13 each examinee of the reason for the delay before the 90th day.
95-14 (c) If requested in writing by a person who fails the
95-15 examination, the board shall provide to the person an analysis of
95-16 the person's performance on the examination. (V.A.C.S. Art. 249c,
95-17 Secs. 5(b), (c).)
95-18 Sec. 1052.156. RECIPROCITY. (a) The board may waive any
95-19 requirement for a certificate of registration for an applicant who
95-20 holds a license or certificate of registration issued by another
95-21 state that has licensing or registration requirements substantially
95-22 equivalent to the requirements of this state.
95-23 (b) The application must be accompanied by a fee in an
95-24 amount set by the board. (V.A.C.S. Art. 249c, Sec. 6.)
95-25 (Sections 1052.157-1052.200 reserved for expansion)
95-26 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
95-27 Sec. 1052.201. ANNUAL RENEWAL REQUIRED. (a) The board shall
96-1 provide for the annual renewal of a certificate of registration.
96-2 (b) A certificate of registration expires each year on a
96-3 date set by the board as part of a staggered renewal system adopted
96-4 under this section.
96-5 (c) The board by rule may adopt a system under which
96-6 certificates of registration expire on various dates during the
96-7 year. If necessary, the board shall adjust the date for mailing
96-8 notice of expiration and the period for renewal.
96-9 (d) For a year in which the certificate of registration
96-10 expiration date is changed, renewal fees shall be prorated on a
96-11 monthly basis so that each certificate holder pays only that
96-12 portion of the fee that is allocable to the number of months during
96-13 which the certificate is valid. On renewal of the certificate of
96-14 registration on the new expiration date, the total renewal fee is
96-15 payable. (V.A.C.S. Art. 249c, Secs. 7(a), (d) (part); 7A; 10(a)
96-16 (part).)
96-17 Sec. 1052.202. NOTICE OF EXPIRATION. Not later than the 31st
96-18 day before the expiration date of a person's certificate of
96-19 registration, the board shall send written notice of the impending
96-20 expiration to the person at the person's last known address
96-21 according to board records. (V.A.C.S. Art. 249c, Sec. 7(b).)
96-22 Sec. 1052.203. PROCEDURE FOR RENEWAL. (a) A person may
96-23 renew an unexpired certificate of registration by:
96-24 (1) paying a renewal fee to the board before the
96-25 expiration date; and
96-26 (2) submitting proof satisfactory to the board of
96-27 compliance with the board's continuing education requirement.
97-1 (b) A person whose certificate of registration has been
97-2 expired for less than one year may renew the person's certificate
97-3 of registration by:
97-4 (1) paying to the board:
97-5 (A) any unpaid renewal fee; and
97-6 (B) a penalty fee in an amount determined by the
97-7 board; and
97-8 (2) submitting proof satisfactory to the board of
97-9 compliance with the board's continuing education requirement.
97-10 (c) The board may set a penalty fee for a person whose
97-11 certificate of registration has been expired for less than 90 days
97-12 in an amount that is different from the penalty fee for a person
97-13 whose certificate of registration has been expired for longer than
97-14 90 days but less than one year.
97-15 (d) The board shall issue a certificate of renewal of a
97-16 person's certificate of registration on receipt of:
97-17 (1) the required fees, as provided by this section;
97-18 and
97-19 (2) the required proof of compliance with the board's
97-20 continuing education requirement.
97-21 (e) If a person's certificate of registration has been
97-22 expired for one year or more, the board may revoke the certificate
97-23 of registration and enter the revocation in its official records
97-24 after the board provides notice and a hearing as provided by this
97-25 chapter. The board may require an applicant for reinstatement of a
97-26 certificate of registration revoked under this subsection to pass
97-27 the examination prescribed by the board. If the person passes the
98-1 examination, the person's certificate of registration may be
98-2 reinstated on receipt of a fee in an amount determined by the
98-3 board. (V.A.C.S. Art. 249c, Secs. 7(d) (part), (e), (f), (g), (h);
98-4 10(a) (part).)
98-5 Sec. 1052.204. INACTIVE STATUS. (a) The board by rule shall
98-6 establish a procedure by which a landscape architect may place the
98-7 person's certificate of registration on inactive status. The
98-8 person must apply for inactive status, on a form prescribed by the
98-9 board, before the person's certificate of registration expires.
98-10 (b) A person whose certificate of registration is on
98-11 inactive status is not required to pay a renewal fee.
98-12 (c) A person whose certificate of registration is on
98-13 inactive status may not perform any activity regulated under this
98-14 chapter.
98-15 (d) The board shall remove the person's certificate of
98-16 registration from inactive status if the person:
98-17 (1) requests in writing that the board remove the
98-18 person's certificate of registration from inactive status;
98-19 (2) pays an administrative fee; and
98-20 (3) complies with education or other requirements
98-21 established by board rule. (V.A.C.S. Art. 249c, Sec. 6A.)
98-22 Sec. 1052.205. CONTINUING EDUCATION. (a) The board shall
98-23 require continuing education programs as a condition for renewal of
98-24 a certificate of registration.
98-25 (b) The continuing education programs may include courses
98-26 relating to:
98-27 (1) health, safety, or welfare; or
99-1 (2) barrier-free design.
99-2 (c) The board may recognize the continuing education
99-3 programs of:
99-4 (1) a nationally acknowledged organization involved in
99-5 providing, recording, or approving postgraduate education; and
99-6 (2) any other sponsoring organization or individual
99-7 whose presentation is approved by the board as qualifying in design
99-8 or construction health, safety, or welfare.
99-9 (d) A person is exempt from the continuing education
99-10 requirements of this section if the person is, as of September 1,
99-11 1999, engaged in teaching landscape architecture as a full-time
99-12 faculty member or other permanent employee of an institution of
99-13 higher education, as defined by Section 61.003, Education Code.
99-14 (V.A.C.S. Art. 249a, Sec. 3(e) (part); Art. 249c, Sec. 7(i).)
99-15 (Sections 1052.206-1052.250 reserved for expansion)
99-16 SUBCHAPTER F. DISCIPLINARY PROCEDURES
99-17 Sec. 1052.251. DISCIPLINARY POWERS OF BOARD. (a) On a
99-18 determination that a ground for discipline exists under Section
99-19 1052.252, the board may:
99-20 (1) revoke or suspend a certificate of registration;
99-21 (2) place on probation a person whose certificate of
99-22 registration is suspended;
99-23 (3) reprimand the holder of a certificate of
99-24 registration; or
99-25 (4) impose an administrative penalty on a person under
99-26 Subchapter G.
99-27 (b) If the suspension of a person's certificate of
100-1 registration is probated, the board may require the person to:
100-2 (1) report regularly to the board on matters that are
100-3 the basis of the probation;
100-4 (2) limit practice to the areas prescribed by the
100-5 board; or
100-6 (3) continue or renew professional education until the
100-7 person attains a degree of skill satisfactory to the board in those
100-8 areas that are the basis of the probation. (V.A.C.S. Art. 249c,
100-9 Secs. 8(a) (part), (b).)
100-10 Sec. 1052.252. GROUNDS FOR DISCIPLINARY ACTION. A person is
100-11 subject to disciplinary action under Section 1052.251 for:
100-12 (1) violating this chapter or a board rule adopted
100-13 under this chapter;
100-14 (2) using fraud or deceit in obtaining a certificate
100-15 of registration;
100-16 (3) giving false or forged evidence to the board or a
100-17 member of the board in obtaining or assisting another person to
100-18 obtain a certificate of registration;
100-19 (4) using or attempting to use as the person's own the
100-20 certificate of registration of another person;
100-21 (5) holding the person out to the public as an
100-22 engineer or using the term "engineer," "engineered," "professional
100-23 engineer," or "P.E." or any other term tending to create the
100-24 impression that the person is authorized to practice engineering or
100-25 another profession unless the person is licensed under Chapter 1001
100-26 or another licensing law of this state, as applicable;
100-27 (6) holding the person out to the public as a surveyor
101-1 or using the term "surveyor," "surveyed," or "registered
101-2 professional land surveyor" or any other term tending to create the
101-3 impression that the person is authorized to practice surveying or
101-4 another profession unless the person is licensed under Chapter 1071
101-5 or another licensing law of this state, as applicable; or
101-6 (7) committing an act of gross negligence,
101-7 incompetency, or misconduct in the practice of landscape
101-8 architecture. (V.A.C.S. Art. 249c, Secs. 8(a) (part); 9(a) (part).)
101-9 Sec. 1052.253. RIGHT TO HEARING; APPEAL. (a) If the board
101-10 proposes to suspend or revoke a person's certificate of
101-11 registration, the person is entitled to a hearing. The board may
101-12 employ a hearings officer for this purpose.
101-13 (b) The board shall prescribe procedures by which a decision
101-14 to suspend or revoke a certificate of registration is made by or is
101-15 appealable to the board. (V.A.C.S. Art. 249c, Sec. 8(d).)
101-16 (Sections 1052.254-1052.300 reserved for expansion)
101-17 SUBCHAPTER G. ADMINISTRATIVE PENALTY
101-18 Sec. 1052.301. IMPOSITION OF ADMINISTRATIVE PENALTY. The
101-19 board may impose an administrative penalty on a person who engages
101-20 in conduct for which the person is subject to disciplinary action
101-21 under Subchapter F, regardless of whether the person holds a
101-22 certificate of registration issued under this chapter. (V.A.C.S.
101-23 Art. 249c, Sec. 8(a) (part).)
101-24 Sec. 1052.302. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
101-25 amount of the administrative penalty may not exceed $1,000. Each
101-26 day a violation occurs is a separate violation for purposes of
101-27 imposing a penalty.
102-1 (b) In determining the amount of a penalty, the board shall
102-2 consider:
102-3 (1) the seriousness of the conduct that is the ground
102-4 for imposing the penalty, including:
102-5 (A) the nature, circumstances, extent, and
102-6 gravity of any relevant act or omission; and
102-7 (B) the hazard or potential hazard created to
102-8 the health or safety of the public;
102-9 (2) the economic damage to property caused by the
102-10 conduct;
102-11 (3) the history of previous grounds for imposing a
102-12 penalty on the person who engaged in the conduct;
102-13 (4) the amount necessary to deter future conduct that
102-14 is a ground for imposing a penalty;
102-15 (5) efforts to correct the conduct that is a ground
102-16 for imposing a penalty; and
102-17 (6) any other matter that justice may require.
102-18 (V.A.C.S. Art. 249c, Secs. 8(a) (part), (j); 9(a) (part).)
102-19 Sec. 1052.303. REPORT AND NOTICE OF VIOLATION AND
102-20 ADMINISTRATIVE PENALTY. (a) If, after investigating the facts
102-21 surrounding an alleged ground for imposing an administrative
102-22 penalty, the executive director determines that a ground exists for
102-23 imposing an administrative penalty, the executive director may
102-24 issue a report stating:
102-25 (1) the facts on which the determination is based; and
102-26 (2) the executive director's recommendation on the
102-27 imposition of an administrative penalty, including a recommendation
103-1 on the amount of the penalty.
103-2 (b) The executive director shall base the recommended amount
103-3 of the penalty on the seriousness of the ground for imposing the
103-4 penalty after considering the factors listed in Section 1052.302.
103-5 (c) Not later than the 14th day after the date the report is
103-6 issued, the executive director shall give written notice of the
103-7 report to the person on whom the penalty may be imposed. The
103-8 notice must:
103-9 (1) include a brief summary of the charges;
103-10 (2) state the amount of the recommended penalty; and
103-11 (3) inform the person of the person's right to a
103-12 hearing on the occurrence of a ground for imposing the penalty, the
103-13 amount of the penalty, or both. (V.A.C.S. Art. 249c, Secs. 8(e),
103-14 (f).)
103-15 Sec. 1052.304. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
103-16 REQUESTED. (a) Not later than the 20th day after the date the
103-17 person receives notice under Section 1052.303(c), the person may:
103-18 (1) accept the executive director's determination,
103-19 including the recommended administrative penalty; or
103-20 (2) request a hearing on the determination.
103-21 (b) If the person accepts the executive director's
103-22 determination, the board by order shall approve the determination
103-23 and impose the recommended penalty. (V.A.C.S. Art. 249c, Secs.
103-24 8(g), (h).)
103-25 Sec. 1052.305. HEARING. (a) If the person requests a
103-26 hearing or fails to respond timely to the notice under Section
103-27 1052.303(c), the board shall set a hearing and give notice of the
104-1 hearing to the person.
104-2 (b) A proceeding under this section relating to a landscape
104-3 architect is subject to Chapter 2001, Government Code. (V.A.C.S.
104-4 Art. 249c, Sec. 8(i).)
104-5 Sec. 1052.306. NOTICE OF BOARD ORDER. The executive director
104-6 shall give notice of the board's order to the person on whom the
104-7 penalty is imposed. The notice must include:
104-8 (1) the findings of fact and conclusions of law,
104-9 separately stated;
104-10 (2) the amount of the administrative penalty ordered,
104-11 if any;
104-12 (3) a statement of the right of the person on whom the
104-13 penalty is imposed to judicial review of the board's order; and
104-14 (4) other information required by law. (V.A.C.S.
104-15 Art. 249c, Sec. 8(k).)
104-16 Sec. 1052.307. OPTIONS FOLLOWING BOARD ORDER: PAY OR
104-17 APPEAL. (a) If the person is a landscape architect, the board's
104-18 order becomes final as provided by Section 2001.144, Government
104-19 Code. If the person does not hold a certificate of registration
104-20 issued by the board, the board's order becomes final on the 20th
104-21 day after the date the order is issued.
104-22 (b) Not later than the 30th day after the date the board's
104-23 order becomes final, the person shall:
104-24 (1) pay the administrative penalty in full; or
104-25 (2) file a petition for judicial review contesting the
104-26 occurrence of the ground for imposing a penalty, the amount of the
104-27 penalty, or both.
105-1 (c) Within the period prescribed by Subsection (b), a person
105-2 who acts under Subsection (b)(2) shall:
105-3 (1) pay the penalty to the board for placement in an
105-4 escrow account;
105-5 (2) post with the board a supersedeas bond that is in
105-6 a form approved by the board for the amount of the penalty and that
105-7 is effective until judicial review of the board's order is final;
105-8 or
105-9 (3) file with the board an affidavit of the person
105-10 stating that the person is financially unable to pay the penalty
105-11 and is financially unable to post the bond. (V.A.C.S. Art. 249c,
105-12 Secs. 8(l), (m).)
105-13 Sec. 1052.308. COLLECTION OF ADMINISTRATIVE PENALTY. If the
105-14 person on whom an administrative penalty is imposed does not meet
105-15 the requirements of Section 1052.307, the board may refer the
105-16 matter to the attorney general for enforcement. (V.A.C.S.
105-17 Art. 249c, Sec. 8(n).)
105-18 Sec. 1052.309. JUDICIAL REVIEW. Judicial review of the order
105-19 of the board imposing an administrative penalty is under the
105-20 substantial evidence rule and is instituted by filing a petition
105-21 with a district court in Travis County, as provided by Subchapter
105-22 G, Chapter 2001, Government Code. (V.A.C.S. Art. 249c, Sec. 8(o).)
105-23 Sec. 1052.310. REMITTANCE OF ADMINISTRATIVE PENALTY AND
105-24 INTEREST. (a) If, after judicial review, the administrative
105-25 penalty is reduced or not imposed by the court, the board shall:
105-26 (1) remit the appropriate amount plus accrued interest
105-27 to the person on whom the penalty is imposed, if the person paid
106-1 the penalty; or
106-2 (2) execute a release of the bond, if the person
106-3 posted a supersedeas bond.
106-4 (b) The interest remitted under Subsection (a)(1) is at the
106-5 rate charged on loans to depository institutions by the New York
106-6 Federal Reserve Bank. The interest shall be paid for the period
106-7 beginning on the date the penalty is paid and ending on the date
106-8 the penalty is remitted. (V.A.C.S. Art. 249c, Sec. 8(p).)
106-9 CHAPTER 1053. INTERIOR DESIGNERS
106-10 SUBCHAPTER A. GENERAL PROVISIONS
106-11 Sec. 1053.001. DEFINITIONS
106-12 Sec. 1053.002. APPLICATION
106-13 Sec. 1053.003. LIMITATION ON INTERIOR DESIGNERS
106-14 (Sections 1053.004-1053.050 reserved for expansion)
106-15 SUBCHAPTER B. BOARD POWERS AND DUTIES
106-16 Sec. 1053.051. RULEMAKING AND ADMINISTRATIVE AUTHORITY
106-17 Sec. 1053.052. FEES
106-18 Sec. 1053.053. GIFTS AND GRANTS
106-19 Sec. 1053.054. STANDARDS OF CONDUCT
106-20 Sec. 1053.055. SUBPOENA
106-21 Sec. 1053.056. OFFICIAL ROSTER
106-22 Sec. 1053.057. RECORDS
106-23 (Sections 1053.058-1053.100 reserved for expansion)
106-24 SUBCHAPTER C. CONSUMER INFORMATION AND COMPLAINTS
106-25 Sec. 1053.101. CONSUMER INFORMATION
106-26 Sec. 1053.102. COMPLAINTS AND INVESTIGATION
106-27 Sec. 1053.103. COMPLAINT INFORMATION
107-1 (Sections 1053.104-1053.150 reserved for expansion)
107-2 SUBCHAPTER D. REGISTRATION REQUIREMENTS
107-3 Sec. 1053.151. REGISTRATION REQUIRED
107-4 Sec. 1053.152. ELIGIBILITY REQUIREMENTS
107-5 Sec. 1053.153. APPLICATION FOR CERTIFICATE OF REGISTRATION
107-6 Sec. 1053.154. EXAMINATION REQUIRED
107-7 Sec. 1053.155. APPLICATION FOR ADMISSION TO EXAMINATION
107-8 Sec. 1053.156. EXAMINATION RESULTS
107-9 Sec. 1053.157. REGISTER OF APPLICANTS
107-10 Sec. 1053.158. REGISTRATION WITHOUT EXAMINATION
107-11 Sec. 1053.159. ISSUANCE OF CERTIFICATE
107-12 Sec. 1053.160. USE OF INTERIOR DESIGNER'S SEAL
107-13 Sec. 1053.161. RECIPROCITY
107-14 (Sections 1053.162-1053.200 reserved for expansion)
107-15 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
107-16 Sec. 1053.201. ANNUAL RENEWAL REQUIRED
107-17 Sec. 1053.202. NOTICE OF EXPIRATION
107-18 Sec. 1053.203. RENEWAL OF EXPIRED REGISTRATION
107-19 Sec. 1053.204. INACTIVE STATUS
107-20 Sec. 1053.205. CONTINUING EDUCATION
107-21 (Sections 1053.206-1053.250 reserved for expansion)
107-22 SUBCHAPTER F. PROHIBITED PRACTICES AND
107-23 DISCIPLINARY PROCEDURES
107-24 Sec. 1053.251. DISCIPLINARY POWERS OF BOARD
107-25 Sec. 1053.252. GROUNDS FOR DISCIPLINARY ACTION
107-26 Sec. 1053.253. HEARING; APPEAL
107-27 Sec. 1053.254. REINSTATEMENT
108-1 (Sections 1053.255-1053.300 reserved for expansion)
108-2 SUBCHAPTER G. ADMINISTRATIVE PENALTY
108-3 Sec. 1053.301. IMPOSITION OF ADMINISTRATIVE PENALTY
108-4 Sec. 1053.302. AMOUNT OF ADMINISTRATIVE PENALTY
108-5 Sec. 1053.303. REPORT AND NOTICE OF VIOLATION AND
108-6 ADMINISTRATIVE PENALTY
108-7 Sec. 1053.304. ADMINISTRATIVE PENALTY TO BE PAID OR
108-8 HEARING REQUESTED
108-9 Sec. 1053.305. HEARING
108-10 Sec. 1053.306. NOTICE OF BOARD ORDER
108-11 Sec. 1053.307. OPTIONS FOLLOWING BOARD ORDER: PAY
108-12 OR APPEAL
108-13 Sec. 1053.308. COLLECTION OF ADMINISTRATIVE PENALTY
108-14 Sec. 1053.309. JUDICIAL REVIEW
108-15 Sec. 1053.310. REMITTANCE OF ADMINISTRATIVE PENALTY
108-16 AND INTEREST
108-17 (Sections 1053.311-1053.350 reserved for expansion)
108-18 SUBCHAPTER H. OTHER PENALTIES
108-19 Sec. 1053.351. CRIMINAL PENALTY
108-20 CHAPTER 1053. INTERIOR DESIGNERS
108-21 SUBCHAPTER A. GENERAL PROVISIONS
108-22 Sec. 1053.001. DEFINITIONS. In this chapter:
108-23 (1) "Board" means the Texas Board of Architectural
108-24 Examiners.
108-25 (2) "Interior design" means the:
108-26 (A) identification, research, or development of
108-27 a creative solution to a problem relating to the function or
109-1 quality of an interior environment;
109-2 (B) performance of a service relating to an
109-3 interior space, including programming, design analysis, space
109-4 planning of non-load-bearing interior construction, and application
109-5 of aesthetic principles, by using specialized knowledge of interior
109-6 construction, building codes, equipment, materials, or furnishings;
109-7 or
109-8 (C) preparation of an interior design plan,
109-9 specification, or related document about the design of a
109-10 non-load-bearing interior space.
109-11 (3) "Interior designer" means a person who is
109-12 registered under this chapter. (V.A.C.S. Art. 249e, Sec. 1.)
109-13 Sec. 1053.002. APPLICATION. (a) This chapter does not apply
109-14 to a person who:
109-15 (1) does not use the title "interior designer" and
109-16 does not use the term "interior design" to describe a service the
109-17 person offers or performs; or
109-18 (2) is registered to practice architecture in this
109-19 state.
109-20 (b) This chapter does not:
109-21 (1) prohibit an employee of an interior designer or
109-22 architect from performing an interior design service under the
109-23 control, instruction, or supervision of the interior designer or
109-24 architect; or
109-25 (2) restrict the practice or activities of or the
109-26 provision of a service by a person engaged in a profession or
109-27 occupation for which the person is licensed or registered in this
110-1 state under any other law. (V.A.C.S. Art. 249e, Sec. 4.)
110-2 Sec. 1053.003. LIMITATION ON INTERIOR DESIGNERS.
110-3 Registration under this chapter does not authorize an interior
110-4 designer to:
110-5 (1) plan or design architectural interior
110-6 construction;
110-7 (2) engineer a building system, including a
110-8 structural, electrical, plumbing, heating, ventilating,
110-9 air-conditioning, or mechanical system;
110-10 (3) engage in the practice of engineering as described
110-11 in Chapter 1001; or
110-12 (4) engage in the practice of architecture as
110-13 described in Chapter 1051. (V.A.C.S. Art. 249e, Sec. 2.)
110-14 (Sections 1053.004-1053.050 reserved for expansion)
110-15 SUBCHAPTER B. BOARD POWERS AND DUTIES
110-16 Sec. 1053.051. RULEMAKING AND ADMINISTRATIVE AUTHORITY. (a)
110-17 The board shall adopt rules for the general administration of this
110-18 chapter.
110-19 (b) The board shall act to enhance and protect the public
110-20 health, safety, and welfare in adopting rules or otherwise carrying
110-21 out its powers and duties under this chapter. (V.A.C.S. Art. 249e,
110-22 Secs. 5(d), (g).)
110-23 Sec. 1053.052. FEES. (a) The board shall set the following
110-24 fees, unless otherwise set in the General Appropriations Act, in
110-25 amounts that are reasonable and necessary to cover the costs of
110-26 administering this chapter:
110-27 (1) a registration application fee;
111-1 (2) an annual registration renewal fee;
111-2 (3) a reciprocal registration fee; and
111-3 (4) an examination fee.
111-4 (b) The board may set fees for the following services,
111-5 unless otherwise set in the General Appropriations Act, in amounts
111-6 that are reasonable and necessary to cover the costs of
111-7 administering this chapter:
111-8 (1) providing a duplicate certificate of registration;
111-9 (2) providing a roster of interior designers;
111-10 (3) reinstating a revoked or suspended certificate of
111-11 registration; and
111-12 (4) performing any other board action involving an
111-13 administrative expense.
111-14 (c) The board may accept payment of a fee by electronic
111-15 means. The board may charge a fee to process the payment made by
111-16 electronic means. The board shall set the processing fee in an
111-17 amount that is reasonably related to the expense incurred by the
111-18 board in processing the payment made by electronic means, not to
111-19 exceed five percent of the amount of the fee for which the payment
111-20 is made. (V.A.C.S. Art. 249e, Secs. 6(b), (c), (d).)
111-21 Sec. 1053.053. GIFTS AND GRANTS. (a) The board may accept a
111-22 gift or grant from any source to pay for any activity under this
111-23 chapter.
111-24 (b) A gift or grant must be accepted in an open meeting by a
111-25 majority of the board and reported in the minutes with the name of
111-26 the donor and purpose of the gift or grant. (V.A.C.S. Art. 249e,
111-27 Sec. 5(f).)
112-1 Sec. 1053.054. STANDARDS OF CONDUCT. The board shall
112-2 establish standards of conduct for interior designers. (V.A.C.S.
112-3 Art. 249e, Sec. 5(a) (part).)
112-4 Sec. 1053.055. SUBPOENA. (a) The board may request and, if
112-5 necessary, compel by subpoena:
112-6 (1) the attendance of witnesses for examination under
112-7 oath; and
112-8 (2) the production for inspection or copying of
112-9 records, documents, and other evidence relevant to the
112-10 investigation of an alleged violation of this chapter.
112-11 (b) The board, acting through the attorney general, may
112-12 bring an action to enforce a subpoena issued under Subsection (a)
112-13 against a person who fails to comply with the subpoena.
112-14 (c) Venue for an action brought under Subsection (b) is in a
112-15 district court in:
112-16 (1) Travis County; or
112-17 (2) any county in which the board may conduct a
112-18 hearing.
112-19 (d) The court shall order compliance with the subpoena if
112-20 the court finds that good cause exists to issue the subpoena.
112-21 (V.A.C.S. Art. 249e, Sec. 5(h) (part).)
112-22 Sec. 1053.056. OFFICIAL ROSTER. (a) The board shall
112-23 maintain an official roster showing the name, registration number,
112-24 and address of each interior designer.
112-25 (b) The roster shall be made available to the public for
112-26 inspection and information. The board may publish the roster
112-27 annually and may distribute a copy of the roster to a person on
113-1 payment of an administrative fee. (V.A.C.S. Art. 249e, Sec. 7(b).)
113-2 Sec. 1053.057. RECORDS. The board shall keep a record of its
113-3 proceedings under this chapter. (V.A.C.S. Art. 249e, Sec. 7(a)
113-4 (part).)
113-5 (Sections 1053.058-1053.100 reserved for expansion)
113-6 SUBCHAPTER C. CONSUMER INFORMATION AND COMPLAINTS
113-7 Sec. 1053.101. CONSUMER INFORMATION. (a) The board shall
113-8 prepare information of interest to consumers that describes:
113-9 (1) the functions of the board under this chapter;
113-10 (2) the effect of this chapter on consumers' legal
113-11 rights; and
113-12 (3) the procedures by which a consumer complaint is
113-13 filed with and resolved by the board.
113-14 (b) The board shall make the information available to the
113-15 public and appropriate state agencies. (V.A.C.S. Art. 249e, Sec.
113-16 5(c).)
113-17 Sec. 1053.102. COMPLAINTS AND INVESTIGATION. (a) A person
113-18 may file with the board a notice of a ground for denying the
113-19 registration of an applicant or for taking disciplinary action
113-20 against an interior designer.
113-21 (b) The executive director of the board or the executive
113-22 director's designee shall:
113-23 (1) investigate and make findings about the alleged
113-24 ground as the executive director or the designee considers
113-25 necessary; and
113-26 (2) report to the board the findings and any
113-27 recommendations for action. (V.A.C.S. Art. 249e, Sec. 15(c).)
114-1 Sec. 1053.103. COMPLAINT INFORMATION. (a) The board shall
114-2 keep an information file about each complaint filed with the board
114-3 that the board has authority to resolve.
114-4 (b) If a written complaint is filed with the board that the
114-5 board has the authority to resolve, the board, at least quarterly
114-6 and until final disposition of the complaint, shall notify the
114-7 parties to the complaint of the status of the complaint unless the
114-8 notice would jeopardize an undercover investigation. (V.A.C.S.
114-9 Art. 249e, Sec. 5(e).)
114-10 (Sections 1053.104-1053.150 reserved for expansion)
114-11 SUBCHAPTER D. REGISTRATION REQUIREMENTS
114-12 Sec. 1053.151. REGISTRATION REQUIRED. A person other than an
114-13 interior designer may not:
114-14 (1) represent that the person is an "interior
114-15 designer" by using that title; or
114-16 (2) represent, by using the term "interior design," a
114-17 service the person offers or performs. (V.A.C.S. Art. 249e, Sec.
114-18 3.)
114-19 Sec. 1053.152. ELIGIBILITY REQUIREMENTS. (a) The board
114-20 shall establish the qualifications for the issuance or renewal of a
114-21 certificate of registration under this chapter.
114-22 (b) To be eligible for a certificate of registration, an
114-23 applicant must:
114-24 (1) meet the qualifications established by the board
114-25 under Subsection (a);
114-26 (2) pass the registration examination; and
114-27 (3) pay the required fees. (V.A.C.S. Art. 249e, Secs.
115-1 5(a) (part), 8(a).)
115-2 Sec. 1053.153. APPLICATION FOR CERTIFICATE OF REGISTRATION.
115-3 Each application for a certificate of registration must:
115-4 (1) be on a form prescribed and furnished by the
115-5 board; and
115-6 (2) include a:
115-7 (A) verified statement of the applicant's
115-8 education; and
115-9 (B) detailed summary of the applicant's interior
115-10 design work experience. (V.A.C.S. Art. 249e, Sec. 8(b).)
115-11 Sec. 1053.154. EXAMINATION REQUIRED. (a) An applicant for a
115-12 certificate of registration must pass the examination adopted by
115-13 the board.
115-14 (b) The examination must cover subjects established by and
115-15 must be graded according to board rules. The board by rule may
115-16 adopt the examination of the National Council for Interior Design
115-17 Qualification or a comparable examination.
115-18 (c) The board shall determine the time and place for each
115-19 examination. The examination shall be offered at least once a
115-20 year. The board shall give reasonable public notice of the
115-21 examination in the manner provided by board rule. (V.A.C.S.
115-22 Art. 249e, Secs. 10(a), (b).)
115-23 Sec. 1053.155. APPLICATION FOR ADMISSION TO EXAMINATION. (a)
115-24 An applicant for a certificate of registration must apply to the
115-25 board, on a form prescribed by the board, for admission to the
115-26 registration examination.
115-27 (b) An application for admission to the registration
116-1 examination must be accompanied by evidence satisfactory to the
116-2 board that the applicant:
116-3 (1) has graduated from an interior design educational
116-4 program recognized and approved by the board; and
116-5 (2) has professional experience in the field of
116-6 interior design.
116-7 (c) The board shall adopt rules establishing standards for:
116-8 (1) the recognition and approval of interior design
116-9 educational programs; and
116-10 (2) the amounts and types of professional experience
116-11 necessary for registration examination eligibility. (V.A.C.S.
116-12 Art. 249e, Sec. 9.)
116-13 Sec. 1053.156. EXAMINATION RESULTS. (a) The board shall
116-14 notify each examinee of the results of the examination not later
116-15 than the 30th day after the date the examination is administered.
116-16 If an examination is graded or reviewed by a national testing
116-17 service, the board shall notify each examinee of the results of the
116-18 examination not later than the 30th day after the date the board
116-19 receives the results from the testing service.
116-20 (b) If the notice of the results of an examination graded or
116-21 reviewed by a national testing service will be delayed for longer
116-22 than 90 days after the examination date, the board shall notify
116-23 each examinee of the reason for the delay before the 90th day.
116-24 (c) If requested in writing by a person who fails the
116-25 examination, the board shall provide to the person an analysis of
116-26 the person's performance on the examination. (V.A.C.S. Art. 249e,
116-27 Secs. 10(c), (d).)
117-1 Sec. 1053.157. REGISTER OF APPLICANTS. The board shall keep
117-2 a register of applications for a certificate of registration under
117-3 this chapter that lists for each applicant:
117-4 (1) the applicant's name, address, and age;
117-5 (2) the date of application;
117-6 (3) the applicant's place of business;
117-7 (4) the applicant's educational and other
117-8 qualifications;
117-9 (5) whether an examination was taken;
117-10 (6) whether the applicant was registered or was
117-11 rejected;
117-12 (7) the date of the board's action on the application;
117-13 and
117-14 (8) other information the board considers necessary.
117-15 (V.A.C.S. Art. 249e, Sec. 7(a) (part).)
117-16 Sec. 1053.158. REGISTRATION WITHOUT EXAMINATION. (a) A
117-17 person who applied for registration before September 1, 1994, is
117-18 eligible for registration without examination on the completion of
117-19 six years of practice as an interior designer if the person:
117-20 (1) was practicing interior design before September 1,
117-21 1991; and
117-22 (2) meets all other registration requirements of this
117-23 chapter.
117-24 (b) For purposes of this section, a person is considered to
117-25 have practiced interior design if the person, independently or in
117-26 the course of regular employment, performed or offered to perform
117-27 interior design services or taught interior design at an
118-1 institution of higher education in an accredited degree program in
118-2 interior design recognized by the board. Any combination of
118-3 periods spent offering interior design services or teaching
118-4 totaling at least six years satisfies the requirement of this
118-5 section. (V.A.C.S. Art. 249e, Secs. 11(b), (c).)
118-6 Sec. 1053.159. ISSUANCE OF CERTIFICATE. The board shall
118-7 issue a certificate of registration to an applicant who presents
118-8 satisfactory evidence that the applicant complies with all
118-9 registration requirements under this chapter and under board rules.
118-10 (V.A.C.S. Art. 249e, Secs. 8(c), 13(a).)
118-11 Sec. 1053.160. USE OF INTERIOR DESIGNER'S SEAL. An interior
118-12 designer is entitled to use any seal adopted by the board.
118-13 (V.A.C.S. Art. 249e, Sec. 13(b).)
118-14 Sec. 1053.161. RECIPROCITY. The board may waive any
118-15 registration requirement for an applicant who:
118-16 (1) is licensed or registered to practice interior
118-17 design by another state that has licensing or registration
118-18 requirements substantially equivalent to the requirements of this
118-19 state;
118-20 (2) is in good standing with the state that issued the
118-21 license or registration; and
118-22 (3) submits an application and pays an administrative
118-23 fee to the board. (V.A.C.S. Art. 249e, Sec. 12.)
118-24 (Sections 1053.162-1053.200 reserved for expansion)
118-25 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
118-26 Sec. 1053.201. ANNUAL RENEWAL REQUIRED. (a) The board shall
118-27 provide for the annual renewal of a certificate of registration.
119-1 (b) The board by rule may adopt a system under which
119-2 certificates of registration expire on various dates during the
119-3 year. For the year in which the certificate of registration
119-4 expiration date is changed, renewal fees shall be prorated on a
119-5 monthly basis so that each certificate holder pays only that
119-6 portion of the fee that is allocable to the number of months during
119-7 which the certificate is valid. On renewal of the certificate of
119-8 registration on the new expiration date, the total renewal fee is
119-9 payable. (V.A.C.S. Art. 249e, Sec. 14(a).)
119-10 Sec. 1053.202. NOTICE OF EXPIRATION. Not later than the 31st
119-11 day before the expiration date of a person's certificate of
119-12 registration, the board shall send written notice of the impending
119-13 expiration to the person at the person's last known address
119-14 according to board records. (V.A.C.S. Art. 249e, Sec. 14(d).)
119-15 Sec. 1053.203. RENEWAL OF EXPIRED REGISTRATION. (a) A
119-16 person whose certificate of registration has been expired for less
119-17 than one year may renew the person's certificate of registration
119-18 by:
119-19 (1) paying to the board:
119-20 (A) any unpaid renewal fee; and
119-21 (B) a penalty fee in an amount determined by the
119-22 board; and
119-23 (2) submitting proof satisfactory to the board of
119-24 compliance with the board's continuing education requirement.
119-25 (b) The board may set a penalty fee for a person whose
119-26 certificate of registration has been expired for less than 90 days
119-27 in an amount that is different from the penalty fee for a person
120-1 whose certificate of registration has been expired for longer than
120-2 90 days but less than one year.
120-3 (c) If a person's certificate of registration has been
120-4 expired for one year or more, the board may revoke the certificate
120-5 of registration. The board may require an applicant for
120-6 reinstatement of a certificate of registration revoked under this
120-7 subsection to pass the registration examination. If the person
120-8 passes the examination, the person's certificate of registration
120-9 may be reinstated on receipt of a fee in an amount determined by
120-10 the board. (V.A.C.S. Art. 249e, Secs. 14(b), (c), (e).)
120-11 Sec. 1053.204. INACTIVE STATUS. (a) The board by rule shall
120-12 establish a procedure by which an interior designer may place the
120-13 person's certificate of registration on inactive status. The
120-14 person must apply for inactive status, on a form prescribed by the
120-15 board, before the person's certificate of registration expires.
120-16 (b) A person whose certificate of registration is on
120-17 inactive status is not required to pay a renewal fee.
120-18 (c) A person whose certificate of registration is on
120-19 inactive status may not perform any activity regulated under this
120-20 chapter.
120-21 (d) The board shall remove the person's certificate of
120-22 registration from inactive status if the person:
120-23 (1) requests in writing that the board remove the
120-24 person's certificate of registration from inactive status;
120-25 (2) pays an administrative fee; and
120-26 (3) complies with education or other requirements
120-27 established by board rule. (V.A.C.S. Art. 249e, Sec. 13A.)
121-1 Sec. 1053.205. CONTINUING EDUCATION. (a) The board shall
121-2 require continuing education programs as a condition for renewal of
121-3 a certificate of registration.
121-4 (b) The continuing education programs may include courses
121-5 relating to:
121-6 (1) health, safety, or welfare; or
121-7 (2) barrier-free design.
121-8 (c) The board may recognize the continuing education
121-9 programs of:
121-10 (1) a nationally acknowledged organization involved in
121-11 providing, recording, or approving postgraduate education; and
121-12 (2) any other sponsoring organization or individual
121-13 whose presentation is approved by the board as qualifying in design
121-14 or construction health, safety, or welfare.
121-15 (d) A person is exempt from the continuing education
121-16 requirements of this section if the person is, as of September 1,
121-17 1999, engaged in teaching interior design as a full-time faculty
121-18 member or other permanent employee of an institution of higher
121-19 education, as defined by Section 61.003, Education Code. (V.A.C.S.
121-20 Art. 249a, Sec. 3(e) (part); Art. 249e, Sec. 14(f).)
121-21 (Sections 1053.206-1053.250 reserved for expansion)
121-22 SUBCHAPTER F. PROHIBITED PRACTICES AND
121-23 DISCIPLINARY PROCEDURES
121-24 Sec. 1053.251. DISCIPLINARY POWERS OF BOARD. (a) On a
121-25 determination that a ground for disciplinary action exists under
121-26 Section 1053.252, the board may:
121-27 (1) revoke or suspend a certification of registration;
122-1 (2) place on probation a person whose certificate of
122-2 registration has been suspended;
122-3 (3) reprimand the holder of a certificate of
122-4 registration; or
122-5 (4) impose an administrative penalty on a person under
122-6 Subchapter G.
122-7 (b) If the suspension of a person's certificate of
122-8 registration is probated, the board may require the person to:
122-9 (1) report regularly to the board on matters that are
122-10 the basis of the probation;
122-11 (2) limit practice to the areas prescribed by the
122-12 board; or
122-13 (3) continue or renew professional education until the
122-14 person attains a degree of skill satisfactory to the board in those
122-15 areas that are the basis of the probation.
122-16 (c) On a determination that a ground for disciplinary action
122-17 exists under Section 1053.252, the board shall deny registration of
122-18 an applicant. (V.A.C.S. Art. 249e, Secs. 5(b) (part), 15(a) (part),
122-19 (b), 17(a).)
122-20 Sec. 1053.252. GROUNDS FOR DISCIPLINARY ACTION. A person is
122-21 subject to disciplinary action under Section 1053.251 for:
122-22 (1) violating this chapter or a board rule adopted
122-23 under this chapter;
122-24 (2) being convicted of a felony or of a misdemeanor
122-25 involving moral turpitude;
122-26 (3) using fraud or deceit in obtaining or attempting
122-27 to obtain a certificate of registration;
123-1 (4) performing professional duties in a grossly
123-2 negligent manner;
123-3 (5) practicing in a manner detrimental to the public
123-4 health, safety, or welfare;
123-5 (6) advertising in a manner that tends to deceive or
123-6 defraud the public; or
123-7 (7) aiding or abetting any person not registered under
123-8 this chapter in violating this chapter. (V.A.C.S. Art. 249e, Secs.
123-9 5(b) (part), 15(a) (part).)
123-10 Sec. 1053.253. HEARING; APPEAL. (a) If the board proposes
123-11 to suspend or revoke a person's certificate of registration, the
123-12 person is entitled to a hearing. The board may employ a hearings
123-13 officer for this purpose.
123-14 (b) The board shall prescribe procedures by which a decision
123-15 to suspend or revoke a certificate of registration is made by or is
123-16 appealable to the board. (V.A.C.S. Art. 249e, Sec. 15(d).)
123-17 Sec. 1053.254. REINSTATEMENT. (a) A person whose
123-18 certificate of registration has been revoked or suspended or whose
123-19 application for issuance or renewal of a certificate of
123-20 registration has been denied may apply to the board for the
123-21 issuance or reinstatement of a certificate of registration after
123-22 the 180th day after the date of the revocation, suspension, or
123-23 denial.
123-24 (b) The board may issue or reinstate a certificate of
123-25 registration if the person:
123-26 (1) pays all fees and costs the board incurred as a
123-27 result of the case that led to the action at issue; and
124-1 (2) presents evidence to support the issuance or
124-2 reinstatement. (V.A.C.S. Art. 249e, Sec. 15(e).)
124-3 (Sections 1053.255-1053.300 reserved for expansion)
124-4 SUBCHAPTER G. ADMINISTRATIVE PENALTY
124-5 Sec. 1053.301. IMPOSITION OF ADMINISTRATIVE PENALTY. The
124-6 board may impose an administrative penalty on a person who engages
124-7 in conduct for which the person is subject to disciplinary action
124-8 under Subchapter F. (V.A.C.S. Art. 249e, Sec. 17(a).)
124-9 Sec. 1053.302. AMOUNT OF ADMINISTRATIVE PENALTY. In
124-10 determining the amount of an administrative penalty, the board
124-11 shall consider:
124-12 (1) the seriousness of the conduct that is the ground
124-13 for imposing the penalty, including:
124-14 (A) the nature, circumstances, extent, and
124-15 gravity of any relevant act or omission; and
124-16 (B) the hazard or potential hazard created to
124-17 the health or safety of the public;
124-18 (2) the economic damage to property caused by the
124-19 conduct;
124-20 (3) the history of previous grounds for imposing a
124-21 penalty on the person who engaged in the conduct;
124-22 (4) the amount necessary to deter future conduct that
124-23 is a ground for imposing a penalty;
124-24 (5) efforts to correct the conduct that is a ground
124-25 for imposing a penalty; and
124-26 (6) any other matter justice may require. (V.A.C.S.
124-27 Art. 249e, Sec. 17(g).)
125-1 Sec. 1053.303. REPORT AND NOTICE OF VIOLATION AND
125-2 ADMINISTRATIVE PENALTY. (a) If, after investigating the facts
125-3 surrounding an alleged ground for imposing an administrative
125-4 penalty, the executive director determines that a ground exists for
125-5 imposing an administrative penalty, the executive director may
125-6 issue a report stating:
125-7 (1) the facts on which the determination is based; and
125-8 (2) the executive director's recommendation on the
125-9 imposition of an administrative penalty, including a recommendation
125-10 on the amount of the penalty.
125-11 (b) The executive director shall base the recommended amount
125-12 of the penalty on the seriousness of the ground for imposing the
125-13 penalty after considering the factors listed in Section 1053.302.
125-14 (c) Not later than the 14th day after the date the report is
125-15 issued, the executive director shall give written notice of the
125-16 report to the person on whom the penalty may be imposed. The
125-17 notice must:
125-18 (1) include a brief summary of the charges;
125-19 (2) state the amount of the recommended penalty; and
125-20 (3) inform the person of the person's right to a
125-21 hearing on the occurrence of a ground for imposing the penalty, the
125-22 amount of the penalty, or both. (V.A.C.S. Art. 249e, Secs. 17(b),
125-23 (c).)
125-24 Sec. 1053.304. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
125-25 REQUESTED. (a) Not later than the 20th day after the date a person
125-26 receives notice under Section 1053.303(c), the person may:
125-27 (1) accept the executive director's determination,
126-1 including the recommended administrative penalty; or
126-2 (2) request a hearing on the determination.
126-3 (b) If the person accepts the executive director's
126-4 determination, the board by order shall approve the determination
126-5 and impose the recommended penalty. (V.A.C.S. Art. 249e, Secs.
126-6 17(d), (e).)
126-7 Sec. 1053.305. HEARING. (a) If the person requests a
126-8 hearing or fails to respond timely to the notice under Section
126-9 1053.303(c), the board shall set a hearing and give notice of the
126-10 hearing to the person.
126-11 (b) A proceeding under this section relating to an interior
126-12 designer is subject to Chapter 2001, Government Code. (V.A.C.S.
126-13 Art. 249e, Sec. 17(f).)
126-14 Sec. 1053.306. NOTICE OF BOARD ORDER. The executive director
126-15 shall give notice of the board's order to the person on whom the
126-16 penalty is imposed. The notice must include:
126-17 (1) the findings of fact and conclusions of law,
126-18 separately stated;
126-19 (2) the amount of the administrative penalty ordered,
126-20 if any;
126-21 (3) a statement of the right of the person on whom the
126-22 penalty is imposed to judicial review of the board's order; and
126-23 (4) other information required by law. (V.A.C.S.
126-24 Art. 249e, Sec. 17(h).)
126-25 Sec. 1053.307. OPTIONS FOLLOWING BOARD ORDER: PAY OR
126-26 APPEAL. (a) If the person is an interior designer, the board's
126-27 order becomes final as provided by Section 2001.144, Government
127-1 Code. If the person does not hold a certificate of registration
127-2 issued by the board, the board's order becomes final on the 20th
127-3 day after the date the order is issued.
127-4 (b) Not later than the 30th day after the date the board's
127-5 order becomes final, the person shall:
127-6 (1) pay the administrative penalty in full; or
127-7 (2) file a petition for judicial review contesting the
127-8 occurrence of the ground for imposing the penalty, the amount of
127-9 the penalty, or both.
127-10 (c) Within the period prescribed by Subsection (b), a person
127-11 who acts under Subsection (b)(2) shall:
127-12 (1) pay the penalty to the board for placement in an
127-13 escrow account;
127-14 (2) post with the board a supersedeas bond that is in
127-15 a form approved by the board for the amount of the penalty and that
127-16 is effective until judicial review of the board's order is final;
127-17 or
127-18 (3) file with the board an affidavit of the person
127-19 stating that the person is financially unable to pay the penalty
127-20 and is financially unable to post the bond. (V.A.C.S. Art. 249e,
127-21 Secs. 17(i), (j).)
127-22 Sec. 1053.308. COLLECTION OF ADMINISTRATIVE PENALTY. If the
127-23 person on whom an administrative penalty is imposed does not meet
127-24 the requirements of Section 1053.307, the board may refer the
127-25 matter to the attorney general for enforcement. (V.A.C.S.
127-26 Art. 249e, Sec. 17(k).)
127-27 Sec. 1053.309. JUDICIAL REVIEW. Judicial review of the order
128-1 of the board imposing an administrative penalty is under the
128-2 substantial evidence rule and is instituted by filing a petition
128-3 with a district court in Travis County, as provided by Subchapter
128-4 G, Chapter 2001, Government Code. (V.A.C.S. Art. 249e, Sec.
128-5 17(l).)
128-6 Sec. 1053.310. REMITTANCE OF ADMINISTRATIVE PENALTY AND
128-7 INTEREST. (a) If, after judicial review, the administrative
128-8 penalty is reduced or not imposed by the court, the board shall:
128-9 (1) remit the appropriate amount plus accrued interest
128-10 to the person on whom the penalty is imposed, if the person paid
128-11 the penalty; or
128-12 (2) execute a release of the bond, if the person
128-13 posted a supersedeas bond.
128-14 (b) The interest remitted under Subsection (a)(1) is at the
128-15 rate charged on loans to depository institutions by the New York
128-16 Federal Reserve Bank. The interest shall be paid for the period
128-17 beginning on the date the penalty is paid and ending on the date
128-18 the penalty is remitted. (V.A.C.S. Art. 249e, Sec. 17(m).)
128-19 (Sections 1053.311-1053.350 reserved for expansion)
128-20 SUBCHAPTER H. OTHER PENALTIES
128-21 Sec. 1053.351. CRIMINAL PENALTY. (a) A person commits an
128-22 offense if the person knowingly violates Section 1053.151 or a
128-23 standard of conduct adopted under this chapter.
128-24 (b) An offense under this section is a Class C misdemeanor.
128-25 (V.A.C.S. Art. 249e, Sec. 16.)
128-26 (Chapters 1054-1070 reserved for expansion)
128-27 SUBTITLE C. REGULATION OF LAND SURVEYING AND RELATED PRACTICES
129-1 CHAPTER 1071. LAND SURVEYORS
129-2 SUBCHAPTER A. GENERAL PROVISIONS
129-3 Sec. 1071.001. SHORT TITLE
129-4 Sec. 1071.002. DEFINITIONS
129-5 Sec. 1071.003. APPLICATION OF SUNSET ACT
129-6 Sec. 1071.004. APPLICATION OF CHAPTER
129-7 (Sections 1071.005-1071.050 reserved for expansion)
129-8 SUBCHAPTER B. TEXAS BOARD OF PROFESSIONAL LAND SURVEYING
129-9 Sec. 1071.051. BOARD MEMBERSHIP
129-10 Sec. 1071.052. ELIGIBILITY OF PUBLIC MEMBERS
129-11 Sec. 1071.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
129-12 Sec. 1071.054. TERMS; OATH; VACANCY
129-13 Sec. 1071.055. OFFICERS
129-14 Sec. 1071.056. GROUNDS FOR REMOVAL
129-15 Sec. 1071.057. PER DIEM; REIMBURSEMENT
129-16 Sec. 1071.058. MEETINGS
129-17 (Sections 1071.059-1071.100 reserved for expansion)
129-18 SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
129-19 Sec. 1071.101. EXECUTIVE DIRECTOR; BOND
129-20 Sec. 1071.102. PERSONNEL
129-21 Sec. 1071.103. DIVISION OF RESPONSIBILITIES
129-22 Sec. 1071.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
129-23 INFORMATION
129-24 Sec. 1071.105. CAREER LADDER PROGRAM; PERFORMANCE
129-25 EVALUATIONS
129-26 Sec. 1071.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
129-27 (Sections 1071.107-1071.150 reserved for expansion)
130-1 SUBCHAPTER D. POWERS AND DUTIES OF BOARD
130-2 Sec. 1071.151. RULEMAKING AUTHORITY
130-3 Sec. 1071.152. RECEIPT OF FEES; PAYMENT OF ADMINISTRATIVE
130-4 COSTS
130-5 Sec. 1071.153. OFFICE SPACE
130-6 Sec. 1071.154. SURVEYOR ROSTER; INFORMATION PROVIDED TO
130-7 SURVEYORS
130-8 Sec. 1071.155. BOARD RECORDS
130-9 Sec. 1071.156. REPRESENTATION OF BOARD AT CERTAIN MEETINGS
130-10 Sec. 1071.157. RULES RESTRICTING ADVERTISING OR COMPETITIVE
130-11 BIDDING
130-12 (Sections 1071.158-1071.200 reserved for expansion)
130-13 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
130-14 COMPLAINT PROCEDURES
130-15 Sec. 1071.201. PUBLIC INTEREST INFORMATION
130-16 Sec. 1071.202. PUBLIC PARTICIPATION
130-17 Sec. 1071.203. COMPLAINTS
130-18 Sec. 1071.204. RECORDS OF COMPLAINTS
130-19 (Sections 1071.205-1071.250 reserved for expansion)
130-20 SUBCHAPTER F. REGISTRATION, LICENSING,
130-21 AND CERTIFICATION REQUIREMENTS
130-22 Sec. 1071.251. REGISTRATION, LICENSE, OR CERTIFICATE
130-23 REQUIRED
130-24 Sec. 1071.252. APPLICATION REQUIREMENTS
130-25 Sec. 1071.253. SURVEYOR-IN-TRAINING CERTIFICATE
130-26 Sec. 1071.254. QUALIFICATIONS FOR REGISTRATION AS
130-27 REGISTERED PROFESSIONAL LAND SURVEYOR
131-1 Sec. 1071.255. QUALIFICATIONS FOR LICENSING AS LICENSED
131-2 STATE LAND SURVEYOR; OATH
131-3 Sec. 1071.256. EXAMINATION
131-4 Sec. 1071.257. EXAMINATION RESULTS
131-5 Sec. 1071.258. REEXAMINATION; FEE
131-6 Sec. 1071.259. REGISTRATION OF OUT-OF-STATE SURVEYORS
131-7 Sec. 1071.260. REGISTRATION NUMBER; FORM OF CERTIFICATE
131-8 OR LICENSE
131-9 Sec. 1071.261. DISPLAY OF CERTIFICATE AND LICENSE
131-10 Sec. 1071.262. REPLACEMENT OF REVOKED, LOST, OR DESTROYED
131-11 CERTIFICATE OR LICENSE
131-12 Sec. 1071.263. INACTIVE STATUS
131-13 (Sections 1071.264-1071.300 reserved for expansion)
131-14 SUBCHAPTER G. RENEWAL OF REGISTRATION AND LICENSE
131-15 Sec. 1071.301. ANNUAL RENEWAL REQUIRED
131-16 Sec. 1071.302. NOTICE OF EXPIRATION
131-17 Sec. 1071.303. PROCEDURE FOR RENEWAL
131-18 Sec. 1071.304. NOTICE OF FAILURE TO RENEW STATE LAND
131-19 SURVEYOR LICENSE
131-20 Sec. 1071.305. CONTINUING PROFESSIONAL EDUCATION
131-21 (Sections 1071.306-1071.350 reserved for expansion)
131-22 SUBCHAPTER H. PRACTICE OF LAND SURVEYING
131-23 Sec. 1071.351. PERFORMANCE OF LAND SURVEYING; OFFICIAL
131-24 SEAL
131-25 Sec. 1071.352. SURVEYING BY BUSINESS ENTITY
131-26 Sec. 1071.353. PRACTICE UNDER ASSUMED NAME
131-27 Sec. 1071.354. JURISDICTION OF LICENSED STATE LAND
132-1 SURVEYORS
132-2 Sec. 1071.355. LICENSED STATE LAND SURVEYOR AS AGENT
132-3 OF STATE
132-4 Sec. 1071.356. RESIGNATION OF LICENSED STATE LAND
132-5 SURVEYOR
132-6 Sec. 1071.357. COUNTY SURVEYORS
132-7 Sec. 1071.358. COURT ORDER FOR PERMISSION TO CROSS LAND
132-8 Sec. 1071.359. LICENSED STATE LAND SURVEYOR FIELD NOTES
132-9 Sec. 1071.360. DISCOVERY OF UNDISCLOSED LAND
132-10 Sec. 1071.361. ACCESS TO COUNTY SURVEYOR RECORDS
132-11 (Sections 1071.362-1071.400 reserved for expansion)
132-12 SUBCHAPTER I. DISCIPLINARY PROCEDURES
132-13 Sec. 1071.401. DISCIPLINARY POWERS OF BOARD
132-14 Sec. 1071.402. DISCIPLINARY PROCEEDINGS
132-15 Sec. 1071.403. RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE
132-16 Sec. 1071.404. PROBATION
132-17 Sec. 1071.405. REISSUANCE OF CERTIFICATE OR LICENSE
132-18 (Sections 1071.406-1071.450 reserved for expansion)
132-19 SUBCHAPTER J. ADMINISTRATIVE PENALTY
132-20 Sec. 1071.451. IMPOSITION OF PENALTY
132-21 Sec. 1071.452. AMOUNT OF PENALTY
132-22 Sec. 1071.453. REPORT AND NOTICE OF VIOLATION AND PENALTY
132-23 Sec. 1071.454. PENALTY TO BE PAID OR HEARING REQUESTED
132-24 Sec. 1071.455. HEARING ON RECOMMENDATIONS
132-25 Sec. 1071.456. NOTICE OF DECISION BY BOARD
132-26 Sec. 1071.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
132-27 Sec. 1071.458. ENFORCEMENT OF PENALTY
133-1 Sec. 1071.459. REMITTANCE OF PENALTY AND INTEREST
133-2 (Sections 1071.460-1071.500 reserved for expansion)
133-3 SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
133-4 Sec. 1071.501. INJUNCTION
133-5 Sec. 1071.502. ENFORCEMENT BY ATTORNEY GENERAL
133-6 Sec. 1071.503. CIVIL PENALTY
133-7 Sec. 1071.504. CRIMINAL PENALTY
133-8 CHAPTER 1071. LAND SURVEYORS
133-9 SUBCHAPTER A. GENERAL PROVISIONS
133-10 Sec. 1071.001. SHORT TITLE. This chapter may be cited as the
133-11 Professional Land Surveying Practices Act. (V.A.C.S. Art. 5282c,
133-12 Sec. 1.)
133-13 Sec. 1071.002. DEFINITIONS. In this chapter:
133-14 (1) "Board" means the Texas Board of Professional Land
133-15 Surveying.
133-16 (2) "Commissioner" means the commissioner of the
133-17 General Land Office.
133-18 (3) "Delegated responsible charge" means the direct
133-19 control of professional surveying work performed under the
133-20 supervision of a registered professional land surveyor.
133-21 (4) "Land surveyor" means a registered professional
133-22 land surveyor or licensed state land surveyor.
133-23 (5) "Licensed state land surveyor" means a surveyor
133-24 licensed by the board to survey land in which the state or the
133-25 permanent school fund has an interest or perform other original
133-26 surveys for the purpose of filing field notes in the General Land
133-27 Office.
134-1 (6) "Professional surveying" means the practice of
134-2 land, boundary, or property surveying or other similar professional
134-3 practices. The term includes:
134-4 (A) performing any service or work the adequate
134-5 performance of which involves applying special knowledge of the
134-6 principles of geodesy, mathematics, related applied and physical
134-7 sciences, and relevant laws to the measurement or location of
134-8 sites, points, lines, angles, elevations, natural features, and
134-9 existing man-made works in the air, on the earth's surface, within
134-10 underground workings, and on the beds of bodies of water to
134-11 determine areas and volumes for:
134-12 (i) locating real property boundaries;
134-13 (ii) platting and laying out land and
134-14 subdivisions of land; or
134-15 (iii) preparing and perpetuating maps,
134-16 record plats, field note records, easements, and real property
134-17 descriptions that represent those surveys; and
134-18 (B) consulting, investigating, evaluating,
134-19 analyzing, planning, providing an expert surveying opinion or
134-20 testimony, and mapping to the extent those acts are performed in
134-21 connection with acts described by Paragraph (A).
134-22 (7) "Registered professional land surveyor" means a
134-23 person registered by the board as a registered professional land
134-24 surveyor.
134-25 (8) "State land surveying" means the science or
134-26 practice of land measurement according to established and
134-27 recognized methods engaged in as a profession or service for the
135-1 public for compensation and consisting of the following activities
135-2 conducted when the resulting field notes or maps are to be filed
135-3 with the General Land Office:
135-4 (A) determining by survey the location or
135-5 relocation of original land grant boundaries and corners;
135-6 (B) calculating area and preparing field note
135-7 descriptions of surveyed and unsurveyed land or land in which the
135-8 state or the permanent school fund has an interest; and
135-9 (C) preparing maps showing the survey results.
135-10 (V.A.C.S. Art. 5282c, Secs. 2(1), (2), (3), (4) (part), (5), (6),
135-11 (9), (10).)
135-12 Sec. 1071.003. APPLICATION OF SUNSET ACT. The Texas Board of
135-13 Professional Land Surveying is subject to Chapter 325, Government
135-14 Code (Texas Sunset Act). Unless continued in existence as provided
135-15 by that chapter, the board is abolished and this chapter expires
135-16 September 1, 2003. (V.A.C.S. Art. 5282c, Sec. 5.)
135-17 Sec. 1071.004. APPLICATION OF CHAPTER. This chapter does not
135-18 require the use of a registered professional land surveyor to
135-19 establish an easement or a construction estimate that does not
135-20 involve the monumentation, delineation, or preparation of a metes
135-21 and bounds description. (V.A.C.S. Art. 5282c, Sec. 3A.)
135-22 (Sections 1071.005-1071.050 reserved for expansion)
135-23 SUBCHAPTER B. TEXAS BOARD OF PROFESSIONAL LAND SURVEYING
135-24 Sec. 1071.051. BOARD MEMBERSHIP. (a) The Texas Board of
135-25 Professional Land Surveying consists of 10 members as follows:
135-26 (1) the commissioner;
135-27 (2) two licensed state land surveyor members actively
136-1 engaged in the practice of state land surveying for not less than
136-2 the five years preceding appointment;
136-3 (3) four registered professional land surveyor members
136-4 actively engaged in the practice of professional surveying in this
136-5 state for not less than the five years preceding appointment; and
136-6 (4) three members who represent the public.
136-7 (b) The members of the board other than the commissioner are
136-8 appointed by the governor with the advice and consent of the
136-9 senate. The governor shall appoint the licensed state land
136-10 surveyor board members on the recommendation of the commissioner.
136-11 (c) A board member must be a United States citizen.
136-12 (d) If the commissioner is absent, the commissioner's duties
136-13 as a board member shall be performed by:
136-14 (1) the chief clerk of the General Land Office
136-15 appointed by the commissioner to perform any of the commissioner's
136-16 duties if the commissioner is sick, is absent, dies, or resigns; or
136-17 (2) a licensed state land surveyor employee of the
136-18 General Land Office designated by the commissioner to serve as
136-19 director of surveying for the office.
136-20 (e) A registered professional land surveyor board member may
136-21 not be licensed as a licensed state land surveyor.
136-22 (f) For purposes of the experience required for appointment
136-23 as a registered professional land surveyor board member, the
136-24 teaching of surveying in a recognized school of engineering or
136-25 surveying may be regarded as the practice of professional land
136-26 surveying.
136-27 (g) Appointments to the board shall be made without regard
137-1 to the race, creed, sex, religion, or national origin of the
137-2 appointee. (V.A.C.S. Art. 5282c, Secs. 2(7), 6(a), (b), (c)
137-3 (part), (d), (e) (part), (f) (part).)
137-4 Sec. 1071.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is
137-5 not eligible for appointment as a public member of the board if the
137-6 person or the person's spouse:
137-7 (1) is registered, certified, or licensed by an
137-8 occupational regulatory agency in the field of surveying;
137-9 (2) is employed by or participates in the management
137-10 of a business entity or other organization regulated by or
137-11 receiving funds from the board;
137-12 (3) owns or controls, directly or indirectly, more
137-13 than a 10 percent interest in a business entity or other
137-14 organization regulated by or receiving funds from the board; or
137-15 (4) uses or receives a substantial amount of tangible
137-16 goods, services, or funds from the board, other than compensation
137-17 or reimbursement authorized by law for board membership,
137-18 attendance, or expenses. (V.A.C.S. Art. 5282c, Sec. 6(e) (part).)
137-19 Sec. 1071.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
137-20 this section, "Texas trade association" means a nonprofit,
137-21 cooperative, and voluntarily joined association of business or
137-22 professional competitors in this state designed to assist its
137-23 members and its industry or profession in dealing with mutual
137-24 business or professional problems and in promoting their common
137-25 interest.
137-26 (b) An officer, employee, or paid consultant of a Texas
137-27 trade association in the field of surveying may not be a board
138-1 member or an employee of the board who is exempt from the state's
138-2 position classification plan or is compensated at or above the
138-3 amount prescribed by the General Appropriations Act for step 1,
138-4 salary group A17, of the position classification salary schedule.
138-5 (c) A person who is the spouse of an officer, manager, or
138-6 paid consultant of a Texas trade association in the field of
138-7 surveying may not be a board member or an employee of the board who
138-8 is exempt from the state's position classification plan or is
138-9 compensated at or above the amount prescribed by the General
138-10 Appropriations Act for step 1, salary group A17, of the position
138-11 classification salary schedule.
138-12 (d) A person may not serve as a member of the board or act
138-13 as the general counsel to the board if the person is required to
138-14 register as a lobbyist under Chapter 305, Government Code, because
138-15 of the person's activities for compensation on behalf of a
138-16 profession related to the operation of the board. (V.A.C.S.
138-17 Art. 5282c, Secs. 7(a), (b), (c) (part), (d).)
138-18 Sec. 1071.054. TERMS; OATH; VACANCY. (a) Members of the
138-19 board appointed by the governor serve staggered six-year terms,
138-20 with the terms of one-third of those members expiring on January 31
138-21 of each odd-numbered year.
138-22 (b) A board member appointed by the governor may not serve
138-23 more than two consecutive terms.
138-24 (c) Before assuming the duties of office, each board member
138-25 shall file with the secretary of state a copy of the constitutional
138-26 oath of office taken by the member.
138-27 (d) A vacancy on the board is filled by appointment by the
139-1 governor in the manner provided by Section 1071.051 for the
139-2 unexpired term. (V.A.C.S. Art. 5282c, Sec. 6(f) (part).)
139-3 Sec. 1071.055. OFFICERS. (a) The governor shall designate
139-4 one board member as the board's presiding officer to serve in that
139-5 capacity at the pleasure of the governor.
139-6 (b) The board shall elect a member as assistant presiding
139-7 officer at the first board meeting held after February 10 of each
139-8 odd-numbered year. (V.A.C.S. Art. 5282c, Sec. 8(a) (part).)
139-9 Sec. 1071.056. GROUNDS FOR REMOVAL. (a) It is a ground for
139-10 removal from the board that a member:
139-11 (1) does not have at the time of appointment the
139-12 qualifications required by Sections 1071.051 and 1071.052;
139-13 (2) does not maintain during service on the board the
139-14 qualifications required by Sections 1071.051 and 1071.052;
139-15 (3) violates a prohibition established by Section
139-16 1071.053;
139-17 (4) cannot, because of illness or disability,
139-18 discharge the member's duties for a substantial part of the
139-19 member's term; or
139-20 (5) is absent from more than half of the regularly
139-21 scheduled board meetings that the member is eligible to attend
139-22 during a calendar year unless the absence is excused by majority
139-23 vote of the board.
139-24 (b) The validity of an action of the board is not affected
139-25 by the fact that the action is taken when a ground for removal of
139-26 a board member exists.
139-27 (c) If the executive director has knowledge that a potential
140-1 ground for removal exists, the executive director shall notify the
140-2 presiding officer of the board of the potential ground. The
140-3 presiding officer shall then notify the governor that a potential
140-4 ground for removal exists. (V.A.C.S. Art. 5282c, Secs. 8(b), (c),
140-5 (d).)
140-6 Sec. 1071.057. PER DIEM; REIMBURSEMENT. (a) Each board
140-7 member other than the commissioner is entitled to receive a per
140-8 diem allowance as set by the legislature for each day that the
140-9 member engages in official board duties, including time spent in
140-10 necessary travel.
140-11 (b) Each board member other than the commissioner is
140-12 entitled to reimbursement for all legitimate expenses incurred in
140-13 performing the member's duties. (V.A.C.S. Art. 5282c, Sec. 10
140-14 (part).)
140-15 Sec. 1071.058. MEETINGS. (a) The board shall hold meetings
140-16 at least twice each year at times and places determined by the
140-17 board to transact business and examine approved applicants for:
140-18 (1) certification as a surveyor-in-training;
140-19 (2) registration as a registered professional land
140-20 surveyor; or
140-21 (3) licensing as a licensed state land surveyor.
140-22 (b) The board shall hold regular and special meetings at the
140-23 times determined by the board. A special meeting may be called by
140-24 the presiding officer or by the assistant presiding officer if the
140-25 presiding officer is out of the state or unable to act. (V.A.C.S.
140-26 Art. 5282c, Sec. 8(a) (part).)
140-27 (Sections 1071.059-1071.100 reserved for expansion)
141-1 SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
141-2 Sec. 1071.101. EXECUTIVE DIRECTOR; BOND. (a) The board
141-3 shall employ an executive director to conduct the administrative
141-4 affairs of the board under the board's direction. The executive
141-5 director serves at the pleasure of the board.
141-6 (b) The executive director shall file with the comptroller a
141-7 bond in an amount equal to at least $2,500. (V.A.C.S. Art. 5282c,
141-8 Secs. 8(a) (part), 9(g) (part).)
141-9 Sec. 1071.102. PERSONNEL. (a) The board shall employ or
141-10 retain persons as necessary to properly perform the board's work
141-11 under this chapter, including investigative services.
141-12 (b) The board may accept services necessary to perform the
141-13 board's work under this chapter that are provided by private
141-14 sources at no cost to the board.
141-15 (c) Compensation paid by the board under this chapter may
141-16 not exceed compensation paid for similar work in other state
141-17 agencies. (V.A.C.S. Art. 5282c, Sec. 9(g) (part).)
141-18 Sec. 1071.103. DIVISION OF RESPONSIBILITIES. The board shall
141-19 develop and implement policies that clearly define the respective
141-20 responsibilities of the board and the staff of the board. (V.A.C.S.
141-21 Art. 5282c, Sec. 9(g) (part).)
141-22 Sec. 1071.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
141-23 INFORMATION. The board shall provide, as often as necessary, to its
141-24 members and employees information regarding their:
141-25 (1) qualifications for office or employment under this
141-26 chapter; and
141-27 (2) responsibilities under applicable laws relating to
142-1 standards of conduct for state officers or employees. (V.A.C.S.
142-2 Art. 5282c, Sec. 9(g) (part).)
142-3 Sec. 1071.105. CAREER LADDER PROGRAM; PERFORMANCE
142-4 EVALUATIONS. (a) The executive director or the executive
142-5 director's designee shall develop an intra-agency career ladder
142-6 program. The program must require intra-agency posting of all
142-7 nonentry level positions concurrently with any public posting.
142-8 (b) The executive director or the executive director's
142-9 designee shall develop a system of annual performance evaluations.
142-10 All merit pay for board employees must be based on the system
142-11 established under this subsection. (V.A.C.S. Art. 5282c, Secs.
142-12 11A(a), (b).)
142-13 Sec. 1071.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
142-14 (a) The executive director or the executive director's designee
142-15 shall prepare and maintain a written policy statement to ensure
142-16 implementation of an equal employment opportunity program under
142-17 which all personnel transactions are made without regard to race,
142-18 color, disability, sex, religion, age, or national origin. The
142-19 policy statement must include:
142-20 (1) personnel policies, including policies relating to
142-21 recruitment, evaluation, selection, appointment, training, and
142-22 promotion of personnel;
142-23 (2) a comprehensive analysis of the board workforce
142-24 that meets federal and state guidelines;
142-25 (3) procedures by which a determination can be made of
142-26 significant underuse in the board workforce of all persons for whom
142-27 federal or state guidelines encourage a more equitable balance; and
143-1 (4) reasonable methods to appropriately address those
143-2 areas of significant underuse.
143-3 (b) A policy statement prepared under Subsection (a) must:
143-4 (1) cover an annual period;
143-5 (2) be updated at least annually; and
143-6 (3) be filed with the governor.
143-7 (c) The governor shall deliver a biennial report to the
143-8 legislature based on information received under Subsection (b). The
143-9 report may be made separately or as part of other biennial reports
143-10 made to the legislature. (V.A.C.S. Art. 5282c, Secs. 11A(c), (d),
143-11 (e).)
143-12 (Sections 1071.107-1071.150 reserved for expansion)
143-13 SUBCHAPTER D. POWERS AND DUTIES OF BOARD
143-14 Sec. 1071.151. RULEMAKING AUTHORITY. (a) The board may
143-15 adopt and enforce reasonable and necessary rules and bylaws to
143-16 perform its duties under this chapter and to establish standards of
143-17 conduct and ethics for land surveyors.
143-18 (b) The board by rule shall prescribe the minimum standards
143-19 for professional surveying. (V.A.C.S. Art. 5282c, Sec. 9(a)
143-20 (part).)
143-21 Sec. 1071.152. RECEIPT OF FEES; PAYMENT OF ADMINISTRATIVE
143-22 COSTS. (a) The executive director shall receive and account for
143-23 fees received under this chapter.
143-24 (b) General revenue of the state may not be used to pay the
143-25 costs of administering this chapter in an amount that exceeds the
143-26 amount of fees received under this chapter. (V.A.C.S. Art. 5282c,
143-27 Sec. 13 (part).)
144-1 Sec. 1071.153. OFFICE SPACE. The board shall arrange for
144-2 suitable office space and equipment as the board determines to be
144-3 necessary. The rental of office space and cost of equipment are
144-4 considered administrative expenses of the board. (V.A.C.S.
144-5 Art. 5282c, Sec. 9(h).)
144-6 Sec. 1071.154. SURVEYOR ROSTER; INFORMATION PROVIDED TO
144-7 SURVEYORS. (a) The board shall publish annually, at a time
144-8 determined by the board:
144-9 (1) a roster containing the name and place of business
144-10 of each land surveyor;
144-11 (2) the rules adopted by the board; and
144-12 (3) a copy of this chapter.
144-13 (b) The board shall charge a fee in an amount reasonable and
144-14 necessary to cover the costs of reproducing and mailing a copy of
144-15 the roster to a person who requests a copy.
144-16 (c) The board shall send annually to each land surveyor a
144-17 copy of this chapter and of the board's rules. (V.A.C.S.
144-18 Art. 5282c, Secs. 9(c), (d).)
144-19 Sec. 1071.155. BOARD RECORDS. (a) The board shall maintain
144-20 a record of its proceedings, including a record of money received
144-21 and spent by the board and a register of each applicant for
144-22 registration or licensing. The record shall be open for public
144-23 inspection at all reasonable times.
144-24 (b) The register must include:
144-25 (1) the name, age, and place of residence of the
144-26 applicant;
144-27 (2) the application date;
145-1 (3) the applicant's place of business;
145-2 (4) the applicant's qualifications;
145-3 (5) if the application is rejected, the reasons for
145-4 the rejection;
145-5 (6) the date and result of each examination;
145-6 (7) the date and number of any certificate of
145-7 registration or license issued; and
145-8 (8) any other information the board determines
145-9 necessary. (V.A.C.S. Art. 5282c, Sec. 11.)
145-10 Sec. 1071.156. REPRESENTATION OF BOARD AT CERTAIN MEETINGS.
145-11 The board's general counsel and board members may appear and
145-12 represent the board at committee meetings and other formal meetings
145-13 within the legislative or executive branch. (V.A.C.S. Art. 5282c,
145-14 Sec. 7(c) (part).)
145-15 Sec. 1071.157. RULES RESTRICTING ADVERTISING OR COMPETITIVE
145-16 BIDDING. (a) The board by rule shall prescribe standards for
145-17 compliance with Subchapter A, Chapter 2254, Government Code.
145-18 (b) Except as provided by Subsection (a), the board may not
145-19 adopt rules restricting advertising or competitive bidding by a
145-20 person regulated by the board except to prohibit false, misleading,
145-21 or deceptive practices by that person.
145-22 (c) The board may not include in its rules to prohibit
145-23 false, misleading, or deceptive practices by a person regulated by
145-24 the board a rule that:
145-25 (1) restricts the use of any advertising medium;
145-26 (2) restricts the person's personal appearance or use
145-27 of the person's voice in an advertisement;
146-1 (3) relates to the size or duration of an
146-2 advertisement by the person; or
146-3 (4) restricts the person's advertisement under a trade
146-4 name. (V.A.C.S. Art. 5282c, Sec. 9(a) (part).)
146-5 (Sections 1071.158-1071.200 reserved for expansion)
146-6 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
146-7 COMPLAINT PROCEDURES
146-8 Sec. 1071.201. PUBLIC INTEREST INFORMATION. (a) The board
146-9 shall prepare information of public interest describing the
146-10 functions of the board and the procedures by which complaints are
146-11 filed with and resolved by the board.
146-12 (b) The board shall make the information available to the
146-13 public and appropriate state agencies. (V.A.C.S. Art. 5282c, Sec.
146-14 9(f).)
146-15 Sec. 1071.202. PUBLIC PARTICIPATION. The board shall develop
146-16 and implement policies that provide the public with a reasonable
146-17 opportunity to appear before the board and to speak on any issue
146-18 under the board's jurisdiction. (V.A.C.S. Art. 5282c, Sec. 9(i).)
146-19 Sec. 1071.203. COMPLAINTS. (a) Any person may file a
146-20 complaint with the board regarding a violation of this chapter or a
146-21 board rule.
146-22 (b) The board by rule shall establish methods by which
146-23 consumers and service recipients are notified of the name, mailing
146-24 address, and telephone number of the board for the purpose of
146-25 directing complaints to the board. The board may provide for that
146-26 notice:
146-27 (1) on each registration form, application, or written
147-1 contract for services of a person regulated under this chapter;
147-2 (2) on a sign prominently displayed in the place of
147-3 business of each person regulated under this chapter; or
147-4 (3) in a bill for services provided by a person
147-5 regulated under this chapter. (V.A.C.S. Art. 5282c, Secs. 24(a)
147-6 (part); 29(a).)
147-7 Sec. 1071.204. RECORDS OF COMPLAINTS. (a) The board shall
147-8 keep an information file about each complaint filed with the board
147-9 that the board has authority to resolve.
147-10 (b) If a written complaint that the board has authority to
147-11 resolve is filed with the board, the board, at least quarterly and
147-12 until final disposition of the complaint, shall notify the parties
147-13 to the complaint of the status of the complaint unless the notice
147-14 would jeopardize an undercover investigation. (V.A.C.S. Art. 5282c,
147-15 Secs. 29(b), (c).)
147-16 (Sections 1071.205-1071.250 reserved for expansion)
147-17 SUBCHAPTER F. REGISTRATION, LICENSING,
147-18 AND CERTIFICATION REQUIREMENTS
147-19 Sec. 1071.251. REGISTRATION, LICENSE, OR CERTIFICATE
147-20 REQUIRED. (a) In this section, "offer to practice" means to
147-21 represent by verbal claim, sign, letterhead, card, or other method
147-22 that a person is registered or licensed to perform professional
147-23 surveying in this state.
147-24 (b) A person may not engage in the practice of professional
147-25 surveying unless the person is registered, licensed, or certified
147-26 as provided by this chapter.
147-27 (c) A person may not offer to practice professional
148-1 surveying in this state unless the person is registered or licensed
148-2 as provided by this chapter.
148-3 (d) A person may not use in connection with the person's
148-4 name or use or advertise a title or description that tends to
148-5 convey the impression that the person is a professional land
148-6 surveyor unless the person is registered or licensed under this
148-7 chapter. (V.A.C.S. Art. 5282c, Secs. 2(11); 3 (part); 15(a).)
148-8 Sec. 1071.252. APPLICATION REQUIREMENTS. (a) An applicant
148-9 for certification as a surveyor-in-training, registration as a
148-10 registered professional land surveyor, or licensing as a licensed
148-11 state land surveyor must file a written application with the board
148-12 accompanied by an application fee in an amount determined by the
148-13 board.
148-14 (b) An application must be made on a form prescribed and
148-15 furnished by the board and contain statements made under oath that
148-16 show the applicant's education and experience. The application
148-17 must contain a detailed summary of the applicant's education and
148-18 experience and references from at least three registered
148-19 professional land surveyors having personal knowledge of the
148-20 applicant's surveying experience.
148-21 (c) After the board determines that the applicant is
148-22 qualified to take the appropriate section of the examination under
148-23 Section 1071.256, the board shall set the examination section the
148-24 applicant is approved to take and notify the applicant of the
148-25 examination section and of the time and place of the examination.
148-26 The applicant may take the examination section on payment of an
148-27 examination fee in an amount determined by the board. (V.A.C.S.
149-1 Art. 5282c, Secs. 16(a), (b).)
149-2 Sec. 1071.253. SURVEYOR-IN-TRAINING CERTIFICATE. (a) An
149-3 applicant for a surveyor-in-training certificate must:
149-4 (1) have earned a bachelor of science degree in
149-5 surveying from an accredited institution of higher education;
149-6 (2) have:
149-7 (A) earned a bachelor's degree from an
149-8 accredited institution of higher education that included at least
149-9 32 semester hours in a combination of courses acceptable to the
149-10 board in:
149-11 (i) civil engineering;
149-12 (ii) land surveying;
149-13 (iii) mathematics;
149-14 (iv) photogrammetry;
149-15 (v) forestry;
149-16 (vi) land law; or
149-17 (vii) the physical sciences; and
149-18 (B) completed at least one year of experience
149-19 acceptable to the board in delegated responsible charge as a
149-20 subordinate to a registered professional land surveyor actively
149-21 engaged in professional surveying;
149-22 (3) have:
149-23 (A) earned an associate degree in surveying from
149-24 an accredited institution of higher education; and
149-25 (B) completed at least two years of experience
149-26 acceptable to the board in delegated responsible charge as a
149-27 subordinate to a registered professional land surveyor actively
150-1 engaged in professional surveying;
150-2 (4) have:
150-3 (A) successfully completed a course of
150-4 instruction consisting of 32 semester hours in land surveying or
150-5 the equivalent number of semester hours in board-approved courses
150-6 related to surveying; and
150-7 (B) completed at least two years of experience
150-8 acceptable to the board in delegated responsible charge as a
150-9 subordinate to a registered professional land surveyor actively
150-10 engaged in professional surveying; or
150-11 (5) have:
150-12 (A) graduated from an accredited high school;
150-13 (B) completed at least four years of experience
150-14 acceptable to the board in delegated responsible charge as a
150-15 subordinate to a registered professional land surveyor actively
150-16 engaged in professional surveying; and
150-17 (C) provided evidence satisfactory to the board
150-18 that the applicant is self-educated in professional surveying.
150-19 (b) On proof that an applicant has the qualifications
150-20 required by Subsection (a), the board shall allow the applicant to
150-21 take an examination consisting of parts of the examination under
150-22 Section 1071.256, the contents of which are as determined or
150-23 approved by the board.
150-24 (c) The board shall issue a surveyor-in-training certificate
150-25 to an applicant who passes the applicable parts of the examination
150-26 taken under Subsection (b). The certificate is valid until the
150-27 earlier of:
151-1 (1) the sixth anniversary of the date of issuance; or
151-2 (2) the date the certificate holder becomes registered
151-3 as a registered professional land surveyor. (V.A.C.S. Art. 5282c,
151-4 Secs. 15(e), (f); 16(f) (part).)
151-5 Sec. 1071.254. QUALIFICATIONS FOR REGISTRATION AS REGISTERED
151-6 PROFESSIONAL LAND SURVEYOR. (a) An applicant for registration as a
151-7 registered professional land surveyor must:
151-8 (1) hold a certificate as a surveyor-in-training;
151-9 (2) have at least two years of experience satisfactory
151-10 to the board as a surveyor-in-training in performing surveying in
151-11 delegated responsible charge as a subordinate to a surveyor
151-12 registered or licensed to engage in the practice of surveying in
151-13 this state or in another state having registration or licensing
151-14 requirements equivalent to the requirements of this state; and
151-15 (3) if the application is filed after January 1, 2003,
151-16 have earned a bachelor's degree from an accredited institution of
151-17 higher education that included at least 32 semester hours in a
151-18 combination of courses acceptable to the board in:
151-19 (A) civil engineering;
151-20 (B) land surveying;
151-21 (C) mathematics;
151-22 (D) photogrammetry;
151-23 (E) forestry;
151-24 (F) land law; or
151-25 (G) the physical sciences.
151-26 (b) An applicant is entitled to registration as a registered
151-27 professional land surveyor if the applicant meets the
152-1 qualifications prescribed by Subsection (a) and is approved to take
152-2 and passes the required sections of the examination prescribed
152-3 under Section 1071.256. (V.A.C.S. Art. 5282c, Secs. 15(b) (part),
152-4 (c), (d); 16(f) (part).)
152-5 Sec. 1071.255. QUALIFICATIONS FOR LICENSING AS LICENSED
152-6 STATE LAND SURVEYOR; OATH. (a) A registered professional land
152-7 surveyor is entitled to be licensed as a licensed state land
152-8 surveyor if the person is approved to take and passes the
152-9 appropriate sections of the examination prescribed under Section
152-10 1071.256.
152-11 (b) The board may not issue a license to a licensed state
152-12 land surveyor until the applicant takes the official oath stating
152-13 that the person will faithfully, impartially, and honestly perform
152-14 all the duties of a licensed state land surveyor to the best of the
152-15 person's skill and ability in all matters in which the person may
152-16 be employed.
152-17 (c) The board may not issue a license as a licensed state
152-18 land surveyor to a person residing outside of this state. (V.A.C.S.
152-19 Art. 5282c, Secs. 15(b) (part), 16(f) (part), 19.)
152-20 Sec. 1071.256. EXAMINATION. (a) The board shall prescribe
152-21 the scope of the written examination and examination procedures
152-22 with special reference to the applicant's ability in order to
152-23 protect the public safety, welfare, and property rights.
152-24 (b) The examination for an applicant for registration as a
152-25 registered professional land surveyor must be developed and given
152-26 as provided by this chapter under board rules designed to determine
152-27 the knowledge and ability of the applicant.
153-1 (c) The examination for an applicant for licensing as a
153-2 licensed state land surveyor must be developed under board rules
153-3 and include examination on:
153-4 (1) the theory of surveying;
153-5 (2) the law of land boundaries;
153-6 (3) the history and functions of the General Land
153-7 Office; and
153-8 (4) other matters pertaining to surveying as
153-9 determined by the board. (V.A.C.S. Art. 5282c, Secs. 15(b) (part),
153-10 16(c).)
153-11 Sec. 1071.257. EXAMINATION RESULTS. (a) The board shall
153-12 notify each examinee of the examination results not later than the
153-13 30th day after the date the board receives notice of all
153-14 examination results.
153-15 (b) If requested in writing by a person who fails an
153-16 examination administered under this chapter, the board shall
153-17 provide to the person an analysis of the person's performance on
153-18 the examination. The analysis shall be provided in a summary form
153-19 that does not compromise the integrity of the examination.
153-20 (V.A.C.S. Art. 5282c, Sec. 16(d).)
153-21 Sec. 1071.258. REEXAMINATION; FEE. An applicant who fails an
153-22 examination may apply to take a subsequent examination not earlier
153-23 than six months after the date of the failed examination by filing
153-24 an updated application and paying an additional examination fee not
153-25 to exceed $100. (V.A.C.S. Art. 5282c, Sec. 16(e).)
153-26 Sec. 1071.259. REGISTRATION OF OUT-OF-STATE SURVEYORS. (a)
153-27 The board may waive any registration requirement for an applicant
154-1 who holds a license from another state having registration or
154-2 licensing requirements substantially equivalent to the registration
154-3 requirements of this state.
154-4 (b) The board may issue a certificate of registration as a
154-5 registered professional land surveyor to an applicant under this
154-6 section who meets all waived and unwaived registration requirements
154-7 and who:
154-8 (1) applies to the board for a certificate of
154-9 registration;
154-10 (2) pays a fee set by the board in an amount not to
154-11 exceed $100; and
154-12 (3) passes an examination on Texas surveying.
154-13 (c) The board shall determine the contents of the
154-14 examination under Subsection (b)(3). The examination may not
154-15 exceed four hours in duration. (V.A.C.S. Art. 5282c, Sec. 20.)
154-16 Sec. 1071.260. REGISTRATION NUMBER; FORM OF CERTIFICATE OR
154-17 LICENSE. (a) The board shall issue to each registered professional
154-18 land surveyor a registration number that may not be assigned to or
154-19 used by any other surveyor. The number must be on the certificate
154-20 of registration and recorded in the board's permanent records and
154-21 is the surveyor's registration number for use on all official
154-22 documents.
154-23 (b) Each certificate of registration and license issued by
154-24 the board must show the full name of the registration holder or
154-25 license holder and shall be signed by the presiding officer and the
154-26 executive director of the board. (V.A.C.S. Art. 5282c, Sec. 16(f)
154-27 (part).)
155-1 Sec. 1071.261. DISPLAY OF CERTIFICATE AND LICENSE. (a) An
155-2 original or renewal certificate of registration or license is
155-3 evidence that the person whose name and registration number appear
155-4 on the document is qualified to practice as a registered
155-5 professional land surveyor or licensed state land surveyor.
155-6 (b) A person holding a certificate of registration or
155-7 license shall display the certificate or license at the person's
155-8 place of business or practice. The person shall be prepared to
155-9 substantiate that the certificate or license has been renewed for
155-10 the current year. (V.A.C.S. Art. 5282c, Sec. 17(c) (part).)
155-11 Sec. 1071.262. REPLACEMENT OF REVOKED, LOST, OR DESTROYED
155-12 CERTIFICATE OR LICENSE. The board may issue, on payment of a $20
155-13 fee and subject to board rules, a new certificate of registration
155-14 or license to replace a certificate or license that has been
155-15 revoked, lost, destroyed, or mutilated. (V.A.C.S. Art. 5282c, Sec.
155-16 24(c) (part).)
155-17 Sec. 1071.263. INACTIVE STATUS. (a) A registered
155-18 professional land surveyor may request inactive status at any time
155-19 before the expiration date of the person's certificate of
155-20 registration. A registration holder on inactive status may not
155-21 practice surveying.
155-22 (b) A registration holder on inactive status must pay an
155-23 annual fee of $10.
155-24 (c) A registration holder on inactive status is not required
155-25 to:
155-26 (1) comply with the professional development
155-27 requirements adopted by the board; or
156-1 (2) take an examination for reinstatement to active
156-2 status.
156-3 (d) To return to active status, a registration holder on
156-4 inactive status must file with the board a written notice
156-5 requesting reinstatement to active status. (V.A.C.S. Art. 5282c,
156-6 Sec. 17(f).)
156-7 (Sections 1071.264-1071.300 reserved for expansion)
156-8 SUBCHAPTER G. RENEWAL OF REGISTRATION AND LICENSE
156-9 Sec. 1071.301. ANNUAL RENEWAL REQUIRED. (a) The board by
156-10 rule may adopt a system under which certificates of registration
156-11 and licenses expire on various dates during the year. A certificate
156-12 of registration or a license issued under this chapter expires on
156-13 December 31 of each year or on a date set by board rule as part of
156-14 a staggered renewal system.
156-15 (b) A renewal certificate must have the same registration
156-16 number as the original certificate. (V.A.C.S. Art. 5282c, Secs.
156-17 9(e); 17(a) (part), (c) (part).)
156-18 Sec. 1071.302. NOTICE OF EXPIRATION. Before the 30th day
156-19 preceding the expiration date of a person's certificate of
156-20 registration or license, the board shall send written notice of the
156-21 impending expiration to the person at the person's last known
156-22 address according to the board's records. (V.A.C.S. Art. 5282c,
156-23 Sec. 17(c) (part).)
156-24 Sec. 1071.303. PROCEDURE FOR RENEWAL. (a) A person may
156-25 renew an unexpired certificate of registration or license by paying
156-26 the required renewal fee to the board before the expiration date.
156-27 (b) A person whose certificate or license has been expired
157-1 for 90 days or less may renew the certificate or license by paying
157-2 to the board the required renewal fee and a fee that is equal to
157-3 half of the amount of the examination fee for the certificate or
157-4 license.
157-5 (c) A person whose certificate or license has been expired
157-6 for more than 90 days but less than one year may renew the
157-7 certificate or license by paying to the board all unpaid renewal
157-8 fees and a fee that is equal to the amount of the examination fee
157-9 for the certificate or license.
157-10 (d) A person whose certificate or license has been expired
157-11 for one year or more may not renew the certificate or license. The
157-12 person may obtain a new certificate or license by submitting to
157-13 reexamination and complying with the requirements for obtaining an
157-14 original certificate or license. (V.A.C.S. Art. 5282c, Secs. 17(a)
157-15 (part), (b).)
157-16 Sec. 1071.304. NOTICE OF FAILURE TO RENEW STATE LAND
157-17 SURVEYOR LICENSE. The executive director shall immediately notify
157-18 the commissioner when the license of a licensed state land surveyor
157-19 expires due to the person's failure to timely renew the license.
157-20 (V.A.C.S. Art. 5282c, Sec. 17(c) (part).)
157-21 Sec. 1071.305. CONTINUING PROFESSIONAL EDUCATION. (a) As a
157-22 condition for renewal of a certificate of registration, the board
157-23 shall require a registered professional land surveyor to
157-24 successfully complete continuing professional education courses as
157-25 prescribed by board rule. The board's rules must provide that the
157-26 continuing professional education requirement may be met by
157-27 completing annually not more than eight hours, a calendar day, of
158-1 professional development courses or programs.
158-2 (b) The board may also grant professional education credit
158-3 for:
158-4 (1) satisfactory completion of academic work at an
158-5 accredited institution;
158-6 (2) teaching or consulting in a program approved by
158-7 the board; or
158-8 (3) authorship of a technical paper approved by the
158-9 board.
158-10 (c) A registered professional land surveyor shall maintain
158-11 records relating to the person's professional education activities.
158-12 The records are subject to audit by the board on application by the
158-13 person for renewal of registration. (V.A.C.S. Art. 5282c, Secs.
158-14 17(d) (part), (e).)
158-15 (Sections 1071.306-1071.350 reserved for expansion)
158-16 SUBCHAPTER H. PRACTICE OF LAND SURVEYING
158-17 Sec. 1071.351. PERFORMANCE OF LAND SURVEYING; OFFICIAL SEAL.
158-18 (a) In this section, "employee" means a person who receives
158-19 compensation for work performed under the direct supervision of a
158-20 land surveyor.
158-21 (b) On receipt of a certificate of registration, a
158-22 registered professional land surveyor shall obtain an authorized
158-23 seal bearing the person's name and registration number and the
158-24 title "Registered Professional Land Surveyor."
158-25 (c) Each licensed state land surveyor shall obtain a seal of
158-26 office. The seal must contain the license holder's official title,
158-27 "Licensed State Land Surveyor," around the margin and the word
159-1 "Texas" between the points of the star in the seal. A licensed
159-2 state land surveyor shall attest with the seal all official acts
159-3 authorized under law. An act, paper, or map of a licensed state
159-4 land surveyor may not be filed in the county records of the General
159-5 Land Office unless it is certified to under the surveyor's seal.
159-6 (d) A registration holder or license holder may not affix
159-7 the person's name, seal, or certification to any plat, design,
159-8 specification, or other professional surveying work that is
159-9 prepared by a person who is not registered or licensed under this
159-10 chapter unless the work is performed by an employee under the
159-11 direct supervision of the registration holder or license holder.
159-12 (e) A registration holder or license holder may not allow a
159-13 person who is not registered or licensed under this chapter to
159-14 exert control over the end product of professional surveying work.
159-15 (f) If professional surveying is performed as a joint
159-16 venture of an association of two or more firms, each firm shall use
159-17 the seal of the surveyor having primary responsibility for the
159-18 venture. (V.A.C.S. Art. 5282c, Sec. 18.)
159-19 Sec. 1071.352. SURVEYING BY BUSINESS ENTITY. (a) An
159-20 association, partnership, or corporation may not offer professional
159-21 surveying services unless a registered professional land surveyor
159-22 is employed full-time where the services are offered.
159-23 (b) A registration holder or license holder may organize or
159-24 engage in any form of individual or group practice of surveying
159-25 allowed by state statute. The individual or group practice must
159-26 properly identify the registration holder or license holder who is
159-27 responsible for the practice. (V.A.C.S. Art. 5282c, Secs. 21(a),
160-1 (b) (part).)
160-2 Sec. 1071.353. PRACTICE UNDER ASSUMED NAME. A person
160-3 engaging in the practice of surveying in this state under any
160-4 business title other than the real name of one or more persons
160-5 authorized to engage in public or state land surveying, whether
160-6 individually or as an association, partnership, or corporation,
160-7 shall file with the board, in the manner prescribed by the board, a
160-8 certificate stating the full name and place of residence of each
160-9 person engaging in the practice and the place, including the street
160-10 address, city, and zip code, where the practice or business is
160-11 principally conducted. (V.A.C.S. Art. 5282c, Sec. 21(b) (part).)
160-12 Sec. 1071.354. JURISDICTION OF LICENSED STATE LAND
160-13 SURVEYORS. A licensed state land surveyor may perform surveys under
160-14 Section 21.011, Natural Resources Code, and is subject to the
160-15 commissioner's direction in matters of land surveying in cases that
160-16 come under the supervision of the commissioner. The jurisdiction
160-17 of the license holder is coextensive with the limits of the state.
160-18 (V.A.C.S. Art. 5282c, Sec. 25(a).)
160-19 Sec. 1071.355. LICENSED STATE LAND SURVEYOR AS AGENT OF
160-20 STATE. A licensed state land surveyor is an agent of this state
160-21 when acting in that official capacity. (V.A.C.S. Art. 5282c, Sec.
160-22 2(4) (part).)
160-23 Sec. 1071.356. RESIGNATION OF LICENSED STATE LAND SURVEYOR.
160-24 (a) A licensed state land surveyor may resign at any time by
160-25 filing a written resignation with the board. On receipt of the
160-26 resignation, the board shall inform the General Land Office.
160-27 (b) A licensed state land surveyor who resigns under this
161-1 section is not entitled to reinstatement of the person's license.
161-2 To obtain a new license, the person must meet the requirements for
161-3 an original license. (V.A.C.S. Art. 5282c, Sec. 22.)
161-4 Sec. 1071.357. COUNTY SURVEYORS. (a) A licensed state land
161-5 surveyor may hold office as a county surveyor. If elected, the
161-6 person must qualify as provided by law for county surveyors.
161-7 (b) The election of a licensed state land surveyor as county
161-8 surveyor does not limit the jurisdiction of the license holder to
161-9 that county, and the election of a county surveyor for any
161-10 particular county does not prevent any licensed state land surveyor
161-11 from performing the duties of a surveyor in that county. (V.A.C.S.
161-12 Art. 5282c, Sec. 25(b).)
161-13 Sec. 1071.358. COURT ORDER FOR PERMISSION TO CROSS LAND. (a)
161-14 A licensed state land surveyor engaged in surveying in the person's
161-15 official capacity who is denied permission to cross land owned by a
161-16 private party is entitled to a court order to enforce the license
161-17 holder's authority to cross the land.
161-18 (b) The attorney general shall promptly apply for an order
161-19 under this section from the district court. Venue for the action
161-20 is in the county in which the land is located.
161-21 (c) The court shall grant the order on proof that the person
161-22 is licensed under this chapter and acting in the person's official
161-23 capacity. (V.A.C.S. Art. 5282c, Sec. 25(d) (part).)
161-24 Sec. 1071.359. LICENSED STATE LAND SURVEYOR FIELD NOTES. (a)
161-25 Official field notes made by a licensed state land surveyor must be
161-26 signed by the surveyor, followed by the designation "Licensed State
161-27 Land Surveyor."
162-1 (b) Field notes and plats prepared by a licensed state land
162-2 surveyor must conform to Sections 21.041 and 21.042, Natural
162-3 Resources Code.
162-4 (c) Field notes made by a licensed state land surveyor in
162-5 any county in this state are admissible in evidence. (V.A.C.S.
162-6 Art. 5282c, Secs. 25(c); 26.)
162-7 Sec. 1071.360. DISCOVERY OF UNDISCLOSED LAND. A licensed
162-8 state land surveyor who discovers an undisclosed tract of public
162-9 land shall:
162-10 (1) make that fact known to any person who has the
162-11 tract enclosed; and
162-12 (2) forward a report of the existence of the tract and
162-13 the tract's acreage to the commissioner. (V.A.C.S. Art. 5282c,
162-14 Sec. 27.)
162-15 Sec. 1071.361. ACCESS TO COUNTY SURVEYOR RECORDS. (a) A
162-16 licensed state land surveyor is entitled to access to a county
162-17 surveyor's records for information and examination.
162-18 (b) An examination fee may not be charged if the
162-19 investigation of the records is for the purpose of:
162-20 (1) making a survey of public land under the law
162-21 regulating the sale or lease of public land; or
162-22 (2) identifying and establishing the boundaries of
162-23 public land.
162-24 (c) A licensed state land surveyor who examines records
162-25 under this section shall comply with any regulations prescribed by
162-26 the county surveyor or the commissioners court for protecting and
162-27 preserving the records. (V.A.C.S. Art. 5282c, Sec. 28(c).)
163-1 (Sections 1071.362-1071.400 reserved for expansion)
163-2 SUBCHAPTER I. DISCIPLINARY PROCEDURES
163-3 Sec. 1071.401. DISCIPLINARY POWERS OF BOARD. (a) The board
163-4 shall revoke or suspend a certificate of registration or license,
163-5 place on probation a person whose certificate or license has been
163-6 suspended, or reprimand a registration holder or license holder
163-7 for:
163-8 (1) fraud or deceit in obtaining a certificate or
163-9 license under this chapter;
163-10 (2) gross negligence, incompetence, or misconduct in
163-11 the practice of surveying as a land surveyor; or
163-12 (3) a violation of this chapter or a board rule.
163-13 (b) The license of a licensed state land surveyor is subject
163-14 to revocation if the license holder is found to be directly or
163-15 indirectly interested in the purchase or acquisition of title to
163-16 public land. (V.A.C.S. Art. 5282c, Secs. 23(a), (b).)
163-17 Sec. 1071.402. DISCIPLINARY PROCEEDINGS. (a) The board may
163-18 institute proceedings against a registration holder or license
163-19 holder on the board's behalf without a formal written third-party
163-20 complaint.
163-21 (b) The board shall investigate each alleged violation of an
163-22 applicable statute that is reported and substantiated by an
163-23 affidavit. The board may employ investigators and inspectors as
163-24 necessary to properly enforce this chapter. (V.A.C.S. Art. 5282c,
163-25 Sec. 24(a) (part).)
163-26 Sec. 1071.403. RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE.
163-27 (a) If the board proposes to suspend or revoke a person's
164-1 certificate of registration or license, the person is entitled to a
164-2 hearing before the board or a hearings officer appointed by the
164-3 board.
164-4 (b) The board shall prescribe procedures by which a decision
164-5 to suspend or revoke a certificate of registration or license is
164-6 made by or appealable to the board. (V.A.C.S. Art. 5282c, Sec.
164-7 24(b).)
164-8 Sec. 1071.404. PROBATION. The board may require a person
164-9 whose certificate of registration or license suspension is probated
164-10 to:
164-11 (1) report regularly to the board on matters that are
164-12 the basis of the probation;
164-13 (2) limit practice to the areas prescribed by the
164-14 board; or
164-15 (3) continue or renew professional education until the
164-16 practitioner attains a degree of skill satisfactory to the board in
164-17 those areas that are the basis of the probation. (V.A.C.S.
164-18 Art. 5282c, Sec. 23(d).)
164-19 Sec. 1071.405. REISSUANCE OF CERTIFICATE OR LICENSE. The
164-20 board for reasons the board determines sufficient may reissue a
164-21 certificate of registration or license to a surveyor whose
164-22 certificate or license has been revoked. At least six board
164-23 members must vote in favor of reissuing the certificate or license.
164-24 (V.A.C.S. Art. 5282c, Sec. 24(c) (part).)
164-25 (Sections 1071.406-1071.450 reserved for expansion)
164-26 SUBCHAPTER J. ADMINISTRATIVE PENALTY
164-27 Sec. 1071.451. IMPOSITION OF PENALTY. The board may impose
165-1 an administrative penalty on a person who violates this chapter or
165-2 a rule adopted or order issued under this chapter. (V.A.C.S.
165-3 Art. 5282c, Sec. 23A(a).)
165-4 Sec. 1071.452. AMOUNT OF PENALTY. (a) The amount of an
165-5 administrative penalty may not exceed $1,500 for each violation.
165-6 (b) In determining the amount of the penalty, the board
165-7 shall consider:
165-8 (1) the seriousness of the violation, including the
165-9 nature, circumstances, extent, and gravity of any prohibited acts;
165-10 (2) the economic damage to property caused by the
165-11 violation;
165-12 (3) the history of previous violations;
165-13 (4) the amount necessary to deter a future violation;
165-14 (5) efforts to correct the violation; and
165-15 (6) any other matter that justice may require.
165-16 (V.A.C.S. Art. 5282c, Secs. 23A(b), (c).)
165-17 Sec. 1071.453. REPORT AND NOTICE OF VIOLATION AND PENALTY.
165-18 (a) If the executive director determines after an investigation of
165-19 a possible violation and the facts surrounding the possible
165-20 violation that a violation has occurred, the executive director may
165-21 issue a violation report to the board stating:
165-22 (1) the facts on which the determination is based; and
165-23 (2) the recommendation of the executive director that
165-24 an administrative penalty be imposed, including a recommendation on
165-25 the amount of the penalty.
165-26 (b) The executive director shall base the recommended amount
165-27 of the proposed penalty on the seriousness of the violation
166-1 determined by considering the factors listed in Section
166-2 1071.452(b).
166-3 (c) Not later than the 14th day after the date the report is
166-4 issued, the executive director shall give written notice of the
166-5 report to the person charged. The notice must:
166-6 (1) include a brief summary of the alleged violation;
166-7 (2) state the amount of the recommended penalty; and
166-8 (3) inform the person of the person's right to a
166-9 hearing on the occurrence of the violation, the amount of the
166-10 penalty, or both. (V.A.C.S. Art. 5282c, Secs. 23A(d), (e).)
166-11 Sec. 1071.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
166-12 Not later than the 20th day after the date the person receives the
166-13 notice under Section 1071.453, the person may:
166-14 (1) accept the executive director's determination,
166-15 including the recommended administrative penalty; or
166-16 (2) request in writing a hearing on the determination.
166-17 (b) If the person accepts the executive director's
166-18 determination, the board by order shall approve the determination
166-19 and order payment of the recommended penalty. (V.A.C.S. Art. 5282c,
166-20 Secs. 23A(f), (g).)
166-21 Sec. 1071.455. HEARING ON RECOMMENDATIONS. (a) If the
166-22 person requests a hearing or fails to respond in a timely manner to
166-23 the notice under Section 1071.453, the board shall set a hearing
166-24 and give notice of the hearing to the person.
166-25 (b) A proceeding under this section is subject to Chapter
166-26 2001, Government Code. (V.A.C.S. Art. 5282c, Sec. 23A(h).)
166-27 Sec. 1071.456. NOTICE OF DECISION BY BOARD. The board shall
167-1 give notice of the board's order to the person charged. The notice
167-2 must include:
167-3 (1) the findings of fact and conclusions of law
167-4 separately stated;
167-5 (2) the amount of any administrative penalty imposed;
167-6 (3) a statement of the person's right to judicial
167-7 review of the board's order; and
167-8 (4) other information required by law. (V.A.C.S.
167-9 Art. 5282c, Sec. 23A(i).)
167-10 Sec. 1071.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
167-11 (a) Not later than the 30th day after the date the board's order
167-12 becomes final as provided by Section 2001.144, Government Code, the
167-13 person shall:
167-14 (1) pay the administrative penalty; or
167-15 (2) file a petition for judicial review contesting the
167-16 fact of the violation, the amount of the penalty, or both.
167-17 (b) Within the 30-day period, a person who acts under
167-18 Subsection (a)(2) may stay enforcement of the penalty by:
167-19 (1) forwarding the penalty to the board for placement
167-20 in an escrow account;
167-21 (2) giving to the board a supersedeas bond in a form
167-22 approved by the board that:
167-23 (A) is for the amount of the penalty; and
167-24 (B) is effective until judicial review of the
167-25 board's order is final; or
167-26 (3) filing with the board an affidavit of the person
167-27 stating that the person is financially unable to forward the
168-1 penalty for placement into an escrow account and is financially
168-2 unable to give the supersedeas bond.
168-3 (c) Failure to take action under Subsection (b) within the
168-4 time provided results in waiver of the right to judicial review.
168-5 (V.A.C.S. Art. 5282c, Secs. 23A(j), (k), (l) (part).)
168-6 Sec. 1071.458. ENFORCEMENT OF PENALTY. If the person does
168-7 not pay the administrative penalty and the enforcement of the
168-8 penalty is not stayed, the board may refer the matter to the
168-9 attorney general for enforcement. (V.A.C.S. Art. 5282c, Sec.
168-10 23A(l) (part).)
168-11 Sec. 1071.459. REMITTANCE OF PENALTY AND INTEREST. (a) If
168-12 after judicial review the administrative penalty is reduced or not
168-13 imposed by the court, the board shall:
168-14 (1) remit the appropriate amount, plus accrued
168-15 interest, to the person if the person paid the penalty; or
168-16 (2) release the bond if the person gave a supersedeas
168-17 bond.
168-18 (b) Interest accrues under Subsection (a)(1) at the rate
168-19 charged on loans to depository institutions by the New York Federal
168-20 Reserve Bank. The interest shall be paid for the period beginning
168-21 on the date the penalty is paid and ending on the date the penalty
168-22 is remitted. (V.A.C.S. Art. 5282c, Sec. 23A(n).)
168-23 (Sections 1071.460-1071.500 reserved for expansion)
168-24 SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
168-25 Sec. 1071.501. INJUNCTION. (a) In addition to any other
168-26 action authorized by law, the board may institute an action in the
168-27 board's name against any person to enjoin a violation of this
169-1 chapter or a board rule.
169-2 (b) An action under this section must be brought in a
169-3 district court in Travis County. The attorney general shall act as
169-4 legal advisor to the board and provide necessary legal assistance.
169-5 (V.A.C.S. Art. 5282c, Sec. 9(b).)
169-6 Sec. 1071.502. ENFORCEMENT BY ATTORNEY GENERAL. The attorney
169-7 general shall act as legal advisor to the board and provide legal
169-8 assistance as necessary in enforcing this chapter and board rules.
169-9 (V.A.C.S. Art. 5282c, Sec. 24(d).)
169-10 Sec. 1071.503. CIVIL PENALTY. (a) A person who violates
169-11 this chapter or a rule adopted under this chapter is liable for a
169-12 civil penalty not to exceed $1,500 for each violation.
169-13 (b) At the request of the board, the attorney general shall
169-14 bring an action to recover the civil penalty in the name of the
169-15 state.
169-16 (c) A civil penalty recovered under this section shall be
169-17 deposited in the state treasury. (V.A.C.S. Art. 5282c, Sec. 23B.)
169-18 Sec. 1071.504. CRIMINAL PENALTY. (a) In this section,
169-19 "offer to practice" has the meaning assigned by Section 1071.251.
169-20 (b) A person commits an offense if the person:
169-21 (1) engages in the practice of or offers to practice
169-22 professional surveying or state land surveying in this state
169-23 without being registered or licensed in accordance with this
169-24 chapter;
169-25 (2) presents or attempts to use another person's
169-26 certificate of registration, license, or seal issued under this
169-27 chapter;
170-1 (3) gives false or forged evidence to obtain or assist
170-2 another person in obtaining a certificate of registration or
170-3 license; or
170-4 (4) violates this chapter or a rule adopted by the
170-5 board.
170-6 (c) An offense under this section is a Class B misdemeanor.
170-7 (V.A.C.S. Art. 5282c, Sec. 23(c).)
170-8 SECTION 2. ADOPTION OF REAL PROPERTY AND HOUSING TITLE. The
170-9 Occupations Code is amended by adding Title 7 to read as follows:
170-10 TITLE 7. PRACTICES AND PROFESSIONS RELATED TO
170-11 REAL PROPERTY AND HOUSING
170-12 SUBTITLE A. PROFESSIONS RELATED TO REAL ESTATE
170-13 CHAPTER 1101. REAL ESTATE BROKERS AND SALESPERSONS
170-14 CHAPTER 1102. REAL ESTATE INSPECTORS
170-15 CHAPTER 1103. REAL ESTATE APPRAISERS
170-16 (Chapters 1104-1150 reserved for expansion)
170-17 SUBTITLE B. PROFESSIONS RELATED TO PROPERTY TAXATION
170-18 CHAPTER 1151. PROPERTY TAX PROFESSIONALS
170-19 CHAPTER 1152. PROPERTY TAX CONSULTANTS
170-20 (Chapters 1153-1200 reserved for expansion)
170-21 SUBTITLE C. REGULATION OF CERTAIN TYPES OF HOUSING AND BUILDINGS
170-22 CHAPTER 1201. MANUFACTURED HOUSING
170-23 CHAPTER 1202. INDUSTRIALIZED HOUSING AND BUILDINGS
170-24 TITLE 7. PRACTICES AND PROFESSIONS RELATED TO
170-25 REAL PROPERTY AND HOUSING
170-26 SUBTITLE A. PROFESSIONS RELATED TO REAL ESTATE
170-27 CHAPTER 1101. REAL ESTATE BROKERS AND SALESPERSONS
171-1 SUBCHAPTER A. GENERAL PROVISIONS
171-2 Sec. 1101.001. SHORT TITLE
171-3 Sec. 1101.002. DEFINITIONS
171-4 Sec. 1101.003. CORE REAL ESTATE COURSES
171-5 Sec. 1101.004. ACTING AS BROKER OR SALESPERSON
171-6 Sec. 1101.005. APPLICABILITY OF CHAPTER
171-7 Sec. 1101.006. APPLICATION OF SUNSET ACT
171-8 (Sections 1101.007-1101.050 reserved for expansion)
171-9 SUBCHAPTER B. TEXAS REAL ESTATE COMMISSION
171-10 Sec. 1101.051. COMMISSION MEMBERSHIP
171-11 Sec. 1101.052. PUBLIC MEMBER ELIGIBILITY
171-12 Sec. 1101.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
171-13 Sec. 1101.054. OFFICIAL OATH; BOND
171-14 Sec. 1101.055. TERMS; VACANCY
171-15 Sec. 1101.056. OFFICERS
171-16 Sec. 1101.057. GROUNDS FOR REMOVAL
171-17 Sec. 1101.058. PER DIEM; REIMBURSEMENT
171-18 (Sections 1101.059-1101.100 reserved for expansion)
171-19 SUBCHAPTER C. ADMINISTRATOR AND OTHER COMMISSION PERSONNEL
171-20 Sec. 1101.101. ADMINISTRATOR AND OTHER PERSONNEL
171-21 Sec. 1101.102. DIVISION OF RESPONSIBILITIES
171-22 Sec. 1101.103. CODE OF ETHICS; STANDARDS OF CONDUCT
171-23 Sec. 1101.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
171-24 INFORMATION
171-25 Sec. 1101.105. CAREER LADDER PROGRAM; PERFORMANCE
171-26 EVALUATIONS
171-27 Sec. 1101.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
172-1 REPORT
172-2 (Sections 1101.107-1101.150 reserved for expansion)
172-3 SUBCHAPTER D. COMMISSION POWERS AND DUTIES
172-4 Sec. 1101.151. GENERAL POWERS AND DUTIES OF COMMISSION
172-5 Sec. 1101.152. FEES
172-6 Sec. 1101.153. FEE INCREASE
172-7 Sec. 1101.154. ADDITIONAL FEE: TEXAS REAL ESTATE RESEARCH
172-8 CENTER
172-9 Sec. 1101.155. RULES RELATING TO CONTRACT FORMS
172-10 Sec. 1101.156. RULES RESTRICTING ADVERTISING OR
172-11 COMPETITIVE BIDDING
172-12 Sec. 1101.157. SUBPOENA AUTHORITY
172-13 (Sections 1101.158-1101.200 reserved for expansion)
172-14 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
172-15 COMPLAINT PROCEDURES
172-16 Sec. 1101.201. PUBLIC INTEREST INFORMATION
172-17 Sec. 1101.202. COMPLAINTS
172-18 Sec. 1101.203. COMPLAINT INFORMATION
172-19 Sec. 1101.204. COMPLAINT INVESTIGATION AND DISPOSITION
172-20 Sec. 1101.205. COMPLAINT INVESTIGATION OF
172-21 CERTIFICATE HOLDER
172-22 Sec. 1101.206. PUBLIC PARTICIPATION
172-23 (Sections 1101.207-1101.250 reserved for expansion)
172-24 SUBCHAPTER F. TEXAS REAL ESTATE BROKER-LAWYER COMMITTEE
172-25 Sec. 1101.251. DEFINITION OF COMMITTEE
172-26 Sec. 1101.252. COMMITTEE MEMBERSHIP
172-27 Sec. 1101.253. TERMS; VACANCIES
173-1 Sec. 1101.254. POWERS AND DUTIES
173-2 (Sections 1101.255-1101.300 reserved for expansion)
173-3 SUBCHAPTER G. ACCREDITATION AND APPROVAL OF REAL ESTATE
173-4 EDUCATIONAL PROGRAMS AND COURSES OF STUDY
173-5 Sec. 1101.301. ACCREDITATION OF PROGRAMS AND COURSES OF
173-6 STUDY
173-7 Sec. 1101.302. BOND REQUIRED
173-8 Sec. 1101.303. APPROVAL OF CONTINUING EDUCATION PROVIDER OR
173-9 COURSE OF STUDY
173-10 (Sections 1101.304-1101.350 reserved for expansion)
173-11 SUBCHAPTER H. LICENSE REQUIREMENTS
173-12 Sec. 1101.351. LICENSE REQUIRED
173-13 Sec. 1101.352. LICENSE APPLICATION
173-14 Sec. 1101.353. MORAL CHARACTER DETERMINATION
173-15 Sec. 1101.354. GENERAL ELIGIBILITY REQUIREMENTS
173-16 Sec. 1101.355. ADDITIONAL GENERAL ELIGIBILITY REQUIREMENTS
173-17 FOR CERTAIN BUSINESS ENTITIES
173-18 Sec. 1101.356. BROKER LICENSE: EXPERIENCE AND EDUCATION
173-19 REQUIREMENTS
173-20 Sec. 1101.357. BROKER LICENSE: ALTERNATE EXPERIENCE
173-21 REQUIREMENTS FOR CERTAIN APPLICANTS
173-22 Sec. 1101.358. SALESPERSON LICENSE: EDUCATION
173-23 REQUIREMENTS
173-24 Sec. 1101.359. ALTERNATE EDUCATION REQUIREMENTS FOR
173-25 CERTAIN LICENSE HOLDERS
173-26 Sec. 1101.360. ELIGIBILITY REQUIREMENTS FOR CERTAIN
173-27 NONRESIDENT APPLICANTS
174-1 Sec. 1101.361. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR CERTAIN
174-2 NONRESIDENT APPLICANTS
174-3 Sec. 1101.362. WAIVER OF LICENSE REQUIREMENTS: PREVIOUS
174-4 LICENSE HOLDERS
174-5 Sec. 1101.363. ISSUANCE OF LICENSE
174-6 Sec. 1101.364. DENIAL OF LICENSE
174-7 Sec. 1101.365. PROBATIONARY LICENSE
174-8 Sec. 1101.366. INACTIVE LICENSE: BROKER
174-9 Sec. 1101.367. INACTIVE LICENSE: SALESPERSON
174-10 (Sections 1101.368-1101.400 reserved for expansion)
174-11 SUBCHAPTER I. EXAMINATIONS
174-12 Sec. 1101.401. EXAMINATION REQUIRED
174-13 Sec. 1101.402. WAIVER OF EXAMINATION
174-14 Sec. 1101.403. ADMINISTRATION OF EXAMINATION; TESTING
174-15 SERVICE
174-16 Sec. 1101.404. EXAMINATION RESULTS
174-17 Sec. 1101.405. REEXAMINATION
174-18 (Sections 1101.406-1101.450 reserved for expansion)
174-19 SUBCHAPTER J. LICENSE RENEWAL
174-20 Sec. 1101.451. LICENSE EXPIRATION
174-21 Sec. 1101.452. INFORMATION REQUIRED FOR LICENSE RENEWAL
174-22 Sec. 1101.453. ADDITIONAL RENEWAL REQUIREMENTS FOR CERTAIN
174-23 BUSINESS ENTITIES
174-24 Sec. 1101.454. SALESPERSON LICENSE RENEWAL
174-25 Sec. 1101.455. CONTINUING EDUCATION REQUIREMENTS
174-26 Sec. 1101.456. EXEMPTION FROM CONTINUING EDUCATION
174-27 REQUIREMENTS FOR CERTAIN BROKERS
175-1 Sec. 1101.457. DEFERRAL OF CONTINUING EDUCATION
175-2 REQUIREMENTS
175-3 (Sections 1101.458-1101.500 reserved for expansion)
175-4 SUBCHAPTER K. CERTIFICATE REQUIREMENTS
175-5 Sec. 1101.501. CERTIFICATE REQUIRED
175-6 Sec. 1101.502. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE
175-7 Sec. 1101.503. ISSUANCE OF CERTIFICATE
175-8 Sec. 1101.504. CERTIFICATE EXPIRATION
175-9 Sec. 1101.505. DENIAL OF CERTIFICATE
175-10 Sec. 1101.506. CHANGE OF ADDRESS
175-11 Sec. 1101.507. DISPLAY OF CERTIFICATE
175-12 (Sections 1101.508-1101.550 reserved for expansion)
175-13 SUBCHAPTER L. PRACTICE BY LICENSE HOLDER
175-14 Sec. 1101.551. DEFINITIONS
175-15 Sec. 1101.552. FIXED OFFICE REQUIRED; CHANGE OF ADDRESS;
175-16 BRANCH OFFICES
175-17 Sec. 1101.553. DISPLAY OF LICENSE
175-18 Sec. 1101.554. CUSTODY OF SALESPERSON LICENSE
175-19 Sec. 1101.555. NOTICE TO BUYER REGARDING ABSTRACT OR TITLE
175-20 POLICY
175-21 Sec. 1101.556. DISCLOSURE OF CERTAIN INFORMATION RELATING
175-22 TO OCCUPANTS
175-23 Sec. 1101.557. ACTING AS AGENT
175-24 Sec. 1101.558. REPRESENTATION DISCLOSURE
175-25 Sec. 1101.559. BROKER ACTING AS INTERMEDIARY
175-26 Sec. 1101.560. ASSOCIATED LICENSE HOLDER ACTING AS
175-27 INTERMEDIARY
176-1 Sec. 1101.561. DUTIES OF INTERMEDIARY PREVAIL
176-2 (Sections 1101.562-1101.600 reserved for expansion)
176-3 SUBCHAPTER M. REAL ESTATE RECOVERY TRUST ACCOUNT
176-4 Sec. 1101.601. REAL ESTATE RECOVERY TRUST ACCOUNT
176-5 Sec. 1101.602. ENTITLEMENT TO REIMBURSEMENT
176-6 Sec. 1101.603. PAYMENTS INTO TRUST ACCOUNT
176-7 Sec. 1101.604. MANAGEMENT OF TRUST ACCOUNT
176-8 Sec. 1101.605. DEADLINE FOR ACTION; NOTICE TO COMMISSION
176-9 Sec. 1101.606. CLAIM FOR PAYMENT FROM TRUST ACCOUNT
176-10 Sec. 1101.607. ISSUES AT HEARING
176-11 Sec. 1101.608. COMMISSION RESPONSE
176-12 Sec. 1101.609. COURT ORDER FOR PAYMENT
176-13 Sec. 1101.610. PAYMENT LIMITS; ATTORNEY'S FEES
176-14 Sec. 1101.611. APPLICATION OF JUDGMENT RECOVERY
176-15 Sec. 1101.612. SUBROGATION
176-16 Sec. 1101.613. EFFECT ON DISCIPLINARY PROCEEDINGS
176-17 Sec. 1101.614. WAIVER OF RIGHTS
176-18 Sec. 1101.615. NOTICE TO CONSUMERS AND SERVICE RECIPIENTS
176-19 (Sections 1101.616-1101.650 reserved for expansion)
176-20 SUBCHAPTER N. PROHIBITED PRACTICES AND DISCIPLINARY PROCEEDINGS
176-21 Sec. 1101.651. CERTAIN PRACTICES PROHIBITED
176-22 Sec. 1101.652. GROUNDS FOR SUSPENSION OR REVOCATION OF
176-23 LICENSE
176-24 Sec. 1101.653. GROUNDS FOR SUSPENSION OR REVOCATION OF
176-25 CERTIFICATE
176-26 Sec. 1101.654. SUSPENSION OR REVOCATION OF LICENSE OR
176-27 CERTIFICATE FOR UNAUTHORIZED PRACTICE
177-1 OF LAW
177-2 Sec. 1101.655. REVOCATION OF LICENSE OR CERTIFICATE
177-3 FOR CLAIM ON ACCOUNT
177-4 Sec. 1101.656. ADDITIONAL DISCIPLINARY AUTHORITY OF
177-5 COMMISSION
177-6 Sec. 1101.657. HEARING
177-7 Sec. 1101.658. APPEAL
177-8 (Sections 1101.659-1101.700 reserved for expansion)
177-9 SUBCHAPTER O. ADMINISTRATIVE PENALTY
177-10 Sec. 1101.701. IMPOSITION OF ADMINISTRATIVE PENALTY
177-11 Sec. 1101.702. AMOUNT OF PENALTY
177-12 Sec. 1101.703. REPORT AND NOTICE OF VIOLATION AND PENALTY
177-13 Sec. 1101.704. PENALTY TO BE PAID OR HEARING REQUESTED
177-14 Sec. 1101.705. HEARING; DECISION BY COMMISSION
177-15 Sec. 1101.706. NOTICE OF ORDER
177-16 Sec. 1101.707. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
177-17 Sec. 1101.708. COLLECTION OF PENALTY
177-18 Sec. 1101.709. REMITTANCE OF PENALTY AND INTEREST
177-19 (Sections 1101.710-1101.750 reserved for expansion)
177-20 SUBCHAPTER P. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
177-21 Sec. 1101.751. INJUNCTIVE ACTION BROUGHT BY COMMISSION
177-22 Sec. 1101.752. ADDITIONAL INJUNCTIVE AUTHORITY
177-23 Sec. 1101.753. CIVIL PENALTY FOR CERTAIN VIOLATIONS BY
177-24 BROKER, SALESPERSON, OR CERTIFICATE
177-25 HOLDER
177-26 Sec. 1101.754. PRIVATE CAUSE OF ACTION FOR CERTAIN VIOLATIONS
177-27 BY BROKER, SALESPERSON, OR CERTIFICATE
178-1 HOLDER
178-2 Sec. 1101.755. APPEAL BOND EXEMPTION
178-3 Sec. 1101.756. GENERAL CRIMINAL PENALTY
178-4 Sec. 1101.757. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY
178-5 RESIDENTIAL RENTAL LOCATOR
178-6 Sec. 1101.758. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY
178-7 BROKER, SALESPERSON, OR CERTIFICATE
178-8 HOLDER
178-9 (Sections 1101.759-1101.800 reserved for expansion)
178-10 SUBCHAPTER Q. GENERAL PROVISIONS RELATING TO
178-11 LIABILITY ISSUES
178-12 Sec. 1101.801. EFFECT OF DISCIPLINARY ACTION ON LIABILITY
178-13 Sec. 1101.802. LIABILITY RELATING TO HIV INFECTION OR AIDS
178-14 Sec. 1101.803. GENERAL LIABILITY OF BROKER
178-15 Sec. 1101.804. LIABILITY FOR PROVIDING CERTAIN INFORMATION
178-16 Sec. 1101.805. LIABILITY FOR MISREPRESENTATION OR
178-17 CONCEALMENT
178-18 Sec. 1101.806. LIABILITY FOR PAYMENT OF COMPENSATION OR
178-19 COMMISSION
178-20 CHAPTER 1101. REAL ESTATE BROKERS AND SALESPERSONS
178-21 SUBCHAPTER A. GENERAL PROVISIONS
178-22 Sec. 1101.001. SHORT TITLE. This chapter may be cited as The
178-23 Real Estate License Act. (V.A.C.S. Art. 6573a, Sec. 1(a).)
178-24 Sec. 1101.002. DEFINITIONS. In this chapter:
178-25 (1) "Broker":
178-26 (A) means a person who in exchange for a
178-27 commission or other consideration or with the expectation of
179-1 receiving a commission or other consideration performs for another
179-2 person one of the following acts:
179-3 (i) sells, exchanges, purchases, or leases
179-4 real estate;
179-5 (ii) offers to sell, exchange, purchase,
179-6 or lease real estate;
179-7 (iii) negotiates or attempts to negotiate
179-8 the listing, sale, exchange, purchase, or lease of real estate;
179-9 (iv) lists or offers, attempts, or agrees
179-10 to list real estate for sale, lease, or exchange;
179-11 (v) appraises or offers, attempts, or
179-12 agrees to appraise real estate;
179-13 (vi) auctions or offers, attempts, or
179-14 agrees to auction real estate;
179-15 (vii) deals in options on real estate,
179-16 including buying, selling, or offering to buy or sell options on
179-17 real estate;
179-18 (viii) aids or offers or attempts to aid
179-19 in locating or obtaining real estate for purchase or lease;
179-20 (ix) procures or assists in procuring a
179-21 prospect to effect the sale, exchange, or lease of real estate; or
179-22 (x) procures or assists in procuring
179-23 property to effect the sale, exchange, or lease of real estate; and
179-24 (B) includes a person who:
179-25 (i) is employed by or for an owner of real
179-26 estate to sell any portion of the real estate; or
179-27 (ii) engages in the business of charging
180-1 an advance fee or contracting to collect a fee under a contract
180-2 that requires the person primarily to promote the sale of real
180-3 estate by:
180-4 (a) listing the real estate in a
180-5 publication primarily used for listing real estate; or
180-6 (b) referring information about the
180-7 real estate to brokers.
180-8 (2) "Certificate holder" means a person registered
180-9 under Subchapter K.
180-10 (3) "Commission" means the Texas Real Estate
180-11 Commission.
180-12 (4) "License holder" means a broker or salesperson
180-13 licensed under this chapter.
180-14 (5) "Real estate" means any interest in real property,
180-15 including a leasehold, located in or outside this state. The term
180-16 does not include an interest given as security for the performance
180-17 of an obligation.
180-18 (6) "Residential rental locator" means a person who
180-19 offers for consideration to locate a unit in an apartment complex
180-20 for lease to a prospective tenant. The term does not include an
180-21 owner who offers to locate a unit in the owner's complex.
180-22 (7) "Salesperson" means a person who is associated
180-23 with a licensed broker for the purpose of performing an act
180-24 described by Subdivision (1).
180-25 (8) "Subagent" means a license holder who:
180-26 (A) represents a principal through cooperation
180-27 with and the consent of a broker representing the principal; and
181-1 (B) is not sponsored by or associated with the
181-2 principal's broker. (V.A.C.S. Art. 6573a, Secs. 2(1), (2), (3),
181-3 (4), (6), 15C(m)(3), (5), 24(a); New.)
181-4 Sec. 1101.003. CORE REAL ESTATE COURSES. (a) For purposes
181-5 of this chapter, "core real estate courses" include:
181-6 (1) agency law, which includes the following topics:
181-7 (A) the relationship between a principal and an
181-8 agent;
181-9 (B) an agent's authority;
181-10 (C) the termination of an agent's authority;
181-11 (D) an agent's duties, including fiduciary
181-12 duties;
181-13 (E) employment law;
181-14 (F) deceptive trade practices;
181-15 (G) listing or buying representation procedures;
181-16 and
181-17 (H) the disclosure of agency;
181-18 (2) contract law, which includes the following topics:
181-19 (A) elements of a contract;
181-20 (B) offer and acceptance;
181-21 (C) statute of frauds;
181-22 (D) remedies for breach, including specific
181-23 performance;
181-24 (E) unauthorized practice of law;
181-25 (F) commission rules relating to use of adopted
181-26 forms; and
181-27 (G) owner disclosure requirements;
182-1 (3) principles of real estate, which includes:
182-2 (A) an overview of:
182-3 (i) licensing as a broker or salesperson;
182-4 (ii) ethics of practice as a license
182-5 holder;
182-6 (iii) titles to and conveyance of real
182-7 estate;
182-8 (iv) legal descriptions;
182-9 (v) deeds, encumbrances, and liens;
182-10 (vi) distinctions between personal and
182-11 real property;
182-12 (vii) appraisal;
182-13 (viii) finance and regulations;
182-14 (ix) closing procedures; and
182-15 (x) real estate mathematics; and
182-16 (B) at least three hours of classroom
182-17 instruction on federal, state, and local laws relating to housing
182-18 discrimination, housing credit discrimination, and community
182-19 reinvestment;
182-20 (4) property management, which includes the following
182-21 topics:
182-22 (A) the role of a property manager;
182-23 (B) landlord policies;
182-24 (C) operational guidelines;
182-25 (D) leases;
182-26 (E) lease negotiations;
182-27 (F) tenant relations;
183-1 (G) maintenance;
183-2 (H) reports;
183-3 (I) habitability laws; and
183-4 (J) the Fair Housing Act (42 U.S.C. Section 3601
183-5 et seq.);
183-6 (5) real estate appraisal, which includes the
183-7 following topics:
183-8 (A) the central purposes and functions of an
183-9 appraisal;
183-10 (B) social and economic determinants of the
183-11 value of real estate;
183-12 (C) appraisal case studies;
183-13 (D) cost, market data, and income approaches to
183-14 value estimates of real estate;
183-15 (E) final correlations; and
183-16 (F) reporting;
183-17 (6) real estate brokerage, which includes the
183-18 following topics:
183-19 (A) agency law;
183-20 (B) planning and organization;
183-21 (C) operational policies and procedures;
183-22 (D) recruitment, selection, and training of
183-23 personnel;
183-24 (E) records and control; and
183-25 (F) real estate firm analysis and expansion
183-26 criteria;
183-27 (7) real estate finance, which includes the following
184-1 topics:
184-2 (A) monetary systems;
184-3 (B) primary and secondary money markets;
184-4 (C) sources of mortgage loans;
184-5 (D) federal government programs;
184-6 (E) loan applications, processes, and
184-7 procedures;
184-8 (F) closing costs;
184-9 (G) alternative financial instruments;
184-10 (H) equal credit opportunity laws;
184-11 (I) community reinvestment laws, including the
184-12 Community Reinvestment Act of 1977 (12 U.S.C. Section 2901 et
184-13 seq.); and
184-14 (J) state housing agencies, including the Texas
184-15 Department of Housing and Community Affairs;
184-16 (8) real estate investment, which includes the
184-17 following topics:
184-18 (A) real estate investment characteristics;
184-19 (B) techniques of investment analysis;
184-20 (C) the time value of money;
184-21 (D) discounted and nondiscounted investment
184-22 criteria;
184-23 (E) leverage;
184-24 (F) tax shelters depreciation; and
184-25 (G) applications to property tax;
184-26 (9) real estate law, which includes the following
184-27 topics:
185-1 (A) legal concepts of real estate;
185-2 (B) land description;
185-3 (C) real property rights and estates in land;
185-4 (D) contracts;
185-5 (E) conveyances;
185-6 (F) encumbrances;
185-7 (G) foreclosures;
185-8 (H) recording procedures; and
185-9 (I) evidence of titles;
185-10 (10) real estate marketing, which includes the
185-11 following topics:
185-12 (A) real estate professionalism and ethics;
185-13 (B) characteristics of successful salespersons;
185-14 (C) time management;
185-15 (D) psychology of marketing;
185-16 (E) listing procedures;
185-17 (F) advertising;
185-18 (G) negotiating and closing;
185-19 (H) financing; and
185-20 (I) Subchapter E, Chapter 17, Business &
185-21 Commerce Code; and
185-22 (11) real estate mathematics, which includes the
185-23 following topics:
185-24 (A) basic arithmetic skills and review of
185-25 mathematical logic;
185-26 (B) percentages;
185-27 (C) interest;
186-1 (D) the time value of money;
186-2 (E) depreciation;
186-3 (F) amortization;
186-4 (G) proration; and
186-5 (H) estimation of closing statements.
186-6 (b) The commission may designate a course as an equivalent
186-7 of a course listed in Subsection (a).
186-8 (c) The commission by rule may prescribe the title and
186-9 content of additional core real estate courses. (V.A.C.S.
186-10 Art. 6573a, Secs. 7(a) (part), (b).)
186-11 Sec. 1101.004. ACTING AS BROKER OR SALESPERSON. A person
186-12 acts as a broker or salesperson under this chapter if the person,
186-13 with the expectation of receiving consideration, directly or
186-14 indirectly performs or offers, attempts, or agrees to perform for
186-15 another person any act described by Section 1101.002(1), as a part
186-16 of a transaction or as an entire transaction. (V.A.C.S. Art. 6573a,
186-17 Sec. 4 (part).)
186-18 Sec. 1101.005. APPLICABILITY OF CHAPTER. This chapter does
186-19 not apply to:
186-20 (1) an attorney licensed in any state;
186-21 (2) an attorney-in-fact authorized under a power of
186-22 attorney to conduct a real estate transaction;
186-23 (3) a public official while engaged in official
186-24 duties;
186-25 (4) an auctioneer licensed under Chapter 1802 while
186-26 conducting the sale of real estate by auction if the auctioneer
186-27 does not perform another act of a broker or salesperson;
187-1 (5) a person acting under a court order or the
187-2 authority of a will or written trust instrument;
187-3 (6) a person employed by an owner in the sale of
187-4 structures and land on which structures are located if the
187-5 structures are erected by the owner in the course of the owner's
187-6 business;
187-7 (7) an on-site manager of an apartment complex;
187-8 (8) an owner or the owner's employee who leases the
187-9 owner's improved or unimproved real estate;
187-10 (9) a partnership or limited liability partnership
187-11 acting as a broker or salesperson through a partner who is a
187-12 licensed broker; or
187-13 (10) a transaction involving:
187-14 (A) the sale, lease, or transfer of a mineral or
187-15 mining interest in real property;
187-16 (B) the sale, lease, or transfer of a cemetery
187-17 lot; or
187-18 (C) the lease or management of a hotel or motel.
187-19 (V.A.C.S. Art. 6573a, Sec. 3 (part).)
187-20 Sec. 1101.006. APPLICATION OF SUNSET ACT. The Texas Real
187-21 Estate Commission is subject to Chapter 325, Government Code (Texas
187-22 Sunset Act). Unless continued in existence as provided by that
187-23 chapter, the commission is abolished and this chapter and Chapter
187-24 1102 expire September 1, 2003. (V.A.C.S. Art. 6573a, Sec. 5(n).)
187-25 (Sections 1101.007-1101.050 reserved for expansion)
187-26 SUBCHAPTER B. TEXAS REAL ESTATE COMMISSION
187-27 Sec. 1101.051. COMMISSION MEMBERSHIP. (a) The Texas Real
188-1 Estate Commission consists of nine members appointed by the
188-2 governor with the advice and consent of the senate as follows:
188-3 (1) six members who have been engaged in the brokerage
188-4 business as licensed brokers as their major occupation for the five
188-5 years preceding appointment; and
188-6 (2) three members who represent the public.
188-7 (b) Each member of the commission must be a qualified voter.
188-8 (c) Appointments to the commission shall be made without
188-9 regard to the race, color, disability, sex, religion, age, or
188-10 national origin of the appointee. (V.A.C.S. Art. 6573a, Secs. 5(a)
188-11 (part), (c) (part).)
188-12 Sec. 1101.052. PUBLIC MEMBER ELIGIBILITY. A person is not
188-13 eligible for appointment as a public member of the commission if
188-14 the person or the person's spouse:
188-15 (1) is registered, certified, or licensed by an
188-16 occupational regulatory agency in the real estate industry;
188-17 (2) is employed by or participates in the management
188-18 of a business entity or other organization regulated by the
188-19 commission or receiving funds from the commission;
188-20 (3) owns or controls, directly or indirectly, more
188-21 than a 10 percent interest in a business entity or other
188-22 organization regulated by the commission or receiving funds from
188-23 the commission; or
188-24 (4) uses or receives a substantial amount of tangible
188-25 goods, services, or funds from the commission, other than
188-26 compensation or reimbursement authorized by law for commission
188-27 membership, attendance, or expenses. (V.A.C.S. Art. 6573a, Sec.
189-1 5(c) (part).)
189-2 Sec. 1101.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
189-3 this section, "Texas trade association" means a nonprofit,
189-4 cooperative, and voluntarily joined statewide association of
189-5 business or professional competitors in this state designed to
189-6 assist its members and its industry or profession in dealing with
189-7 mutual business or professional problems and in promoting their
189-8 common interest.
189-9 (b) A state elected president, president-elect, vice
189-10 president, or secretary-treasurer, employee, or paid consultant of
189-11 a Texas trade association in the real estate industry may not be a
189-12 commission member and may not be a commission employee who is
189-13 exempt from the state's position classification plan or is
189-14 compensated at or above the amount prescribed by the General
189-15 Appropriations Act for step 1, salary group A17, of the position
189-16 classification salary schedule.
189-17 (c) A person who is the spouse of an officer, manager, or
189-18 paid consultant of a Texas trade association in the real estate
189-19 industry may not be a commission member and may not be a commission
189-20 employee who is exempt from the state's position classification
189-21 plan or is compensated at or above the amount prescribed by the
189-22 General Appropriations Act for step 1, salary group A17, of the
189-23 position classification salary schedule.
189-24 (d) A person may not serve as a commission member or act as
189-25 the general counsel to the commission if the person is required to
189-26 register as a lobbyist under Chapter 305, Government Code, because
189-27 of the person's activities for compensation on behalf of a
190-1 profession related to the operation of the commission. (V.A.C.S.
190-2 Art. 6573a, Secs. 5(b)(1) (part), (2).)
190-3 Sec. 1101.054. OFFICIAL OATH; BOND. Not later than the 15th
190-4 day after the date of appointment, each appointee must:
190-5 (1) take the constitutional oath of office; and
190-6 (2) execute a bond payable to the governor in the
190-7 amount of $10,000, conditioned on the faithful performance of the
190-8 member's duties. (V.A.C.S. Art. 6573a, Sec. 5(a) (part).)
190-9 Sec. 1101.055. TERMS; VACANCY. (a) Commission members serve
190-10 staggered six-year terms, with the terms of three members expiring
190-11 January 31 of each odd-numbered year.
190-12 (b) If a vacancy occurs during a member's term, the governor
190-13 shall appoint a person to fill the unexpired term. (V.A.C.S.
190-14 Art. 6573a, Sec. 5(a) (part).)
190-15 Sec. 1101.056. OFFICERS. (a) The governor shall designate a
190-16 commission member who is a licensed broker as presiding officer.
190-17 The presiding officer serves in that capacity at the pleasure of
190-18 the governor.
190-19 (b) At a regular meeting in February of each year, the
190-20 commission shall elect an assistant presiding officer and secretary
190-21 from its membership. (V.A.C.S. Art. 6573a, Sec. 5(a) (part).)
190-22 Sec. 1101.057. GROUNDS FOR REMOVAL. (a) It is a ground for
190-23 removal from the commission that a member:
190-24 (1) does not have at the time of appointment the
190-25 qualifications required by Section 1101.051(a) or (b) or 1101.052;
190-26 (2) does not maintain during service on the commission
190-27 the qualifications required by Section 1101.051(a) or (b) or
191-1 1101.052;
191-2 (3) violates a prohibition established by Section
191-3 1101.053;
191-4 (4) cannot, because of illness or disability,
191-5 discharge the member's duties for a substantial part of the
191-6 member's term; or
191-7 (5) is absent from more than half of the regularly
191-8 scheduled commission meetings that the member is eligible to attend
191-9 during each calendar year, unless the absence is excused by
191-10 majority vote of the commission.
191-11 (b) The validity of an action of the commission is not
191-12 affected by the fact that it is taken when a ground for removal of
191-13 a commission member exists.
191-14 (c) If the administrator has knowledge that a potential
191-15 ground for removal of a commission member exists, the administrator
191-16 shall notify the presiding officer of the commission of the ground.
191-17 The presiding officer shall notify the governor that a potential
191-18 ground for removal exists. (V.A.C.S. Art. 6573a, Secs. 5(d), (e),
191-19 (f).)
191-20 Sec. 1101.058. PER DIEM; REIMBURSEMENT. A commission member
191-21 is entitled to receive:
191-22 (1) $75 for each day the member performs the member's
191-23 official duties; and
191-24 (2) reimbursement for actual and necessary expenses
191-25 incurred in performing the member's official duties. (V.A.C.S.
191-26 Art. 6573a, Sec. 5(g).)
191-27 (Sections 1101.059-1101.100 reserved for expansion)
192-1 SUBCHAPTER C. ADMINISTRATOR AND OTHER COMMISSION PERSONNEL
192-2 Sec. 1101.101. ADMINISTRATOR AND OTHER PERSONNEL. (a) The
192-3 commission may appoint an administrator.
192-4 (b) The commission may designate a subordinate officer as
192-5 assistant administrator to act for the administrator in the
192-6 administrator's absence.
192-7 (c) The commission may employ other subordinate officers and
192-8 employees necessary to administer and enforce this chapter and
192-9 Chapter 1102, including a general counsel, attorneys,
192-10 investigators, and support staff.
192-11 (d) The commission shall determine the salaries of the
192-12 administrator, officers, and employees of the commission. The
192-13 amounts of the salaries may not exceed the amounts specified by the
192-14 General Appropriations Act. (V.A.C.S. Art. 6573a, Secs. 5(i)
192-15 (part), (t) (part).)
192-16 Sec. 1101.102. DIVISION OF RESPONSIBILITIES. The commission
192-17 shall develop and implement policies that clearly define the
192-18 respective responsibilities of the commission and the commission
192-19 staff. (V.A.C.S. Art. 6573a, Sec. 5(s).)
192-20 Sec. 1101.103. CODE OF ETHICS; STANDARDS OF CONDUCT. Each
192-21 member, officer, employee, and agent of the commission is subject
192-22 to the code of ethics and standards of conduct imposed by Chapter
192-23 572, Government Code. (V.A.C.S. Art. 6573a, Sec. 5(b)(1) (part).)
192-24 Sec. 1101.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
192-25 INFORMATION. The commission shall provide, as often as necessary,
192-26 to its members and employees information regarding their:
192-27 (1) qualifications for office or employment under this
193-1 chapter and Chapter 1102; and
193-2 (2) responsibilities under applicable laws relating to
193-3 standards of conduct for state officers or employees. (V.A.C.S.
193-4 Art. 6573a, Sec. 5(x).)
193-5 Sec. 1101.105. CAREER LADDER PROGRAM; PERFORMANCE
193-6 EVALUATIONS. (a) The administrator or the administrator's designee
193-7 shall develop an intra-agency career ladder program. The program
193-8 must require intra-agency postings of all nonentry level positions
193-9 concurrently with any public posting.
193-10 (b) The administrator or the administrator's designee shall
193-11 develop a system of annual performance evaluations. All merit pay
193-12 for commission employees must be based on the system established
193-13 under this subsection. (V.A.C.S. Art. 6573a, Sec. 5(i) (part).)
193-14 Sec. 1101.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
193-15 (a) The administrator or the administrator's designee shall
193-16 prepare and maintain a written policy statement to ensure
193-17 implementation of an equal employment opportunity program under
193-18 which all personnel transactions are made without regard to race,
193-19 color, disability, sex, religion, age, or national origin. The
193-20 policy statement must include:
193-21 (1) personnel policies, including policies relating to
193-22 recruitment, evaluation, selection, appointment, training, and
193-23 promotion of personnel;
193-24 (2) a comprehensive analysis of the commission
193-25 workforce that meets federal and state guidelines;
193-26 (3) procedures by which a determination can be made of
193-27 significant underuse in the commission workforce of all persons for
194-1 whom federal or state guidelines encourage a more equitable
194-2 balance; and
194-3 (4) reasonable methods to appropriately address those
194-4 areas of underuse.
194-5 (b) A policy statement prepared under Subsection (a) must:
194-6 (1) cover an annual period;
194-7 (2) be updated at least annually; and
194-8 (3) be filed with the governor.
194-9 (c) The governor shall deliver a biennial report to the
194-10 legislature based on the information received under Subsection (b).
194-11 The report may be made separately or as a part of other biennial
194-12 reports made to the legislature. (V.A.C.S. Art. 6573a, Secs. 5(u),
194-13 (v), (w).)
194-14 (Sections 1101.107-1101.150 reserved for expansion)
194-15 SUBCHAPTER D. COMMISSION POWERS AND DUTIES
194-16 Sec. 1101.151. GENERAL POWERS AND DUTIES OF COMMISSION. (a)
194-17 The commission shall:
194-18 (1) administer this chapter and Chapter 1102;
194-19 (2) adopt rules and establish standards relating to
194-20 permissible forms of advertising by a license holder acting as a
194-21 residential rental locator;
194-22 (3) maintain a registry of certificate holders; and
194-23 (4) design and adopt a seal.
194-24 (b) The commission may:
194-25 (1) adopt and enforce rules necessary to administer
194-26 this chapter and Chapter 1102;
194-27 (2) establish standards of conduct and ethics for
195-1 persons licensed under this chapter and Chapter 1102 to:
195-2 (A) fulfill the purposes of this chapter and
195-3 Chapter 1102; and
195-4 (B) ensure compliance with this chapter and
195-5 Chapter 1102; and
195-6 (3) authorize specific employees to conduct hearings
195-7 and issue final decisions in contested cases. (V.A.C.S. Art. 6573a,
195-8 Secs. 5(a) (part), (h) (part), (j) (part), (t) (part), 9A(b), (d),
195-9 24(c).)
195-10 Sec. 1101.152. FEES. (a) The commission shall charge and
195-11 collect the following fees:
195-12 (1) for filing an original application for a broker
195-13 license, not more than $100;
195-14 (2) for annual renewal of a broker license, not more
195-15 than $100;
195-16 (3) for filing an original application for a
195-17 salesperson license, not more than $50;
195-18 (4) for annual renewal of a salesperson license, not
195-19 more than $50;
195-20 (5) for annual registration, $80;
195-21 (6) for an application for a license examination, not
195-22 more than $50;
195-23 (7) for filing a request for a branch office license,
195-24 not more than $20;
195-25 (8) for filing a request for a change of place of
195-26 business, change of name, return to active status, or change of
195-27 sponsoring broker, not more than $20;
196-1 (9) for filing a request to replace a lost or
196-2 destroyed license or certificate of registration, not more than
196-3 $20;
196-4 (10) for filing an application for approval of an
196-5 education program under Subchapter G, not more than $400;
196-6 (11) for annual operation of an education program
196-7 under Subchapter G, not more than $200;
196-8 (12) for transcript evaluation, $15;
196-9 (13) for preparing a license or registration history,
196-10 not more than $10; and
196-11 (14) for filing an application for a moral character
196-12 determination, not more than $50.
196-13 (b) The commission may set and collect reasonable fees to
196-14 implement the continuing education requirements for license
196-15 holders, including the following fees:
196-16 (1) for an application for approval of a continuing
196-17 education provider, not more than $400; and
196-18 (2) for an application for approval of a continuing
196-19 education course of study, not more than $100. (V.A.C.S.
196-20 Art. 6573a, Secs. 7A(d) (part), 11 (part).)
196-21 Sec. 1101.153. FEE INCREASE. (a) The fee for filing an
196-22 original application for an individual broker license and the fee
196-23 for annual renewal of an individual broker license is the amount of
196-24 the fee set by the commission under Section 1101.152 and a fee
196-25 increase of $200.
196-26 (b) Of each fee increase collected under Subsection (a), $50
196-27 shall be deposited to the credit of the foundation school fund and
197-1 $150 shall be deposited to the credit of the general revenue fund.
197-2 (V.A.C.S. Art. 6573a, Secs. 11A(a), (b) (part).)
197-3 Sec. 1101.154. ADDITIONAL FEE: TEXAS REAL ESTATE RESEARCH
197-4 CENTER. (a) The fee for the issuance or renewal of a:
197-5 (1) broker license is the amount of the fee set under
197-6 Sections 1101.152 and 1101.153 and an additional $20 fee;
197-7 (2) salesperson license is the amount of the fee set
197-8 under Section 1101.152 and an additional $17.50 fee; and
197-9 (3) certificate of registration is the amount of the
197-10 fee set under Section 1101.152 and an additional $20 fee.
197-11 (b) The commission shall transmit quarterly the additional
197-12 fees collected under Subsection (a) to Texas A&M University for
197-13 deposit in a separate banking account that may be appropriated only
197-14 to support, maintain, and carry out the purposes, objectives, and
197-15 duties of the Texas Real Estate Research Center. (V.A.C.S.
197-16 Art. 6573a, Secs. 5(m) (part), 11 (part).)
197-17 Sec. 1101.155. RULES RELATING TO CONTRACT FORMS. (a) The
197-18 commission may adopt rules in the public's best interest that
197-19 require license holders to use contract forms prepared by the Texas
197-20 Real Estate Broker-Lawyer Committee and adopted by the commission.
197-21 (b) The commission may not prohibit a license holder from
197-22 using for the sale, exchange, option, or lease of an interest in
197-23 real property a contract form that is:
197-24 (1) prepared by the property owner; or
197-25 (2) prepared by an attorney and required by the
197-26 property owner.
197-27 (c) A listing contract form adopted by the commission that
198-1 relates to the contractual obligations between a seller of real
198-2 estate and a license holder acting as an agent for the seller must
198-3 include:
198-4 (1) a provision informing the parties to the contract
198-5 that real estate commissions are negotiable; and
198-6 (2) a provision explaining the availability of Texas
198-7 coastal natural hazards information important to coastal residents,
198-8 if that information is appropriate. (V.A.C.S. Art. 6573a, Secs.
198-9 16(e) (part), 18A.)
198-10 Sec. 1101.156. RULES RESTRICTING ADVERTISING OR COMPETITIVE
198-11 BIDDING. (a) The commission may not adopt a rule restricting
198-12 advertising or competitive bidding by a person regulated by the
198-13 commission except to prohibit a false, misleading, or deceptive
198-14 practice by the person.
198-15 (b) The commission may not include in rules to prohibit
198-16 false, misleading, or deceptive practices by a person regulated by
198-17 the commission a rule that:
198-18 (1) restricts the use of any advertising medium;
198-19 (2) restricts the person's personal appearance or use
198-20 of the person's voice in an advertisement;
198-21 (3) relates to the size or duration of an
198-22 advertisement used by the person; or
198-23 (4) restricts the person's advertisement under a trade
198-24 name. (V.A.C.S. Art. 6573a, Sec. 5(z).)
198-25 Sec. 1101.157. SUBPOENA AUTHORITY. (a) The commission may
198-26 request and, if necessary, compel by subpoena:
198-27 (1) the attendance of witnesses for examination under
199-1 oath; and
199-2 (2) the production for inspection and copying of
199-3 records, documents, and other evidence relevant to the
199-4 investigation of an alleged violation of this chapter.
199-5 (b) A subpoena may be issued throughout the state and may be
199-6 served by any person designated by the commission.
199-7 (c) If a person fails to comply with a subpoena issued under
199-8 this section, the commission, acting through the attorney general,
199-9 may file suit to enforce the subpoena in a district court in Travis
199-10 County or in the county in which a hearing conducted by the
199-11 commission may be held.
199-12 (d) The court shall order compliance with the subpoena if
199-13 the court finds that good cause exists to issue the subpoena.
199-14 (V.A.C.S. Art. 6573a, Secs. 15(e), 17(b).)
199-15 (Sections 1101.158-1101.200 reserved for expansion)
199-16 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
199-17 COMPLAINT PROCEDURES
199-18 Sec. 1101.201. PUBLIC INTEREST INFORMATION. (a) The
199-19 commission shall prepare information of public interest describing
199-20 the functions of the commission and the procedures by which
199-21 complaints are filed with and resolved by the commission.
199-22 (b) The commission shall make the information available to
199-23 the public and appropriate state agencies. (V.A.C.S. Art. 6573a,
199-24 Sec. 5(r).)
199-25 Sec. 1101.202. COMPLAINTS. (a) The commission by rule shall
199-26 establish methods by which consumers and service recipients are
199-27 notified of the name, mailing address, and telephone number of the
200-1 commission for the purpose of directing a complaint to the
200-2 commission. The commission may provide for that notice:
200-3 (1) on each application for a license or certificate
200-4 of registration or written contract for services of a person
200-5 regulated under this chapter or Chapter 1102;
200-6 (2) on a sign prominently displayed in the place of
200-7 business of each person regulated under this chapter or Chapter
200-8 1102;
200-9 (3) in a bill for services provided by a person
200-10 regulated under this chapter or Chapter 1102; or
200-11 (4) in conjunction with the notice required by Section
200-12 1101.615.
200-13 (b) The commission shall provide to a person who files a
200-14 complaint with the commission relating to a license holder and to
200-15 the license holder against whom the complaint is filed:
200-16 (1) an explanation of the remedies that are available
200-17 to the person under this chapter; and
200-18 (2) information about appropriate state or local
200-19 agencies or officials with whom the person may file a complaint.
200-20 (V.A.C.S. Art. 6573a, Secs. 5(q), 18B(a).)
200-21 Sec. 1101.203. COMPLAINT INFORMATION. (a) The commission
200-22 shall maintain an information file about each complaint filed with
200-23 the commission that the commission has authority to resolve.
200-24 (b) If a written complaint is filed with the commission that
200-25 the commission has authority to resolve, the commission, at least
200-26 quarterly and until final disposition of the complaint, shall
200-27 notify the parties to the complaint of the status of the complaint
201-1 unless the notice would jeopardize an undercover investigation
201-2 authorized under Section 1101.204. (V.A.C.S. Art. 6573a, Secs.
201-3 18B(b), (c).)
201-4 Sec. 1101.204. COMPLAINT INVESTIGATION AND DISPOSITION. (a)
201-5 The commission may, on its own motion, investigate the actions and
201-6 records of a license holder.
201-7 (b) The commission shall investigate the actions and records
201-8 of a license holder if:
201-9 (1) a consumer or service recipient submits a signed,
201-10 written complaint; and
201-11 (2) the complaint and any evidence presented with the
201-12 complaint provide reasonable cause for an investigation.
201-13 (c) The commission may not conduct an investigation of a
201-14 license holder in connection with a complaint submitted later than
201-15 the fourth anniversary of the date of the incident that is the
201-16 subject of the complaint.
201-17 (d) The commission shall promptly provide a written notice
201-18 to a person licensed under this chapter or Chapter 1102 who is the
201-19 subject of an investigation unless after deliberation the
201-20 commission decides against notification.
201-21 (e) Notwithstanding any other provision of this chapter, an
201-22 undercover or covert investigation may not be conducted unless the
201-23 commission expressly authorizes the investigation after considering
201-24 the circumstances and determining that the investigation is
201-25 necessary to implement this chapter.
201-26 (f) An investigation or other action against a person
201-27 licensed under this chapter or Chapter 1102 may not be initiated on
202-1 the basis of an anonymous complaint.
202-2 (g) The commission may authorize a commission employee to
202-3 file a signed, written complaint against a person licensed under
202-4 this chapter or Chapter 1102 and to conduct an investigation if:
202-5 (1) a judgment against the person has been paid from
202-6 the real estate recovery trust account under this chapter or the
202-7 real estate inspection recovery fund under Chapter 1102;
202-8 (2) the person is convicted of a criminal offense that
202-9 may constitute grounds for the suspension or revocation of the
202-10 person's license; or
202-11 (3) the person fails to honor a check issued to the
202-12 commission. (V.A.C.S. Art. 6573a, Secs. 15(a) (part), (d), 15B(a),
202-13 (e).)
202-14 Sec. 1101.205. COMPLAINT INVESTIGATION OF CERTIFICATE
202-15 HOLDER. The commission shall investigate a signed complaint
202-16 received by the commission that relates to an act of a certificate
202-17 holder or a person required to hold a certificate under Subchapter
202-18 K. (V.A.C.S. Art. 6573a, Sec. 9A(c) (part).)
202-19 Sec. 1101.206. PUBLIC PARTICIPATION. (a) The commission
202-20 shall develop and implement policies that provide the public with a
202-21 reasonable opportunity to appear before the commission and to speak
202-22 on any issue under the commission's jurisdiction.
202-23 (b) The commission shall prepare and maintain a written plan
202-24 that describes how a person who does not speak English or who has a
202-25 physical, mental, or developmental disability may be provided
202-26 reasonable access to the commission's programs. (V.A.C.S.
202-27 Art. 6573a, Secs. 5(p), (y).)
203-1 (Sections 1101.207-1101.250 reserved for expansion)
203-2 SUBCHAPTER F. TEXAS REAL ESTATE BROKER-LAWYER COMMITTEE
203-3 Sec. 1101.251. DEFINITION OF COMMITTEE. In this subchapter,
203-4 "committee" means the Texas Real Estate Broker-Lawyer Committee.
203-5 (New.)
203-6 Sec. 1101.252. COMMITTEE MEMBERSHIP. (a) The Texas Real
203-7 Estate Broker-Lawyer Committee consists of 12 members appointed as
203-8 follows:
203-9 (1) six members appointed by the commission; and
203-10 (2) six members of the State Bar of Texas appointed by
203-11 the president of the state bar.
203-12 (b) Appointments to the committee shall be made without
203-13 regard to the race, creed, sex, religion, or national origin of the
203-14 appointee. (V.A.C.S. Art. 6573a, Sec. 16(d) (part).)
203-15 Sec. 1101.253. TERMS; VACANCIES. (a) Committee members
203-16 serve staggered six-year terms, with the terms of two commission
203-17 appointees and two State Bar of Texas appointees expiring every two
203-18 years.
203-19 (b) A committee member shall hold office until the member's
203-20 successor is appointed.
203-21 (c) If a vacancy occurs during a member's term, the entity
203-22 making the original appointment shall appoint a person to fill the
203-23 unexpired term. (V.A.C.S. Art. 6573a, Sec. 16(d) (part).)
203-24 Sec. 1101.254. POWERS AND DUTIES. (a) In addition to other
203-25 delegated powers and duties, the committee shall draft and revise
203-26 contract forms that are capable of being standardized to expedite
203-27 real estate transactions and minimize controversy.
204-1 (b) The contract forms must contain safeguards adequate to
204-2 protect the principals in the transaction. (V.A.C.S. Art. 6573a,
204-3 Sec. 16(c).)
204-4 (Sections 1101.255-1101.300 reserved for expansion)
204-5 SUBCHAPTER G. ACCREDITATION AND APPROVAL OF REAL ESTATE
204-6 EDUCATIONAL PROGRAMS AND COURSES OF STUDY
204-7 Sec. 1101.301. ACCREDITATION OF PROGRAMS AND COURSES OF
204-8 STUDY. (a) The commission, as necessary for the administration of
204-9 this chapter and Chapter 1102, may:
204-10 (1) establish standards for the accreditation of
204-11 educational programs or courses of study in real estate and real
204-12 estate inspection conducted in this state, excluding programs and
204-13 courses offered by accredited colleges and universities;
204-14 (2) establish by rule reasonable criteria for the
204-15 approval of real estate and real estate inspection courses; and
204-16 (3) inspect and accredit real estate and real estate
204-17 inspection educational programs or courses of study.
204-18 (b) The commission shall determine whether a real estate or
204-19 real estate inspection course satisfies the requirements of this
204-20 chapter and Chapter 1102. (V.A.C.S. Art. 6573a, Sec. 7(f)
204-21 (part).)
204-22 Sec. 1101.302. BOND REQUIRED. (a) In this section,
204-23 "educational institution" means a school, excluding an accredited
204-24 college or university, authorized by the commission under this
204-25 chapter to offer a real estate or real estate inspection
204-26 educational program or course of study.
204-27 (b) An educational institution shall maintain a corporate
205-1 surety bond or other security acceptable to the commission that is:
205-2 (1) in the amount of $10,000;
205-3 (2) payable to the commission; and
205-4 (3) for the benefit of a party who suffers damages
205-5 caused by the failure of the institution to fulfill obligations
205-6 related to the commission's approval. (V.A.C.S. Art. 6573a, Sec.
205-7 7(f) (part).)
205-8 Sec. 1101.303. APPROVAL OF CONTINUING EDUCATION PROVIDER OR
205-9 COURSE OF STUDY. (a) If the commission determines that an
205-10 applicant for approval as a continuing education provider satisfies
205-11 the requirements of this subchapter and any rule adopted under this
205-12 subchapter, the commission may authorize the applicant to offer
205-13 continuing education for a two-year period.
205-14 (b) If the commission determines that an applicant for
205-15 approval of a continuing education course of study satisfies the
205-16 requirements of this subchapter and any rule adopted under this
205-17 subchapter, the commission may authorize the applicant to offer the
205-18 course of study for a two-year period. (V.A.C.S. Art. 6573a, Sec.
205-19 7A(d) (part).)
205-20 (Sections 1101.304-1101.350 reserved for expansion)
205-21 SUBCHAPTER H. LICENSE REQUIREMENTS
205-22 Sec. 1101.351. LICENSE REQUIRED. (a) Unless a person holds
205-23 a license issued under this chapter, the person may not:
205-24 (1) act as or represent that the person is a broker or
205-25 salesperson; or
205-26 (2) act as a residential rental locator.
205-27 (b) An applicant for a broker or salesperson license may not
206-1 act as a broker or salesperson until the person receives the
206-2 license evidencing that authority.
206-3 (c) A licensed salesperson may not act or attempt to act as
206-4 a broker or salesperson unless the salesperson is associated with a
206-5 licensed broker and is acting for that broker. (V.A.C.S.
206-6 Art. 6573a, Secs. 1(b), 4 (part), 9(b) (part), 24(b) (part).)
206-7 Sec. 1101.352. LICENSE APPLICATION. (a) Each applicant for
206-8 a broker or salesperson license must submit an application on a
206-9 form prescribed by the commission.
206-10 (b) A broker who intends to associate with an applicant for
206-11 a salesperson license must join the applicant in filing the
206-12 application.
206-13 (c) Each applicant for a broker or salesperson license must
206-14 disclose in the license application whether the applicant has:
206-15 (1) entered a plea of guilty or nolo contendere to a
206-16 felony; or
206-17 (2) been convicted of a felony and the time for appeal
206-18 has elapsed or the judgment or conviction has been affirmed on
206-19 appeal.
206-20 (d) The disclosure under Subsection (c) must be provided
206-21 even if an order has granted community supervision suspending the
206-22 imposition of the sentence. (V.A.C.S. Art. 6573a, Secs. 6(a),
206-23 (part), 9(e) (part).)
206-24 Sec. 1101.353. MORAL CHARACTER DETERMINATION. (a) If before
206-25 applying for a license under this chapter a person requests that
206-26 the commission determine whether the person's moral character
206-27 complies with the commission's moral character requirements for
207-1 licensing under this chapter and pays the fee prescribed by Section
207-2 1101.152, the commission shall make its determination of the
207-3 person's moral character.
207-4 (b) Not later than the 30th day after the date the
207-5 commission makes its determination, the commission shall notify the
207-6 person of the determination.
207-7 (c) If a person applies for a license after receiving notice
207-8 of a determination, the commission may conduct a supplemental moral
207-9 character determination of the person. The supplemental
207-10 determination may cover only the period after the date the person
207-11 requests a moral character determination under this section.
207-12 (V.A.C.S. Art. 6573a, Sec. 6A.)
207-13 Sec. 1101.354. GENERAL ELIGIBILITY REQUIREMENTS. To be
207-14 eligible to receive a license under this chapter, a person must:
207-15 (1) at the time of application:
207-16 (A) be at least 18 years of age;
207-17 (B) be a citizen of the United States or a
207-18 lawfully admitted alien; and
207-19 (C) be a resident of this state;
207-20 (2) satisfy the commission as to the applicant's
207-21 honesty, trustworthiness, and integrity;
207-22 (3) demonstrate competence based on an examination
207-23 under Subchapter I;
207-24 (4) complete the required courses of study, including
207-25 any required core real estate courses prescribed under this
207-26 chapter; and
207-27 (5) complete at least:
208-1 (A) three classroom hours of course work on
208-2 federal, state, and local laws governing housing discrimination,
208-3 housing credit discrimination, and community reinvestment; or
208-4 (B) three semester hours of course work on
208-5 constitutional law. (V.A.C.S. Art. 6573a, Secs. 6(b), 7(a) (part),
208-6 (j).)
208-7 Sec. 1101.355. ADDITIONAL GENERAL ELIGIBILITY REQUIREMENTS
208-8 FOR CERTAIN BUSINESS ENTITIES. (a) To be eligible for a license
208-9 under this chapter:
208-10 (1) a corporation must designate one of its officers
208-11 as its agent for purposes of this chapter; and
208-12 (2) a limited liability company must designate one of
208-13 its managers as its agent for purposes of this chapter.
208-14 (b) A corporation or limited liability company may not act
208-15 as a broker unless the entity's designated agent is a licensed
208-16 broker according to the commission's records. (V.A.C.S.
208-17 Art. 6573a, Sec. 6(c) (part).)
208-18 Sec. 1101.356. BROKER LICENSE: EXPERIENCE AND EDUCATION
208-19 REQUIREMENTS. (a) An applicant for a broker license must provide
208-20 to the commission satisfactory evidence that the applicant:
208-21 (1) has had at least two years of active experience in
208-22 this state as a license holder during the 36 months preceding the
208-23 date the application is filed; and
208-24 (2) has successfully completed at least 60 semester
208-25 hours, or equivalent classroom hours, of core real estate courses
208-26 or related postsecondary education courses accepted by the
208-27 commission.
209-1 (b) Subsection (a) does not apply to an applicant who, at
209-2 the time of application, is licensed as a real estate broker by
209-3 another state that has license requirements comparable to the
209-4 requirements of this state.
209-5 (c) An applicant for a broker license who is licensed as a
209-6 salesperson and is subject to the annual education requirements
209-7 prescribed by Section 1101.454 must provide to the commission
209-8 satisfactory evidence that the applicant has satisfied the
209-9 requirements of that section. The hours completed under Section
209-10 1101.454 shall be applied to the number of hours required of the
209-11 applicant under Subsection (a)(2) of this section. (V.A.C.S.
209-12 Art. 6573a, Secs. 7(d), (g) (part).)
209-13 Sec. 1101.357. BROKER LICENSE: ALTERNATE EXPERIENCE
209-14 REQUIREMENTS FOR CERTAIN APPLICANTS. An applicant for a broker
209-15 license who does not satisfy the experience requirements of Section
209-16 1101.356 must provide to the commission satisfactory evidence that:
209-17 (1) the applicant:
209-18 (A) is a licensed real estate broker in another
209-19 state;
209-20 (B) has had at least two years of active
209-21 experience in that state as a licensed real estate broker or
209-22 salesperson during the 36 months preceding the date the application
209-23 is filed; and
209-24 (C) has satisfied the educational requirements
209-25 prescribed by Section 1101.356; or
209-26 (2) the applicant was licensed in this state as a
209-27 broker in the year preceding the date the application is filed.
210-1 (V.A.C.S. Art. 6573a, Secs. 7(g) (part), 14(b) (part).)
210-2 Sec. 1101.358. SALESPERSON LICENSE: EDUCATION REQUIREMENTS.
210-3 (a) An applicant for a salesperson license must provide to the
210-4 commission satisfactory evidence that the applicant has completed
210-5 at least 12 semester hours, or equivalent classroom hours, of
210-6 postsecondary education, including:
210-7 (1) at least two hours of each of the following core
210-8 real estate courses:
210-9 (A) principles of real estate;
210-10 (B) agency law; and
210-11 (C) contract law; and
210-12 (2) at least six hours of core real estate courses or
210-13 related courses.
210-14 (b) The commission shall waive the education requirements of
210-15 Subsection (a) if the applicant has been licensed in this state as
210-16 a broker or salesperson within the year preceding the date the
210-17 application is filed.
210-18 (c) If an applicant for a salesperson license was licensed
210-19 as a salesperson within the year preceding the date the application
210-20 is filed and the license was issued under the conditions prescribed
210-21 by Section 1101.454, the commission shall require the applicant to
210-22 provide the evidence of successful completion of education
210-23 requirements that would have been required if the license had been
210-24 maintained without interruption during the preceding year.
210-25 (V.A.C.S. Art. 6573a, Secs. 7(e) (part), (h).)
210-26 Sec. 1101.359. ALTERNATE EDUCATION REQUIREMENTS FOR CERTAIN
210-27 LICENSE HOLDERS. An applicant for a broker license who is not
211-1 subject to the education requirements of Section 1101.356(a)(2) and
211-2 an applicant for a salesperson license who is not subject to the
211-3 education requirements of Section 1101.358 or 1101.454 must provide
211-4 to the commission satisfactory evidence that the applicant has
211-5 completed the number of classroom hours of continuing education
211-6 that would have been required for a timely renewal under Section
211-7 1101.455 during the two years preceding the date the application is
211-8 filed. (V.A.C.S. Art. 6573a, Sec. 7A(b).)
211-9 Sec. 1101.360. ELIGIBILITY REQUIREMENTS FOR CERTAIN
211-10 NONRESIDENT APPLICANTS. (a) A resident of another state who is not
211-11 a licensed real estate broker and who was formerly licensed in
211-12 this state as a broker or salesperson may apply for a license under
211-13 this chapter not later than the first anniversary of the date of
211-14 the expiration of the former license.
211-15 (b) A nonresident applicant is subject to the same license
211-16 requirements as a resident. The commission may refuse to issue a
211-17 license to a nonresident applicant for the same reasons that it may
211-18 refuse to issue a license to a resident applicant.
211-19 (c) A nonresident applicant must submit with the application
211-20 an irrevocable consent to a legal action against the applicant in
211-21 the court of any county in this state in which a cause of action
211-22 may arise or in which the plaintiff may reside. The action may be
211-23 commenced by service of process or pleading authorized by the laws
211-24 of this state or by delivery of process on the administrator or
211-25 assistant administrator of the commission. The consent must:
211-26 (1) stipulate that the service of process or pleading
211-27 is valid and binding in all courts as if personal service had been
212-1 made on the nonresident in this state;
212-2 (2) be acknowledged; and
212-3 (3) if made by a corporation, be authenticated by its
212-4 seal.
212-5 (d) A service of process or pleading served on the
212-6 commission under this section shall be by duplicate copies. One
212-7 copy shall be filed in the commission's office, and the other copy
212-8 shall be forwarded by registered mail to the last known principal
212-9 address recorded in the commission's records for the nonresident
212-10 against whom the process or pleading is directed.
212-11 (e) A default judgment in an action commenced as provided by
212-12 this section may not be granted:
212-13 (1) unless the commission certifies that a copy of the
212-14 process or pleading was mailed to the defendant as provided by
212-15 Subsection (d); and
212-16 (2) until the 21st day after the date the process or
212-17 pleading is mailed to the defendant. (V.A.C.S. Art. 6573a, Secs.
212-18 14(b) (part), (c) (part).)
212-19 Sec. 1101.361. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR
212-20 CERTAIN NONRESIDENT APPLICANTS. (a) Notwithstanding Section
212-21 1101.360, a nonresident applicant for a license who resides in a
212-22 municipality whose boundary is contiguous at any point with the
212-23 boundary of a municipality in this state is eligible to be licensed
212-24 under this chapter in the same manner as a resident of this state
212-25 if the nonresident has been a resident of that municipality for at
212-26 least the 60 days preceding the date the application is filed.
212-27 (b) A person licensed under this section shall maintain at
213-1 all times a place of business in the municipality in which the
213-2 person resides or in the municipality in this state that is
213-3 contiguous to the municipality in which the person resides. The
213-4 place of business must meet all the requirements of Section
213-5 1101.552. A place of business located in the municipality in which
213-6 the person resides is considered to be in this state.
213-7 (c) A person licensed under this section may not maintain a
213-8 place of business at another location in this state unless the
213-9 person complies with Section 1101.356 or 1101.357. (V.A.C.S.
213-10 Art. 6573a, Sec. 14(c) (part).)
213-11 Sec. 1101.362. WAIVER OF LICENSE REQUIREMENTS: PREVIOUS
213-12 LICENSE HOLDERS. The commission by rule may waive some or all of
213-13 the requirements for a license under this chapter for an applicant
213-14 who was licensed under this chapter within the six years preceding
213-15 the date the application is filed. (V.A.C.S. Art. 6573a, Sec. 7(c)
213-16 (part).)
213-17 Sec. 1101.363. ISSUANCE OF LICENSE. (a) The commission
213-18 shall issue an appropriate license to an applicant who meets the
213-19 requirements for a license.
213-20 (b) A license remains in effect for the period prescribed by
213-21 the commission if the license holder complies with this chapter and
213-22 pays the appropriate renewal fees. (V.A.C.S. Art. 6573a, Sec. 9(a)
213-23 (part).)
213-24 Sec. 1101.364. DENIAL OF LICENSE. (a) The commission shall
213-25 immediately give written notice to the applicant of the
213-26 commission's denial of a license.
213-27 (b) Before the applicant may appeal under Section 1101.658,
214-1 the applicant must file, not later than the 10th day after the date
214-2 the applicant receives the notice, an appeal requesting a time and
214-3 place for a hearing before the commission. If the applicant fails
214-4 to request a hearing as provided by this subsection, the
214-5 commission's decision becomes final and is not subject to judicial
214-6 review.
214-7 (c) The commission shall:
214-8 (1) set a time and place for the hearing not later
214-9 than the 30th day after the date the commission receives the
214-10 appeal; and
214-11 (2) give notice of the hearing to the applicant before
214-12 the 10th day preceding the date of the hearing.
214-13 (d) The hearing may be continued from time to time with the
214-14 consent of the applicant.
214-15 (e) After the hearing, the commission shall enter an
214-16 appropriate order. (V.A.C.S. Art. 6573a, Secs. 10(a) (part), (b).)
214-17 Sec. 1101.365. PROBATIONARY LICENSE. (a) The commission may
214-18 issue a probationary license.
214-19 (b) The commission by rule shall adopt reasonable terms for
214-20 issuing a probationary license. (V.A.C.S. Art. 6573a, Sec. 10(c).)
214-21 Sec. 1101.366. INACTIVE LICENSE: BROKER. (a) The
214-22 commission may place on inactive status the license of a broker if
214-23 the broker:
214-24 (1) is not acting as a broker;
214-25 (2) is not sponsoring a salesperson; and
214-26 (3) submits a written application to the commission
214-27 before the expiration date of the broker's license.
215-1 (b) The commission may place on inactive status the license
215-2 of a broker whose license has expired if the broker applies for
215-3 inactive status on a form prescribed by the commission not later
215-4 than the first anniversary of the expiration date of the broker's
215-5 license.
215-6 (c) A broker applying for inactive status shall terminate
215-7 the broker's association with each salesperson sponsored by the
215-8 broker by giving written notice to each salesperson before the 30th
215-9 day preceding the date the broker applies for inactive status.
215-10 (d) A broker on inactive status:
215-11 (1) may not perform any activity regulated under this
215-12 chapter; and
215-13 (2) must pay annual renewal fees.
215-14 (e) The commission shall maintain a list of each broker
215-15 whose license is on inactive status.
215-16 (f) The commission shall remove a broker's license from
215-17 inactive status if the broker:
215-18 (1) submits an application to the commission;
215-19 (2) pays the required fee; and
215-20 (3) submits proof of attending at least 15 classroom
215-21 hours of continuing education as specified by Section 1101.455
215-22 during the two years preceding the date the application under
215-23 Subdivision (1) is filed. (V.A.C.S. Art. 6573a, Secs. 6(a) (part),
215-24 13A.)
215-25 Sec. 1101.367. INACTIVE LICENSE: SALESPERSON. (a) The
215-26 commission may place on inactive status the license of a person
215-27 who was previously licensed as a salesperson if the person applies
216-1 for inactive status on a form prescribed by the commission not
216-2 later than the first anniversary of the expiration date of the
216-3 license. An application under this subsection does not require the
216-4 participation of a broker.
216-5 (b) When the association of a salesperson with the
216-6 salesperson's sponsoring broker terminates, the broker shall
216-7 immediately return the salesperson license to the commission. A
216-8 salesperson license returned under this subsection is inactive.
216-9 (c) The commission may remove a salesperson license from
216-10 inactive status under Subsection (b) if, before the expiration date
216-11 of the salesperson license, a licensed broker files a request with
216-12 the commission advising the commission that the broker assumes
216-13 sponsorship of the salesperson, accompanied by the appropriate fee.
216-14 (d) As a condition of returning to active status, an
216-15 inactive salesperson whose license is not subject to the annual
216-16 education requirements of Section 1101.454 must provide to the
216-17 commission proof of attending at least 15 hours of continuing
216-18 education as specified by Section 1101.455 during the two years
216-19 preceding the date the application to return to active status is
216-20 filed. (V.A.C.S. Art. 6573a, Secs. 6(a) (part), 7A(c), 13.)
216-21 (Sections 1101.368-1101.400 reserved for expansion)
216-22 SUBCHAPTER I. EXAMINATIONS
216-23 Sec. 1101.401. EXAMINATION REQUIRED. (a) The competency
216-24 requirement prescribed under Section 1101.354(3) shall be
216-25 established by an examination prepared or contracted for by the
216-26 commission.
216-27 (b) The commission shall determine the time and place in the
217-1 state for offering the examination.
217-2 (c) The examination must be of sufficient scope in the
217-3 judgment of the commission to determine whether a person is
217-4 competent to act as a broker or salesperson in a manner that will
217-5 protect the public.
217-6 (d) The examination for a salesperson license must be less
217-7 exacting and less stringent than the broker examination.
217-8 (e) The commission shall provide each applicant with study
217-9 material and references on which the examination is based.
217-10 (f) An applicant must satisfy the examination requirement
217-11 not later than six months after the date the license application is
217-12 filed. (V.A.C.S. Art. 6573a, Sec. 7(a) (part).)
217-13 Sec. 1101.402. WAIVER OF EXAMINATION. The commission shall
217-14 waive the examination requirement for an applicant for:
217-15 (1) a broker license if:
217-16 (A) the applicant was previously licensed in
217-17 this state as a broker; and
217-18 (B) the application is filed before the first
217-19 anniversary of the expiration date of that license; and
217-20 (2) a salesperson license if:
217-21 (A) the applicant was previously licensed in
217-22 this state as a broker or salesperson; and
217-23 (B) the application is filed before the first
217-24 anniversary of the expiration date of that license. (V.A.C.S.
217-25 Art. 6573a, Sec. 7(c) (part).)
217-26 Sec. 1101.403. ADMINISTRATION OF EXAMINATION; TESTING
217-27 SERVICE. (a) The commission shall administer any examination
218-1 required by this chapter or Chapter 1102 unless the commission
218-2 enters into an agreement with a testing service to administer the
218-3 examination.
218-4 (b) The commission may accept an examination administered by
218-5 a testing service if the commission retains the authority to
218-6 establish the scope and type of the examination.
218-7 (c) The commission may negotiate an agreement with a testing
218-8 service relating to examination development, scheduling, site
218-9 arrangements, administration, grading, reporting, and analysis.
218-10 (d) The commission may require a testing service to:
218-11 (1) correspond directly with license applicants
218-12 regarding the administration of the examination;
218-13 (2) collect fees directly from applicants for
218-14 administering the examination; or
218-15 (3) administer the examination at specific locations
218-16 and specified frequencies.
218-17 (e) The commission shall adopt rules and standards as
218-18 necessary to implement this section. (V.A.C.S. Art. 6573a, Sec.
218-19 7(k).)
218-20 Sec. 1101.404. EXAMINATION RESULTS. (a) Not later than the
218-21 30th day after the date an examination is administered, the
218-22 commission shall notify each examinee of the results of the
218-23 examination. If an examination is graded or reviewed by a national
218-24 testing service, the commission shall notify each examinee of the
218-25 results of the examination not later than the 14th day after the
218-26 date the commission receives the results from the testing service.
218-27 (b) If the notice of the results of an examination graded or
219-1 reviewed by a national testing service will be delayed for more
219-2 than 90 days after the examination date, the commission shall
219-3 notify each examinee of the reason for the delay before the 90th
219-4 day.
219-5 (c) If requested in writing by a person who fails an
219-6 examination, the commission shall provide to the person an analysis
219-7 of the person's performance on the examination. (V.A.C.S.
219-8 Art. 6573a, Sec. 7(i).)
219-9 Sec. 1101.405. REEXAMINATION. An applicant who fails an
219-10 examination may apply for reexamination by filing a request
219-11 accompanied by the proper fee. (V.A.C.S. Art. 6573a, Sec. 7(a)
219-12 (part).)
219-13 (Sections 1101.406-1101.450 reserved for expansion)
219-14 SUBCHAPTER J. LICENSE RENEWAL
219-15 Sec. 1101.451. LICENSE EXPIRATION. (a) The commission may
219-16 issue or renew a license for a period not to exceed 24 months.
219-17 (b) The commission by rule may adopt a system under which
219-18 licenses expire on various dates during the year. The commission
219-19 shall adjust the date for payment of the renewal fees accordingly.
219-20 (c) For a year in which the license expiration date is
219-21 changed, renewal fees payable shall be prorated on a monthly basis
219-22 so that each license holder pays only that portion of the fee that
219-23 is allocable to the number of months during which the license is
219-24 valid. On renewal of the license on the new expiration date, the
219-25 total renewal fee is payable.
219-26 (d) A renewal fee for a license under this chapter may not
219-27 exceed, calculated on an annual basis, the amount of the sum of the
220-1 fees established under Sections 1101.152, 1101.154, and 1101.603.
220-2 (V.A.C.S. Art. 6573a, Secs. 9(c) (part), (d) (part).)
220-3 Sec. 1101.452. INFORMATION REQUIRED FOR LICENSE RENEWAL. (a)
220-4 To renew an active license that is not subject to the annual
220-5 education requirements of Section 1101.454, the license holder must
220-6 provide to the commission proof of compliance with the continuing
220-7 education requirements of Section 1101.455.
220-8 (b) Each applicant for the renewal of a license must
220-9 disclose in the license application whether the applicant has:
220-10 (1) entered a plea of guilty or nolo contendere to a
220-11 felony; or
220-12 (2) been convicted of a felony and the time for appeal
220-13 has elapsed or the judgment or conviction has been affirmed on
220-14 appeal.
220-15 (c) The disclosure under Subsection (b) must be provided
220-16 even if an order has granted community supervision suspending the
220-17 imposition of the sentence. (V.A.C.S. Art. 6573a, Secs. 7A(a)
220-18 (part), 9(e) (part).)
220-19 Sec. 1101.453. ADDITIONAL RENEWAL REQUIREMENTS FOR CERTAIN
220-20 BUSINESS ENTITIES. (a) To renew a license under this chapter:
220-21 (1) a corporation must designate one of its officers
220-22 as its agent for purposes of this chapter; and
220-23 (2) a limited liability company must designate one of
220-24 its managers as its agent for purposes of this chapter.
220-25 (b) A corporation or limited liability company may not act
220-26 as a broker unless the entity's designated agent is a licensed
220-27 broker according to the commission's records. (V.A.C.S. Art. 6573a,
221-1 Sec. 6(c) (part).)
221-2 Sec. 1101.454. SALESPERSON LICENSE RENEWAL. (a) An
221-3 applicant applying for the first renewal of a salesperson license
221-4 must provide to the commission satisfactory evidence of completion
221-5 of at least 14 semester hours, or equivalent classroom hours, of
221-6 postsecondary education, including eight hours of core real estate
221-7 courses.
221-8 (b) An applicant applying for the second renewal of a
221-9 salesperson license must provide to the commission satisfactory
221-10 evidence of completion of at least 16 semester hours, or equivalent
221-11 classroom hours, of postsecondary education, including 10 hours of
221-12 core real estate courses.
221-13 (c) An applicant applying for the third renewal of a
221-14 salesperson license must provide to the commission satisfactory
221-15 evidence of completion of at least 18 semester hours, or equivalent
221-16 classroom hours, of postsecondary education, including 12 hours of
221-17 core real estate courses.
221-18 (d) The commission may not waive the requirements for
221-19 renewal under this section. (V.A.C.S. Art. 6573a, Secs. 7(e)
221-20 (part), 9(d) (part).)
221-21 Sec. 1101.455. CONTINUING EDUCATION REQUIREMENTS. (a) In
221-22 this section, "property tax consulting laws and legal issues"
221-23 includes the Tax Code, preparation of property tax reports, the
221-24 unauthorized practice of law, agency law, tax law, law relating to
221-25 property tax or property assessment, deceptive trade practices,
221-26 contract forms and addendums, and other legal topics approved by
221-27 the commission.
222-1 (b) A license holder who is not subject to the annual
222-2 education requirements of Section 1101.454 must attend during the
222-3 term of the current license at least 15 classroom hours of
222-4 continuing education courses approved by the commission.
222-5 (c) The commission by rule may approve as a substitute for
222-6 the classroom attendance required by Subsection (b):
222-7 (1) relevant educational experience; and
222-8 (2) correspondence courses.
222-9 (d) In addition, the commission may approve supervised video
222-10 instruction as a course that may be applied toward satisfaction of
222-11 the classroom hours of continuing education courses required by
222-12 Subsection (b).
222-13 (e) At least six of the continuing education hours required
222-14 by Subsection (b) must cover the following topics:
222-15 (1) commission rules;
222-16 (2) fair housing laws;
222-17 (3) Property Code issues, including landlord-tenant
222-18 law;
222-19 (4) agency law;
222-20 (5) antitrust laws;
222-21 (6) Subchapter E, Chapter 17, Business & Commerce
222-22 Code;
222-23 (7) disclosures to buyers, landlords, tenants, and
222-24 sellers;
222-25 (8) current contract and addendum forms;
222-26 (9) unauthorized practice of law;
222-27 (10) case studies involving violations of laws and
223-1 regulations;
223-2 (11) current Federal Housing Administration and
223-3 Department of Veterans Affairs regulations;
223-4 (12) tax laws;
223-5 (13) property tax consulting laws and legal issues; or
223-6 (14) other legal topics approved by the commission.
223-7 (f) The remaining nine hours may be devoted to other real
223-8 estate-related topics approved by the commission.
223-9 (g) The commission may consider courses equivalent to those
223-10 described by Subsections (e) and (f) for continuing education
223-11 credit.
223-12 (h) The commission shall automatically approve as mandatory
223-13 continuing education courses:
223-14 (1) core real estate courses; and
223-15 (2) real estate-related courses approved by the State
223-16 Bar of Texas for minimum continuing legal education participatory
223-17 credit.
223-18 (i) The commission may not require an examination for a
223-19 course under this section unless the course is a correspondence
223-20 course or a course offered by an alternative delivery system,
223-21 including delivery by computer.
223-22 (j) Daily classroom course segments must be at least one
223-23 hour and not more than 10 hours. (V.A.C.S. Art. 6573a, Sec. 7A(a).)
223-24 Sec. 1101.456. EXEMPTION FROM CONTINUING EDUCATION
223-25 REQUIREMENTS FOR CERTAIN BROKERS. Notwithstanding any other
223-26 provision of this chapter, a broker who, before October 31, 1991,
223-27 qualified under former Section 7A(f), The Real Estate License Act
224-1 (Article 6573a, Vernon's Texas Civil Statutes), as added by Section
224-2 1.041, Chapter 553, Acts of the 72nd Legislature, Regular Session,
224-3 1991, for an exemption from continuing education requirements is
224-4 not required to comply with the mandatory continuing education
224-5 requirements of this subchapter to renew the broker's license.
224-6 (V.A.C.S. Art. 6573a, Sec. 7A(f) (part).)
224-7 Sec. 1101.457. DEFERRAL OF CONTINUING EDUCATION
224-8 REQUIREMENTS. (a) The commission by rule may establish procedures
224-9 under which an applicant may have the applicant's license issued,
224-10 renewed, or returned to active status before the applicant
224-11 completes continuing education requirements.
224-12 (b) The commission may require an applicant under this
224-13 section to:
224-14 (1) pay an additional fee, not to exceed $200; and
224-15 (2) complete the required continuing education not
224-16 later than the 60th day after the date the license is issued,
224-17 renewed, or returned to active status. (V.A.C.S. Art. 6573a, Sec.
224-18 7A(g).)
224-19 (Sections 1101.458-1101.500 reserved for expansion)
224-20 SUBCHAPTER K. CERTIFICATE REQUIREMENTS
224-21 Sec. 1101.501. CERTIFICATE REQUIRED. A person may not sell,
224-22 buy, lease, or transfer an easement or right-of-way for another,
224-23 for compensation or with the expectation of receiving compensation,
224-24 for use in connection with telecommunication, utility, railroad, or
224-25 pipeline service unless the person:
224-26 (1) holds a license issued under this chapter; or
224-27 (2) holds a certificate of registration issued under
225-1 this subchapter. (V.A.C.S. Art. 6573a, Secs. 4 (part), 9(b)
225-2 (part), 9A(a).)
225-3 Sec. 1101.502. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE. (a)
225-4 To be eligible to receive a certificate of registration or a
225-5 renewal certificate under this subchapter, a person must be:
225-6 (1) at least 18 years of age; and
225-7 (2) a citizen of the United States or a lawfully
225-8 admitted alien.
225-9 (b) To be eligible to receive a certificate of registration
225-10 or a renewal certificate under this subchapter, a corporation,
225-11 limited liability company, partnership, limited liability
225-12 partnership, or other entity must designate as its agent one of its
225-13 officers, partners, or managers who is registered under this
225-14 subchapter. (V.A.C.S. Art. 6573a, Sec. 6(d).)
225-15 Sec. 1101.503. ISSUANCE OF CERTIFICATE. (a) The commission
225-16 shall issue a certificate of registration to an applicant who meets
225-17 the requirements for a certificate of registration.
225-18 (b) The certificate remains in effect for the period
225-19 prescribed by the commission if the certificate holder complies
225-20 with this chapter and pays the appropriate renewal fees. (V.A.C.S.
225-21 Art. 6573a, Sec. 9(a) (part).)
225-22 Sec. 1101.504. CERTIFICATE EXPIRATION. The duration,
225-23 expiration, and renewal of a certificate of registration are
225-24 subject to the same provisions as are applicable under Section
225-25 1101.451 to the duration, expiration, and renewal of a license.
225-26 (V.A.C.S. Art. 6573a, Secs. 9(c) (part), (d) (part).)
225-27 Sec. 1101.505. DENIAL OF CERTIFICATE. The denial of a
226-1 certificate of registration is subject to the same provisions as
226-2 are applicable under Section 1101.364 to the denial of a license.
226-3 (V.A.C.S. Art. 6573a, Secs. 10(a) (part), (b).)
226-4 Sec. 1101.506. CHANGE OF ADDRESS. Not later than the 10th
226-5 day after the date a certificate holder moves its place of business
226-6 from a previously designated address, the holder shall:
226-7 (1) notify the commission of the move; and
226-8 (2) obtain a new certificate of registration that
226-9 reflects the address of the new place of business. (V.A.C.S.
226-10 Art. 6573a, Sec. 12(e) (part).)
226-11 Sec. 1101.507. DISPLAY OF CERTIFICATE. A certificate holder
226-12 shall prominently display at all times the holder's certificate of
226-13 registration in the holder's place of business. (V.A.C.S.
226-14 Art. 6573a, Sec. 12(e) (part).)
226-15 (Sections 1101.508-1101.550 reserved for expansion)
226-16 SUBCHAPTER L. PRACTICE BY LICENSE HOLDER
226-17 Sec. 1101.551. DEFINITIONS. In this subchapter:
226-18 (1) "Intermediary" means a broker who is employed to
226-19 negotiate a transaction between the parties to a transaction and
226-20 for that purpose may act as an agent of the parties.
226-21 (2) "Party" means a prospective buyer, seller,
226-22 landlord, or tenant or an authorized representative of a buyer,
226-23 seller, landlord, or tenant, including a trustee, guardian,
226-24 executor, administrator, receiver, or attorney-in-fact. The term
226-25 does not include a license holder who represents a party. (V.A.C.S.
226-26 Art. 6573a, Secs. 15C(m)(2) (part), (4).)
226-27 Sec. 1101.552. FIXED OFFICE REQUIRED; CHANGE OF ADDRESS;
227-1 BRANCH OFFICES. (a) A resident broker shall maintain a fixed
227-2 office in this state. The address of the office shall be
227-3 designated on the broker's license.
227-4 (b) Not later than the 10th day after the date a broker
227-5 moves from the address designated on the broker's license, the
227-6 broker shall submit an application, accompanied by the appropriate
227-7 fee, for a license that designates the new location of the broker's
227-8 office. The commission shall issue a license that designates the
227-9 new location if the new location complies with the requirements of
227-10 this section.
227-11 (c) A broker who maintains more than one place of business
227-12 in this state shall obtain a branch office license for each
227-13 additional office maintained by the broker by submitting an
227-14 application, accompanied by the appropriate fee.
227-15 (d) A nonresident licensed broker is not required to
227-16 maintain a place of business in this state. (V.A.C.S. Art. 6573a,
227-17 Secs. 12(a), (b), 14(b) (part).)
227-18 Sec. 1101.553. DISPLAY OF LICENSE. (a) A broker shall
227-19 prominently display the broker's license or licenses at all times
227-20 in the broker's place or places of business.
227-21 (b) A broker shall prominently display the license of each
227-22 salesperson associated with the broker in the broker's place of
227-23 business or in one of the broker's places of business.
227-24 (c) A residential rental locator shall prominently display
227-25 in a place accessible to clients and prospective clients:
227-26 (1) the locator's license;
227-27 (2) a statement that the locator is licensed by the
228-1 commission; and
228-2 (3) the name, mailing address, and telephone number of
228-3 the commission as provided by Section 1101.202(a). (V.A.C.S.
228-4 Art. 6573a, Secs. 12(c), (d), 24(d).)
228-5 Sec. 1101.554. CUSTODY OF SALESPERSON LICENSE. (a) The
228-6 commission shall deliver or mail each salesperson license to the
228-7 broker with whom the salesperson is associated.
228-8 (b) The broker shall keep the license under the broker's
228-9 custody and control. (V.A.C.S. Art. 6573a, Sec. 9(a) (part).)
228-10 Sec. 1101.555. NOTICE TO BUYER REGARDING ABSTRACT OR TITLE
228-11 POLICY. When an offer to purchase real estate in this state is
228-12 signed, a license holder shall advise each buyer, in writing, that
228-13 the buyer should:
228-14 (1) have the abstract covering the real estate that is
228-15 the subject of the contract examined by an attorney chosen by the
228-16 buyer; or
228-17 (2) be provided with or obtain a title insurance
228-18 policy. (V.A.C.S. Art. 6573a, Sec. 20(c) (part).)
228-19 Sec. 1101.556. DISCLOSURE OF CERTAIN INFORMATION RELATING TO
228-20 OCCUPANTS. Notwithstanding other law, a license holder is not
228-21 required to inquire about, disclose, or release information
228-22 relating to whether:
228-23 (1) a previous or current occupant of real property
228-24 had, may have had, has, or may have AIDS, an HIV-related illness,
228-25 or an HIV infection as defined by the Centers for Disease Control
228-26 and Prevention of the United States Public Health Service; or
228-27 (2) a death occurred on a property by natural causes,
229-1 suicide, or accident unrelated to the condition of the property.
229-2 (V.A.C.S. Art. 6573a, Sec. 15E.)
229-3 Sec. 1101.557. ACTING AS AGENT. A license holder who
229-4 represents a party in a real estate transaction acts as that
229-5 party's agent. (V.A.C.S. Art. 6573a, Sec. 15C(c).)
229-6 Sec. 1101.558. REPRESENTATION DISCLOSURE. (a) In this
229-7 section, "face-to-face meeting" means a meeting at which a
229-8 substantive discussion occurs relating to specific real property.
229-9 The term does not include a meeting that occurs:
229-10 (1) at a property that is held open for any
229-11 prospective buyer or tenant; or
229-12 (2) after the parties to a real estate transaction
229-13 have signed a contract to sell, buy, or lease the real property
229-14 concerned.
229-15 (b) A license holder who represents a party in a proposed
229-16 real estate transaction shall disclose, orally or in writing, that
229-17 representation at the time of the license holder's first contact
229-18 with:
229-19 (1) another party to the transaction; or
229-20 (2) another license holder who represents another
229-21 party to the transaction.
229-22 (c) A license holder shall provide to a party to a real
229-23 estate transaction at the time of the first face-to-face meeting
229-24 with the party the written statement prescribed by Subsection (d)
229-25 unless:
229-26 (1) the proposed transaction is for a residential
229-27 lease for not more than one year and a sale is not being
230-1 considered; or
230-2 (2) the license holder meets with a party who is
230-3 represented by another license holder.
230-4 (d) The written statement required by Subsection (c) must be
230-5 printed in a format that uses at least 10-point type and read as
230-6 follows:
230-7 "Before working with a real estate broker, you should
230-8 know that the duties of a broker depend on whom the
230-9 broker represents. If you are a prospective seller or
230-10 landlord (owner) or a prospective buyer or tenant
230-11 (buyer), you should know that the broker who lists the
230-12 property for sale or lease is the owner's agent. A
230-13 broker who acts as a subagent represents the owner in
230-14 cooperation with the listing broker. A broker who acts
230-15 as a buyer's agent represents the buyer. A broker may
230-16 act as an intermediary between the parties if the
230-17 parties consent in writing. A broker can assist you in
230-18 locating a property, preparing a contract or lease, or
230-19 obtaining financing without representing you. A broker
230-20 is obligated by law to treat you honestly.
230-21 "IF THE BROKER REPRESENTS THE OWNER: The broker
230-22 becomes the owner's agent by entering into an agreement
230-23 with the owner, usually through a written listing
230-24 agreement, or by agreeing to act as a subagent by
230-25 accepting an offer of subagency from the listing
230-26 broker. A subagent may work in a different real estate
230-27 office. A listing broker or subagent can assist the
231-1 buyer but does not represent the buyer and must place
231-2 the interests of the owner first. The buyer should not
231-3 tell the owner's agent anything the buyer would not
231-4 want the owner to know because an owner's agent must
231-5 disclose to the owner any material information known to
231-6 the agent.
231-7 "IF THE BROKER REPRESENTS THE BUYER: The broker
231-8 becomes the buyer's agent by entering into an agreement
231-9 to represent the buyer, usually through a written buyer
231-10 representation agreement. A buyer's agent can assist
231-11 the owner but does not represent the owner and must
231-12 place the interests of the buyer first. The owner
231-13 should not tell a buyer's agent anything the owner
231-14 would not want the buyer to know because a buyer's
231-15 agent must disclose to the buyer any material
231-16 information known to the agent.
231-17 "IF THE BROKER ACTS AS AN INTERMEDIARY: A broker may
231-18 act as an intermediary between the parties if the
231-19 broker complies with The Texas Real Estate License Act.
231-20 The broker must obtain the written consent of each
231-21 party to the transaction to act as an intermediary.
231-22 The written consent must state who will pay the broker
231-23 and, in conspicuous bold or underlined print, set forth
231-24 the broker's obligations as an intermediary. The
231-25 broker is required to treat each party honestly and
231-26 fairly and to comply with The Texas Real Estate License
231-27 Act. A broker who acts as an intermediary in a
232-1 transaction: (1) shall treat all parties honestly;
232-2 (2) may not disclose that the owner will accept a price
232-3 less than the asking price unless authorized in writing
232-4 to do so by the owner; (3) may not disclose that the
232-5 buyer will pay a price greater than the price submitted
232-6 in a written offer unless authorized in writing to do
232-7 so by the buyer; and (4) may not disclose any
232-8 confidential information or any information that a
232-9 party specifically instructs the broker in writing not
232-10 to disclose unless authorized in writing to disclose
232-11 the information or required to do so by The Texas Real
232-12 Estate License Act or a court order or if the
232-13 information materially relates to the condition of the
232-14 property. With the parties' consent, a broker acting
232-15 as an intermediary between the parties may appoint a
232-16 person who is licensed under The Texas Real Estate
232-17 License Act and associated with the broker to
232-18 communicate with and carry out instructions of one
232-19 party and another person who is licensed under that Act
232-20 and associated with the broker to communicate with and
232-21 carry out instructions of the other party.
232-22 "If you choose to have a broker represent you, you
232-23 should enter into a written agreement with the broker
232-24 that clearly establishes the broker's obligations and
232-25 your obligations. The agreement should state how and
232-26 by whom the broker will be paid. You have the right to
232-27 choose the type of representation, if any, you wish to
233-1 receive. Your payment of a fee to a broker does not
233-2 necessarily establish that the broker represents you.
233-3 If you have any questions regarding the duties and
233-4 responsibilities of the broker, you should resolve
233-5 those questions before proceeding."
233-6 (e) The license holder may substitute "buyer" for "tenant"
233-7 and "seller" for "landlord" as appropriate in the written statement
233-8 prescribed by Subsection (d). (V.A.C.S. Art. 6573a, Secs. 15C(a),
233-9 (b), (d), (e), (f), (g), (m)(1).)
233-10 Sec. 1101.559. BROKER ACTING AS INTERMEDIARY. (a) A broker
233-11 may act as an intermediary between parties to a real estate
233-12 transaction if:
233-13 (1) the broker obtains written consent from each party
233-14 for the broker to act as an intermediary in the transaction; and
233-15 (2) the written consent of the parties states the
233-16 source of any expected compensation to the broker.
233-17 (b) A written listing agreement to represent a seller or
233-18 landlord or a written agreement to represent a buyer or tenant that
233-19 authorizes a broker to act as an intermediary in a real estate
233-20 transaction is sufficient to establish written consent of the party
233-21 to the transaction if the written agreement specifies in
233-22 conspicuous bold or underlined print the conduct that is prohibited
233-23 under Section 1101.651(d).
233-24 (c) An intermediary shall act fairly and impartially.
233-25 Appointment by a broker acting as an intermediary of an associated
233-26 license holder under Section 1101.560 to communicate with, carry
233-27 out the instructions of, and provide opinions and advice to the
234-1 parties to whom that associated license holder is appointed is a
234-2 fair and impartial act. (V.A.C.S. Art. 6573a, Secs. 15C(h), (i),
234-3 (m)(2) (part).)
234-4 Sec. 1101.560. ASSOCIATED LICENSE HOLDER ACTING AS
234-5 INTERMEDIARY. (a) A broker who complies with the written consent
234-6 requirements of Section 1101.559 may appoint:
234-7 (1) a license holder associated with the broker to
234-8 communicate with and carry out instructions of one party to a real
234-9 estate transaction; and
234-10 (2) another license holder associated with the broker
234-11 to communicate with and carry out instructions of any other party
234-12 to the transaction.
234-13 (b) A license holder may be appointed under this section
234-14 only if:
234-15 (1) the written consent of the parties under Section
234-16 1101.559 authorizes the broker to make the appointment; and
234-17 (2) the broker provides written notice of the
234-18 appointment to all parties involved in the real estate transaction.
234-19 (c) A license holder appointed under this section may
234-20 provide opinions and advice during negotiations to the party to
234-21 whom the license holder is appointed. (V.A.C.S. Art. 6573a, Sec.
234-22 15C(k) (part).)
234-23 Sec. 1101.561. DUTIES OF INTERMEDIARY PREVAIL. The duties of
234-24 a license holder acting as an intermediary under this subchapter
234-25 supersede the duties of a license holder established under any
234-26 other law, including common law. (V.A.C.S. Art. 6573a, Sec.
234-27 15C(l).)
235-1 (Sections 1101.562-1101.600 reserved for expansion)
235-2 SUBCHAPTER M. REAL ESTATE RECOVERY TRUST ACCOUNT
235-3 Sec. 1101.601. REAL ESTATE RECOVERY TRUST ACCOUNT. (a) The
235-4 commission shall maintain a real estate recovery trust account to
235-5 reimburse aggrieved persons who suffer actual damages caused by an
235-6 act described by Section 1101.602 committed by:
235-7 (1) a license holder;
235-8 (2) a certificate holder; or
235-9 (3) a person who does not hold a license or
235-10 certificate and who is an employee or agent of a license or
235-11 certificate holder.
235-12 (b) The license or certificate holder must have held the
235-13 license or certificate at the time the act was committed.
235-14 (V.A.C.S. Art. 6573a, Sec. 8(a) (part).)
235-15 Sec. 1101.602. ENTITLEMENT TO REIMBURSEMENT. An aggrieved
235-16 person is entitled to reimbursement from the trust account if a
235-17 person described by Section 1101.601 engages in conduct described
235-18 by Section 1101.652(a)(3) or (b) or 1101.653(1), (2), (3), or (4).
235-19 (V.A.C.S. Art. 6573a, Sec. 8(a) (part).)
235-20 Sec. 1101.603. PAYMENTS INTO TRUST ACCOUNT. (a) In addition
235-21 to other fees required by this chapter, an applicant for an
235-22 original license must pay a fee of $10.
235-23 (b) In addition to other fees required by this chapter, an
235-24 applicant for an original certificate of registration or renewal
235-25 certificate must pay a fee of $50.
235-26 (c) The commission shall deposit to the credit of the trust
235-27 account:
236-1 (1) fees collected under Subsections (a) and (b); and
236-2 (2) an administrative penalty collected under
236-3 Subchapter O.
236-4 (d) If the balance in the trust account on December 31 of a
236-5 year is less than $1 million, each license holder at the next
236-6 license renewal must pay, in addition to the renewal fee, a fee
236-7 that is equal to the lesser of $10 or a pro rata share of the
236-8 amount necessary to obtain a balance in the trust account of $1.7
236-9 million. The commission shall deposit the additional fee to the
236-10 credit of the trust account. (V.A.C.S. Art. 6573a, Secs. 8(b), (c)
236-11 (part), 11 (part), 19A(o) (part).)
236-12 Sec. 1101.604. MANAGEMENT OF TRUST ACCOUNT. (a) The
236-13 commission shall hold money credited to the trust account in trust
236-14 to carry out the purpose of the trust account.
236-15 (b) Money credited to the trust account may be invested in
236-16 the same manner as money of the Employees Retirement System of
236-17 Texas, except that an investment may not be made that would impair
236-18 the liquidity necessary to make payments from the trust account as
236-19 required by this subchapter.
236-20 (c) Interest from the investments shall be deposited to the
236-21 credit of the trust account.
236-22 (d) If the balance in the trust account on December 31 of a
236-23 year is more than the greater of $3.5 million or the total amount
236-24 of claims paid from the trust account during the preceding four
236-25 fiscal years, the commission shall transfer the excess amount of
236-26 money in the trust account to the credit of the general revenue
236-27 fund. (V.A.C.S. Art. 6573a, Secs. 8(c) (part), (j).)
237-1 Sec. 1101.605. DEADLINE FOR ACTION; NOTICE TO COMMISSION.
237-2 (a) An action for a judgment that may result in an order for
237-3 payment from the trust account may not be brought after the second
237-4 anniversary of the date the cause of action accrues.
237-5 (b) When an aggrieved person brings an action for a judgment
237-6 that may result in an order for payment from the trust account, the
237-7 license or certificate holder against whom the action is brought
237-8 shall notify the commission in writing of the action. (V.A.C.S.
237-9 Art. 6573a, Sec. 8(d).)
237-10 Sec. 1101.606. CLAIM FOR PAYMENT FROM TRUST ACCOUNT. (a) An
237-11 aggrieved person who obtains a court judgment against a license or
237-12 certificate holder for an act described by Section 1101.602 may,
237-13 after final judgment is entered, execution returned nulla bona, and
237-14 a judgment lien perfected, file a verified claim in the court that
237-15 entered the judgment.
237-16 (b) After the 20th day after the date the aggrieved person
237-17 gives written notice of the claim to the commission and judgment
237-18 debtor, the person may apply to the court that entered the judgment
237-19 for an order for payment from the trust account of the amount
237-20 unpaid on the judgment. The court shall proceed promptly on the
237-21 application. (V.A.C.S. Art. 6573a, Secs. 8(e), (f) (part).)
237-22 Sec. 1101.607. ISSUES AT HEARING. At the hearing on the
237-23 application for payment from the trust account, the aggrieved
237-24 person must show:
237-25 (1) that the judgment is based on facts allowing
237-26 recovery under this subchapter;
237-27 (2) that the person is not:
238-1 (A) the spouse of the judgment debtor or the
238-2 personal representative of the spouse; or
238-3 (B) a license or certificate holder who is
238-4 seeking to recover compensation, including a commission, in the
238-5 real estate transaction that is the subject of the application for
238-6 payment;
238-7 (3) that the person has obtained a judgment described
238-8 by Section 1101.606 that is not subject to a stay or discharge in
238-9 bankruptcy;
238-10 (4) the amount of the judgment and the amount owing on
238-11 the judgment on the date of the application;
238-12 (5) that, according to the best information available,
238-13 the judgment debtor does not have sufficient attachable assets in
238-14 this or another state to satisfy the judgment;
238-15 (6) the amount that may be realized from the sale of
238-16 assets liable to be sold or applied to satisfy the judgment; and
238-17 (7) the balance remaining due on the judgment after
238-18 application of the amount under Subdivision (6). (V.A.C.S.
238-19 Art. 6573a, Sec. 8(f) (part).)
238-20 Sec. 1101.608. COMMISSION RESPONSE. (a) On receipt of
238-21 notice under Section 1101.606 and the scheduling of a hearing, the
238-22 commission may notify the attorney general of the commission's
238-23 desire to enter an appearance, file a response, appear at the
238-24 hearing, defend the action, or take any other action the commission
238-25 considers appropriate.
238-26 (b) The commission and the attorney general may act under
238-27 Subsection (a) only to:
239-1 (1) protect the trust account from spurious or unjust
239-2 claims; or
239-3 (2) ensure compliance with the requirements for
239-4 recovery under this subchapter.
239-5 (c) The commission may relitigate in the hearing any
239-6 material and relevant issue that was determined in the action that
239-7 resulted in the judgment in favor of the aggrieved person.
239-8 (V.A.C.S. Art. 6573a, Secs. 8(h) (part), (k).)
239-9 Sec. 1101.609. COURT ORDER FOR PAYMENT. The court shall
239-10 order the commission to pay from the trust account the amount the
239-11 court finds payable on the claim under this subchapter if at a
239-12 hearing the court is satisfied:
239-13 (1) of the truth of each matter the aggrieved person
239-14 is required by Section 1101.607 to show; and
239-15 (2) that the aggrieved person has satisfied each
239-16 requirement of Sections 1101.606 and 1101.607. (V.A.C.S.
239-17 Art. 6573a, Secs. 8(a) (part), (h) (part).)
239-18 Sec. 1101.610. PAYMENT LIMITS; ATTORNEY'S FEES. (a)
239-19 Payments from the trust account for claims, including attorney's
239-20 fees, interest, and court costs, arising out of a single
239-21 transaction may not exceed a total of $50,000, regardless of the
239-22 number of claimants.
239-23 (b) Payments from the trust account for claims based on
239-24 judgments against a single license or certificate holder may not
239-25 exceed a total of $100,000 until the license or certificate holder
239-26 has reimbursed the trust account for all amounts paid.
239-27 (c) If the court finds that the total amount of claims
240-1 against a license or certificate holder exceeds the limitations in
240-2 this section, the court shall proportionately reduce the amount
240-3 payable on each claim.
240-4 (d) A person receiving payment from the trust account is
240-5 entitled to receive reasonable attorney's fees in the amount
240-6 determined by the court, subject to the limitations prescribed by
240-7 this section. (V.A.C.S. Art. 6573a, Secs. 8(h) (part), (n), (p).)
240-8 Sec. 1101.611. APPLICATION OF JUDGMENT RECOVERY. An
240-9 aggrieved person who receives a recovery on a judgment against a
240-10 single defendant before receiving a payment from the trust account
240-11 must apply the recovery first to actual damages. (V.A.C.S.
240-12 Art. 6573a, Sec. 8(g).)
240-13 Sec. 1101.612. SUBROGATION. (a) The commission is
240-14 subrogated to all rights of a judgment creditor to the extent of an
240-15 amount paid from the trust account, and the judgment creditor shall
240-16 assign to the commission all right, title, and interest in the
240-17 judgment up to that amount.
240-18 (b) The commission has priority for repayment from any
240-19 subsequent recovery on the judgment.
240-20 (c) The commission shall deposit any amount recovered on the
240-21 judgment to the credit of the trust account. (V.A.C.S. Art. 6573a,
240-22 Sec. 8(l).)
240-23 Sec. 1101.613. EFFECT ON DISCIPLINARY PROCEEDINGS. (a) This
240-24 subchapter does not limit the commission's authority to take
240-25 disciplinary action against a license or certificate holder for a
240-26 violation of this chapter or a commission rule.
240-27 (b) A license or certificate holder's repayment of all
241-1 amounts owed to the trust account does not affect another
241-2 disciplinary proceeding brought under this chapter. (V.A.C.S.
241-3 Art. 6573a, Sec. 8(o).)
241-4 Sec. 1101.614. WAIVER OF RIGHTS. An aggrieved person who
241-5 does not comply with this subchapter waives the person's rights
241-6 under this subchapter. (V.A.C.S. Art. 6573a, Sec. 8(m).)
241-7 Sec. 1101.615. NOTICE TO CONSUMERS AND SERVICE RECIPIENTS.
241-8 (a) Each license and certificate holder shall provide notice to
241-9 consumers and service recipients of the availability of payment
241-10 from the trust account for aggrieved persons:
241-11 (1) in conjunction with the notice required by Section
241-12 1101.202;
241-13 (2) on a written contract for the license or
241-14 certificate holder's services;
241-15 (3) on a brochure that the license or certificate
241-16 holder distributes;
241-17 (4) on a sign prominently displayed in the license or
241-18 certificate holder's place of business; or
241-19 (5) in a bill or receipt for the license or
241-20 certificate holder's services.
241-21 (b) The notice must include:
241-22 (1) the commission's name, mailing address, and
241-23 telephone number; and
241-24 (2) any other information required by commission rule.
241-25 (V.A.C.S. Art. 6573a, Sec. 8(q).)
241-26 (Sections 1101.616-1101.650 reserved for expansion)
241-27 SUBCHAPTER N. PROHIBITED PRACTICES AND DISCIPLINARY PROCEEDINGS
242-1 Sec. 1101.651. CERTAIN PRACTICES PROHIBITED. (a) A licensed
242-2 broker may not pay a commission to or otherwise compensate a person
242-3 directly or indirectly for performing an act of a broker unless the
242-4 person is:
242-5 (1) a license holder; or
242-6 (2) a real estate broker licensed in another state who
242-7 does not conduct in this state any of the negotiations for which
242-8 the commission or other compensation is paid.
242-9 (b) A salesperson may not accept compensation for a real
242-10 estate transaction from a person other than the broker with whom
242-11 the salesperson is associated or was associated when the
242-12 salesperson earned the compensation.
242-13 (c) A salesperson may not pay a commission to a person
242-14 except through the broker with whom the salesperson is associated
242-15 at that time.
242-16 (d) A broker and any broker or salesperson appointed under
242-17 Section 1101.560 who acts as an intermediary under Subchapter L may
242-18 not:
242-19 (1) disclose to the buyer or tenant that the seller or
242-20 landlord will accept a price less than the asking price, unless
242-21 otherwise instructed in a separate writing by the seller or
242-22 landlord;
242-23 (2) disclose to the seller or landlord that the buyer
242-24 or tenant will pay a price greater than the price submitted in a
242-25 written offer to the seller or landlord, unless otherwise
242-26 instructed in a separate writing by the buyer or tenant;
242-27 (3) disclose any confidential information or any
243-1 information a party specifically instructs the broker or
243-2 salesperson in writing not to disclose, unless:
243-3 (A) the broker or salesperson is otherwise
243-4 instructed in a separate writing by the respective party;
243-5 (B) the broker or salesperson is required to
243-6 disclose the information by this chapter or a court order; or
243-7 (C) the information materially relates to the
243-8 condition of the property;
243-9 (4) treat a party to a transaction dishonestly; or
243-10 (5) violate this chapter. (V.A.C.S. Art. 6573a, Secs.
243-11 1(d), (e), 14(a), 15C(j), (k) (part).)
243-12 Sec. 1101.652. GROUNDS FOR SUSPENSION OR REVOCATION OF
243-13 LICENSE. (a) The commission may suspend or revoke a license issued
243-14 under this chapter if the license holder:
243-15 (1) enters a plea of guilty or nolo contendere to or
243-16 is convicted of a felony in which fraud is an essential element,
243-17 and the time for appeal has elapsed or the judgment or conviction
243-18 has been affirmed on appeal, without regard to an order granting
243-19 community supervision that suspends the imposition of the sentence;
243-20 (2) procures or attempts to procure a license under
243-21 this chapter for the license holder or a salesperson by fraud,
243-22 misrepresentation, or deceit or by making a material misstatement
243-23 of fact in an application for a license;
243-24 (3) engages in misrepresentation, dishonesty, or fraud
243-25 when selling, buying, trading, or leasing real property in the
243-26 license holder's own name;
243-27 (4) fails to honor, within a reasonable time, a check
244-1 issued to the commission after the commission has sent by certified
244-2 mail a request for payment to the license holder's last known
244-3 business address according to commission records;
244-4 (5) fails or refuses to produce on request, for
244-5 inspection by the commission or a commission representative, a
244-6 document, book, or record that is in the license holder's
244-7 possession and relates to a real estate transaction conducted by
244-8 the license holder;
244-9 (6) fails to provide, within a reasonable time,
244-10 information requested by the commission that relates to a formal or
244-11 informal complaint to the commission that would indicate a
244-12 violation of this chapter;
244-13 (7) fails to surrender to the owner, without just
244-14 cause, a document or instrument that is requested by the owner and
244-15 that is in the license holder's possession;
244-16 (8) fails to use a contract form required by the
244-17 commission under Section 1101.155; or
244-18 (9) disregards or violates this chapter.
244-19 (b) The commission may suspend or revoke a license issued
244-20 under this chapter if the license holder, while acting as a broker
244-21 or salesperson:
244-22 (1) acts negligently or incompetently;
244-23 (2) engages in conduct that is dishonest or in bad
244-24 faith or that demonstrates untrustworthiness;
244-25 (3) makes a material misrepresentation to a potential
244-26 buyer concerning a significant defect, including a latent
244-27 structural defect, known to the license holder that would be a
245-1 significant factor to a reasonable and prudent buyer in making a
245-2 decision to purchase real property;
245-3 (4) fails to disclose to a potential buyer a defect
245-4 described by Subdivision (3) that is known to the license holder;
245-5 (5) makes a false promise that is likely to influence
245-6 a person to enter into an agreement when the license holder is
245-7 unable or does not intend to keep the promise;
245-8 (6) pursues a continued and flagrant course of
245-9 misrepresentation or makes false promises through an agent or
245-10 salesperson, through advertising, or otherwise;
245-11 (7) fails to make clear to all parties to a real
245-12 estate transaction the party for whom the license holder is acting;
245-13 (8) receives compensation from more than one party to
245-14 a real estate transaction without the full knowledge and consent of
245-15 all parties to the transaction;
245-16 (9) fails within a reasonable time to properly account
245-17 for or remit money that is received by the license holder and that
245-18 belongs to another person;
245-19 (10) commingles money that belongs to another person
245-20 with the license holder's own money;
245-21 (11) pays a commission or a fee to or divides a
245-22 commission or a fee with a person other than a license holder or a
245-23 real estate broker or salesperson licensed in another state for
245-24 compensation for services as a real estate agent;
245-25 (12) fails to specify a definite termination date that
245-26 is not subject to prior notice in a contract, other than a contract
245-27 to perform property management services, in which the license
246-1 holder agrees to perform services for which a license is required
246-2 under this chapter;
246-3 (13) accepts, receives, or charges an undisclosed
246-4 commission, rebate, or direct profit on an expenditure made for a
246-5 principal;
246-6 (14) solicits, sells, or offers for sale real property
246-7 by means of a lottery;
246-8 (15) solicits, sells, or offers for sale real property
246-9 by means of a deceptive practice;
246-10 (16) acts in a dual capacity as broker and undisclosed
246-11 principal in a real estate transaction;
246-12 (17) guarantees or authorizes or permits a person to
246-13 guarantee that future profits will result from a resale of real
246-14 property;
246-15 (18) places a sign on real property offering the real
246-16 property for sale or lease without obtaining the written consent of
246-17 the owner of the real property or the owner's authorized agent;
246-18 (19) offers to sell or lease real property without the
246-19 knowledge and consent of the owner of the real property or the
246-20 owner's authorized agent;
246-21 (20) offers to sell or lease real property on terms
246-22 other than those authorized by the owner of the real property or
246-23 the owner's authorized agent;
246-24 (21) induces or attempts to induce a party to a
246-25 contract of sale or lease to break the contract for the purpose of
246-26 substituting a new contract;
246-27 (22) negotiates or attempts to negotiate the sale,
247-1 exchange, or lease of real property with an owner, landlord, buyer,
247-2 or tenant with knowledge that that person is a party to an
247-3 outstanding written contract that grants exclusive agency to
247-4 another broker in connection with the transaction;
247-5 (23) publishes or causes to be published an
247-6 advertisement, including an advertisement by newspaper, radio,
247-7 television, or display, that misleads or is likely to deceive the
247-8 public, tends to create a misleading impression, or fails to
247-9 identify the person causing the advertisement to be published as a
247-10 licensed broker or agent;
247-11 (24) withholds from or inserts into a statement of
247-12 account or invoice a statement that the license holder knows makes
247-13 the statement of account or invoice inaccurate in a material way;
247-14 (25) publishes or circulates an unjustified or
247-15 unwarranted threat of a legal proceeding or other action;
247-16 (26) establishes an association by employment or
247-17 otherwise with a person other than a license holder if the person
247-18 is expected or required to act as a license holder;
247-19 (27) aids, abets, or conspires with another person to
247-20 circumvent this chapter;
247-21 (28) fails or refuses to provide, on request, a copy
247-22 of a document relating to a real estate transaction to a person
247-23 who signed the document;
247-24 (29) fails to advise a buyer in writing before the
247-25 closing of a real estate transaction that the buyer should:
247-26 (A) have the abstract covering the real estate
247-27 that is the subject of the contract examined by an attorney chosen
248-1 by the buyer; or
248-2 (B) be provided with or obtain a title insurance
248-3 policy;
248-4 (30) fails to deposit, within a reasonable time, money
248-5 the license holder receives as escrow agent in a real estate
248-6 transaction:
248-7 (A) in trust with a title company authorized to
248-8 do business in this state; or
248-9 (B) in a custodial, trust, or escrow account
248-10 maintained for that purpose in a banking institution authorized to
248-11 do business in this state;
248-12 (31) disburses money deposited in a custodial, trust,
248-13 or escrow account, as provided in Subdivision (30), before the
248-14 completion or termination of the real estate transaction;
248-15 (32) discriminates against an owner, potential buyer,
248-16 landlord, or potential tenant on the basis of race, color,
248-17 religion, sex, national origin, or ancestry, including directing a
248-18 prospective buyer or tenant interested in equivalent properties to
248-19 a different area based on the race, color, religion, sex, national
248-20 origin, or ancestry of the potential owner or tenant; or
248-21 (33) disregards or violates this chapter. (V.A.C.S.
248-22 Art. 6573a, Secs. 15(a) (part), 16(e) (part).)
248-23 Sec. 1101.653. GROUNDS FOR SUSPENSION OR REVOCATION OF
248-24 CERTIFICATE. The commission may suspend or revoke a certificate of
248-25 registration issued under this chapter if the certificate holder:
248-26 (1) engages in dishonest dealing, fraud, unlawful
248-27 discrimination, or a deceptive act;
249-1 (2) makes a misrepresentation;
249-2 (3) acts in bad faith;
249-3 (4) demonstrates untrustworthiness;
249-4 (5) fails to honor, within a reasonable time, a check
249-5 issued to the commission after the commission has mailed a request
249-6 for payment to the certificate holder's last known address
249-7 according to the commission's records;
249-8 (6) fails to provide to a party to a transaction a
249-9 written notice prescribed by the commission that:
249-10 (A) must be given before the party is obligated
249-11 to sell, buy, lease, or transfer a right-of-way or easement; and
249-12 (B) contains:
249-13 (i) the name of the certificate holder;
249-14 (ii) the certificate number;
249-15 (iii) the name of the person the
249-16 certificate holder represents;
249-17 (iv) a statement advising the party that
249-18 the party may seek representation from a lawyer or broker in the
249-19 transaction; and
249-20 (v) a statement generally advising the
249-21 party that the right-of-way or easement may affect the value of the
249-22 property; or
249-23 (7) disregards or violates this chapter or a
249-24 commission rule relating to certificate holders. (V.A.C.S.
249-25 Art. 6573a, Sec. 9A(c) (part).)
249-26 Sec. 1101.654. SUSPENSION OR REVOCATION OF LICENSE OR
249-27 CERTIFICATE FOR UNAUTHORIZED PRACTICE OF LAW. (a) The commission
250-1 shall suspend or revoke the license or certificate of registration
250-2 of a license or certificate holder who is not a licensed attorney
250-3 in this state and who, for consideration, a reward, or a pecuniary
250-4 benefit, present or anticipated, direct or indirect, or in
250-5 connection with the person's employment, agency, or fiduciary
250-6 relationship as a license or certificate holder:
250-7 (1) drafts an instrument, other than a form described
250-8 by Section 1101.155, that transfers or otherwise affects an
250-9 interest in real property; or
250-10 (2) advises a person regarding the validity or legal
250-11 sufficiency of an instrument or the validity of title to real
250-12 property.
250-13 (b) Notwithstanding any other law, a license or certificate
250-14 holder who completes a contract form for the sale, exchange,
250-15 option, or lease of an interest in real property incidental to
250-16 acting as a broker is not engaged in the unauthorized or illegal
250-17 practice of law in this state if the form was:
250-18 (1) adopted by the commission for the type of
250-19 transaction for which the form is used;
250-20 (2) prepared by an attorney licensed in this state and
250-21 approved by the attorney for the type of transaction for which the
250-22 form is used; or
250-23 (3) prepared by the property owner or by an attorney
250-24 and required by the property owner. (V.A.C.S. Art. 6573a, Secs.
250-25 16(a), (b).)
250-26 Sec. 1101.655. REVOCATION OF LICENSE OR CERTIFICATE FOR
250-27 CLAIM ON ACCOUNT. (a) The commission may revoke a license or
251-1 certificate of registration issued under this chapter if the
251-2 commission makes a payment from the real estate recovery trust
251-3 account to satisfy all or part of a judgment against the license or
251-4 certificate holder.
251-5 (b) The commission may probate an order revoking a license
251-6 under this section.
251-7 (c) A person whose license or certificate is revoked under
251-8 this section is not eligible for a new license or certificate until
251-9 the person has repaid in full the amount paid from the account for
251-10 the person, plus interest at the legal rate. (V.A.C.S. Art. 6573a,
251-11 Sec. 8(i).)
251-12 Sec. 1101.656. ADDITIONAL DISCIPLINARY AUTHORITY OF
251-13 COMMISSION. (a) In addition to any other authority under this
251-14 chapter, the commission may suspend or revoke a license, place on
251-15 probation a person whose license has been suspended, or reprimand a
251-16 license holder if the license holder violates this chapter or a
251-17 commission rule.
251-18 (b) The commission may probate a suspension, revocation, or
251-19 cancellation of a license under reasonable terms determined by the
251-20 commission.
251-21 (c) The commission may require a license holder whose
251-22 license suspension or revocation is probated to:
251-23 (1) report regularly to the commission on matters that
251-24 are the basis of the probation;
251-25 (2) limit practice to an area prescribed by the
251-26 commission; or
251-27 (3) continue to renew professional education until the
252-1 license holder attains a degree of skill satisfactory to the
252-2 commission in the area that is the basis of the probation.
252-3 (V.A.C.S. Art. 6573a, Secs. 15B(b), (c), (d).)
252-4 Sec. 1101.657. HEARING. (a) If the commission proposes to
252-5 suspend or revoke a person's license or certificate of
252-6 registration, the person is entitled to a hearing before the
252-7 commission or a hearings officer appointed by the commission.
252-8 (b) The commission shall adopt procedures by which all
252-9 decisions to suspend or revoke a license or certificate are made by
252-10 or are appealable to the commission.
252-11 (c) Except as provided by Subsection (d), the commission
252-12 shall prescribe the time and place of the hearing.
252-13 (d) The hearing shall be held, if the license holder
252-14 requests, in the county in which the principal place of business of
252-15 the license holder is located, or, if the license holder is not a
252-16 resident, the hearing may be held in any county in this state.
252-17 (e) A hearing under this section is governed by the
252-18 contested case procedures under Chapter 2001, Government Code.
252-19 (V.A.C.S. Art. 6573a, Sec. 17(a).)
252-20 Sec. 1101.658. APPEAL. (a) A person aggrieved by a ruling,
252-21 order, or decision of the commission is entitled to appeal to a
252-22 district court in the county in which the administrative hearing
252-23 was held.
252-24 (b) An appeal is governed by the procedures under Chapter
252-25 2001, Government Code. (V.A.C.S. Art. 6573a, Sec. 18.)
252-26 (Sections 1101.659-1101.700 reserved for expansion)
252-27 SUBCHAPTER O. ADMINISTRATIVE PENALTY
253-1 Sec. 1101.701. IMPOSITION OF ADMINISTRATIVE PENALTY. The
253-2 commission may impose an administrative penalty on a person
253-3 licensed under this chapter who violates this chapter or a rule
253-4 adopted or order issued by the commission under this chapter.
253-5 (V.A.C.S. Art. 6573a, Sec. 19A(a).)
253-6 Sec. 1101.702. AMOUNT OF PENALTY. (a) The amount of an
253-7 administrative penalty may not exceed $1,000 for each violation.
253-8 (b) In determining the amount of the penalty, the
253-9 administrator shall consider:
253-10 (1) the seriousness of the violation, including the
253-11 nature, circumstances, extent, and gravity of the prohibited acts;
253-12 (2) the history of previous violations;
253-13 (3) the amount necessary to deter a future violation;
253-14 (4) efforts to correct the violation; and
253-15 (5) any other matter that justice may require.
253-16 (V.A.C.S. Art. 6573a, Secs. 19A(b), (c).)
253-17 Sec. 1101.703. REPORT AND NOTICE OF VIOLATION AND PENALTY.
253-18 (a) If, after investigation of a possible violation and the facts
253-19 relating to that violation, the administrator determines that a
253-20 violation has occurred, the administrator may issue a violation
253-21 report stating:
253-22 (1) the facts on which the determination is based; and
253-23 (2) the administrator's recommendation on the
253-24 imposition of the administrative penalty, including a
253-25 recommendation on the amount of the penalty.
253-26 (b) Not later than the 14th day after the date the report is
253-27 issued, the administrator shall give written notice of the report
254-1 to the person charged with the violation. The notice must:
254-2 (1) include a brief summary of the charges;
254-3 (2) state the amount of the recommended penalty; and
254-4 (3) inform the person of the person's right to a
254-5 hearing on the occurrence of the violation, the amount of the
254-6 penalty, or both. (V.A.C.S. Art. 6573a, Secs. 19A(d) (part), (e).)
254-7 Sec. 1101.704. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
254-8 Not later than the 20th day after the date the person receives the
254-9 notice under Section 1101.703, the person may:
254-10 (1) accept the administrator's determination,
254-11 including the recommended administrative penalty; or
254-12 (2) request in writing a hearing on the determination.
254-13 (b) If the person accepts the administrator's determination,
254-14 the commission by order shall approve the determination and order
254-15 payment of the recommended penalty. (V.A.C.S. Art. 6573a, Secs.
254-16 19A(f), (g).)
254-17 Sec. 1101.705. HEARING; DECISION BY COMMISSION. (a) If the
254-18 person requests a hearing or fails to timely respond to the notice,
254-19 the administrator shall set a hearing and give notice of the
254-20 hearing to the person.
254-21 (b) A hearings examiner designated by the administrator
254-22 shall conduct the hearing. The hearings examiner shall:
254-23 (1) make findings of fact and conclusions of law; and
254-24 (2) promptly issue to the commission a proposal for
254-25 decision regarding the occurrence of the violation and the amount
254-26 of any proposed administrative penalty.
254-27 (c) Based on the findings of fact, conclusions of law, and
255-1 proposal for decision of the hearings examiner, the commission by
255-2 order may determine that:
255-3 (1) a violation occurred and impose an administrative
255-4 penalty; or
255-5 (2) a violation did not occur.
255-6 (d) A proceeding under this section is subject to Chapter
255-7 2001, Government Code. (V.A.C.S. Art. 6573a, Sec. 19A(h).)
255-8 Sec. 1101.706. NOTICE OF ORDER. The administrator shall give
255-9 notice of the commission's order to the person. The notice must:
255-10 (1) include the findings of fact and conclusions of
255-11 law, separately stated;
255-12 (2) state the amount of any penalty imposed;
255-13 (3) inform the person of the person's right to
255-14 judicial review of the order; and
255-15 (4) include other information required by law.
255-16 (V.A.C.S. Art. 6573a, Sec. 19A(i).)
255-17 Sec. 1101.707. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
255-18 (a) Not later than the 30th day after the date the commission's
255-19 order becomes final, the person shall:
255-20 (1) pay the administrative penalty; or
255-21 (2) file a petition for judicial review with a
255-22 district court in Travis County contesting the fact of the
255-23 violation, the amount of the penalty, or both.
255-24 (b) Within the 30-day period, a person who acts under
255-25 Subsection (a)(2) may stay enforcement of the penalty by:
255-26 (1) paying the penalty to the administrator for
255-27 placement in an escrow account;
256-1 (2) giving the administrator a supersedeas bond in a
256-2 form approved by the administrator that:
256-3 (A) is for the amount of the penalty; and
256-4 (B) is effective until judicial review of the
256-5 order is final; or
256-6 (3) filing with the administrator an affidavit of the
256-7 person stating that the person is financially unable to pay the
256-8 penalty and is financially unable to give the supersedeas bond.
256-9 (c) A person who fails to take action as provided by this
256-10 section waives the right to judicial review of the commission's
256-11 order. (V.A.C.S. Art. 6573a, Secs. 19A(j), (k), (l) (part), (m)
256-12 (part).)
256-13 Sec. 1101.708. COLLECTION OF PENALTY. If the person does not
256-14 pay the administrative penalty and the enforcement of the penalty
256-15 is not stayed, the administrator may refer the matter to the
256-16 attorney general for collection of the penalty. (V.A.C.S.
256-17 Art. 6573a, Sec. 19A(l) (part).)
256-18 Sec. 1101.709. REMITTANCE OF PENALTY AND INTEREST. (a) If
256-19 after judicial review the administrative penalty is reduced or is
256-20 not upheld by the court, the administrator shall:
256-21 (1) remit the appropriate amount, plus accrued
256-22 interest, to the person if the person paid the penalty; or
256-23 (2) execute a release of the bond if the person gave a
256-24 supersedeas bond.
256-25 (b) Interest accrues under Subsection (a)(1) at the rate
256-26 charged on loans to depository institutions by the New York Federal
256-27 Reserve Bank. The interest shall be paid for the period beginning
257-1 on the date the penalty is paid and ending on the date the penalty
257-2 is remitted. (V.A.C.S. Art. 6573a, Sec. 19A(n).)
257-3 (Sections 1101.710-1101.750 reserved for expansion)
257-4 SUBCHAPTER P. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
257-5 Sec. 1101.751. INJUNCTIVE ACTION BROUGHT BY COMMISSION. (a)
257-6 In addition to any other action authorized by law, the commission
257-7 may bring an action in its name to enjoin a violation of this
257-8 chapter or a commission rule.
257-9 (b) To obtain an injunction under this section, the
257-10 commission is not required to allege or prove that:
257-11 (1) an adequate remedy at law does not exist; or
257-12 (2) substantial or irreparable damage would result
257-13 from the continued violation. (V.A.C.S. Art. 6573a, Sec. 5(h)
257-14 (part).)
257-15 Sec. 1101.752. ADDITIONAL INJUNCTIVE AUTHORITY. (a) In
257-16 addition to any other action authorized by law, the commission,
257-17 acting through the attorney general, may bring an action to abate a
257-18 violation or enjoin a violation or potential violation of this
257-19 chapter or a commission rule if the commission determines that a
257-20 person has violated or is about to violate this chapter.
257-21 (b) The action shall be brought in the name of the state in
257-22 the district court in the county in which:
257-23 (1) the violation occurred or is about to occur; or
257-24 (2) the defendant resides.
257-25 (c) An injunctive action may be brought to abate or
257-26 temporarily or permanently enjoin an act or to enforce this
257-27 chapter.
258-1 (d) The commission is not required to give a bond in an
258-2 action under Subsection (a), and court costs may not be recovered
258-3 from the commission.
258-4 (e) If the commission determines that a person has violated
258-5 or is about to violate this chapter, the attorney general or the
258-6 county attorney or district attorney in the county in which the
258-7 violation has occurred or is about to occur or in the county of the
258-8 defendant's residence may bring an action in the name of the state
258-9 in the district court of the county to abate or temporarily or
258-10 permanently enjoin the violation or to enforce this chapter. The
258-11 plaintiff in an action under this subsection is not required to
258-12 give a bond, and court costs may not be recovered from the
258-13 plaintiff. (V.A.C.S. Art. 6573a, Secs. 19(c), (d) (part).)
258-14 Sec. 1101.753. CIVIL PENALTY FOR CERTAIN VIOLATIONS BY
258-15 BROKER, SALESPERSON, OR CERTIFICATE HOLDER. (a) In addition to
258-16 injunctive relief under Sections 1101.751 and 1101.752, a person
258-17 who receives a commission or other consideration as a result of
258-18 acting as a broker or salesperson without holding a license or
258-19 certificate of registration under this chapter is liable to the
258-20 state for a civil penalty of not less than the amount of money
258-21 received or more than three times the amount of money received.
258-22 (b) The commission may recover the civil penalty, court
258-23 costs, and reasonable attorney's fees on behalf of the state.
258-24 (c) The commission is not required to give a bond in an
258-25 action under this section, and court costs may not be recovered
258-26 from the commission. (V.A.C.S. Art. 6573a, Sec. 19(d) (part).)
258-27 Sec. 1101.754. PRIVATE CAUSE OF ACTION FOR CERTAIN
259-1 VIOLATIONS BY BROKER, SALESPERSON, OR CERTIFICATE HOLDER. (a) A
259-2 person who receives a commission or other consideration as a result
259-3 of acting as a broker or salesperson without holding a license or
259-4 certificate of registration under this chapter is liable to an
259-5 aggrieved person for a penalty of not less than the amount of money
259-6 received or more than three times the amount of money received.
259-7 (b) The aggrieved person may file suit to recover a penalty
259-8 under this section. (V.A.C.S. Art. 6573a, Sec. 19(b).)
259-9 Sec. 1101.755. APPEAL BOND EXEMPTION. The commission is not
259-10 required to give an appeal bond in an action to enforce this
259-11 chapter. (V.A.C.S. Art. 6573a, Sec. 5(h) (part).)
259-12 Sec. 1101.756. GENERAL CRIMINAL PENALTY. (a) A person
259-13 commits an offense if the person wilfully violates or fails to
259-14 comply with this chapter or a commission order.
259-15 (b) An offense under this section is a Class A misdemeanor.
259-16 (V.A.C.S. Art. 6573a.1.)
259-17 Sec. 1101.757. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY
259-18 RESIDENTIAL RENTAL LOCATOR. (a) A person commits an offense if the
259-19 person engages in business as a residential rental locator in this
259-20 state without a license issued under this chapter.
259-21 (b) An offense under this section is a Class B misdemeanor.
259-22 (V.A.C.S. Art. 6573a, Sec. 24(f).)
259-23 Sec. 1101.758. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY
259-24 BROKER, SALESPERSON, OR CERTIFICATE HOLDER. (a) A person commits
259-25 an offense if the person acts as a broker or salesperson without
259-26 holding a license under this chapter or engages in an activity for
259-27 which a certificate of registration is required under this chapter
260-1 without holding a certificate.
260-2 (b) Except as provided by Subsection (c), (d), or (e), an
260-3 offense under this section is a misdemeanor punishable by:
260-4 (1) a fine of not less than $100 or more than $500;
260-5 (2) confinement in the county jail for not more than
260-6 one year; or
260-7 (3) both the fine and confinement.
260-8 (c) An offense under this section by a person other than an
260-9 individual is punishable by a fine of not less than $1,000 or more
260-10 than $2,000.
260-11 (d) A second or subsequent offense under this section by an
260-12 individual is punishable by:
260-13 (1) a fine of not less than $500 or more than $1,000;
260-14 (2) confinement for not more than two years; or
260-15 (3) both the fine and confinement.
260-16 (e) A second or subsequent offense under this section by a
260-17 person other than an individual is punishable by a fine of not less
260-18 than $2,000 or more than $5,000. (V.A.C.S. Art. 6573a, Sec. 19(a).)
260-19 (Sections 1101.759-1101.800 reserved for expansion)
260-20 SUBCHAPTER Q. GENERAL PROVISIONS RELATING TO
260-21 LIABILITY ISSUES
260-22 Sec. 1101.801. EFFECT OF DISCIPLINARY ACTION ON LIABILITY.
260-23 Disciplinary action taken against a person under Section 1101.652
260-24 does not relieve the person from civil or criminal liability.
260-25 (V.A.C.S. Art. 6573a, Sec. 15(b).)
260-26 Sec. 1101.802. LIABILITY RELATING TO HIV INFECTION OR AIDS.
260-27 Notwithstanding Section 1101.801, a person is not civilly or
261-1 criminally liable because the person failed to inquire about, make
261-2 a disclosure relating to, or release information relating to
261-3 whether a previous or current occupant of real property had, may
261-4 have had, has, or may have AIDS, an HIV-related illness, or HIV
261-5 infection as defined by the Centers for Disease Control and
261-6 Prevention of the United States Public Health Service. (V.A.C.S.
261-7 Art. 6573a, Sec. 15(c).)
261-8 Sec. 1101.803. GENERAL LIABILITY OF BROKER. A licensed
261-9 broker is liable to the commission, the public, and the broker's
261-10 clients for any conduct engaged in under this chapter by the broker
261-11 or by a salesperson associated with or acting for the broker.
261-12 (V.A.C.S. Art. 6573a, Sec. 1(c).)
261-13 Sec. 1101.804. LIABILITY FOR PROVIDING CERTAIN INFORMATION.
261-14 A license holder or nonprofit real estate board or association that
261-15 provides information about real property sales prices or the terms
261-16 of a sale for the purpose of facilitating the listing, selling,
261-17 leasing, financing, or appraisal of real property is not liable to
261-18 another person for providing that information unless the disclosure
261-19 of that information is specifically prohibited by statute.
261-20 (V.A.C.S. Art. 6573a, Sec. 15D.)
261-21 Sec. 1101.805. LIABILITY FOR MISREPRESENTATION OR
261-22 CONCEALMENT. (a) In this section, "party" has the meaning assigned
261-23 by Section 1101.551.
261-24 (b) This section prevails over any other law, including
261-25 common law.
261-26 (c) This section does not diminish a broker's responsibility
261-27 for the acts or omissions of a salesperson associated with or
262-1 acting for the broker.
262-2 (d) A party is not liable for a misrepresentation or a
262-3 concealment of a material fact made by a license holder in a real
262-4 estate transaction unless the party:
262-5 (1) knew of the falsity of the misrepresentation or
262-6 concealment; and
262-7 (2) failed to disclose the party's knowledge of the
262-8 falsity of the misrepresentation or concealment.
262-9 (e) A license holder is not liable for a misrepresentation
262-10 or a concealment of a material fact made by a party to a real
262-11 estate transaction unless the license holder:
262-12 (1) knew of the falsity of the misrepresentation or
262-13 concealment; and
262-14 (2) failed to disclose the license holder's knowledge
262-15 of the falsity of the misrepresentation or concealment.
262-16 (f) A party or a license holder is not liable for a
262-17 misrepresentation or a concealment of a material fact made by a
262-18 subagent in a real estate transaction unless the party or license
262-19 holder:
262-20 (1) knew of the falsity of the misrepresentation or
262-21 concealment; and
262-22 (2) failed to disclose the party's or license holder's
262-23 knowledge of the falsity of the misrepresentation or concealment.
262-24 (V.A.C.S. Art. 6573a, Sec. 15F.)
262-25 Sec. 1101.806. LIABILITY FOR PAYMENT OF COMPENSATION OR
262-26 COMMISSION. (a) This section does not:
262-27 (1) apply to an agreement to share compensation among
263-1 license holders; or
263-2 (2) limit a cause of action among brokers for
263-3 interference with business relationships.
263-4 (b) A person may not maintain an action to collect
263-5 compensation for an act as a broker or salesperson that is
263-6 performed in this state unless the person alleges and proves that
263-7 the person was:
263-8 (1) a license holder at the time the act was
263-9 commenced; or
263-10 (2) an attorney licensed in any state.
263-11 (c) A person may not maintain an action in this state to
263-12 recover a commission for the sale or purchase of real estate unless
263-13 the promise or agreement on which the action is based, or a
263-14 memorandum, is in writing and signed by the party against whom the
263-15 action is brought or by a person authorized by that party to sign
263-16 the document.
263-17 (d) A license holder who fails to advise a buyer as provided
263-18 by Section 1101.555 may not receive payment of or recover any
263-19 commission agreed to be paid on the sale. (V.A.C.S. Art. 6573a,
263-20 Secs. 20(a), (b), (c) (part), (d).)
263-21 CHAPTER 1102. REAL ESTATE INSPECTORS
263-22 SUBCHAPTER A. GENERAL PROVISIONS
263-23 Sec. 1102.001. DEFINITIONS
263-24 Sec. 1102.002. APPLICABILITY OF CHAPTER
263-25 Sec. 1102.003. RULES; INSPECTION FORMS
263-26 (Sections 1102.004-1102.050 reserved for expansion)
263-27 SUBCHAPTER B. TEXAS REAL ESTATE INSPECTOR COMMITTEE
264-1 Sec. 1102.051. COMMITTEE MEMBERSHIP
264-2 Sec. 1102.052. TERMS; VACANCY
264-3 Sec. 1102.053. OFFICERS
264-4 Sec. 1102.054. GROUNDS FOR REMOVAL
264-5 Sec. 1102.055. PER DIEM; REIMBURSEMENT
264-6 Sec. 1102.056. MEETINGS; QUORUM
264-7 Sec. 1102.057. OPEN MEETINGS; OPEN RECORDS; ADMINISTRATIVE
264-8 PROCEDURE
264-9 Sec. 1102.058. GENERAL POWERS AND DUTIES OF COMMITTEE;
264-10 RECOMMENDATIONS
264-11 Sec. 1102.059. REVIEW OF COMMISSION RULES
264-12 Sec. 1102.060. CONSIDERATION OF COMMITTEE RECOMMENDATIONS
264-13 Sec. 1102.061. DELEGATION OF AUTHORITY IN CONTESTED CASES
264-14 Sec. 1102.062. PROCEDURAL RULES
264-15 (Sections 1102.063-1102.100 reserved for expansion)
264-16 SUBCHAPTER C. LICENSE REQUIREMENTS
264-17 Sec. 1102.101. APPRENTICE INSPECTOR LICENSE REQUIRED
264-18 Sec. 1102.102. REAL ESTATE INSPECTOR LICENSE REQUIRED
264-19 Sec. 1102.103. PROFESSIONAL INSPECTOR LICENSE REQUIRED
264-20 Sec. 1102.104. SUPERVISION
264-21 Sec. 1102.105. APPLICATION
264-22 Sec. 1102.106. MORAL CHARACTER DETERMINATION
264-23 Sec. 1102.107. ELIGIBILITY FOR APPRENTICE INSPECTOR
264-24 LICENSE
264-25 Sec. 1102.108. ELIGIBILITY FOR REAL ESTATE INSPECTOR
264-26 LICENSE
264-27 Sec. 1102.109. ELIGIBILITY FOR PROFESSIONAL INSPECTOR
265-1 LICENSE
265-2 Sec. 1102.110. ELIGIBILITY OF PREVIOUS LICENSE HOLDERS
265-3 Sec. 1102.111. SUBSTITUTE REQUIREMENTS
265-4 Sec. 1102.112. WAIVER FOR APPLICANT LICENSED IN ANOTHER
265-5 STATE
265-6 Sec. 1102.113. ELIGIBILITY AS SPONSOR
265-7 Sec. 1102.114. ISSUANCE OF LICENSE
265-8 Sec. 1102.115. DENIAL OF LICENSE
265-9 Sec. 1102.116. PROBATIONARY LICENSE
265-10 Sec. 1102.117. INACTIVE LICENSE
265-11 Sec. 1102.118. CHANGE OF ADDRESS
265-12 (Sections 1102.119-1102.150 reserved for expansion)
265-13 SUBCHAPTER D. LICENSE EXAMINATION
265-14 Sec. 1102.151. CONTENT OF EXAMINATION
265-15 Sec. 1102.152. OFFERING OF EXAMINATION
265-16 Sec. 1102.153. DEADLINE FOR COMPLETION
265-17 Sec. 1102.154. EXAMINATION RESULTS
265-18 Sec. 1102.155. REEXAMINATION
265-19 (Sections 1102.156-1102.200 reserved for expansion)
265-20 SUBCHAPTER E. LICENSE RENEWAL
265-21 Sec. 1102.201. LICENSE EXPIRATION
265-22 Sec. 1102.202. NOTICE OF LICENSE EXPIRATION
265-23 Sec. 1102.203. RENEWAL OF CERTAIN LICENSES
265-24 Sec. 1102.204. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
265-25 PRACTITIONER
265-26 Sec. 1102.205. CONTINUING EDUCATION REQUIREMENTS
265-27 (Sections 1102.206-1102.250 reserved for expansion)
266-1 SUBCHAPTER F. LICENSE FEES
266-2 Sec. 1102.251. AMOUNT OF FEES
266-3 Sec. 1102.252. PAYMENT
266-4 Sec. 1102.253. REVIEW OF FEE AMOUNTS
266-5 (Sections 1102.254-1102.300 reserved for expansion)
266-6 SUBCHAPTER G. PROHIBITED ACTS
266-7 Sec. 1102.301. NEGLIGENCE OR INCOMPETENCE
266-8 Sec. 1102.302. AGREEMENT FOR SPECIFIC REPORT; DISHONESTY
266-9 Sec. 1102.303. ACTING IN CONFLICTING CAPACITIES
266-10 Sec. 1102.304. REPAIRS AND MAINTENANCE
266-11 Sec. 1102.305. VIOLATION OF LAW
266-12 (Sections 1102.306-1102.350 reserved for expansion)
266-13 SUBCHAPTER H. REAL ESTATE INSPECTION RECOVERY FUND
266-14 Sec. 1102.351. REAL ESTATE INSPECTION RECOVERY FUND
266-15 Sec. 1102.352. PAYMENTS INTO FUND
266-16 Sec. 1102.353. MANAGEMENT OF FUND
266-17 Sec. 1102.354. DEADLINE FOR ACTION; NOTICE TO COMMISSION
266-18 Sec. 1102.355. CLAIM FOR PAYMENT FROM FUND
266-19 Sec. 1102.356. ISSUES AT HEARING
266-20 Sec. 1102.357. COMMISSION RESPONSE
266-21 Sec. 1102.358. COURT ORDER FOR PAYMENT
266-22 Sec. 1102.359. PAYMENT LIMITS; ATTORNEY'S FEES
266-23 Sec. 1102.360. APPLICATION OF JUDGMENT RECOVERY
266-24 Sec. 1102.361. SUBROGATION
266-25 Sec. 1102.362. EFFECT ON DISCIPLINARY PROCEEDINGS
266-26 Sec. 1102.363. WAIVER OF RIGHTS
266-27 Sec. 1102.364. NOTICE TO CONSUMERS AND SERVICE RECIPIENTS
267-1 (Sections 1102.365-1102.400 reserved for expansion)
267-2 SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
267-3 Sec. 1102.401. DISCIPLINARY POWERS OF COMMISSION
267-4 Sec. 1102.402. LICENSE REVOCATION FOR CLAIM ON FUND
267-5 Sec. 1102.403. ADMINISTRATIVE PENALTY
267-6 Sec. 1102.404. INJUNCTIVE RELIEF
267-7 Sec. 1102.405. APPEAL BOND EXEMPTION
267-8 Sec. 1102.406. GENERAL CRIMINAL PENALTY
267-9 Sec. 1102.407. CRIMINAL PENALTY FOR PRACTICING WITHOUT
267-10 LICENSE
267-11 CHAPTER 1102. REAL ESTATE INSPECTORS
267-12 SUBCHAPTER A. GENERAL PROVISIONS
267-13 Sec. 1102.001. DEFINITIONS. In this chapter:
267-14 (1) "Apprentice inspector" means a person who is in
267-15 training under the direct supervision of a professional inspector
267-16 or a real estate inspector to become qualified to perform real
267-17 estate inspections.
267-18 (2) "Broker" has the meaning assigned by Section
267-19 1101.002.
267-20 (3) "Commission" means the Texas Real Estate
267-21 Commission.
267-22 (4) "Committee" means the Texas Real Estate Inspector
267-23 Committee.
267-24 (5) "Core real estate inspection course" means an
267-25 educational course approved by the commission that relates to real
267-26 estate inspection, including a course on structural items,
267-27 electrical items, mechanical systems, plumbing systems, roofing,
268-1 business, law, standards of practice, report writing, appliances,
268-2 or ethics.
268-3 (6) "Inspector" means a person who holds a license
268-4 under this chapter.
268-5 (7) "License" means an apprentice inspector license,
268-6 real estate inspector license, or professional inspector license.
268-7 (8) "Professional inspector" means a person who
268-8 represents to the public that the person is trained and qualified
268-9 to perform a real estate inspection and who accepts employment to
268-10 perform a real estate inspection for a buyer or seller of real
268-11 property.
268-12 (9) "Real estate inspection" means a written or oral
268-13 opinion as to the condition of the improvements to real property,
268-14 including structural items, electrical items, mechanical systems,
268-15 plumbing systems, or equipment.
268-16 (10) "Real estate inspector" means a person who
268-17 represents to the public that the person is trained and qualified
268-18 to perform a real estate inspection under the indirect supervision
268-19 of a professional inspector and who accepts employment to perform a
268-20 real estate inspection for a buyer or seller of real property.
268-21 (11) "Salesperson" has the meaning assigned by Section
268-22 1101.002. (V.A.C.S. Art. 6573a, Secs. 23(a)(1), (2), (3), (6), (7),
268-23 (9), (10), (11); New.)
268-24 Sec. 1102.002. APPLICABILITY OF CHAPTER. (a) This chapter
268-25 does not apply to a person who repairs, maintains, or inspects
268-26 improvements to real property, including an electrician, plumber,
268-27 carpenter, or person in the business of structural pest control in
269-1 compliance with Chapter 1951, if the person does not represent to
269-2 the public through personal solicitation or public advertising that
269-3 the person is in the business of inspecting those improvements.
269-4 (b) This chapter does not prevent a person from performing
269-5 an act the person is authorized to perform under a license or
269-6 registration issued by this state or a governmental subdivision of
269-7 this state under a law other than this chapter. (V.A.C.S.
269-8 Art. 6573a, Sec. 23(n).)
269-9 Sec. 1102.003. RULES; INSPECTION FORMS. The commission by
269-10 rule shall prescribe standard forms and require inspectors to use
269-11 the forms to reduce discrepancies and create consistency in
269-12 preparing reports of real estate inspections. (V.A.C.S.
269-13 Art. 6573a, Sec. 23(r).)
269-14 (Sections 1102.004-1102.050 reserved for expansion)
269-15 SUBCHAPTER B. TEXAS REAL ESTATE INSPECTOR COMMITTEE
269-16 Sec. 1102.051. COMMITTEE MEMBERSHIP. (a) The Texas Real
269-17 Estate Inspector Committee consists of nine members appointed by
269-18 the commission.
269-19 (b) A member of the committee must have been primarily
269-20 engaged in the practice of real estate inspecting for at least five
269-21 years before the member's appointment and must be actively engaged
269-22 in that practice as a professional inspector at the time of the
269-23 member's appointment.
269-24 (c) Not more than three members of the committee may hold a
269-25 broker license.
269-26 (d) Appointments to the committee shall be made without
269-27 regard to the sex, race, color, age, disability, religion, or
270-1 national origin of the appointee. (V.A.C.S. Art. 6573a, Secs.
270-2 23(b)(1) (part), (2) (part).)
270-3 Sec. 1102.052. TERMS; VACANCY. (a) Members of the
270-4 committee serve staggered six-year terms, with the terms of three
270-5 members expiring on February 1 of each odd-numbered year. A member
270-6 holds office until the member's successor is appointed.
270-7 (b) If a vacancy occurs during a member's term, the
270-8 commission shall appoint a replacement to fill the unexpired term.
270-9 (V.A.C.S. Art. 6573a, Sec. 23(b)(2) (part).)
270-10 Sec. 1102.053. OFFICERS. The committee shall annually elect
270-11 from its members a presiding officer, assistant presiding officer,
270-12 and secretary. (V.A.C.S. Art. 6573a, Sec. 23(b)(2) (part).)
270-13 Sec. 1102.054. GROUNDS FOR REMOVAL. (a) The commission may
270-14 remove a committee member if the member:
270-15 (1) does not have at the time of appointment the
270-16 qualifications required by Section 1102.051;
270-17 (2) cannot, because of illness or disability,
270-18 discharge the member's duties for a substantial part of the
270-19 member's term; or
270-20 (3) is absent from more than half of the regularly
270-21 scheduled committee meetings that the member is eligible to attend
270-22 during each year unless the absence is excused by the committee.
270-23 (b) The validity of an action of the committee is not
270-24 affected by the fact that it is taken when a ground for removal of
270-25 a committee member exists.
270-26 (c) If the administrator of the commission has knowledge
270-27 that a potential ground for removal exists, the administrator shall
271-1 notify the presiding officer of the commission that the potential
271-2 ground exists. (V.A.C.S. Art. 6573a, Secs. 23(b)(3), (4), (5).)
271-3 Sec. 1102.055. PER DIEM; REIMBURSEMENT. Subject to any
271-4 applicable limitation in the General Appropriations Act, a member
271-5 of the committee is entitled to:
271-6 (1) a per diem allowance; and
271-7 (2) reimbursement of travel expenses necessarily
271-8 incurred in performing committee functions. (V.A.C.S. Art. 6573a,
271-9 Sec. 23(b)(2) (part).)
271-10 Sec. 1102.056. MEETINGS; QUORUM. (a) The committee shall
271-11 meet semiannually and at the call of the commission. The committee
271-12 may meet at the call of a majority of its members.
271-13 (b) A quorum of the committee is five members. (V.A.C.S.
271-14 Art. 6573a, Secs. 23(b)(2) (part), (8).)
271-15 Sec. 1102.057. OPEN MEETINGS; OPEN RECORDS; ADMINISTRATIVE
271-16 PROCEDURE. The committee is subject to Chapters 551, 552, 2001,
271-17 and 2002, Government Code. (V.A.C.S. Art. 6573a, Sec. 23(b)(7).)
271-18 Sec. 1102.058. GENERAL POWERS AND DUTIES OF COMMITTEE;
271-19 RECOMMENDATIONS. (a) The committee has the powers and shall
271-20 perform the duties that the commission delegates to the committee.
271-21 (b) The committee shall recommend:
271-22 (1) rules for licensing inspectors in this state,
271-23 including rules relating to:
271-24 (A) education and experience requirements;
271-25 (B) any qualifying examination;
271-26 (C) continuing education requirements; and
271-27 (D) granting or denying a license application;
272-1 (2) the form of any required application or other
272-2 document;
272-3 (3) reasonable fees to implement this chapter,
272-4 including application fees, examination fees, fees for renewal of a
272-5 license, and any other fee required by law;
272-6 (4) rules relating to standards of practice for real
272-7 estate inspection;
272-8 (5) rules establishing a code of professional conduct
272-9 and ethics for an inspector; and
272-10 (6) any other commission action to provide a high
272-11 degree of service to and protection of the public in dealing with
272-12 an inspector. (V.A.C.S. Art. 6573a, Sec. 23(b)(1) (part).)
272-13 Sec. 1102.059. REVIEW OF COMMISSION RULES. (a) The
272-14 committee in an advisory capacity shall develop and recommend to
272-15 the commission rules under this chapter. The committee shall
272-16 review commission rules relating to this chapter and recommend to
272-17 the commission amendments to the rules.
272-18 (b) The commission shall submit to the committee for
272-19 development or recommendation each proposed rule, proposed
272-20 amendment to a rule, and request for a proposed rule or proposed
272-21 amendment to a rule that relates to the regulation or licensing of
272-22 inspectors.
272-23 (c) The commission may modify a rule developed by the
272-24 committee if the commission finds the modification to be in the
272-25 public interest. This chapter does not prohibit the commission
272-26 from developing and adopting a rule relating to the regulation or
272-27 licensing of inspectors if the committee does not develop or
273-1 recommend a rule within a reasonable time after the commission
273-2 submits to the committee a proposed rule, amendment to a rule, or
273-3 request for a proposed rule or amendment to a rule.
273-4 (d) If the committee determines that a rule that the
273-5 commission requests should not be developed or recommended for
273-6 adoption by the commission, the committee shall submit to the
273-7 commission a report on the matter. An ad hoc body shall be
273-8 established to consider the report and recommend possible
273-9 commission action. The presiding officer of the commission shall
273-10 appoint four members of the commission to serve on the ad hoc body,
273-11 one of whom may be the presiding officer of the commission and at
273-12 least one of whom must be a public member of the commission. The
273-13 presiding officer of the committee shall appoint three members of
273-14 the committee to serve on the ad hoc body. (V.A.C.S. Art. 6573a,
273-15 Sec. 23(b)(9).)
273-16 Sec. 1102.060. CONSIDERATION OF COMMITTEE RECOMMENDATIONS.
273-17 The commission shall consider the committee's recommendations
273-18 relating to qualifications and licensing of inspectors to assure
273-19 the public of a quality professional inspection system in real
273-20 estate transactions in this state. (V.A.C.S. Art. 6573a, Sec.
273-21 23(q).)
273-22 Sec. 1102.061. DELEGATION OF AUTHORITY IN CONTESTED CASES.
273-23 In contested cases regarding an inspector, the commission may:
273-24 (1) authorize the committee to conduct administrative
273-25 hearings, recommend the entry of final orders, or both; and
273-26 (2) authorize specific employees to conduct hearings
273-27 and render final decisions. (V.A.C.S. Art. 6573a, Sec. 23(m)(3).)
274-1 Sec. 1102.062. PROCEDURAL RULES. The commission shall adopt
274-2 procedural rules to be used by the committee in implementing its
274-3 powers and duties. (V.A.C.S. Art. 6573a, Sec. 23(b)(6).)
274-4 (Sections 1102.063-1102.100 reserved for expansion)
274-5 SUBCHAPTER C. LICENSE REQUIREMENTS
274-6 Sec. 1102.101. APPRENTICE INSPECTOR LICENSE REQUIRED. A
274-7 person may not act or attempt to act as an apprentice inspector in
274-8 this state for a buyer or seller of real property unless the
274-9 person:
274-10 (1) holds an apprentice inspector license under this
274-11 chapter; and
274-12 (2) is under the direct supervision of a real estate
274-13 inspector or professional inspector. (V.A.C.S. Art. 6573a, Sec.
274-14 23(c)(3).)
274-15 Sec. 1102.102. REAL ESTATE INSPECTOR LICENSE REQUIRED. A
274-16 person may not act or attempt to act as a real estate inspector in
274-17 this state for a buyer or seller of real property unless the
274-18 person:
274-19 (1) holds a real estate inspector license under this
274-20 chapter; and
274-21 (2) is under the indirect supervision of a
274-22 professional inspector. (V.A.C.S. Art. 6573a, Sec. 23(c)(2).)
274-23 Sec. 1102.103. PROFESSIONAL INSPECTOR LICENSE REQUIRED. A
274-24 person may not act as a professional inspector in this state for a
274-25 buyer or seller of real property unless the person holds a
274-26 professional inspector license under this chapter. (V.A.C.S.
274-27 Art. 6573a, Sec. 23(c)(1).)
275-1 Sec. 1102.104. SUPERVISION. For the purposes of this
275-2 chapter, a person performing a real estate inspection or preparing
275-3 a report of a real estate inspection is under:
275-4 (1) direct supervision if the person is instructed and
275-5 controlled by a professional inspector or real estate inspector who
275-6 is:
275-7 (A) responsible for the actions of the person;
275-8 (B) available if needed to consult with or
275-9 assist the person; and
275-10 (C) physically present at the time and place of
275-11 the inspection; and
275-12 (2) indirect supervision if the person is instructed
275-13 and controlled by a professional inspector who is:
275-14 (A) responsible for the actions of the person;
275-15 and
275-16 (B) available if needed to consult with or
275-17 assist the person. (V.A.C.S. Art. 6573a, Secs. 23(a)(4), (5).)
275-18 Sec. 1102.105. APPLICATION. An applicant for a license
275-19 under this chapter must file with the commission an application on
275-20 a form prescribed by the commission. (V.A.C.S. Art. 6573a, Sec.
275-21 23(d)(5).)
275-22 Sec. 1102.106. MORAL CHARACTER DETERMINATION. As prescribed
275-23 by Section 1101.353, the commission shall determine, on request,
275-24 whether a person's moral character complies with the commission's
275-25 moral character requirements for licensing under this chapter and
275-26 may conduct a supplemental moral character determination of the
275-27 person. (V.A.C.S. Art. 6573a, Sec. 6A.)
276-1 Sec. 1102.107. ELIGIBILITY FOR APPRENTICE INSPECTOR LICENSE.
276-2 To be eligible for an apprentice inspector license, an applicant
276-3 must:
276-4 (1) at the time of application be:
276-5 (A) at least 18 years of age;
276-6 (B) a citizen of the United States or a lawfully
276-7 admitted alien; and
276-8 (C) a resident of this state;
276-9 (2) be sponsored by a professional inspector; and
276-10 (3) satisfy the commission as to the applicant's
276-11 honesty, trustworthiness, and integrity. (V.A.C.S. Art. 6573a,
276-12 Sec. 23(d)(1).)
276-13 Sec. 1102.108. ELIGIBILITY FOR REAL ESTATE INSPECTOR
276-14 LICENSE. (a) To be eligible for a real estate inspector license,
276-15 an applicant must:
276-16 (1) at the time of application have:
276-17 (A) held an apprentice inspector license for at
276-18 least three months; and
276-19 (B) performed at least 25 real estate
276-20 inspections under direct supervision;
276-21 (2) submit evidence satisfactory to the commission of
276-22 successful completion of at least 90 classroom hours of core real
276-23 estate inspection courses;
276-24 (3) demonstrate competence based on the examination
276-25 under Subchapter D;
276-26 (4) be sponsored by a professional inspector; and
276-27 (5) satisfy the commission as to the applicant's
277-1 honesty, trustworthiness, integrity, and competence.
277-2 (b) The commission by rule may specify the length and
277-3 content of the courses required by Subsection (a)(2). (V.A.C.S.
277-4 Art. 6573a, Sec. 23(d)(2) (part).)
277-5 Sec. 1102.109. ELIGIBILITY FOR PROFESSIONAL INSPECTOR
277-6 LICENSE. To be eligible for a professional inspector license, an
277-7 applicant must:
277-8 (1) at the time of application have:
277-9 (A) held a real estate inspector license for at
277-10 least 12 months; and
277-11 (B) performed at least 175 real estate
277-12 inspections under indirect supervision;
277-13 (2) submit evidence satisfactory to the commission of
277-14 successful completion of at least 30 classroom hours of core real
277-15 estate inspection courses, in addition to the hours required by
277-16 Section 1102.108, and at least eight classroom hours related to the
277-17 study of standards of practice, legal issues, or ethics related to
277-18 the practice of real estate inspecting; and
277-19 (3) demonstrate competence based on the examination
277-20 under Subchapter D. (V.A.C.S. Art. 6573a, Sec. 23(d)(3) (part).)
277-21 Sec. 1102.110. ELIGIBILITY OF PREVIOUS LICENSE HOLDERS. (a)
277-22 Notwithstanding Section 1102.108, an applicant is eligible for and
277-23 has satisfied all requirements for a real estate inspector license
277-24 if the applicant:
277-25 (1) held a real estate inspector license during the
277-26 24-month period preceding the date the application is filed;
277-27 (2) is sponsored by a professional inspector; and
278-1 (3) satisfies the commission as to the applicant's
278-2 honesty, trustworthiness, and integrity.
278-3 (b) Notwithstanding Section 1102.109, an applicant is
278-4 eligible for and has satisfied all requirements for a professional
278-5 inspector license if the applicant:
278-6 (1) held a professional inspector license during the
278-7 24-month period preceding the date the application is filed; and
278-8 (2) satisfies the commission as to the applicant's
278-9 honesty, trustworthiness, and integrity. (V.A.C.S. Art. 6573a,
278-10 Secs. 23(d)(2) (part), (3) (part).)
278-11 Sec. 1102.111. SUBSTITUTE REQUIREMENTS. (a) The commission
278-12 by rule shall provide for substitution of relevant experience or
278-13 additional education in place of:
278-14 (1) the number of real estate inspections required for
278-15 licensing; and
278-16 (2) the requirement that an applicant be:
278-17 (A) licensed as an apprentice inspector before
278-18 being licensed as a real estate inspector; or
278-19 (B) licensed as a real estate inspector before
278-20 being licensed as a professional inspector.
278-21 (b) Rules adopted under Subsection (a) may not require an
278-22 applicant to complete more than 60 additional classroom hours of
278-23 core real estate inspection courses. (V.A.C.S. Art. 6573a, Sec.
278-24 23(d)(4).)
278-25 Sec. 1102.112. WAIVER FOR APPLICANT LICENSED IN ANOTHER
278-26 STATE. The commission may waive any license requirement for an
278-27 applicant who holds a license from another state having license
279-1 requirements substantially equivalent to those of this state.
279-2 (V.A.C.S. Art. 6573a, Sec. 23(j).)
279-3 Sec. 1102.113. ELIGIBILITY AS SPONSOR. A professional
279-4 inspector may sponsor an apprentice inspector or a real estate
279-5 inspector only if the professional inspector provides sufficient
279-6 proof to the commission that the professional inspector has
279-7 completed at least 200 real estate inspections as a professional
279-8 inspector. (V.A.C.S. Art. 6573a, Sec. 23(d)(6).)
279-9 Sec. 1102.114. ISSUANCE OF LICENSE. The commission shall
279-10 issue the appropriate license to an applicant who:
279-11 (1) meets the required qualifications; and
279-12 (2) pays the fee required by Section 1102.352(a).
279-13 (V.A.C.S. Art. 6573a, Sec. 23(e).)
279-14 Sec. 1102.115. DENIAL OF LICENSE. The provisions of Section
279-15 1101.364 governing the commission's denial of a license under that
279-16 chapter apply to the commission's denial of a license under this
279-17 chapter. (V.A.C.S. Art. 6573a, Secs. 10(a) (part), (b).)
279-18 Sec. 1102.116. PROBATIONARY LICENSE. The commission may
279-19 issue a probationary license under this chapter as prescribed by
279-20 Section 1101.365. (V.A.C.S. Art. 6573a, Sec. 10(c).)
279-21 Sec. 1102.117. INACTIVE LICENSE. The commission by rule may
279-22 adopt terms by which:
279-23 (1) an inspector may apply for, renew, or place a
279-24 license on inactive status; and
279-25 (2) an inactive inspector may return to active status.
279-26 (V.A.C.S. Art. 6573a, Sec. 23(p).)
279-27 Sec. 1102.118. CHANGE OF ADDRESS. Not later than the 30th
280-1 day after the date an inspector changes the inspector's place of
280-2 business, the inspector shall notify the commission and pay the
280-3 required fee. (V.A.C.S. Art. 6573a, Sec. 23(g).)
280-4 (Sections 1102.119-1102.150 reserved for expansion)
280-5 SUBCHAPTER D. LICENSE EXAMINATION
280-6 Sec. 1102.151. CONTENT OF EXAMINATION. (a) A license
280-7 examination must evaluate competence in the subject matter of each
280-8 required core real estate inspection course.
280-9 (b) The commission shall:
280-10 (1) prescribe each license examination; and
280-11 (2) prepare or contract for the examination.
280-12 (V.A.C.S. Art. 6573a, Sec. 23(i)(1) (part).)
280-13 Sec. 1102.152. OFFERING OF EXAMINATION. The commission
280-14 shall offer each license examination at least once every two months
280-15 in Austin. (V.A.C.S. Art. 6573a, Sec. 23(i)(1) (part).)
280-16 Sec. 1102.153. DEADLINE FOR COMPLETION. A license applicant
280-17 who does not satisfy the examination requirement within six months
280-18 after the date the application is filed must submit a new
280-19 application and pay another examination fee to be eligible for
280-20 examination. (V.A.C.S. Art. 6573a, Sec. 23(i)(1) (part).)
280-21 Sec. 1102.154. EXAMINATION RESULTS. (a) Not later than the
280-22 30th day after the date an examination is administered, the
280-23 commission shall notify each examinee of the results of the
280-24 examination. If an examination is graded or reviewed by a national
280-25 testing service, the commission shall notify each examinee of the
280-26 results of the examination not later than the 14th day after the
280-27 date the commission receives the results from the testing service.
281-1 (b) If the notice of the results of an examination graded or
281-2 reviewed by a national testing service will not be given before the
281-3 91st day after the examination date, the commission shall notify
281-4 each examinee of the reason for the delay before the 90th day.
281-5 (c) If requested in writing by a person who fails an
281-6 examination, the commission shall provide to the person an analysis
281-7 of the person's performance on the examination. (V.A.C.S.
281-8 Art. 6573a, Secs. 23(i)(2), (3).)
281-9 Sec. 1102.155. REEXAMINATION. (a) An applicant who fails
281-10 the examination may apply for reexamination by filing a request
281-11 with the commission and paying another examination fee.
281-12 (b) An applicant who fails the examination three consecutive
281-13 times in connection with the same application may not apply for
281-14 reexamination or submit a new license application before six months
281-15 after the date of the third failed examination. (V.A.C.S.
281-16 Art. 6573a, Sec. 23(i)(1) (part).)
281-17 (Sections 1102.156-1102.200 reserved for expansion)
281-18 SUBCHAPTER E. LICENSE RENEWAL
281-19 Sec. 1102.201. LICENSE EXPIRATION. A license issued under
281-20 this chapter expires on the first anniversary of the date of
281-21 issuance. (V.A.C.S. Art. 6573a, Sec. 23(f)(1).)
281-22 Sec. 1102.202. NOTICE OF LICENSE EXPIRATION. Not later than
281-23 the 31st day before the expiration date of a person's license, the
281-24 commission shall send to the person at the person's last known
281-25 address according to the commission's records written notice of the
281-26 license expiration. (V.A.C.S. Art. 6573a, Sec. 23(f)(6).)
281-27 Sec. 1102.203. RENEWAL OF CERTAIN LICENSES. (a) A person
282-1 may renew an unexpired license by paying the required renewal fee
282-2 to the commission before the expiration date of the license.
282-3 (b) If the person's license has been expired for 90 days or
282-4 less, the person may renew the license by paying to the commission
282-5 the required renewal fee and a fee that is equal to half the amount
282-6 of the examination fee for the license.
282-7 (c) If the person's license has been expired for more than
282-8 90 days but less than one year, the person may renew the license by
282-9 paying to the commission all unpaid renewal fees and a fee that is
282-10 equal to the amount of the examination fee for the license.
282-11 (d) If the person's license has been expired for one year or
282-12 more, the person may not renew the license. The person may obtain
282-13 a new license by submitting to reexamination, if required, and
282-14 complying with the requirements and procedures for obtaining an
282-15 original license. (V.A.C.S. Art. 6573a, Secs. 23(f)(2), (3), (4),
282-16 (5) (part).)
282-17 Sec. 1102.204. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
282-18 PRACTITIONER. (a) The commission may renew without reexamination
282-19 the expired license of a person who was licensed in this state,
282-20 moved to another state, and is currently licensed and has been in
282-21 practice in the other state for the year preceding the date the
282-22 person applies for renewal.
282-23 (b) The person must pay to the commission a fee that is
282-24 equal to the amount of the license examination fee. (V.A.C.S.
282-25 Art. 6573a, Sec. 23(f)(5) (part).)
282-26 Sec. 1102.205. CONTINUING EDUCATION REQUIREMENTS. (a) The
282-27 commission shall recognize, prepare, or administer a continuing
283-1 education program for inspectors.
283-2 (b) As a prerequisite for renewal of a real estate inspector
283-3 license or professional inspector license, the inspector must
283-4 participate in the continuing education program and submit evidence
283-5 satisfactory to the commission of successful completion of at least
283-6 the following number of classroom hours of core real estate
283-7 inspection courses during the year preceding the renewal:
283-8 (1) four hours for a real estate inspector license
283-9 renewal; or
283-10 (2) eight hours for a professional inspector license
283-11 renewal. (V.A.C.S. Art. 6573a, Sec. 23(k).)
283-12 (Sections 1102.206-1102.250 reserved for expansion)
283-13 SUBCHAPTER F. LICENSE FEES
283-14 Sec. 1102.251. AMOUNT OF FEES. The commission shall charge
283-15 and collect reasonable and necessary fees to cover the cost of
283-16 administering this chapter as follows:
283-17 (1) for filing an original application for an
283-18 apprentice inspector license, not more than $75;
283-19 (2) for filing an original application for a real
283-20 estate inspector license, not more than $125;
283-21 (3) for filing an original application for a
283-22 professional inspector license, not more than $150;
283-23 (4) for renewal of an apprentice inspector license,
283-24 not more than $125;
283-25 (5) for renewal of a real estate inspector license,
283-26 not more than $175;
283-27 (6) for renewal of a professional inspector license,
284-1 not more than $200;
284-2 (7) for a license examination, not more than $100; and
284-3 (8) for a request to change a place of business or to
284-4 replace a lost or destroyed license, not more than $20. (V.A.C.S.
284-5 Art. 6573a, Sec. 23(h)(1).)
284-6 Sec. 1102.252. PAYMENT. A person may pay a fee by cash,
284-7 check, including a cashier's check, or money order. (V.A.C.S.
284-8 Art. 6573a, Sec. 23(h)(2).)
284-9 Sec. 1102.253. REVIEW OF FEE AMOUNTS. The commission
284-10 annually shall review the fees under Section 1102.251 and reduce
284-11 the fees to the extent that the cost of administering this chapter
284-12 is covered by money appropriated to the commission that is
284-13 attributable to amounts transferred to the general revenue fund
284-14 under Section 1102.353(d). (V.A.C.S. Art. 6573a, Sec. 23(h)(3).)
284-15 (Sections 1102.254-1102.300 reserved for expansion)
284-16 SUBCHAPTER G. PROHIBITED ACTS
284-17 Sec. 1102.301. NEGLIGENCE OR INCOMPETENCE. An inspector may
284-18 not perform a real estate inspection in a negligent or incompetent
284-19 manner. (V.A.C.S. Art. 6573a, Sec. 23(l) (part).)
284-20 Sec. 1102.302. AGREEMENT FOR SPECIFIC REPORT; DISHONESTY.
284-21 An inspector may not:
284-22 (1) accept an assignment for real estate inspection if
284-23 the employment or a fee is contingent on the reporting of:
284-24 (A) a specific, predetermined condition of the
284-25 improvements to real property; or
284-26 (B) specific findings other than those that the
284-27 inspector knows to be true when the assignment is accepted; or
285-1 (2) act in a manner or engage in a practice that:
285-2 (A) is dishonest or fraudulent; or
285-3 (B) involves deceit or misrepresentation.
285-4 (V.A.C.S. Art. 6573a, Sec. 23(l) (part).)
285-5 Sec. 1102.303. ACTING IN CONFLICTING CAPACITIES. An
285-6 inspector may not act in a transaction in the dual capacity of
285-7 inspector and:
285-8 (1) undisclosed principal; or
285-9 (2) broker or salesperson. (V.A.C.S. Art. 6573a, Sec.
285-10 23(l) (part).)
285-11 Sec. 1102.304. REPAIRS AND MAINTENANCE. An inspector may
285-12 not perform or agree to perform repairs or maintenance in
285-13 connection with a real estate inspection under an earnest money
285-14 contract, lease, or exchange of real property. (V.A.C.S.
285-15 Art. 6573a, Sec. 23(l) (part).)
285-16 Sec. 1102.305. VIOLATION OF LAW. An inspector may not
285-17 violate this chapter or a rule adopted by the commission.
285-18 (V.A.C.S. Art. 6573a, Sec. 23(l) (part).)
285-19 (Sections 1102.306-1102.350 reserved for expansion)
285-20 SUBCHAPTER H. REAL ESTATE INSPECTION RECOVERY FUND
285-21 Sec. 1102.351. REAL ESTATE INSPECTION RECOVERY FUND. The
285-22 commission shall maintain a real estate inspection recovery fund to
285-23 reimburse aggrieved persons who suffer actual damages from an
285-24 inspector's act in violation of Subchapter G. The inspector must
285-25 have held a license at the time the act was committed. (V.A.C.S.
285-26 Art. 6573a, Sec. 23(o)(1) (part).)
285-27 Sec. 1102.352. PAYMENTS INTO FUND. (a) In addition to any
286-1 other fees required by this chapter, a person who passes a license
286-2 examination must pay a fee not to exceed $200. The commission
286-3 shall deposit the fee to the credit of the fund before issuing the
286-4 license.
286-5 (b) If the balance in the fund on December 31 of a year is
286-6 less than $300,000, each inspector at the next license renewal must
286-7 pay, in addition to the renewal fee, a fee that is equal to the
286-8 lesser of $75 or a pro rata share of the amount necessary to obtain
286-9 a balance in the fund of $450,000. The commission shall deposit
286-10 the additional fee to the credit of the fund. (V.A.C.S.
286-11 Art. 6573a, Secs. 23(o)(2), (3).)
286-12 Sec. 1102.353. MANAGEMENT OF FUND. (a) The commission
286-13 shall hold money credited to the fund in trust to carry out the
286-14 purpose of the fund.
286-15 (b) Money credited to the fund may be invested in the same
286-16 manner as money of the Employees Retirement System of Texas, except
286-17 that an investment may not be made that would impair the liquidity
286-18 necessary to make payments from the fund as required by this
286-19 subchapter.
286-20 (c) Interest from the investments shall be deposited to the
286-21 credit of the fund.
286-22 (d) If the balance in the fund on December 31 of a year is
286-23 more than $600,000, the commission shall transfer the amount in
286-24 excess of $600,000 to the credit of the general revenue fund.
286-25 (V.A.C.S. Art. 6573a, Secs. 23(o)(4), (11).)
286-26 Sec. 1102.354. DEADLINE FOR ACTION; NOTICE TO COMMISSION.
286-27 (a) An action for a judgment that may result in an order for
287-1 payment from the fund may not be brought after the second
287-2 anniversary of the date the cause of action accrues.
287-3 (b) When an aggrieved person brings an action for a judgment
287-4 that may result in an order for payment from the fund, the
287-5 inspector against whom the action is brought shall notify the
287-6 commission in writing of the action. (V.A.C.S. Art. 6573a, Sec.
287-7 23(o)(5).)
287-8 Sec. 1102.355. CLAIM FOR PAYMENT FROM FUND. (a) An
287-9 aggrieved person who obtains a court judgment against an inspector
287-10 for a violation of Subchapter G may, after final judgment is
287-11 entered, execution returned nulla bona, and a judgment lien
287-12 perfected, file a verified claim in the court that entered the
287-13 judgment.
287-14 (b) After the 20th day after the date the aggrieved person
287-15 gives written notice to the commission and judgment debtor, the
287-16 person may apply to the court that entered the judgment for an
287-17 order for payment from the fund of the amount unpaid on the
287-18 judgment. The court shall proceed promptly on the application.
287-19 (V.A.C.S. Art. 6573a, Secs. 23(o)(6), (7) (part).)
287-20 Sec. 1102.356. ISSUES AT HEARING. At the hearing on the
287-21 application for payment from the fund, the aggrieved person must
287-22 show:
287-23 (1) that the judgment is based on facts allowing
287-24 recovery under this subchapter;
287-25 (2) that the person is not:
287-26 (A) the spouse of the judgment debtor or the
287-27 personal representative of the spouse; or
288-1 (B) an inspector;
288-2 (3) that the person has obtained a judgment described
288-3 by Section 1102.355 that is not subject to a stay or discharge in
288-4 bankruptcy;
288-5 (4) the amount of the judgment and the amount owing on
288-6 the judgment on the date of the application;
288-7 (5) that, according to the best information available,
288-8 the judgment debtor does not have sufficient attachable assets in
288-9 this or another state to satisfy the judgment;
288-10 (6) the amount that may be realized from the sale of
288-11 assets liable to be sold or applied to satisfy the judgment; and
288-12 (7) the balance remaining due on the judgment after
288-13 application of the amount under Subdivision (6). (V.A.C.S.
288-14 Art. 6573a, Sec. 23(o)(7) (part).)
288-15 Sec. 1102.357. COMMISSION RESPONSE. (a) On receipt of
288-16 notice under Section 1102.355, the commission may notify the
288-17 attorney general of the commission's desire to enter an appearance,
288-18 file a response, appear at the hearing, defend the action, or take
288-19 any other action the commission considers appropriate.
288-20 (b) The commission and the attorney general may act under
288-21 Subsection (a) only to:
288-22 (1) protect the fund from spurious or unjust claims;
288-23 or
288-24 (2) ensure compliance with the requirements for
288-25 recovery under this subchapter.
288-26 (c) The commission may relitigate in the hearing any
288-27 material and relevant issue that was determined in the action that
289-1 resulted in the judgment in favor of the aggrieved person.
289-2 (V.A.C.S. Art. 6573a, Secs. 23(o)(8) (part), (12).)
289-3 Sec. 1102.358. COURT ORDER FOR PAYMENT. The court shall
289-4 order the commission to pay from the fund the amount the court
289-5 finds payable on the claim under this subchapter if at the hearing
289-6 the court is satisfied:
289-7 (1) of the truth of each matter the aggrieved person
289-8 is required by Section 1102.356 to show; and
289-9 (2) that the aggrieved person has satisfied each
289-10 requirement of Sections 1102.355 and 1102.356. (V.A.C.S.
289-11 Art. 6573a, Secs. 23(o)(1) (part), (8) (part).)
289-12 Sec. 1102.359. PAYMENT LIMITS; ATTORNEY'S FEES. (a)
289-13 Payments from the fund for claims, including attorney's fees,
289-14 interest, and court costs, arising out of a single transaction may
289-15 not exceed a total of $7,500, regardless of the number of
289-16 claimants.
289-17 (b) Payments from the fund for claims based on judgments
289-18 against a single inspector may not exceed a total of $15,000 until
289-19 the inspector has reimbursed the fund for all amounts paid.
289-20 (c) If the court finds that the total amount of claims
289-21 against an inspector exceeds the limitations contained in this
289-22 section, the court shall proportionally reduce the amount payable
289-23 on each claim.
289-24 (d) A person receiving payment from the fund is entitled to
289-25 reasonable attorney's fees in the amount determined by the court,
289-26 subject to the limitation prescribed by this section. (V.A.C.S.
289-27 Art. 6573a, Secs. 23(o)(8) (part), (15), (17).)
290-1 Sec. 1102.360. APPLICATION OF JUDGMENT RECOVERY. An
290-2 aggrieved person who receives a recovery on a judgment against a
290-3 single defendant before receiving a payment from the fund must
290-4 apply the recovery first to actual damages. (V.A.C.S. Art. 6573a,
290-5 Sec. 23(o)(9).)
290-6 Sec. 1102.361. SUBROGATION. (a) The commission is
290-7 subrogated to all rights of a judgment creditor to the extent of an
290-8 amount paid from the fund, and the judgment creditor shall assign
290-9 to the commission all right, title, and interest in the judgment up
290-10 to that amount.
290-11 (b) The commission has priority for repayment from any
290-12 subsequent recovery on the judgment.
290-13 (c) The commission shall deposit any amount recovered on the
290-14 judgment to the credit of the fund. (V.A.C.S. Art. 6573a, Sec.
290-15 23(o)(13).)
290-16 Sec. 1102.362. EFFECT ON DISCIPLINARY PROCEEDINGS. (a)
290-17 This subchapter does not limit the commission's authority to take
290-18 disciplinary action against an inspector for a violation of this
290-19 chapter or a commission rule.
290-20 (b) An inspector's repayment of all amounts owed to the fund
290-21 does not affect another disciplinary proceeding brought under this
290-22 chapter. (V.A.C.S. Art. 6573a, Sec. 23(o)(16).)
290-23 Sec. 1102.363. WAIVER OF RIGHTS. An aggrieved person who
290-24 does not comply with this subchapter waives the person's rights
290-25 under this subchapter. (V.A.C.S. Art. 6573a, Sec. 23(o)(14).)
290-26 Sec. 1102.364. NOTICE TO CONSUMERS AND SERVICE RECIPIENTS.
290-27 (a) Each inspector shall provide notice to consumers and service
291-1 recipients of the availability of payment from the fund for
291-2 aggrieved persons:
291-3 (1) on a written contract for the inspector's
291-4 services;
291-5 (2) on a brochure that the inspector distributes;
291-6 (3) on a sign prominently displayed in the inspector's
291-7 place of business; or
291-8 (4) in a bill or receipt for the inspector's services.
291-9 (b) The notice must include:
291-10 (1) the commission's name, mailing address, and
291-11 telephone number; and
291-12 (2) any other information required by commission rule.
291-13 (V.A.C.S. Art. 6573a, Sec. 23(o)(18).)
291-14 (Sections 1102.365-1102.400 reserved for expansion)
291-15 SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
291-16 Sec. 1102.401. DISCIPLINARY POWERS OF COMMISSION. (a) The
291-17 commission may investigate an action of an inspector and, after
291-18 notice and hearing as provided by Section 1101.657, reprimand the
291-19 inspector, place the inspector's license on probation, or suspend
291-20 or revoke the inspector's license for a violation of this chapter
291-21 or a commission rule.
291-22 (b) An inspector whose license is revoked under this section
291-23 may not apply to the commission for a new license until after the
291-24 first anniversary of the date of the revocation. (V.A.C.S.
291-25 Art. 6573a, Sec. 23(m)(4).)
291-26 Sec. 1102.402. LICENSE REVOCATION FOR CLAIM ON FUND. (a)
291-27 The commission may revoke the license of an inspector if the
292-1 commission makes a payment from the fund to satisfy all or part of
292-2 a judgment against the inspector.
292-3 (b) The commission may probate an order revoking a license.
292-4 (c) A person whose license is revoked under this section is
292-5 not eligible for a new license until the person has repaid in full
292-6 the amount paid from the fund on the person's account, plus
292-7 interest at the legal rate. (V.A.C.S. Art. 6573a, Sec. 23(o)(10).)
292-8 Sec. 1102.403. ADMINISTRATIVE PENALTY. (a) The commission
292-9 may impose an administrative penalty as provided by Subchapter O,
292-10 Chapter 1101, on an inspector who violates this chapter or a rule
292-11 adopted or order issued by the commission under this chapter or
292-12 Chapter 1101.
292-13 (b) An administrative penalty collected under this section
292-14 shall be deposited to the credit of the real estate inspection
292-15 recovery fund. (V.A.C.S. Art. 6573a, Secs. 19A(a), (o) (part).)
292-16 Sec. 1102.404. INJUNCTIVE RELIEF. The commission, the
292-17 attorney general, a county attorney, or a district attorney, as
292-18 applicable, may bring an action to enforce this chapter or to abate
292-19 or enjoin a violation of this chapter or a rule adopted under this
292-20 chapter as prescribed by Sections 1101.751 and 1101.752. (V.A.C.S.
292-21 Art. 6573a, Secs. 5(h) (part); 19(c), (d) (part).)
292-22 Sec. 1102.405. APPEAL BOND EXEMPTION. The commission is not
292-23 required to give an appeal bond in an action to enforce this
292-24 chapter. (V.A.C.S. Art. 6573a, Sec. 5(h) (part).)
292-25 Sec. 1102.406. GENERAL CRIMINAL PENALTY. (a) A person
292-26 commits an offense if the person wilfully violates or fails to
292-27 comply with this chapter or a commission order.
293-1 (b) An offense under this section is a Class A misdemeanor.
293-2 (V.A.C.S. Art. 6573a.1.)
293-3 Sec. 1102.407. CRIMINAL PENALTY FOR PRACTICING WITHOUT
293-4 LICENSE. (a) A person commits an offense if the person does not
293-5 hold a license under this chapter and knowingly engages in the
293-6 business of real estate inspecting, including performing an
293-7 inspection while the person's license is revoked or suspended.
293-8 (b) An offense under this section is a Class B misdemeanor.
293-9 (V.A.C.S. Art. 6573a, Secs. 23(m)(1), (2).)
293-10 CHAPTER 1103. REAL ESTATE APPRAISERS
293-11 SUBCHAPTER A. GENERAL PROVISIONS
293-12 Sec. 1103.001. SHORT TITLE
293-13 Sec. 1103.002. PURPOSE
293-14 Sec. 1103.003. DEFINITIONS
293-15 Sec. 1103.004. EFFECT OF CHAPTER
293-16 Sec. 1103.005. REAL ESTATE BROKER OR SALESPERSON LICENSE
293-17 NOT REQUIRED
293-18 Sec. 1103.006. APPLICATION OF SUNSET ACT
293-19 (Sections 1103.007-1103.050 reserved for expansion)
293-20 SUBCHAPTER B. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
293-21 Sec. 1103.051. TEXAS APPRAISER LICENSING AND CERTIFICATION
293-22 BOARD
293-23 Sec. 1103.052. BOARD MEMBERSHIP
293-24 Sec. 1103.053. QUALIFICATIONS OF APPOINTED MEMBERS
293-25 Sec. 1103.054. ELIGIBILITY OF PUBLIC MEMBERS
293-26 Sec. 1103.055. TERMS
293-27 Sec. 1103.056. OFFICERS; EXECUTIVE COMMITTEE
294-1 Sec. 1103.057. GROUNDS FOR REMOVAL
294-2 Sec. 1103.058. PER DIEM; REIMBURSEMENT
294-3 Sec. 1103.059. QUASI-JUDICIAL IMMUNITY
294-4 (Sections 1103.060-1103.100 reserved for expansion)
294-5 SUBCHAPTER C. COMMISSIONER AND OTHER BOARD PERSONNEL
294-6 Sec. 1103.101. COMMISSIONER
294-7 Sec. 1103.102. OTHER BOARD PERSONNEL
294-8 Sec. 1103.103. SALARIES
294-9 Sec. 1103.104. DUTIES OF COMMISSIONER
294-10 (Sections 1103.105-1103.150 reserved for expansion)
294-11 SUBCHAPTER D. BOARD POWERS AND DUTIES
294-12 Sec. 1103.151. RULES RELATING TO CERTIFICATES AND
294-13 LICENSES
294-14 Sec. 1103.152. APPRAISER CERTIFICATE AND LICENSE
294-15 CATEGORIES
294-16 Sec. 1103.153. RULES RELATING TO CONTINUING EDUCATION
294-17 Sec. 1103.154. RULES RELATING TO PROFESSIONAL CONDUCT
294-18 Sec. 1103.155. ROSTER
294-19 Sec. 1103.156. FEES
294-20 (Sections 1103.157-1103.200 reserved for expansion)
294-21 SUBCHAPTER E. CERTIFICATE AND LICENSE REQUIREMENTS
294-22 Sec. 1103.201. CERTIFICATE OR LICENSE REQUIRED
294-23 Sec. 1103.202. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE
294-24 Sec. 1103.203. ELIGIBILITY REQUIREMENTS FOR LICENSE
294-25 Sec. 1103.204. FULFILLMENT OF EDUCATION REQUIREMENTS
294-26 Sec. 1103.205. FULFILLMENT OF EXPERIENCE REQUIREMENTS
294-27 Sec. 1103.206. VERIFICATION OF EDUCATION AND EXPERIENCE
295-1 Sec. 1103.207. ADDITIONAL INFORMATION FROM CERTAIN
295-2 APPLICANTS
295-3 Sec. 1103.208. PROVISIONAL LICENSE FOR CERTAIN APPRAISER
295-4 TRAINEES
295-5 Sec. 1103.209. RECIPROCAL CERTIFICATE OR LICENSE
295-6 Sec. 1103.210. DENIAL OF CERTIFICATE OR LICENSE
295-7 Sec. 1103.211. CERTIFICATE OR LICENSE RENEWAL; CONTINUING
295-8 EDUCATION
295-9 (Sections 1103.212-1103.250 reserved for expansion)
295-10 SUBCHAPTER F. APPRAISER EXAMINATION
295-11 Sec. 1103.251. EXAMINATION REQUIRED
295-12 Sec. 1103.252. TESTING SERVICE
295-13 Sec. 1103.253. TIME AND PLACE OF EXAMINATION; NOTICE
295-14 Sec. 1103.254. EXAMINATION APPLICATION
295-15 Sec. 1103.255. EXPERIENCE NOT REQUIRED BEFORE TAKING
295-16 EXAMINATION
295-17 Sec. 1103.256. MINIMUM PASSING GRADE REQUIRED
295-18 Sec. 1103.257. EXAMINATION RESULTS
295-19 Sec. 1103.258. REEXAMINATION
295-20 Sec. 1103.259. GUIDELINES; STUDY GUIDES
295-21 (Sections 1103.260-1103.300 reserved for expansion)
295-22 SUBCHAPTER G. TEMPORARY APPRAISAL AUTHORITY FOR OUT-OF-STATE
295-23 APPRAISERS
295-24 Sec. 1103.301. REGISTRATION REQUIRED
295-25 Sec. 1103.302. REGISTRATION APPLICATION
295-26 Sec. 1103.303. ELIGIBILITY REQUIREMENTS FOR REGISTRATION
295-27 (Sections 1103.304-1103.350 reserved for expansion)
296-1 SUBCHAPTER H. APPRAISER TRAINEES
296-2 Sec. 1103.351. SPONSOR
296-3 Sec. 1103.352. APPLICATION FOR APPRAISER TRAINEE
296-4 Sec. 1103.353. ELIGIBILITY REQUIREMENTS FOR APPRAISER
296-5 TRAINEE
296-6 Sec. 1103.354. APPRAISER TRAINEE REPORTS
296-7 Sec. 1103.355. DISCIPLINARY PROCEDURES FOR APPRAISER
296-8 TRAINEES
296-9 (Sections 1103.356-1103.400 reserved for expansion)
296-10 SUBCHAPTER I. PRACTICE BY CERTIFIED OR LICENSED APPRAISER
296-11 Sec. 1103.401. USE OF INSIGNIA OR IDENTIFICATION
296-12 Sec. 1103.402. SIGNATURE OR ENDORSEMENT ON APPRAISAL
296-13 Sec. 1103.403. OFFICE LOCATION
296-14 Sec. 1103.404. BUSINESS RECORDS
296-15 (Sections 1103.405-1103.450 reserved for expansion)
296-16 SUBCHAPTER J. DISCIPLINARY PROCEEDINGS GENERALLY
296-17 Sec. 1103.451. COMPLAINT
296-18 Sec. 1103.452. REVIEW AND INVESTIGATION
296-19 Sec. 1103.453. PEER INVESTIGATIVE COMMITTEE
296-20 Sec. 1103.454. GENERAL SUBPOENA AUTHORITY
296-21 Sec. 1103.455. REPORT OF INVESTIGATION REQUIRED
296-22 Sec. 1103.456. BOARD ACTION BASED ON REPORT
296-23 Sec. 1103.457. INFORMAL DISCUSSION OF COMPLAINT
296-24 Sec. 1103.458. CONSENT ORDER
296-25 Sec. 1103.459. CONSENT AGREEMENT
296-26 Sec. 1103.460. PUBLIC AVAILABILITY OF FINAL DECISION
296-27 (Sections 1103.461-1103.500 reserved for expansion)
297-1 SUBCHAPTER K. CONTESTED CASE HEARINGS
297-2 Sec. 1103.501. APPLICABILITY OF ADMINISTRATIVE PROCEDURE
297-3 LAW
297-4 Sec. 1103.502. NOTICE OF HEARING
297-5 Sec. 1103.503. STATEMENT OF CHARGES
297-6 Sec. 1103.504. ATTORNEY GENERAL REPRESENTATION
297-7 Sec. 1103.505. ANSWER
297-8 Sec. 1103.506. DISCOVERY PROCEDURES
297-9 Sec. 1103.507. SUBPOENA IN CONTESTED CASE
297-10 Sec. 1103.508. HEARING BEFORE BOARD
297-11 Sec. 1103.509. CHALLENGE OF BOARD MEMBER
297-12 Sec. 1103.510. FAILURE TO APPEAR
297-13 Sec. 1103.511. OPEN HEARING
297-14 Sec. 1103.512. RECORD OF PROCEEDINGS
297-15 Sec. 1103.513. ORDER OF PROCEEDINGS
297-16 Sec. 1103.514. COPIES OF EVIDENCE
297-17 Sec. 1103.515. RESPONSE TO CERTAIN ACCUSATIONS
297-18 Sec. 1103.516. DIRECT EXAMINATION
297-19 Sec. 1103.517. IMMUNITY OF WITNESSES
297-20 Sec. 1103.518. BOARD ACTION AFTER HEARING
297-21 Sec. 1103.519. APPLICATION FOR REHEARING
297-22 Sec. 1103.520. DECISION ON REHEARING
297-23 Sec. 1103.521. DECISION; ORDER
297-24 Sec. 1103.522. REINSTATEMENT OF CERTIFICATE OR LICENSE
297-25 (Sections 1103.523-1103.550 reserved for expansion)
297-26 SUBCHAPTER L. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
297-27 Sec. 1103.551. INJUNCTION
298-1 Sec. 1103.552. ADMINISTRATIVE PENALTY
298-2 Sec. 1103.553. CIVIL PENALTY
298-3 Sec. 1103.554. CRIMINAL PENALTY
298-4 CHAPTER 1103. REAL ESTATE APPRAISERS
298-5 SUBCHAPTER A. GENERAL PROVISIONS
298-6 Sec. 1103.001. SHORT TITLE. This chapter may be cited as the
298-7 Texas Appraiser Licensing and Certification Act. (V.A.C.S.
298-8 Art. 6573a.2, Sec. 1.)
298-9 Sec. 1103.002. PURPOSE. The purpose of this chapter is to
298-10 conform state law relating to the regulation of real estate
298-11 appraisers to the requirements adopted under Title XI, Financial
298-12 Institutions Reform, Recovery, and Enforcement Act of 1989 (12
298-13 U.S.C. Section 3331 et seq.). (V.A.C.S. Art. 6573a.2, Sec. 2.)
298-14 Sec. 1103.003. DEFINITIONS. In this chapter:
298-15 (1) "Appraisal" means:
298-16 (A) an estimate of value; or
298-17 (B) the act or process of estimating value.
298-18 (2) "Appraisal Foundation" means The Appraisal
298-19 Foundation, as defined by 12 U.S.C. Section 3350, or its successor.
298-20 (3) "Appraisal Subcommittee" means the Appraisal
298-21 Subcommittee of the Federal Financial Institutions Examination
298-22 Council, or its successor.
298-23 (4) "Appraiser Qualifications Board" means the
298-24 Appraiser Qualifications Board of the Appraisal Foundation, or its
298-25 successor.
298-26 (5) "Board" means the Texas Appraiser Licensing and
298-27 Certification Board.
299-1 (6) "Commissioner" means the commissioner of the Texas
299-2 Appraiser Licensing and Certification Board.
299-3 (7) "State-certified real estate appraiser" or
299-4 "certified appraiser" means a person who is certified under this
299-5 chapter.
299-6 (8) "State-licensed real estate appraiser" or
299-7 "licensed appraiser" means a person who is licensed under this
299-8 chapter. (V.A.C.S. Art. 6573a.2, Secs. 3(1), (3), (4), (5), (6),
299-9 (10), (13), (14); New.)
299-10 Sec. 1103.004. EFFECT OF CHAPTER. (a) For purposes of this
299-11 section:
299-12 (1) "Departure rule" means a limited departure from a
299-13 requirement of the Uniform Standards of Professional Appraisal
299-14 Practice that is:
299-15 (A) classified as a specific guideline rather
299-16 than as a binding requirement; and
299-17 (B) permitted only if the result of the
299-18 departure is not confusing or misleading and the specific guideline
299-19 from which the appraiser departs is reported.
299-20 (2) "Evaluation" means an estimate of value that:
299-21 (A) is prepared by a certified or licensed
299-22 appraiser or another authorized real estate professional;
299-23 (B) includes an estimate of a property's market
299-24 value, a certification and limiting conditions, and an analysis of
299-25 or the supporting information used in forming the estimate of
299-26 value;
299-27 (C) is not more than a limited appraisal; and
300-1 (D) may be presented in a format that is less
300-2 than a self-contained report.
300-3 (3) "Federal financial institution regulatory agency"
300-4 means:
300-5 (A) the Board of Governors of the Federal
300-6 Reserve System;
300-7 (B) the Federal Deposit Insurance Corporation;
300-8 (C) the Office of the Comptroller of the
300-9 Currency;
300-10 (D) the Office of Thrift Supervision;
300-11 (E) the National Credit Union Administration; or
300-12 (F) the successors of any of those agencies.
300-13 (4) "Federally related transaction" means a real
300-14 estate-related transaction that:
300-15 (A) requires the services of an appraiser; and
300-16 (B) is engaged in, contracted for, or regulated
300-17 by a federal financial institution regulatory agency.
300-18 (5) "Limited appraisal" means an appraisal in which
300-19 the departure rule is invoked.
300-20 (6) "Self-contained report" means a report that:
300-21 (A) contains sufficient information to indicate
300-22 that the appraiser has complied with the requirements of Standards
300-23 1 and 2 of the Uniform Standards of Professional Appraisal
300-24 Practice; and
300-25 (B) describes all information necessary for the
300-26 user of the appraisal to follow the conclusions of the appraisal
300-27 without referring to additional material.
301-1 (b) This chapter does not prohibit:
301-2 (1) a person authorized by law from performing an
301-3 evaluation of real property for or providing an evaluation of real
301-4 property to another person;
301-5 (2) a real estate broker or salesperson licensed under
301-6 Chapter 1101 but not certified or licensed under this chapter from
301-7 performing an appraisal in a transaction other than a federally
301-8 related transaction;
301-9 (3) the requirement that a person who is not certified
301-10 or licensed under this chapter be licensed as a real estate broker
301-11 or salesperson to perform an appraisal in a transaction other than
301-12 a federally related transaction; or
301-13 (4) a real estate broker or salesperson licensed under
301-14 Chapter 1101 from giving an opinion if the opinion:
301-15 (A) is not referred to as an appraisal; and
301-16 (B) is given in the ordinary course of the
301-17 broker's or salesperson's business to:
301-18 (i) a potential seller or third party
301-19 regarding the recommended listing price of real property; or
301-20 (ii) a potential purchaser or third party
301-21 regarding the recommended purchase price of real property.
301-22 (V.A.C.S. Art. 6573a.2, Secs. 3(8), (9), (16), (17), (18), (19),
301-23 18(b).)
301-24 Sec. 1103.005. REAL ESTATE BROKER OR SALESPERSON LICENSE NOT
301-25 REQUIRED. A person is not required to be licensed as a real estate
301-26 broker or salesperson under Chapter 1101 to appraise real property
301-27 in this state if the person is:
302-1 (1) certified or licensed under this chapter;
302-2 (2) approved as an appraiser trainee under this
302-3 chapter; or
302-4 (3) certified or licensed as a real estate appraiser
302-5 by another state. (V.A.C.S. Art. 6573a.2, Sec. 18(a).)
302-6 Sec. 1103.006. APPLICATION OF SUNSET ACT. If the federal
302-7 government removes the requirements for the preparation or use of
302-8 an appraisal by federally regulated financial institutions, the
302-9 board is subject to Chapter 325, Government Code (Texas Sunset
302-10 Act), and is subject to sunset review in the next regular session
302-11 of the legislature following the date of the federal government's
302-12 action. Unless continued in existence by that legislature as
302-13 provided by that chapter, the board is abolished and this chapter
302-14 expires on the 90th day after the last day of the regular session
302-15 of that legislature. (V.A.C.S. Art. 6573a.2, Sec. 6(l).)
302-16 (Sections 1103.007-1103.050 reserved for expansion)
302-17 SUBCHAPTER B. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
302-18 Sec. 1103.051. TEXAS APPRAISER LICENSING AND CERTIFICATION
302-19 BOARD. The Texas Appraiser Licensing and Certification Board is an
302-20 independent subdivision of the Texas Real Estate Commission.
302-21 (V.A.C.S. Art. 6573a.2, Sec. 6(a) (part).)
302-22 Sec. 1103.052. BOARD MEMBERSHIP. (a) The board consists of
302-23 nine members as follows:
302-24 (1) the executive secretary of the Veterans' Land
302-25 Board or the executive secretary's designee; and
302-26 (2) eight members appointed by the governor with the
302-27 advice and consent of the senate as follows:
303-1 (A) four members who are certified or licensed
303-2 appraisers actively engaged in the practice of appraising real
303-3 property; and
303-4 (B) four public members who qualify for
303-5 appointment based on their recognized business ability.
303-6 (b) The executive secretary of the Veterans' Land Board or
303-7 the executive secretary's designee is a voting member of the board.
303-8 (c) In making appointments to the board, the governor shall
303-9 ensure that:
303-10 (1) a single appraisal organization is not
303-11 overrepresented on the board;
303-12 (2) the board is independent of a trade association,
303-13 profession, or industry; and
303-14 (3) the board represents:
303-15 (A) the diverse geographic areas of the state;
303-16 and
303-17 (B) a cross-section of disciplines in the field
303-18 of real estate appraisal.
303-19 (d) Appointments to the board shall be made without regard
303-20 to:
303-21 (1) the race, color, religion, sex, disability,
303-22 familial status, or national origin of the appointee; or
303-23 (2) the appointee's membership in an appraisal
303-24 organization. (V.A.C.S. Art. 6573a.2, Secs. 6(a) (part), (b), (c)
303-25 (part), (d).)
303-26 Sec. 1103.053. QUALIFICATIONS OF APPOINTED MEMBERS. (a) An
303-27 appointed member of the board must be a qualified voter of this
304-1 state.
304-2 (b) A person appointed to the board qualifies by taking the
304-3 constitutional oath of office not later than the 15th day after the
304-4 date of appointment. (V.A.C.S. Art. 6573a.2, Secs. 6(c) (part), (f)
304-5 (part).)
304-6 Sec. 1103.054. ELIGIBILITY OF PUBLIC MEMBERS. A person is
304-7 not eligible for appointment as a public member of the board if the
304-8 person or the person's spouse:
304-9 (1) is a certified or licensed appraiser;
304-10 (2) is certified or licensed by an occupational
304-11 regulatory agency in the field of real estate brokerage or
304-12 appraisal;
304-13 (3) owns or controls, directly or indirectly, a
304-14 business entity or other organization whose primary purpose is to
304-15 engage in real estate sales, brokerage, or appraisal; or
304-16 (4) is employed by or participates in the management
304-17 of a business entity or other organization whose primary purpose is
304-18 to engage in real estate sales, brokerage, or appraisal. (V.A.C.S.
304-19 Art. 6573a.2, Sec. 6(e).)
304-20 Sec. 1103.055. TERMS. (a) Appointed members of the board
304-21 serve staggered two-year terms, with the terms of two appraiser
304-22 members and two public members expiring on January 31 of each year.
304-23 (b) An appointed member may not serve more than three
304-24 consecutive two-year terms. (V.A.C.S. Art. 6573a.2, Sec. 6(f)
304-25 (part).)
304-26 Sec. 1103.056. OFFICERS; EXECUTIVE COMMITTEE. (a) At a
304-27 regular meeting in February of each year, the board shall elect
305-1 from its members a presiding officer, assistant presiding officer,
305-2 and secretary.
305-3 (b) The officers elected under Subsection (a) constitute the
305-4 executive committee. (V.A.C.S. Art. 6573a.2, Sec. 6(f) (part).)
305-5 Sec. 1103.057. GROUNDS FOR REMOVAL. (a) It is a ground for
305-6 removal from the board that an appointed member:
305-7 (1) does not have at the time of appointment the
305-8 qualifications required by this subchapter for appointment to the
305-9 board;
305-10 (2) does not maintain during service on the board the
305-11 qualifications required by this subchapter for appointment to the
305-12 board;
305-13 (3) cannot, because of illness or disability,
305-14 discharge the member's duties for a substantial part of the
305-15 member's term; or
305-16 (4) is absent from more than half of the regularly
305-17 scheduled board meetings that the member is eligible to attend
305-18 during a calendar year, unless the absence is excused by a majority
305-19 vote of the board.
305-20 (b) The validity of an action of the board is not affected
305-21 by the fact that it is taken when a ground for removal of an
305-22 appointed board member exists.
305-23 (c) If the presiding officer of the board has knowledge that
305-24 a potential ground for removal of an appointed board member exists,
305-25 the presiding officer shall immediately notify the governor.
305-26 (V.A.C.S. Art. 6573a.2, Secs. 6(g), (h), (i).)
305-27 Sec. 1103.058. PER DIEM; REIMBURSEMENT. An appointed board
306-1 member is entitled to receive:
306-2 (1) $75 for each day the member engages in official
306-3 duties as a board member; and
306-4 (2) reimbursement for actual and necessary expenses
306-5 incurred in performing official duties as a board member.
306-6 (V.A.C.S. Art. 6573a.2, Sec. 6(j).)
306-7 Sec. 1103.059. QUASI-JUDICIAL IMMUNITY. A member of the
306-8 board is entitled to quasi-judicial immunity from suit for an
306-9 action that:
306-10 (1) is taken as a member of the board; and
306-11 (2) is in compliance with the law. (V.A.C.S.
306-12 Art. 6573a.2, Sec. 12A(o).)
306-13 (Sections 1103.060-1103.100 reserved for expansion)
306-14 SUBCHAPTER C. COMMISSIONER AND OTHER BOARD PERSONNEL
306-15 Sec. 1103.101. COMMISSIONER. (a) The board shall employ a
306-16 commissioner.
306-17 (b) The board may delegate to the commissioner the
306-18 responsibility for administering this chapter. (V.A.C.S.
306-19 Art. 6573a.2, Sec. 6(k) (part).)
306-20 Sec. 1103.102. OTHER BOARD PERSONNEL. In addition to the
306-21 commissioner, the board may employ other officers and employees as
306-22 necessary to administer this chapter. (V.A.C.S. Art. 6573a.2, Sec.
306-23 6(k) (part).)
306-24 Sec. 1103.103. SALARIES. (a) The board shall determine the
306-25 salaries of the commissioner, officers, and employees of the board.
306-26 (b) The amounts of the salaries may not exceed the amounts
306-27 specified by the General Appropriations Act. (V.A.C.S.
307-1 Art. 6573a.2, Sec. 6(k) (part).)
307-2 Sec. 1103.104. DUTIES OF COMMISSIONER. The commissioner
307-3 shall:
307-4 (1) disseminate information;
307-5 (2) administer rules adopted by the board under this
307-6 chapter;
307-7 (3) review each application for a certificate or
307-8 license and make a recommendation for final action to the board;
307-9 (4) review and make recommendations to the board
307-10 regarding the adoption of rules relating to:
307-11 (A) the examination required by Subchapter F;
307-12 (B) education and experience requirements for
307-13 issuance of certificates and licenses;
307-14 (C) continuing education for a certified or
307-15 licensed appraiser;
307-16 (D) standards of professional practice and
307-17 ethics for a certified or licensed appraiser;
307-18 (E) standards for a real estate appraisal
307-19 performed by a certified or licensed appraiser; and
307-20 (F) the fees established by the board under
307-21 Section 1103.156;
307-22 (5) collect fees established by the board; and
307-23 (6) perform any other duty prescribed by the board
307-24 under this chapter. (V.A.C.S. Art. 6573a.2, Sec. 7.)
307-25 (Sections 1103.105-1103.150 reserved for expansion)
307-26 SUBCHAPTER D. BOARD POWERS AND DUTIES
307-27 Sec. 1103.151. RULES RELATING TO CERTIFICATES AND LICENSES.
308-1 The board may adopt:
308-2 (1) rules for certifying or licensing an appraiser in
308-3 this state that are in accordance with this chapter and consistent
308-4 with, but not more stringent than, applicable federal law;
308-5 (2) rules relating to the education and experience
308-6 required for certifying or licensing an appraiser that are
308-7 consistent with, but not more stringent than, the guidelines
308-8 recognized by the Appraisal Subcommittee;
308-9 (3) rules relating to the examination required by
308-10 Subchapter F; and
308-11 (4) rules relating to procedures for the timely
308-12 renewal of a certificate or license. (V.A.C.S. Art. 6573a.2, Secs.
308-13 5(a) (part), 14(c).)
308-14 Sec. 1103.152. APPRAISER CERTIFICATE AND LICENSE CATEGORIES.
308-15 (a) In this section, "Appraisal Standards Board" means the
308-16 Appraisal Standards Board of the Appraisal Foundation, or its
308-17 successor.
308-18 (b) The board may:
308-19 (1) establish certificate and license categories that
308-20 are consistent with the categories recognized by the Appraiser
308-21 Qualifications Board, the Appraisal Standards Board, and the
308-22 Appraisal Subcommittee; and
308-23 (2) prescribe qualifications for each category that
308-24 are not more stringent than the qualifications established for that
308-25 category by the Appraiser Qualifications Board, the Appraisal
308-26 Standards Board, and the Appraisal Subcommittee. (V.A.C.S.
308-27 Art. 6573a.2, Secs. 3(2), 5(a) (part).)
309-1 Sec. 1103.153. RULES RELATING TO CONTINUING EDUCATION. The
309-2 board may adopt rules relating to continuing education requirements
309-3 for a certified or licensed appraiser. (V.A.C.S. Art. 6573a.2,
309-4 Sec. 5(a) (part).)
309-5 Sec. 1103.154. RULES RELATING TO PROFESSIONAL CONDUCT. The
309-6 board may adopt:
309-7 (1) rules as necessary to conform to the minimum
309-8 written standards of the Appraisal Subcommittee by incorporating
309-9 the Uniform Standards of Professional Appraisal Practice;
309-10 (2) rules requiring a certified or licensed appraiser
309-11 to comply with standards of competency, professional conduct, and
309-12 ethics generally accepted by the Appraisal Subcommittee and
309-13 prescribed by the Uniform Standards of Professional Appraisal
309-14 Practice, as adopted by the Appraisal Foundation; and
309-15 (3) rules relating to the standards for the
309-16 development of an appraisal and the conveyance of an appraisal
309-17 report by a certified or licensed appraiser that are consistent
309-18 with the Uniform Standards of Professional Appraisal Practice.
309-19 (V.A.C.S. Art. 6573a.2, Sec. 5(a) (part).)
309-20 Sec. 1103.155. ROSTER. (a) The board shall maintain a
309-21 roster of persons who are certified or licensed under this chapter.
309-22 (b) The roster must indicate the type of certificate or
309-23 license held by each person listed.
309-24 (c) The board shall send a copy of the roster to the
309-25 Appraisal Subcommittee at least annually. (V.A.C.S. Art. 6573a.2,
309-26 Secs. 13(a), (b).)
309-27 Sec. 1103.156. FEES. (a) The board may establish reasonable
310-1 fees to administer this chapter, including:
310-2 (1) an application fee for a certificate or license;
310-3 (2) an examination fee;
310-4 (3) a renewal fee for a certificate or license;
310-5 (4) a registration fee for a nonresident real estate
310-6 appraiser;
310-7 (5) an application fee for an appraiser trainee;
310-8 (6) an annual renewal fee for an appraiser trainee;
310-9 and
310-10 (7) other appropriate fees.
310-11 (b) The board shall collect from each certified or licensed
310-12 appraiser an annual registry fee in an amount established by the
310-13 board not to exceed the amount required by the Appraisal
310-14 Subcommittee. The board shall deposit the registry fees to the
310-15 credit of the appraiser registry account in the general revenue
310-16 fund.
310-17 (c) The fees collected under Subsection (b) shall be sent to
310-18 the Appraisal Subcommittee regularly as required by federal law.
310-19 (V.A.C.S. Art. 6573a.2, Secs. 5(a) (part), 13(c), (d), 15(b), 17(a)
310-20 (part).)
310-21 (Sections 1103.157-1103.200 reserved for expansion)
310-22 SUBCHAPTER E. CERTIFICATE AND LICENSE REQUIREMENTS
310-23 Sec. 1103.201. CERTIFICATE OR LICENSE REQUIRED. (a) Unless
310-24 the person is certified under this chapter, a person may not:
310-25 (1) use the title "state-certified real estate
310-26 appraiser"; or
310-27 (2) refer to an appraisal prepared by the person as a
311-1 "certified appraisal."
311-2 (b) Unless the person is licensed under this chapter, a
311-3 person may not:
311-4 (1) use the title "state-licensed real estate
311-5 appraiser"; or
311-6 (2) refer to an appraisal prepared by the person as a
311-7 "licensed appraisal." (V.A.C.S. Art. 6573a.2, Secs. 4(a), (b).)
311-8 Sec. 1103.202. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE. To
311-9 be eligible for a certificate under this chapter, an applicant
311-10 must:
311-11 (1) pass the examination required by Subchapter F;
311-12 (2) successfully complete the number and type of
311-13 classroom hours required by the guidelines of the Appraisal
311-14 Subcommittee;
311-15 (3) provide evidence satisfactory to the board that
311-16 the applicant has at least the minimum number of hours of
311-17 experience in performing appraisals over the specified number of
311-18 calendar years as required by the guidelines of the Appraisal
311-19 Subcommittee; and
311-20 (4) satisfy the board as to the applicant's honesty,
311-21 trustworthiness, and integrity. (V.A.C.S. Art. 6573a.2, Secs.
311-22 9(a), (i) (part).)
311-23 Sec. 1103.203. ELIGIBILITY REQUIREMENTS FOR LICENSE. To be
311-24 eligible for a license under this chapter, an applicant must:
311-25 (1) pass the examination required by Subchapter F;
311-26 (2) successfully complete at least 75 classroom hours
311-27 in subjects determined by the board to be related to real estate
312-1 appraisal, including at least 15 classroom hours covering the
312-2 Uniform Standards of Professional Appraisal Practice;
312-3 (3) provide evidence satisfactory to the board that
312-4 the applicant has the equivalent of 2,000 hours of experience in
312-5 performing appraisals; and
312-6 (4) satisfy the board as to the applicant's honesty,
312-7 trustworthiness, and integrity. (V.A.C.S. Art. 6573a.2, Secs.
312-8 9(b), (i) (part).)
312-9 Sec. 1103.204. FULFILLMENT OF EDUCATION REQUIREMENTS. (a)
312-10 In this section, "real estate-related financial transaction" means
312-11 a transaction involving:
312-12 (1) selling, leasing, purchasing, exchanging,
312-13 investing in, or financing real property or an interest in real
312-14 property;
312-15 (2) refinancing real property or an interest in real
312-16 property; or
312-17 (3) using real property or an interest in real
312-18 property as security for a loan or investment, including a
312-19 mortgage-backed security.
312-20 (b) This chapter does not limit the amount of time in which
312-21 an applicant for a certificate or license is required to satisfy
312-22 the education requirements under this subchapter.
312-23 (c) The board shall give an applicant for a certificate or
312-24 license credit toward fulfilling the requirements of Sections
312-25 1103.202(2) and 1103.203(2) for classroom hours taken in the course
312-26 of becoming licensed as a real estate broker or salesperson or for
312-27 professional development or continuing education courses taken,
313-1 whether the classroom hours or courses are taken by a person as a
313-2 real estate broker or salesperson or as an employee of a financial
313-3 institution engaged in real estate-related financial transactions,
313-4 if the classroom hours or courses satisfy the requirements
313-5 established by the guidelines recognized by the Appraisal
313-6 Subcommittee. (V.A.C.S. Art. 6573a.2, Secs. 3(11), 9(d) (part),
313-7 (j).)
313-8 Sec. 1103.205. FULFILLMENT OF EXPERIENCE REQUIREMENTS. (a)
313-9 Except as provided by Section 1103.208, this chapter does not limit
313-10 the amount of time in which an applicant for a certificate or
313-11 license is required to satisfy the experience requirements under
313-12 this subchapter.
313-13 (b) An applicant for a certificate or license must provide
313-14 an affidavit on a form prescribed by the board stating that the
313-15 applicant has the required number of hours of experience in
313-16 performing appraisals as established by the guidelines recognized
313-17 by the Appraisal Subcommittee.
313-18 (c) For the purpose of determining the qualifications of an
313-19 applicant for a certificate or license under this chapter,
313-20 acceptable appraisal experience includes:
313-21 (1) any one or any combination of the categories
313-22 recognized by the guidelines of the Appraisal Subcommittee; and
313-23 (2) experience as a real estate lending officer of a
313-24 financial institution or as a real estate broker that includes the
313-25 actual performance or technical review of real estate appraisals.
313-26 (d) For purposes of this subchapter, an hour of experience
313-27 means 60 minutes spent in one or more of the acceptable areas of
314-1 appraisal experience recognized under this subchapter. Calculation
314-2 of the hours of experience must be based solely on actual hours of
314-3 experience. (V.A.C.S. Art. 6573a.2, Secs. 9(c), (d) (part), (g).)
314-4 Sec. 1103.206. VERIFICATION OF EDUCATION AND EXPERIENCE. (a)
314-5 The board shall adopt a reliable method to verify the evidence of
314-6 education submitted by an applicant for a certificate or license.
314-7 (b) The board shall adopt a reliable method to verify the
314-8 evidence of appraisal experience submitted by an applicant for a
314-9 certificate or license. The method must rely on appropriate
314-10 sampling techniques that are applied to not more than five percent
314-11 of the applications received by the board. An applicant whose
314-12 application is selected for verification has at least 60 days after
314-13 the date of selection to prepare any records. The board may not
314-14 require the applicant to provide more information than the
314-15 information the board may obtain under Section 1103.207. (V.A.C.S.
314-16 Art. 6573a.2, Secs. 9(e), (f).)
314-17 Sec. 1103.207. ADDITIONAL INFORMATION FROM CERTAIN
314-18 APPLICANTS. (a) In addition to the information or documentation
314-19 specified by this subchapter, the board may obtain other
314-20 information or documentation from an applicant for a certificate or
314-21 license under this chapter if the board determines that:
314-22 (1) a consumer complaint or peer complaint against the
314-23 applicant alleging fraud, incompetency, or malpractice is
314-24 reasonable; or
314-25 (2) other just cause exists for requiring further
314-26 information.
314-27 (b) The board may obtain the additional information or
315-1 documentation by:
315-2 (1) requiring the applicant to complete a form
315-3 prescribed by the board that includes a detailed listing of the
315-4 applicant's appraisal experience and states for each appraisal
315-5 claimed by the applicant:
315-6 (A) the municipality or county in which the
315-7 appraisal was performed;
315-8 (B) the type and description of the building or
315-9 property appraised;
315-10 (C) the approach to value used in the appraisal;
315-11 (D) the actual number of hours spent on the
315-12 appraisal; and
315-13 (E) any other information determined appropriate
315-14 by the board; or
315-15 (2) engaging in other investigative research
315-16 determined appropriate by the board. (V.A.C.S. Art. 6573a.2, Sec.
315-17 9(h).)
315-18 Sec. 1103.208. PROVISIONAL LICENSE FOR CERTAIN APPRAISER
315-19 TRAINEES. (a) An applicant for appraiser trainee classification
315-20 who demonstrates to the board that the applicant, after completing
315-21 the classroom education requirements, has failed to secure
315-22 sponsorship from at least two certified appraisers to satisfy the
315-23 experience requirement of Section 1103.203(3) may apply to the
315-24 board to take the examination required by Subchapter F.
315-25 (b) The board shall issue a license under this section to an
315-26 applicant who:
315-27 (1) passes the examination required by Subchapter F;
316-1 and
316-2 (2) satisfies any other requirements for a license,
316-3 other than the experience requirement of Section 1103.203(3).
316-4 (c) A license issued under Subsection (b) is subject to
316-5 automatic revocation if the person fails to:
316-6 (1) complete the experience requirement under Section
316-7 1103.203(3) not later than the 60th month after the date the
316-8 license is issued; or
316-9 (2) report the completion of a portion of the person's
316-10 experience requirement each renewal period. (V.A.C.S.
316-11 Art. 6573a.2, Sec. 9A.)
316-12 Sec. 1103.209. RECIPROCAL CERTIFICATE OR LICENSE. (a) The
316-13 board may issue a certificate or license under terms adopted by the
316-14 board to an applicant who is certified or licensed under the laws
316-15 of another state having certification or licensing requirements
316-16 that the board determines have not been disapproved by the
316-17 Appraisal Subcommittee. The terms must comply with the minimum
316-18 criteria for obtaining a certificate or license recognized by the
316-19 Appraisal Subcommittee.
316-20 (b) The board may not accept an application from an
316-21 applicant from another state that refuses to offer reciprocal
316-22 treatment to residents of this state who are certified or licensed
316-23 under this chapter.
316-24 (c) The application form submitted for a reciprocal
316-25 certificate or license under this section must be comparable to the
316-26 form required by the state in which the appraiser is certified or
316-27 licensed.
317-1 (d) The fee charged to an appraiser from another state for a
317-2 reciprocal certificate or license under this section must be
317-3 comparable to the fee required by the state in which the appraiser
317-4 is certified or licensed. A person who obtains a certificate or
317-5 license by reciprocity under this section must pay the federal
317-6 registry fee and any other fee the board imposes.
317-7 (e) An applicant for a certificate or license under this
317-8 chapter who is not a resident of this state must submit with the
317-9 application an irrevocable consent that states that service of
317-10 process in an action against the applicant arising out of the
317-11 applicant's activities as a certified or licensed appraiser in this
317-12 state may be made by delivery of the process to the commissioner if
317-13 the plaintiff in the action, using due diligence, cannot obtain
317-14 personal service on the applicant. If process is served as
317-15 provided by this subsection, the commissioner shall immediately
317-16 send a copy of the material served on the commissioner by regular
317-17 mail to the certified or licensed appraiser at the appraiser's
317-18 principal place of business and residence address.
317-19 (f) The board shall request verification from the state in
317-20 which the applicant is certified or licensed to confirm that the
317-21 applicant's certificate or license is valid and in good standing.
317-22 The board may not issue a reciprocal certificate or license without
317-23 that verification.
317-24 (g) A reciprocal certificate or license expires on the
317-25 earlier of:
317-26 (1) the expiration date of the certificate or license
317-27 held by the applicant in the state in which the applicant is
318-1 certified or licensed; or
318-2 (2) the first anniversary of the date the reciprocal
318-3 certificate or license is issued.
318-4 (h) A reciprocal certificate or license is renewable under
318-5 terms adopted by the board. (V.A.C.S. Art. 6573a.2, Secs. 15(d),
318-6 (e), (f), (g), (h), (i), (j).)
318-7 Sec. 1103.210. DENIAL OF CERTIFICATE OR LICENSE. (a) The
318-8 board shall immediately provide written notice to the applicant of
318-9 the board's denial of a certificate or license under this chapter.
318-10 (b) An appeal of the denial of a certificate or license is
318-11 governed by Chapter 2001, Government Code. (V.A.C.S. Art. 6573a.2,
318-12 Sec. 11.)
318-13 Sec. 1103.211. CERTIFICATE OR LICENSE RENEWAL; CONTINUING
318-14 EDUCATION. (a) A certificate or license issued by the board
318-15 expires on the second anniversary of the date of issuance.
318-16 (b) A person may renew a certificate or license by:
318-17 (1) paying the renewal fee; and
318-18 (2) providing evidence satisfactory to the board that
318-19 the person has completed continuing education requirements that
318-20 comply with the guidelines recognized by the Appraisal Subcommittee
318-21 and that are imposed by rule under this chapter.
318-22 (c) For purposes of Subsection (b)(2), the board shall
318-23 accept as continuing education any educational offering that
318-24 complies with the guidelines recognized by the Appraisal
318-25 Subcommittee that a certified or licensed appraiser was awarded by
318-26 a national appraiser organization approved by the board as a
318-27 provider of qualifying appraisal education. (V.A.C.S.
319-1 Art. 6573a.2, Secs. 14(a), (b).)
319-2 (Sections 1103.212-1103.250 reserved for expansion)
319-3 SUBCHAPTER F. APPRAISER EXAMINATION
319-4 Sec. 1103.251. EXAMINATION REQUIRED. (a) The board shall
319-5 prescribe an appraiser examination.
319-6 (b) The examination must be:
319-7 (1) written;
319-8 (2) approved by the Appraisal Foundation; and
319-9 (3) consistent with, but not more stringent than, the
319-10 Uniform State Certification/Licensing Examination guidelines
319-11 endorsed by the Appraiser Qualifications Board. (V.A.C.S.
319-12 Art. 6573a.2, Sec. 10(a) (part).)
319-13 Sec. 1103.252. TESTING SERVICE. (a) The board may contract
319-14 with a testing service to administer the examination.
319-15 (b) The testing service may collect an examination fee from
319-16 an applicant for a certificate or license. (V.A.C.S. Art. 6573a.2,
319-17 Sec. 10(a) (part).)
319-18 Sec. 1103.253. TIME AND PLACE OF EXAMINATION; NOTICE. (a)
319-19 The examination must be offered at least twice each year.
319-20 (b) The board shall determine the time and place of the
319-21 examination.
319-22 (c) The board shall give reasonable public notice of the
319-23 examination in the manner provided by board rule.
319-24 (d) The board may assign an examination date and site to an
319-25 applicant. The assigned site must be the nearest examination site
319-26 available to the applicant. (V.A.C.S. Art. 6573a.2, Sec. 10(d).)
319-27 Sec. 1103.254. EXAMINATION APPLICATION. An application to
320-1 take the examination must be on a form prescribed by the board.
320-2 (V.A.C.S. Art. 6573a.2, Sec. 10(b).)
320-3 Sec. 1103.255. EXPERIENCE NOT REQUIRED BEFORE TAKING
320-4 EXAMINATION. An applicant for the examination is not required to
320-5 fulfill the experience requirement for a certificate before taking
320-6 the examination. (V.A.C.S. Art. 6573a.2, Sec. 10(c).)
320-7 Sec. 1103.256. MINIMUM PASSING GRADE REQUIRED. To pass the
320-8 examination, an applicant for a certificate or license must achieve
320-9 the minimum score required or approved by the Appraiser
320-10 Qualifications Board, whichever is lower. (V.A.C.S. Art. 6573a.2,
320-11 Sec. 10(e) (part).)
320-12 Sec. 1103.257. EXAMINATION RESULTS. (a) Not later than the
320-13 31st day after the date a person takes an examination, the board
320-14 shall notify the person of the examination results. If an
320-15 examination is graded or reviewed by a national testing service,
320-16 the board shall notify the person of the examination results not
320-17 later than the 31st day after the date the board receives the
320-18 results from the testing service.
320-19 (b) If notice of the examination results will be delayed for
320-20 more than 90 days after the examination date, the board shall
320-21 notify each examinee of the reason for the delay not later than the
320-22 90th day.
320-23 (c) If requested in writing by a person who fails an
320-24 examination, the board shall provide to the person an analysis of
320-25 the person's performance on the examination. The request must be
320-26 accompanied by a notarized statement identifying the person and a
320-27 fee in an amount determined by the board. The board shall release
321-1 the analysis directly to the person requesting the analysis.
321-2 (d) The examination results are confidential. (V.A.C.S.
321-3 Art. 6573a.2, Secs. 10(e) (part), (f), (g), (i).)
321-4 Sec. 1103.258. REEXAMINATION. (a) An applicant who fails an
321-5 examination may apply to retake the examination on payment of an
321-6 additional examination fee.
321-7 (b) The applicant must apply to retake the examination not
321-8 later than the first anniversary of the date of the examination the
321-9 applicant failed. (V.A.C.S. Art. 6573a.2, Sec. 10(h).)
321-10 Sec. 1103.259. GUIDELINES; STUDY GUIDES. (a) The board
321-11 shall:
321-12 (1) periodically publish guidelines and preexamination
321-13 study guides;
321-14 (2) make the guidelines and study guides available to
321-15 applicants; and
321-16 (3) update the guidelines and study guides as
321-17 necessary.
321-18 (b) Except for the examination and other testing products
321-19 that require secure and discreet protection, the contents of study
321-20 guides and other material developed by the board or with the
321-21 board's authorization are within the public domain and free of
321-22 copyright restrictions.
321-23 (c) If material described by Subsection (b) is reproduced
321-24 for distribution by an entity other than the board:
321-25 (1) the material may not be sold at a price that
321-26 exceeds the cost of reproduction and distribution; and
321-27 (2) the entity may not profit from the distribution of
322-1 the material. (V.A.C.S. Art. 6573a.2, Sec. 10(j).)
322-2 (Sections 1103.260-1103.300 reserved for expansion)
322-3 SUBCHAPTER G. TEMPORARY APPRAISAL AUTHORITY FOR OUT-OF-STATE
322-4 APPRAISERS
322-5 Sec. 1103.301. REGISTRATION REQUIRED. A person certified or
322-6 licensed as a real estate appraiser by another state may appraise
322-7 real property in this state without holding a certificate or
322-8 license issued under this chapter if the person registers with the
322-9 board under this subchapter. (V.A.C.S. Art. 6573a.2, Secs. 15(a)
322-10 (part), (c) (part).)
322-11 Sec. 1103.302. REGISTRATION APPLICATION. A person may
322-12 register with the board by:
322-13 (1) completing a registration form prescribed by the
322-14 board; and
322-15 (2) meeting the requirements established under this
322-16 chapter. (V.A.C.S. Art. 6573a.2, Sec. 15(a) (part).)
322-17 Sec. 1103.303. ELIGIBILITY REQUIREMENTS FOR REGISTRATION. A
322-18 person is eligible to register with the board if:
322-19 (1) the certification and licensing program under
322-20 which the person is certified or licensed by another state has not
322-21 been disapproved by the Appraisal Subcommittee; and
322-22 (2) the person's appraisal business in this state does
322-23 not exceed 60 days. (V.A.C.S. Art. 6573a.2, Sec. 15(c) (part).)
322-24 (Sections 1103.304-1103.350 reserved for expansion)
322-25 SUBCHAPTER H. APPRAISER TRAINEES
322-26 Sec. 1103.351. SPONSOR. (a) The board may authorize a
322-27 certified appraiser under this chapter to sponsor an appraiser
323-1 trainee.
323-2 (b) An appraiser trainee may have more than one sponsor.
323-3 (V.A.C.S. Art. 6573a.2, Sec. 17(a) (part).)
323-4 Sec. 1103.352. APPLICATION FOR APPRAISER TRAINEE. An
323-5 applicant for approval as an appraiser trainee and each sponsor of
323-6 the applicant must apply to the board on a form prescribed by the
323-7 board. (V.A.C.S. Art. 6573a.2, Sec. 17(a) (part).)
323-8 Sec. 1103.353. ELIGIBILITY REQUIREMENTS FOR APPRAISER
323-9 TRAINEE. To be eligible for approval as an appraiser trainee, an
323-10 applicant must:
323-11 (1) be at least 18 years of age;
323-12 (2) be a citizen of the United States or a lawfully
323-13 admitted alien;
323-14 (3) have been a resident of this state for the 60 days
323-15 preceding the date the application is filed; and
323-16 (4) satisfy the board as to the applicant's honesty,
323-17 trustworthiness, and integrity. (V.A.C.S. Art. 6573a.2, Sec. 17(a)
323-18 (part).)
323-19 Sec. 1103.354. APPRAISER TRAINEE REPORTS. (a) An appraiser
323-20 trainee approved by the board may perform an appraisal under the
323-21 direction of a sponsor of the trainee.
323-22 (b) The sponsor shall sign each report prepared by the
323-23 appraiser trainee. If an appraiser trainee has more than one
323-24 sponsor, one sponsor shall sign the reports prepared by the
323-25 appraiser trainee. A sponsor who signs a report is responsible to
323-26 the public and to the board for the appraiser trainee's conduct.
323-27 (c) An appraiser trainee may co-sign a report prepared under
324-1 this section. (V.A.C.S. Art. 6573a.2, Sec. 17(b) (part).)
324-2 Sec. 1103.355. DISCIPLINARY PROCEDURES FOR APPRAISER
324-3 TRAINEES. (a) The board may reprimand an appraiser trainee or
324-4 suspend or revoke an appraiser trainee's authority to act as an
324-5 appraiser trainee for a violation of this chapter or a rule adopted
324-6 under this subchapter.
324-7 (b) A disciplinary proceeding under this section is governed
324-8 by Chapter 2001, Government Code. (V.A.C.S. Art. 6573a.2, Sec.
324-9 17(b) (part).)
324-10 (Sections 1103.356-1103.400 reserved for expansion)
324-11 SUBCHAPTER I. PRACTICE BY CERTIFIED OR LICENSED APPRAISER
324-12 Sec. 1103.401. USE OF INSIGNIA OR IDENTIFICATION. (a) A
324-13 person may not use any title, designation, initials, or other
324-14 insignia or identification that would mislead the public as to the
324-15 person's credentials, qualifications, or competency to perform a
324-16 certified appraisal service unless the person is certified under
324-17 this chapter.
324-18 (b) A person may not use any title, designation, initials,
324-19 or other insignia or identification that would mislead the public
324-20 as to the person's credentials, qualifications, or competency to
324-21 perform licensed appraisal services unless the person is licensed
324-22 under this chapter. (V.A.C.S. Art. 6573a.2, Sec. 4(c).)
324-23 Sec. 1103.402. SIGNATURE OR ENDORSEMENT ON APPRAISAL. (a) A
324-24 person certified or licensed under this chapter may not sign or
324-25 endorse an appraisal unless the appraisal is substantially produced
324-26 by that person.
324-27 (b) For purposes of this section, an appraisal is
325-1 substantially produced by a person who contributes in a material
325-2 and verifiable manner to the research or analysis that results in
325-3 the final opinion of value expressed in the appraisal. (V.A.C.S.
325-4 Art. 6573a.2, Sec. 19.)
325-5 Sec. 1103.403. OFFICE LOCATION. (a) A certified or licensed
325-6 appraiser who is a resident of this state shall maintain a fixed
325-7 office in this state.
325-8 (b) Not later than the 10th day after the date a certified
325-9 or licensed appraiser moves from a previously designated address,
325-10 the appraiser shall:
325-11 (1) notify the board of the new office location on a
325-12 form prescribed by the board; and
325-13 (2) pay a fee set by the board. (V.A.C.S.
325-14 Art. 6573a.2, Sec. 16.)
325-15 Sec. 1103.404. BUSINESS RECORDS. A person who is certified
325-16 or licensed under this chapter or who has applied for a certificate
325-17 or license shall retain all business records relating to each
325-18 appraisal performed by the person until at least the fifth
325-19 anniversary of the date of the appraisal. (V.A.C.S. Art. 6573a.2,
325-20 Sec. 20.)
325-21 (Sections 1103.405-1103.450 reserved for expansion)
325-22 SUBCHAPTER J. DISCIPLINARY PROCEEDINGS GENERALLY
325-23 Sec. 1103.451. COMPLAINT. (a) Any person, including a
325-24 member of the board, may initiate the complaint process under this
325-25 subchapter by filing with the board an affidavit stating the
325-26 complaint on a form prescribed by the board.
325-27 (b) The board, on its own motion, may file a formal
326-1 complaint against a certified or licensed appraiser.
326-2 (c) A complaint alleging that a certified or licensed
326-3 appraiser has violated a rule of professional conduct adopted by
326-4 the board must be filed with the board. (V.A.C.S. Art. 6573a.2,
326-5 Sec. 12(b).)
326-6 Sec. 1103.452. REVIEW AND INVESTIGATION. (a) On receipt of
326-7 a complaint or on its own motion, the board shall review and
326-8 investigate an alleged act or omission that the board believes is a
326-9 ground for disciplinary action.
326-10 (b) An investigator designated by the presiding officer of
326-11 the board shall investigate each allegation in a complaint to
326-12 determine whether probable cause exists for a hearing on the
326-13 complaint.
326-14 (c) If the board determines that a complaint does not
326-15 present facts that are grounds for disciplinary action, the board
326-16 may not take further action. (V.A.C.S. Art. 6573a.2, Sec. 12(c).)
326-17 Sec. 1103.453. PEER INVESTIGATIVE COMMITTEE. (a) The
326-18 presiding officer of the board, with the advice and consent of the
326-19 executive committee, may appoint a peer investigative committee.
326-20 (b) A peer investigative committee consists of three
326-21 certified or licensed appraisers. The presiding officer of the
326-22 committee must be an appraiser member of the board. Each remaining
326-23 committee member shall certify to the board that the member is
326-24 familiar with the appraisal process in the appraisal that is the
326-25 subject of the complaint.
326-26 (c) The peer investigative committee shall:
326-27 (1) review and determine the facts of a complaint; and
327-1 (2) submit a written report regarding the complaint to
327-2 the board in a timely manner. (V.A.C.S. Art. 6573a.2, Sec. 12(d).)
327-3 Sec. 1103.454. GENERAL SUBPOENA AUTHORITY. (a) The board
327-4 may request and, if necessary, compel by subpoena:
327-5 (1) the attendance of witnesses for examination under
327-6 oath; and
327-7 (2) the production of records, documents, and other
327-8 evidence relevant to the investigation of an alleged violation of
327-9 this chapter for inspection and copying.
327-10 (b) The board may also issue a subpoena for purposes of an
327-11 investigation of a complaint to determine whether the board should
327-12 institute a contested case proceeding.
327-13 (c) If a person does not comply with a subpoena, the board,
327-14 acting through the attorney general, may file suit to enforce the
327-15 subpoena in a district court in Travis County or in the county in
327-16 which a hearing conducted by the board may be held.
327-17 (d) The court shall order compliance with the subpoena if
327-18 the court finds that good cause exists for the issuance of the
327-19 subpoena. (V.A.C.S. Art. 6573a.2, Secs. 5(a) (part), (b) (part),
327-20 12(e).)
327-21 Sec. 1103.455. REPORT OF INVESTIGATION REQUIRED. (a) At the
327-22 conclusion of the investigation of a complaint, the investigator
327-23 shall submit to the board a written report to enable the board to
327-24 determine what further action is necessary.
327-25 (b) The report must contain:
327-26 (1) statements of fact;
327-27 (2) the recommendations of the investigator; and
328-1 (3) the position or defense of the investigated
328-2 appraiser. (V.A.C.S. Art. 6573a.2, Sec. 12(f) (part).)
328-3 Sec. 1103.456. BOARD ACTION BASED ON REPORT. Based on the
328-4 report submitted under Section 1103.455, the board may:
328-5 (1) order further investigation of the complaint;
328-6 (2) permit the appraiser who is the subject of the
328-7 complaint to appear before the board for an informal discussion as
328-8 provided by Section 1103.457;
328-9 (3) determine that there is not probable cause to
328-10 believe that a violation occurred and dismiss the case; or
328-11 (4) determine that there is probable cause to believe
328-12 that a violation occurred and proceed as the complainant with a
328-13 contested case hearing under Subchapter K. (V.A.C.S. Art. 6573a.2,
328-14 Sec. 12(f) (part).)
328-15 Sec. 1103.457. INFORMAL DISCUSSION OF COMPLAINT. (a) On the
328-16 motion of the board or on request of the appraiser who is the
328-17 subject of a complaint, the board may permit the appraiser an
328-18 opportunity to appear before the board for a voluntary, informal
328-19 discussion of the facts and circumstances of the alleged violation.
328-20 (b) The informal discussion is part of the board's
328-21 investigation of the complaint, and the board may consider the
328-22 facts addressed at the informal discussion if the complaint
328-23 proceeds to a contested case hearing under Subchapter K.
328-24 (c) The board may seek a consent order as provided by
328-25 Section 1103.458 at the time of the informal discussion. (V.A.C.S.
328-26 Art. 6573a.2, Sec. 12(g).)
328-27 Sec. 1103.458. CONSENT ORDER. (a) The board may negotiate a
329-1 settlement and enter into a consent order with an appraiser who is
329-2 the subject of a complaint under this subchapter.
329-3 (b) The attorney general may discuss informal settlement
329-4 with the presiding officer or a representative of the board. An
329-5 appraiser member of the board, designated by the presiding officer
329-6 of the board, and the attorney general may agree to negotiate a
329-7 settlement under this section.
329-8 (c) A consent order must be:
329-9 (1) approved by the board; and
329-10 (2) signed by the presiding officer of the board and
329-11 the appraiser who is the subject of the complaint.
329-12 (d) A board member who participates in negotiating a consent
329-13 order under this section is not disqualified from participating in
329-14 the adjudication of a contested case that results from the
329-15 negotiation.
329-16 (e) An appraiser who consents to negotiate under this
329-17 section waives the right to notice and the opportunity to be heard
329-18 under Chapter 2001, Government Code, during the negotiation.
329-19 (f) If the parties agree to a consent order, a statement of
329-20 charges shall be filed with the consent order. (V.A.C.S.
329-21 Art. 6573a.2, Sec. 12(h).)
329-22 Sec. 1103.459. CONSENT AGREEMENT. (a) The board may enter
329-23 into a consent agreement as provided by this section rather than
329-24 taking action against a first-time violator of the rules of
329-25 professional conduct adopted by the board.
329-26 (b) An appraiser member of the board, designated by the
329-27 presiding officer of the board, and the attorney general may agree
330-1 to negotiate a consent agreement.
330-2 (c) A consent agreement must be:
330-3 (1) approved by the board; and
330-4 (2) signed by the presiding officer of the board and
330-5 the appraiser who is the subject of the complaint.
330-6 (d) An appraiser may be prosecuted for failure to comply
330-7 with a consent agreement. (V.A.C.S. Art. 6573a.2, Sec. 12(i).)
330-8 Sec. 1103.460. PUBLIC AVAILABILITY OF FINAL DECISION. A
330-9 final decision of the board relating to a disciplinary action,
330-10 including a consent order or consent agreement, may be provided to
330-11 another state or made available to the public. (V.A.C.S.
330-12 Art. 6573a.2, Sec. 12A(n).)
330-13 (Sections 1103.461-1103.500 reserved for expansion)
330-14 SUBCHAPTER K. CONTESTED CASE HEARINGS
330-15 Sec. 1103.501. APPLICABILITY OF ADMINISTRATIVE PROCEDURE
330-16 LAW. Except as otherwise provided by this chapter, a proceeding
330-17 under this chapter is subject to Chapter 2001, Government Code.
330-18 (V.A.C.S. Art. 6573a.2, Sec. 12(a).)
330-19 Sec. 1103.502. NOTICE OF HEARING. (a) The board shall
330-20 provide notice to the parties of a contested case hearing.
330-21 (b) The notice must:
330-22 (1) state the time and place of the hearing; and
330-23 (2) state that the appraiser must submit an answer as
330-24 prescribed by Section 1103.505 not later than the 20th day after
330-25 the date the appraiser receives the notice.
330-26 (c) Not later than the 30th day before the hearing date, the
330-27 board shall personally deliver or send by certified mail, return
331-1 receipt requested, to the appraiser:
331-2 (1) the notice prescribed by this section; and
331-3 (2) the statement of charges prescribed by Section
331-4 1103.503. (V.A.C.S. Art. 6573a.2, Sec. 12A(a) (part).)
331-5 Sec. 1103.503. STATEMENT OF CHARGES. (a) The attorney
331-6 general shall prepare the statement of charges.
331-7 (b) The statement of charges must:
331-8 (1) state each act or omission with which the
331-9 appraiser is charged, including any standard of professional
331-10 practice or rule of professional conduct alleged to have been
331-11 violated; and
331-12 (2) be sufficiently detailed to enable the appraiser
331-13 to prepare a defense. (V.A.C.S. Art. 6573a.2, Sec. 12A(a) (part).)
331-14 Sec. 1103.504. ATTORNEY GENERAL REPRESENTATION. (a) The
331-15 attorney general shall:
331-16 (1) review and approve each statement of charges and
331-17 notice of hearing prepared by the board; and
331-18 (2) provide legal representation for the public
331-19 interest in all proceedings before the board.
331-20 (b) The attorney general shall represent the public interest
331-21 and may not represent the board in a contested case before the
331-22 board. (V.A.C.S. Art. 6573a.2, Sec. 12A(c).)
331-23 Sec. 1103.505. ANSWER. The appraiser's answer must contain:
331-24 (1) the name, address, and telephone number of the
331-25 appraiser;
331-26 (2) a specific statement regarding any allegation in
331-27 the complaint, which must:
332-1 (A) be in the form of an admission or denial;
332-2 and
332-3 (B) contain any explanation or other statement
332-4 of mitigating circumstances the appraiser determines relevant; and
332-5 (3) any additional information the appraiser
332-6 determines relevant to the investigation that may assist in
332-7 deciding the contested case. (V.A.C.S. Art. 6573a.2, Sec. 12A(b).)
332-8 Sec. 1103.506. DISCOVERY PROCEDURES. The discovery
332-9 procedures that are applicable to a civil action are applicable to
332-10 a proceeding under this chapter. (V.A.C.S. Art. 6573a.2, Sec.
332-11 12A(e) (part).)
332-12 Sec. 1103.507. SUBPOENA IN CONTESTED CASE. (a) The
332-13 commissioner shall issue a subpoena to compel the attendance of a
332-14 witness or the production of records or other evidence if:
332-15 (1) a party to the proceeding requests the subpoena
332-16 orally or in writing;
332-17 (2) the request specifies each item of evidence sought
332-18 and the full name and address of each witness sought; and
332-19 (3) the party shows reasonable cause.
332-20 (b) A party or the board may petition the district court to
332-21 enforce a subpoena issued under this section. If the party or the
332-22 board makes a proper showing, the district court shall order the
332-23 person to whom the subpoena is issued to obey the subpoena.
332-24 (V.A.C.S. Art. 6573a.2, Sec. 12A(e) (part).)
332-25 Sec. 1103.508. HEARING BEFORE BOARD. (a) A contested case
332-26 hearing may be conducted before a majority of the board members.
332-27 (b) The board shall:
333-1 (1) set dates and times for the hearing;
333-2 (2) adopt rules for the hearing; and
333-3 (3) rule on all issues.
333-4 (c) The board may provide for an administrative law judge to
333-5 act as presiding officer to conduct the hearing for the board.
333-6 (d) The designated presiding officer shall control the
333-7 proceedings and may:
333-8 (1) administer oaths;
333-9 (2) admit or exclude testimony or other evidence; and
333-10 (3) rule on all motions and objections. (V.A.C.S.
333-11 Art. 6573a.2, Secs. 12A(d) (part), (g) (part).)
333-12 Sec. 1103.509. CHALLENGE OF BOARD MEMBER. (a) Before a
333-13 contested case hearing begins, the appraiser who is the subject of
333-14 the hearing may challenge for cause the participation of a board
333-15 member in the hearing.
333-16 (b) The board members, with the challenged member
333-17 abstaining, shall decide by a majority vote whether:
333-18 (1) cause exists for the challenge; and
333-19 (2) the challenged member may participate in the
333-20 hearing. (V.A.C.S. Art. 6573a.2, Sec. 12A(g) (part).)
333-21 Sec. 1103.510. FAILURE TO APPEAR. (a) If an appraiser
333-22 receives proper notice of a contested case hearing but does not
333-23 appear in person at the hearing, the board and presiding officer
333-24 may conduct the hearing or enter an order, as the board determines
333-25 appropriate.
333-26 (b) The appraiser is bound by the results of the hearing to
333-27 the same extent as if the appraiser had appeared. (V.A.C.S.
334-1 Art. 6573a.2, Sec. 12A(f).)
334-2 Sec. 1103.511. OPEN HEARING. A contested case hearing is
334-3 open to the public. (V.A.C.S. Art. 6573a.2, Sec. 12A(d) (part).)
334-4 Sec. 1103.512. RECORD OF PROCEEDINGS. (a) Contested case
334-5 proceedings shall be recorded by:
334-6 (1) mechanical or electrical means; or
334-7 (2) a certified shorthand reporter.
334-8 (b) At the request of a party, the proceedings or any part
334-9 of the proceedings shall be transcribed. The expense of the
334-10 transcription shall be charged to the requesting party.
334-11 (c) Before testimony may be presented, the record must:
334-12 (1) show the identities of:
334-13 (A) the board members present;
334-14 (B) the presiding officer; and
334-15 (C) the parties and their representatives; and
334-16 (2) state that all testimony is being recorded.
334-17 (d) The recording, stenographic notes, or transcription of
334-18 oral proceedings shall be filed with and maintained by the board
334-19 until at least the fifth anniversary of the date of the decision in
334-20 the contested case. (V.A.C.S. Art. 6573a.2, Secs. 12A(d) (part),
334-21 (g) (part).)
334-22 Sec. 1103.513. ORDER OF PROCEEDINGS. A contested case
334-23 hearing shall be conducted in the following order, subject to
334-24 modification at the discretion of the board:
334-25 (1) the presiding officer shall read a summary of the
334-26 charges and answers to the charges and other responsive pleadings
334-27 filed by the appraiser before the hearing;
335-1 (2) the attorney general shall make a brief opening
335-2 statement, including a summary of the charges and a list of the
335-3 witnesses and documents to support the charges;
335-4 (3) the appraiser may make an opening statement,
335-5 including the names of any witnesses the appraiser may call;
335-6 (4) the attorney general shall present evidence,
335-7 concluding with a summary of the evidence for the state;
335-8 (5) the appraiser shall present evidence;
335-9 (6) the attorney general may present rebuttal
335-10 evidence;
335-11 (7) the appraiser may present rebuttal evidence; and
335-12 (8) the closing arguments shall be made in the
335-13 following order:
335-14 (A) the attorney general;
335-15 (B) the appraiser; and
335-16 (C) the attorney general on rebuttal. (V.A.C.S.
335-17 Art. 6573a.2, Sec. 12A(g) (part).)
335-18 Sec. 1103.514. COPIES OF EVIDENCE. A copy of each document
335-19 offered as evidence at a contested case hearing shall be provided
335-20 to the opposing party and to board members. (V.A.C.S.
335-21 Art. 6573a.2, Sec. 12A(i) (part).)
335-22 Sec. 1103.515. RESPONSE TO CERTAIN ACCUSATIONS. (a) To the
335-23 extent an appraiser believes the appraiser is being asked to reply
335-24 to an accusation, innuendo, or fact for the first time in a
335-25 contested case hearing, the appraiser may respond to the board in
335-26 writing or at a subsequent scheduled board meeting.
335-27 (b) If the appraiser chooses to respond as provided by this
336-1 section, the attorney general is entitled to continue to present
336-2 evidence during the hearing. (V.A.C.S. Art. 6573a.2, Sec. 12A(i)
336-3 (part).)
336-4 Sec. 1103.516. DIRECT EXAMINATION. In a contested case
336-5 hearing, the presiding officer or other board members may conduct a
336-6 direct examination of a witness at any stage of the witness's
336-7 testimony. (V.A.C.S. Art. 6573a.2, Sec. 12A(d) (part).)
336-8 Sec. 1103.517. IMMUNITY OF WITNESSES. (a) The presiding
336-9 officer in a contested case hearing may grant a witness immunity
336-10 from disciplinary action by the board only if the board members
336-11 hearing the case vote unanimously to grant immunity.
336-12 (b) The official record of the hearing must include the
336-13 reason for granting immunity. (V.A.C.S. Art. 6573a.2, Sec.
336-14 12A(h).)
336-15 Sec. 1103.518. BOARD ACTION AFTER HEARING. By a majority
336-16 vote of the board members hearing the contested case, the board:
336-17 (1) shall make findings of fact and conclusions of
336-18 law; and
336-19 (2) may take one or more of the following actions:
336-20 (A) dismiss the charges, including issuing an
336-21 order declaring that the case file is confidential;
336-22 (B) suspend or revoke the appraiser's
336-23 certificate or license;
336-24 (C) impose a period of probation with or without
336-25 conditions;
336-26 (D) require the appraiser to submit to
336-27 reexamination for a certificate or license;
337-1 (E) require the appraiser to participate in
337-2 additional professional education or continuing education;
337-3 (F) issue a public or private reprimand or a
337-4 warning;
337-5 (G) issue a consent order; or
337-6 (H) impose an administrative penalty as
337-7 prescribed by Section 1103.552. (V.A.C.S. Art. 6573a.2, Sec.
337-8 12A(j) (part).)
337-9 Sec. 1103.519. APPLICATION FOR REHEARING. (a) Not later
337-10 than the 20th day after the date a final decision is issued in a
337-11 contested case, a party may file an application with the board for
337-12 a rehearing. The application must state:
337-13 (1) the specific grounds for rehearing; and
337-14 (2) the relief sought.
337-15 (b) The application is denied if the board does not grant it
337-16 before the 20th day after the date the commissioner is served with
337-17 the application. (V.A.C.S. Art. 6573a.2, Sec. 12A(k) (part).)
337-18 Sec. 1103.520. DECISION ON REHEARING. (a) The decision made
337-19 at the conclusion of the original contested case hearing may not be
337-20 reversed or modified for a procedural, evidentiary, or other error
337-21 that did not cause substantial injustice to the parties.
337-22 (b) The decision made on a rehearing may incorporate by
337-23 reference any part of the decision made at the conclusion of the
337-24 original hearing.
337-25 (c) On rehearing, the board shall consider facts not
337-26 presented in the original hearing if:
337-27 (1) the facts arose after the original hearing was
338-1 concluded;
338-2 (2) the party offering the evidence could not
338-3 reasonably have provided the evidence at the original hearing; or
338-4 (3) the party offering the evidence was misled by a
338-5 party regarding the necessity for offering the evidence at the
338-6 original hearing. (V.A.C.S. Art. 6573a.2, Sec. 12A(k) (part).)
338-7 Sec. 1103.521. DECISION; ORDER. (a) The board shall file
338-8 its final decision in a contested case hearing with the
338-9 commissioner.
338-10 (b) A copy of the decision and order shall immediately be:
338-11 (1) sent by certified mail, return receipt requested,
338-12 to the appraiser at the appraiser's last known address; or
338-13 (2) personally delivered to the appraiser. (V.A.C.S.
338-14 Art. 6573a.2, Sec. 12A(l).)
338-15 Sec. 1103.522. REINSTATEMENT OF CERTIFICATE OR LICENSE. (a)
338-16 A person whose certificate or license has been suspended or revoked
338-17 by the board may apply to the board for reinstatement as provided
338-18 by the order of suspension or revocation.
338-19 (b) If the order does not establish terms for reinstatement,
338-20 the appraiser may not:
338-21 (1) make an initial application for reinstatement
338-22 until the first anniversary of the effective date of the order; or
338-23 (2) make subsequent applications more often than once
338-24 every two years. (V.A.C.S. Art. 6573a.2, Sec. 12A(m).)
338-25 (Sections 1103.523-1103.550 reserved for expansion)
338-26 SUBCHAPTER L. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
338-27 Sec. 1103.551. INJUNCTION. (a) The board may institute an
339-1 action in its own name against any person to enjoin a violation of
339-2 this chapter or a rule adopted by the board under this chapter.
339-3 (b) An action under this section must be brought in a
339-4 district court in Travis County. The attorney general shall act as
339-5 legal advisor to the board and provide necessary legal assistance.
339-6 (V.A.C.S. Art. 6573a.2, Sec. 5(a) (part).)
339-7 Sec. 1103.552. ADMINISTRATIVE PENALTY. (a) The board may
339-8 impose an administrative penalty under Section 1103.518(2)(H) in an
339-9 amount not to exceed:
339-10 (1) $1,500 for each violation; or
339-11 (2) $5,000 for multiple violations proved in one
339-12 contested case.
339-13 (b) The appraiser on whom the penalty is imposed shall pay
339-14 the penalty not later than the 20th day after the date of the final
339-15 disposition of the contested case. (V.A.C.S. Art. 6573a.2, Sec.
339-16 12A(j) (part).)
339-17 Sec. 1103.553. CIVIL PENALTY. (a) A certified or licensed
339-18 appraiser who files against another certified or licensed appraiser
339-19 a complaint that the board determines to be frivolous is liable for
339-20 a civil penalty.
339-21 (b) The amount of a civil penalty imposed under this section
339-22 may not be less than $1,000 or more than $10,000.
339-23 (c) At the request of the board, the attorney general or a
339-24 district or county attorney may bring an action in district court
339-25 to recover a civil penalty under this section.
339-26 (d) A civil penalty recovered in an action brought under
339-27 this section shall be deposited in the state treasury. (V.A.C.S.
340-1 Art. 6573a.2, Sec. 12(j).)
340-2 Sec. 1103.554. CRIMINAL PENALTY. (a) A person commits an
340-3 offense if the person knowingly:
340-4 (1) provides false information in connection with an
340-5 affidavit filed under Section 1103.205; or
340-6 (2) violates Section 1103.401.
340-7 (b) An offense under this section is a Class B misdemeanor.
340-8 (V.A.C.S. Art. 6573a.2, Sec. 21.)
340-9 (Chapters 1104-1150 reserved for expansion)
340-10 SUBTITLE B. PROFESSIONS RELATED TO PROPERTY TAXATION
340-11 CHAPTER 1151. PROPERTY TAX PROFESSIONALS
340-12 SUBCHAPTER A. GENERAL PROVISIONS
340-13 Sec. 1151.001. SHORT TITLE
340-14 Sec. 1151.002. DEFINITIONS
340-15 Sec. 1151.003. APPLICATION OF SUNSET ACT
340-16 Sec. 1151.004. PROHIBITION AGAINST REQUIRING UNPROFESSIONAL
340-17 CONDUCT
340-18 (Sections 1151.005-1151.050 reserved for expansion)
340-19 SUBCHAPTER B. BOARD OF TAX PROFESSIONAL EXAMINERS
340-20 Sec. 1151.051. BOARD MEMBERSHIP; ELIGIBILITY
340-21 Sec. 1151.052. TERMS
340-22 Sec. 1151.053. MEETINGS
340-23 Sec. 1151.054. OFFICERS
340-24 Sec. 1151.055. COMPENSATION; REIMBURSEMENT
340-25 (Sections 1151.056-1151.100 reserved for expansion)
340-26 SUBCHAPTER C. BOARD POWERS AND DUTIES
340-27 Sec. 1151.101. EXECUTIVE DIRECTOR AND PERSONNEL
341-1 Sec. 1151.102. GENERAL RULEMAKING AUTHORITY
341-2 Sec. 1151.103. ESTABLISHMENT OF PROFESSIONAL STANDARDS
341-3 Sec. 1151.104. ENFORCEMENT OF CHAPTER
341-4 Sec. 1151.105. RECORD OF BOARD PROCEEDINGS
341-5 Sec. 1151.106. CLASSIFICATION SYSTEM FOR REGISTRANTS
341-6 Sec. 1151.107. ROSTER OF REGISTRANTS
341-7 Sec. 1151.108. MONEY RECEIVED BY BOARD
341-8 Sec. 1151.109. WAIVER OF FEE OR PENALTY PROHIBITED
341-9 (Sections 1151.110-1151.150 reserved for expansion)
341-10 SUBCHAPTER D. REGISTRATION AND CERTIFICATION
341-11 Sec. 1151.151. REGISTRATION REQUIRED; EXEMPTION
341-12 Sec. 1151.152. ELIGIBILITY FOR REGISTRATION
341-13 Sec. 1151.153. REGISTRATION APPLICATION
341-14 Sec. 1151.154. SUBMISSION OF APPLICATION
341-15 Sec. 1151.155. ACTION ON APPLICATION
341-16 Sec. 1151.156. DISCRIMINATION PROHIBITED
341-17 Sec. 1151.157. ISSUANCE AND POSSESSION OF IDENTIFICATION
341-18 CARD REQUIRED
341-19 Sec. 1151.158. ANNUAL FEE; EXPIRATION AND RENEWAL
341-20 OF REGISTRATION
341-21 Sec. 1151.159. REMOVAL FROM ROSTER OF REGISTRANTS;
341-22 REINSTATEMENT
341-23 Sec. 1151.160. CERTIFICATION LEVELS AND REQUIREMENTS
341-24 Sec. 1151.161. EXAMINATION FOR CERTIFICATION; APPLICATION;
341-25 FEE
341-26 Sec. 1151.162. RULES RELATING TO RECERTIFICATION AND
341-27 SPECIALIZATION
342-1 (Sections 1151.163-1151.200 reserved for expansion)
342-2 SUBCHAPTER E. ENFORCEMENT
342-3 Sec. 1151.201. INITIATION OF PROCEEDINGS
342-4 Sec. 1151.202. DENIAL OF REGISTRATION; DISCIPLINARY ACTION
342-5 Sec. 1151.203. RULES FOR PROCEEDINGS; NOTICE
342-6 Sec. 1151.204. DISMISSAL OF COMPLAINT RELATING TO
342-7 APPRAISED VALUE
342-8 Sec. 1151.205. SUBPOENA AUTHORITY
342-9 (Sections 1151.206-1151.250 reserved for expansion)
342-10 SUBCHAPTER F. CRIMINAL PENALTIES
342-11 Sec. 1151.251. FAILURE TO REGISTER
342-12 Sec. 1151.252. PROHIBITED ACTIONS WHILE REGISTRATION OR
342-13 CERTIFICATION IS REVOKED OR SUSPENDED
342-14 Sec. 1151.253. COMPLAINT OF VIOLATION
342-15 CHAPTER 1151. PROPERTY TAX PROFESSIONALS
342-16 SUBCHAPTER A. GENERAL PROVISIONS
342-17 Sec. 1151.001. SHORT TITLE. This chapter may be cited as the
342-18 Property Taxation Professional Certification Act. (V.A.C.S.
342-19 Art. 8885, Sec. 3.)
342-20 Sec. 1151.002. DEFINITIONS. In this chapter:
342-21 (1) "Appraisal" means a function described by Chapter
342-22 23 or 25, Tax Code, that:
342-23 (A) is performed by an employee of a political
342-24 subdivision or by a person acting on behalf of a political
342-25 subdivision; and
342-26 (B) involves an opinion of value of a property
342-27 interest.
343-1 (2) "Assessment" means a function described by Chapter
343-2 26, Tax Code, performed by an employee of a political subdivision
343-3 or by a person acting on behalf of a political subdivision to
343-4 determine an amount of ad valorem tax for the political
343-5 subdivision.
343-6 (3) "Assessor-collector" means the chief administrator
343-7 of the tax office of a taxing unit who is responsible for:
343-8 (A) assessment under Chapter 26, Tax Code; and
343-9 (B) collection under Chapter 31, Tax Code.
343-10 (4) "Board" means the Board of Tax Professional
343-11 Examiners.
343-12 (5) "Code of ethics" means a formal statement of
343-13 ethical standards of conduct adopted by the board.
343-14 (6) "Collection" means a function described by Chapter
343-15 31, Tax Code, or Section 33.02, 33.03, or 33.04, Tax Code.
343-16 (7) "Collector" means the chief administrator of the
343-17 tax office of a taxing unit who:
343-18 (A) is responsible for collection under Chapter
343-19 31, Tax Code; and
343-20 (B) is not responsible for assessment.
343-21 (8) "Governing body" means the governing body of a
343-22 taxing unit as defined by Section 1.04, Tax Code. (V.A.C.S.
343-23 Art. 8885, Secs. 2(1), (2), (3), (5), (6), (7), (11), (12).)
343-24 Sec. 1151.003. APPLICATION OF SUNSET ACT. The Board of Tax
343-25 Professional Examiners is subject to Chapter 325, Government Code
343-26 (Texas Sunset Act). Unless continued in existence as provided by
343-27 that chapter, the board is abolished and this chapter expires
344-1 September 1, 2003. (V.A.C.S. Art. 8885, Sec. 4(e).)
344-2 Sec. 1151.004. PROHIBITION AGAINST REQUIRING UNPROFESSIONAL
344-3 CONDUCT. (a) An appraisal district board of directors or a
344-4 governing body may not, as a necessity for employment, require an
344-5 appraiser, assessor, or collector to:
344-6 (1) act in an unprofessional manner; or
344-7 (2) violate this chapter.
344-8 (b) The board shall thoroughly investigate a complaint of a
344-9 violation of this section. (V.A.C.S. Art. 8885, Sec. 22.)
344-10 (Sections 1151.005-1151.050 reserved for expansion)
344-11 SUBCHAPTER B. BOARD OF TAX PROFESSIONAL EXAMINERS
344-12 Sec. 1151.051. BOARD MEMBERSHIP; ELIGIBILITY. (a) The Board
344-13 of Tax Professional Examiners consists of six members appointed by
344-14 the governor with the advice and consent of the senate. A vacancy
344-15 on the board is filled in the same manner for the unexpired portion
344-16 of the term.
344-17 (b) To be eligible to serve on the board, a person must:
344-18 (1) be actively engaged in property tax
344-19 administration;
344-20 (2) have at least five years' experience in appraisal,
344-21 assessment, or collection; and
344-22 (3) be certified under this chapter as a registered
344-23 professional appraiser, registered Texas collector, or registered
344-24 Texas assessor. (V.A.C.S. Art. 8885, Secs. 4(b), (c) (part).)
344-25 Sec. 1151.052. TERMS. Board members serve six-year terms,
344-26 with the terms of two members expiring on March 1 of each
344-27 odd-numbered year. (V.A.C.S. Art. 8885, Sec. 4(d).)
345-1 Sec. 1151.053. MEETINGS. (a) The board shall hold at least
345-2 one regular meeting in each calendar quarter.
345-3 (b) The board shall hold special meetings when required by
345-4 the board's bylaws or rules of procedure.
345-5 (c) Board members are entitled to receive notice of a
345-6 special meeting at least 15 days before the meeting date.
345-7 (V.A.C.S. Art. 8885, Secs. 6(a), (b).)
345-8 Sec. 1151.054. OFFICERS. At the first regular meeting of
345-9 each calendar year, the board shall elect from its members a
345-10 presiding officer, assistant presiding officer, and
345-11 secretary-treasurer. (V.A.C.S. Art. 8885, Sec. 6(c) (part).)
345-12 Sec. 1151.055. COMPENSATION; REIMBURSEMENT. (a) A board
345-13 member may not receive compensation for the member's services.
345-14 (b) A board member is entitled to reimbursement for
345-15 necessary expenses incurred in performing the member's duties.
345-16 (V.A.C.S. Art. 8885, Sec. 5.)
345-17 (Sections 1151.056-1151.100 reserved for expansion)
345-18 SUBCHAPTER C. BOARD POWERS AND DUTIES
345-19 Sec. 1151.101. EXECUTIVE DIRECTOR AND PERSONNEL. (a) The
345-20 board shall employ an executive director to administer the
345-21 operations of the board as directed by the board.
345-22 (b) The executive director may employ other personnel to
345-23 assist the executive director. (V.A.C.S. Art. 8885, Sec. 9.)
345-24 Sec. 1151.102. GENERAL RULEMAKING AUTHORITY. The board may
345-25 adopt and enforce rules necessary for the performance of the
345-26 board's duties. (V.A.C.S. Art. 8885, Sec. 7 (part).)
345-27 Sec. 1151.103. ESTABLISHMENT OF PROFESSIONAL STANDARDS. The
346-1 board may establish standards of professional practice, conduct,
346-2 education, and ethics for appraisers, assessors, and collectors
346-3 consistent with the purposes and intent of this chapter. (V.A.C.S.
346-4 Art. 8885, Sec. 7 (part).)
346-5 Sec. 1151.104. ENFORCEMENT OF CHAPTER. The board may ensure
346-6 strict compliance with and enforce this chapter. (V.A.C.S.
346-7 Art. 8885, Sec. 7 (part).)
346-8 Sec. 1151.105. RECORD OF BOARD PROCEEDINGS. (a) The board
346-9 shall keep an accurate record of the board's proceedings.
346-10 (b) The record shall be available to the public at all
346-11 times. (V.A.C.S. Art. 8885, Sec. 8(b) (part).)
346-12 Sec. 1151.106. CLASSIFICATION SYSTEM FOR REGISTRANTS. (a)
346-13 The board by rule shall:
346-14 (1) adopt a classification system for registrants; and
346-15 (2) establish minimum requirements for each
346-16 classification.
346-17 (b) The requirements must be based on experience in property
346-18 taxation administration, education and training, professional
346-19 performance and achievements, and compliance with the code of
346-20 ethics. (V.A.C.S. Art. 8885, Sec. 16.)
346-21 Sec. 1151.107. ROSTER OF REGISTRANTS. (a) The board shall
346-22 maintain a roster of registrants that includes each registrant's
346-23 name, place of employment, and classification.
346-24 (b) A copy of the roster shall be made available to a
346-25 registrant and to the public on request. (V.A.C.S. Art. 8885, Sec.
346-26 8(b) (part).)
346-27 Sec. 1151.108. MONEY RECEIVED BY BOARD. The board shall
347-1 receive and account for all money derived under this chapter.
347-2 (V.A.C.S. Art. 8885, Sec. 8(a) (part).)
347-3 Sec. 1151.109. WAIVER OF FEE OR PENALTY PROHIBITED. The
347-4 board may not waive the collection of a fee or penalty described by
347-5 this chapter. (V.A.C.S. Art. 8885, Sec. 13 (part).)
347-6 (Sections 1151.110-1151.150 reserved for expansion)
347-7 SUBCHAPTER D. REGISTRATION AND CERTIFICATION
347-8 Sec. 1151.151. REGISTRATION REQUIRED; EXEMPTION. (a) The
347-9 following persons must register with the board:
347-10 (1) the chief appraiser of an appraisal district, an
347-11 appraisal supervisor or assistant, a property tax appraiser, an
347-12 appraisal engineer, and any other person authorized to render
347-13 judgment on, recommend, or certify an appraised value to the
347-14 appraisal review board of an appraisal district;
347-15 (2) a person who engages in appraisal of property for
347-16 ad valorem tax purposes for an appraisal district or a taxing unit;
347-17 (3) an assessor-collector, a collector, or another
347-18 person designated by a governing body as the chief administrator of
347-19 the taxing unit's assessment functions, collection functions, or
347-20 both; and
347-21 (4) a person who performs assessment or collection
347-22 functions for a taxing unit and is required to register by the
347-23 chief administrator of the unit's tax office.
347-24 (b) A county assessor-collector is not required to register
347-25 with the board if the county:
347-26 (1) has a population of one million or more; or
347-27 (2) by contract entered into under Section 6.24(b),
348-1 Tax Code, has its taxes assessed and collected by another taxing
348-2 unit or an appraisal district. (V.A.C.S. Art. 8885, Secs. 11, 11A,
348-3 11B.)
348-4 Sec. 1151.152. ELIGIBILITY FOR REGISTRATION. To be eligible
348-5 for registration, an applicant must:
348-6 (1) be at least 18 years of age;
348-7 (2) reside in this state;
348-8 (3) be of good moral character;
348-9 (4) be a graduate of an accredited high school or
348-10 establish high school graduation equivalency; and
348-11 (5) be actively engaged in appraisal, assessment, or
348-12 collection. (V.A.C.S. Art. 8885, Sec. 15 (part).)
348-13 Sec. 1151.153. REGISTRATION APPLICATION. (a) An application
348-14 for registration must be made on the printed form provided by the
348-15 board. In prescribing the contents of an application form, the
348-16 board shall ensure that the form requires information sufficient to
348-17 properly classify the applicant.
348-18 (b) Each application form the board provides must be
348-19 accompanied by the code of ethics. (V.A.C.S. Art. 8885, Sec. 14
348-20 (part).)
348-21 Sec. 1151.154. SUBMISSION OF APPLICATION. (a) An initial
348-22 application for registration must be accompanied by:
348-23 (1) a nonrefundable $50 processing fee; and
348-24 (2) the fee required by Section 1151.158.
348-25 (b) An applicant for registration must sign and swear to the
348-26 application, including the code of ethics, before a notary public
348-27 or another person qualified to administer an oath. (V.A.C.S.
349-1 Art. 8885, Sec. 14 (part).)
349-2 Sec. 1151.155. ACTION ON APPLICATION. (a) The board shall
349-3 act on an application for registration not later than the 30th day
349-4 after the date the application is received.
349-5 (b) The board shall:
349-6 (1) classify and register each applicant the board
349-7 approves; and
349-8 (2) notify the registrant of the requirements for:
349-9 (A) maintenance of the registrant's current
349-10 registration; and
349-11 (B) professional certification by the board.
349-12 (c) If the board disapproves an application, the board shall
349-13 refund the fee paid under Section 1151.154(a)(2). (V.A.C.S.
349-14 Art. 8885, Secs. 14 (part), 15 (part).)
349-15 Sec. 1151.156. DISCRIMINATION PROHIBITED. The board may not
349-16 refuse to register an applicant because of the race, color, creed,
349-17 sex, or ethnic origin of the applicant. (V.A.C.S. Art. 8885, Sec.
349-18 21.)
349-19 Sec. 1151.157. ISSUANCE AND POSSESSION OF IDENTIFICATION
349-20 CARD REQUIRED. (a) The board shall issue an identification card to
349-21 each person registered under this chapter. While on official duty,
349-22 the registrant shall have the identification card in the
349-23 registrant's possession.
349-24 (b) An identification card issued under Subsection (a) must:
349-25 (1) be serially numbered;
349-26 (2) describe any registration classification into
349-27 which the person is placed; and
350-1 (3) state the expiration date of the person's
350-2 registration. (V.A.C.S. Art. 8885, Sec. 12.)
350-3 Sec. 1151.158. ANNUAL FEE; EXPIRATION AND RENEWAL OF
350-4 REGISTRATION. (a) A registration under this chapter expires on
350-5 December 31 and must be renewed annually. A registrant must pay an
350-6 annual fee of not less than $45 or more than $75.
350-7 (b) On or before December 1 of each year, the board shall:
350-8 (1) establish the amount of the renewal fee for the
350-9 following year; and
350-10 (2) mail a renewal notice to each person registered
350-11 under this chapter. (V.A.C.S. Art. 8885, Sec. 13 (part).)
350-12 Sec. 1151.159. REMOVAL FROM ROSTER OF REGISTRANTS;
350-13 REINSTATEMENT. (a) The board shall delete from the roster of
350-14 registrants any person who does not pay the required registration
350-15 renewal fee before February 1 of the year to which the fee applies.
350-16 (b) A person who applies for reinstatement within 30 days
350-17 must pay a penalty in the amount set by the board not to exceed
350-18 $25.
350-19 (c) A person who does not apply for reinstatement within 30
350-20 days may be reinstated only by filing a new application with the
350-21 board and passing an examination required by the board, if any.
350-22 (V.A.C.S. Art. 8885, Sec. 13 (part).)
350-23 Sec. 1151.160. CERTIFICATION LEVELS AND REQUIREMENTS. (a)
350-24 The board by rule shall adopt minimum requirements for the
350-25 certification of registrants. The requirements for certification of
350-26 an employee of a taxing unit's tax office must emphasize, but are
350-27 not limited to, the areas of responsibility of the registrant in
351-1 performing the registrant's duties for the taxing unit.
351-2 (b) "Registered professional appraiser" is the highest level
351-3 of certification established by the board for a person engaged in
351-4 appraisal. "Registered Texas assessor" is the highest level of
351-5 certification established by the board for a person engaged in
351-6 assessment. "Registered Texas collector" is the highest level of
351-7 certification established by the board for a person engaged in
351-8 collection.
351-9 (c) The rules establishing minimum requirements must require
351-10 that:
351-11 (1) a person registered as an appraiser become
351-12 certified as a registered professional appraiser not later than the
351-13 fifth anniversary of the date of the person's original
351-14 registration;
351-15 (2) a person registered as an assessor or
351-16 assessor-collector become certified as a registered Texas assessor
351-17 not later than the fifth anniversary of the date of the person's
351-18 original registration; and
351-19 (3) a person registered as a collector become
351-20 certified as a registered Texas collector not later than the third
351-21 anniversary of the date of the person's original registration.
351-22 (V.A.C.S. Art. 8885, Secs. 2(8), (9), (10), 17.)
351-23 Sec. 1151.161. EXAMINATION FOR CERTIFICATION; APPLICATION;
351-24 FEE. (a) The board by rule may require a registrant to pass one or
351-25 more examinations to be certified.
351-26 (b) An applicant for examination under this section must
351-27 file an application with the board on a printed form provided by
352-1 the board. In prescribing the contents of the form, the board
352-2 shall ensure that the form requires information sufficient to
352-3 determine the applicant's current classification.
352-4 (c) The application for examination must be:
352-5 (1) filed with the board not later than the 14th day
352-6 before the examination date; and
352-7 (2) accompanied by a nonrefundable fee in the amount
352-8 set by the board. (V.A.C.S. Art. 8885, Sec. 14A.)
352-9 Sec. 1151.162. RULES RELATING TO RECERTIFICATION AND
352-10 SPECIALIZATION. The board may adopt rules:
352-11 (1) regarding recertification to ensure that each
352-12 person certified under this chapter who is engaged in appraisal,
352-13 assessment, or collection is registered and professionally
352-14 competent; and
352-15 (2) establishing specialized classifications,
352-16 designations, and requirements as necessary to accomplish the
352-17 purposes of this chapter, including maintaining high standards of
352-18 professional practice in all phases of property taxation.
352-19 (V.A.C.S. Art. 8885, Sec. 18.)
352-20 (Sections 1151.163-1151.200 reserved for expansion)
352-21 SUBCHAPTER E. ENFORCEMENT
352-22 Sec. 1151.201. INITIATION OF PROCEEDINGS. The board may
352-23 initiate proceedings under this chapter on the motion of the board
352-24 or on the complaint of any person to ensure strict compliance with
352-25 this chapter and the board's rules. (V.A.C.S. Art. 8885, Sec.
352-26 10(a) (part).)
352-27 Sec. 1151.202. DENIAL OF REGISTRATION; DISCIPLINARY ACTION.
353-1 The board may deny, suspend, or revoke the registration of a person
353-2 who violates this chapter or a board rule. (V.A.C.S. Art. 8885,
353-3 Sec. 10(a) (part).)
353-4 Sec. 1151.203. RULES FOR PROCEEDINGS; NOTICE. The board
353-5 shall adopt rules for the conduct of a proceeding initiated under
353-6 Section 1151.201. The rules must require that written notice of the
353-7 nature of the complaint and of the time and place of a hearing by
353-8 the board be sent to each party by certified mail at least 20 days
353-9 before the date of the hearing. (V.A.C.S. Art. 8885, Sec. 10(a)
353-10 (part).)
353-11 Sec. 1151.204. DISMISSAL OF COMPLAINT RELATING TO APPRAISED
353-12 VALUE. The board may dismiss a complaint without conducting a
353-13 hearing if:
353-14 (1) the complaint involves a disagreement on the
353-15 appraised value of a property; and
353-16 (2) the disagreement has not been resolved in the
353-17 complainant's favor by an appraisal review board or court.
353-18 (V.A.C.S. Art. 8885, Sec. 10(b).)
353-19 Sec. 1151.205. SUBPOENA AUTHORITY. (a) The board may
353-20 request and, if necessary, compel by subpoena:
353-21 (1) the attendance of witnesses for examination under
353-22 oath; and
353-23 (2) the production of records, documents, and other
353-24 evidence relevant to the investigation of an alleged violation of
353-25 this chapter for inspection and copying.
353-26 (b) If a person does not comply with the subpoena, the
353-27 board, acting through the attorney general, may file suit to
354-1 enforce the subpoena in a district court in Travis County or in the
354-2 county in which a hearing conducted by the board may be held.
354-3 (c) The court shall order compliance with the subpoena if
354-4 the court determines that good cause exists for the issuance of the
354-5 subpoena. (V.A.C.S. Art. 8885, Sec. 10(c) (part).)
354-6 (Sections 1151.206-1151.250 reserved for expansion)
354-7 SUBCHAPTER F. CRIMINAL PENALTIES
354-8 Sec. 1151.251. FAILURE TO REGISTER. (a) A person commits an
354-9 offense if the person does not register with the board as required
354-10 by Section 1151.151.
354-11 (b) An offense under this section is a Class C misdemeanor.
354-12 (V.A.C.S. Art. 8885, Sec. 24(a).)
354-13 Sec. 1151.252. PROHIBITED ACTIONS WHILE REGISTRATION OR
354-14 CERTIFICATION IS REVOKED OR SUSPENDED. (a) A person commits an
354-15 offense if the person performs an appraisal, assessment, or
354-16 collection function while the person's registration or
354-17 certification with the board is revoked or suspended.
354-18 (b) An offense under this section is a Class B misdemeanor.
354-19 (V.A.C.S. Art. 8885, Sec. 24(b).)
354-20 Sec. 1151.253. COMPLAINT OF VIOLATION. A person may file a
354-21 complaint with the board concerning a violation of Section 1151.251
354-22 or 1151.252. (V.A.C.S. Art. 8885, Sec. 24(c).)
354-23 CHAPTER 1152. PROPERTY TAX CONSULTANTS
354-24 SUBCHAPTER A. GENERAL PROVISIONS
354-25 Sec. 1152.001. DEFINITIONS
354-26 Sec. 1152.002. EXEMPTIONS FROM REGISTRATION
354-27 (Sections 1152.003-1152.050 reserved for expansion)
355-1 SUBCHAPTER B. DUTIES OF COMMISSIONER AND DEPARTMENT
355-2 Sec. 1152.051. STANDARDS OF CONDUCT FOR REGISTRANTS
355-3 Sec. 1152.052. MONEY RECEIVED BY DEPARTMENT
355-4 (Sections 1152.053-1152.100 reserved for expansion)
355-5 SUBCHAPTER C. PROPERTY TAX CONSULTANTS ADVISORY COUNCIL
355-6 Sec. 1152.101. DEFINITION
355-7 Sec. 1152.102. COUNCIL MEMBERSHIP
355-8 Sec. 1152.103. MEMBERSHIP RESTRICTIONS
355-9 Sec. 1152.104. TERMS; VACANCY
355-10 Sec. 1152.105. PRESIDING OFFICER
355-11 Sec. 1152.106. MEETINGS; VOTE REQUIRED FOR ACTION
355-12 Sec. 1152.107. COMPENSATION; REIMBURSEMENT
355-13 Sec. 1152.108. COUNCIL POWERS
355-14 (Sections 1152.109-1152.150 reserved for expansion)
355-15 SUBCHAPTER D. REGISTRATION REQUIREMENTS
355-16 Sec. 1152.151. REGISTRATION REQUIRED
355-17 Sec. 1152.152. ASSOCIATION WITH SENIOR PROPERTY TAX
355-18 CONSULTANT REQUIRED
355-19 Sec. 1152.153. VOLUNTARY REGISTRATION
355-20 Sec. 1152.154. REGISTRATION APPLICATION; FEES
355-21 Sec. 1152.155. GENERAL ELIGIBILITY FOR REGISTRATION
355-22 Sec. 1152.156. ELIGIBILITY TO REGISTER AS PROPERTY TAX
355-23 CONSULTANT
355-24 Sec. 1152.157. ELIGIBILITY TO REGISTER AS SENIOR
355-25 PROPERTY TAX CONSULTANT
355-26 Sec. 1152.158. REGISTRATION OF CERTAIN REAL ESTATE BROKERS
355-27 Sec. 1152.159. CREDITS FOR SENIOR PROPERTY TAX CONSULTANT
356-1 APPLICANTS
356-2 Sec. 1152.160. SENIOR PROPERTY TAX CONSULTANT REGISTRATION
356-3 EXAMINATION
356-4 Sec. 1152.161. EXAMINATION RESULTS
356-5 Sec. 1152.162. ISSUANCE OF CERTIFICATE OF REGISTRATION
356-6 Sec. 1152.163. WAIVER FOR APPLICANT REGISTERED OR
356-7 LICENSED IN ANOTHER STATE
356-8 (Sections 1152.164-1152.200 reserved for expansion)
356-9 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
356-10 Sec. 1152.201. TERM OF CERTIFICATE OF REGISTRATION
356-11 Sec. 1152.202. PROCEDURE FOR RENEWAL
356-12 Sec. 1152.203. REQUIRED CONTINUING EDUCATION
356-13 Sec. 1152.204. RECOGNITION OF EDUCATIONAL PROGRAMS
356-14 AND COURSES
356-15 (Sections 1152.205-1152.250 reserved for expansion)
356-16 SUBCHAPTER F. PENALTIES AND ENFORCEMENT
356-17 Sec. 1152.251. DISCIPLINARY POWERS OF COMMISSIONER
356-18 Sec. 1152.252. CRIMINAL PENALTIES
356-19 CHAPTER 1152. PROPERTY TAX CONSULTANTS
356-20 SUBCHAPTER A. GENERAL PROVISIONS
356-21 Sec. 1152.001. DEFINITIONS. In this chapter:
356-22 (1) "Commission" means the Texas Commission of
356-23 Licensing and Regulation.
356-24 (2) "Commissioner" means the commissioner of licensing
356-25 and regulation.
356-26 (3) "Department" means the Texas Department of
356-27 Licensing and Regulation.
357-1 (4) "Person" means an individual, partnership,
357-2 corporation, or association.
357-3 (5) "Property tax consultant" means a person who
357-4 performs or supervises another person in the performance of
357-5 property tax consulting services for compensation.
357-6 (6) "Property tax consulting services" means:
357-7 (A) preparing for another person a rendition
357-8 statement or property report under Chapter 22, Tax Code;
357-9 (B) representing another person in a protest
357-10 under Subchapter C, Chapter 41, Tax Code;
357-11 (C) consulting or advising another person
357-12 concerning:
357-13 (i) the preparation of a rendition
357-14 statement or property report under Chapter 22, Tax Code; or
357-15 (ii) an action the other person may
357-16 protest under Subchapter C, Chapter 41, Tax Code;
357-17 (D) negotiating or entering into an agreement
357-18 with an appraisal district on behalf of another person concerning
357-19 an action that is or may be the subject of a protest under
357-20 Subchapter C, Chapter 41, Tax Code; or
357-21 (E) acting as the agent of a property owner
357-22 designated in accordance with Section 1.111, Tax Code.
357-23 (7) "Registrant" means a person who is registered as a
357-24 property tax consultant or a senior property tax consultant under
357-25 this chapter. (V.A.C.S. Art. 8886, Secs. 1(a)(1), (2), (4), (5),
357-26 (6), (7), (b).)
357-27 Sec. 1152.002. EXEMPTIONS FROM REGISTRATION. (a) A person
358-1 is not required to be registered under this chapter if the person:
358-2 (1) is acting under a general power of attorney,
358-3 unless the person represents that the person is a property tax
358-4 consultant, agent, advisor, or representative;
358-5 (2) is licensed to practice law in this state;
358-6 (3) is an employee of a property owner or of an
358-7 affiliated or subsidiary company of a property owner and performs
358-8 property tax consulting services for:
358-9 (A) the property owner; or
358-10 (B) a partnership, joint venture, or corporation
358-11 in which the property owner owns an interest;
358-12 (4) is a lessee of a property owner and is designated
358-13 as the agent of the owner in accordance with Section 1.111, Tax
358-14 Code;
358-15 (5) is a public employee or officer and assists a
358-16 property owner in the course of the employee's or officer's duties;
358-17 (6) is a certified public accountant under Chapter
358-18 901;
358-19 (7) assists another person in the performance of
358-20 property tax consulting services or provides testimony on behalf of
358-21 the other person at a protest hearing under Subchapter C, Chapter
358-22 41, Tax Code; or
358-23 (8) provides property tax consulting services only in
358-24 connection with single-family residences and:
358-25 (A) holds an active real estate broker license
358-26 or an active real estate salesperson license under Chapter 1101; or
358-27 (B) is a licensed real estate appraiser or
359-1 certified real estate appraiser under Chapter 1103.
359-2 (b) A person described by Subsection (a)(7) is not exempt
359-3 from the registration requirements of this chapter if:
359-4 (1) the person is designated as the agent of the other
359-5 person under Section 1.111, Tax Code; or
359-6 (2) more than 50 percent of the person's employment
359-7 time is devoted to, or more than 50 percent of the person's income
359-8 is derived from, performing or supervising the performance of
359-9 property tax consulting services. (V.A.C.S. Art. 8886, Sec. 2(d).)
359-10 (Sections 1152.003-1152.050 reserved for expansion)
359-11 SUBCHAPTER B. DUTIES OF COMMISSIONER AND DEPARTMENT
359-12 Sec. 1152.051. STANDARDS OF CONDUCT FOR REGISTRANTS. The
359-13 commissioner by rule shall establish standards of practice,
359-14 conduct, and ethics for registrants. (V.A.C.S. Art. 8886, Sec.
359-15 6(a).)
359-16 Sec. 1152.052. MONEY RECEIVED BY DEPARTMENT. The department
359-17 shall receive and account for all money derived under this chapter.
359-18 (V.A.C.S. Art. 8886, Sec. 7(a).)
359-19 (Sections 1152.053-1152.100 reserved for expansion)
359-20 SUBCHAPTER C. PROPERTY TAX CONSULTANTS ADVISORY COUNCIL
359-21 Sec. 1152.101. DEFINITION. In this subchapter, "council"
359-22 means the Property Tax Consultants Advisory Council. (V.A.C.S.
359-23 Art. 8886, Sec. 1(a)(3).)
359-24 Sec. 1152.102. COUNCIL MEMBERSHIP. (a) The council is
359-25 composed of six members appointed by the commission.
359-26 (b) The commission may appoint not more than two members who
359-27 are qualified for an exemption under Section 1152.002(a)(3).
360-1 (c) Each person appointed for membership on the council
360-2 must:
360-3 (1) be a registered senior property tax consultant;
360-4 (2) be a member of a nonprofit and voluntary trade
360-5 association:
360-6 (A) whose membership consists primarily of
360-7 persons who perform property tax consulting services in this state
360-8 or who engage in property tax management in this state for other
360-9 persons;
360-10 (B) that has written experience and examination
360-11 requirements for membership; and
360-12 (C) that subscribes to a code of professional
360-13 conduct or ethics;
360-14 (3) be a resident of this state for the five years
360-15 preceding the date of the appointment; and
360-16 (4) have performed or supervised the performance of
360-17 property tax consulting services as the person's primary occupation
360-18 continuously for the five years preceding the date of the
360-19 appointment. (V.A.C.S. Art. 8886, Sec. 10(a).)
360-20 Sec. 1152.103. MEMBERSHIP RESTRICTIONS. A person is not
360-21 eligible for appointment as a member of the council if the person
360-22 is:
360-23 (1) required to register with the secretary of state
360-24 under Chapter 305, Government Code;
360-25 (2) required to register with the Board of Tax
360-26 Professional Examiners under Chapter 1151; or
360-27 (3) exempt from the registration requirements imposed
361-1 by this chapter, except as provided by Section 1152.102. (V.A.C.S.
361-2 Art. 8886, Sec. 10(b).)
361-3 Sec. 1152.104. TERMS; VACANCY. (a) Members of the council
361-4 serve staggered three-year terms, with the terms of two members
361-5 expiring on February 1 of each year.
361-6 (b) If a vacancy occurs during a member's term, the
361-7 commissioner shall appoint to fill the unexpired part of the term a
361-8 replacement who meets the qualifications of the vacated office.
361-9 (V.A.C.S. Art. 8886, Sec. 10(d).)
361-10 Sec. 1152.105. PRESIDING OFFICER. Before March 1 of each
361-11 year, the council shall elect a member to serve as presiding
361-12 officer until the last day of February of the following year.
361-13 (V.A.C.S. Art. 8886, Sec. 10(c).)
361-14 Sec. 1152.106. MEETINGS; VOTE REQUIRED FOR ACTION. (a) The
361-15 council shall meet at least semiannually at the call of the
361-16 presiding officer or at the call of a majority of its members.
361-17 (b) A decision of the council is not effective unless it
361-18 receives the affirmative vote of at least four members. (V.A.C.S.
361-19 Art. 8886, Sec. 10(g).)
361-20 Sec. 1152.107. COMPENSATION; REIMBURSEMENT. A council member
361-21 is not entitled to receive compensation for serving as a member. A
361-22 council member is entitled to reimbursement for reasonable expenses
361-23 incurred in performing duties as a member, subject to applicable
361-24 limitations in the General Appropriations Act. (V.A.C.S.
361-25 Art. 8886, Sec. 10(f).)
361-26 Sec. 1152.108. COUNCIL POWERS. The council shall:
361-27 (1) recommend to the commissioner standards of
362-1 practice, conduct, and ethics for registrants to be adopted under
362-2 this chapter;
362-3 (2) recommend to the commission amounts for the fees
362-4 it may set under this chapter;
362-5 (3) recommend to the commissioner contents for the
362-6 senior property tax consultant registration examination and
362-7 standards of acceptable performance;
362-8 (4) assist and advise the commissioner in recognizing
362-9 continuing education programs and educational courses for
362-10 registrants; and
362-11 (5) advise the commissioner in establishing
362-12 educational requirements for initial applicants. (V.A.C.S.
362-13 Art. 8886, Sec. 10(e).)
362-14 (Sections 1152.109-1152.150 reserved for expansion)
362-15 SUBCHAPTER D. REGISTRATION REQUIREMENTS
362-16 Sec. 1152.151. REGISTRATION REQUIRED. (a) A person may not
362-17 perform property tax consulting services for compensation unless
362-18 the person holds a certificate of registration issued under this
362-19 chapter.
362-20 (b) A person may not represent that a person is a registered
362-21 property tax consultant, agent, advisor, or representative unless
362-22 the person is a registrant. (V.A.C.S. Art. 8886, Secs. 2(a), (c).)
362-23 Sec. 1152.152. ASSOCIATION WITH SENIOR PROPERTY TAX
362-24 CONSULTANT REQUIRED. (a) A registered property tax consultant may
362-25 not perform property tax consulting services for compensation
362-26 unless the person is employed by or associated with and acting for
362-27 a registered senior property tax consultant.
363-1 (b) Subsection (a) does not apply to a person who is
363-2 registered under Section 1152.156(a)(2) or 1152.158. (V.A.C.S.
363-3 Art. 8886, Secs. 2(b), (f) (part).)
363-4 Sec. 1152.153. VOLUNTARY REGISTRATION. (a) A person who is
363-5 not required to hold a certificate of registration under this
363-6 chapter may register if the person satisfies the registration
363-7 requirements of this chapter.
363-8 (b) A person exempt from the registration requirements of
363-9 this chapter who elects to register is subject to this chapter.
363-10 (V.A.C.S. Art. 8886, Sec. 2(e).)
363-11 Sec. 1152.154. REGISTRATION APPLICATION; FEES. (a) An
363-12 applicant for registration must file an application with the
363-13 department on a printed form prescribed by the commissioner.
363-14 (b) The application must be accompanied by:
363-15 (1) a nonrefundable application fee; and
363-16 (2) a registration fee.
363-17 (c) The department shall refund the registration fee if the
363-18 commissioner does not approve the application. (V.A.C.S.
363-19 Art. 8886, Sec. 5(a).)
363-20 Sec. 1152.155. GENERAL ELIGIBILITY FOR REGISTRATION. (a) To
363-21 be eligible for registration, an applicant must:
363-22 (1) be at least 18 years of age;
363-23 (2) hold a high school diploma or its equivalent;
363-24 (3) pay the fees required by the commission;
363-25 (4) have a place of business in this state or
363-26 designate a resident of this state as the applicant's agent for
363-27 service of process; and
364-1 (5) meet any additional qualifications required by
364-2 this chapter or by the commissioner under this chapter or Chapter
364-3 51.
364-4 (b) Notwithstanding Subsection (a), a person is eligible for
364-5 registration if the person holds:
364-6 (1) an active real estate broker license or an active
364-7 real estate salesperson license under Chapter 1101; or
364-8 (2) an active real estate appraiser license or
364-9 certificate under Chapter 1103. (V.A.C.S. Art. 8886, Sec. 3(a).)
364-10 Sec. 1152.156. ELIGIBILITY TO REGISTER AS PROPERTY TAX
364-11 CONSULTANT. (a) In addition to satisfying the requirements of
364-12 Section 1152.155, an applicant for registration as a property tax
364-13 consultant must:
364-14 (1) complete at least 15 classroom hours of
364-15 educational courses approved by the commissioner, including at
364-16 least four hours of instruction on laws and legal issues in this
364-17 state related to property tax consulting services; or
364-18 (2) if the person is eligible for registration under
364-19 Section 1152.155(b), submit to the commission evidence that the
364-20 applicant has completed at least four classroom hours of
364-21 educational programs or courses on the laws and legal issues in
364-22 this state related to property tax consulting services.
364-23 (b) The commissioner may give appropriate credit to an
364-24 initial applicant for:
364-25 (1) educational courses on principles of law related
364-26 to property tax consulting services completed by the applicant not
364-27 more than two years before the date of application; and
365-1 (2) educational programs or courses completed by the
365-2 applicant on:
365-3 (A) property taxation;
365-4 (B) the property tax system;
365-5 (C) property tax administration;
365-6 (D) ethical standards; or
365-7 (E) general principles of appraisal, accounting,
365-8 or law as they relate to property tax consulting services.
365-9 (V.A.C.S. Art. 8886, Secs. 3(b), (i), (j).)
365-10 Sec. 1152.157. ELIGIBILITY TO REGISTER AS SENIOR PROPERTY
365-11 TAX CONSULTANT. In addition to satisfying the requirements of
365-12 Section 1152.155, an applicant for registration as a senior
365-13 property tax consultant must:
365-14 (1) acquire at least 25 credits as provided by Section
365-15 1152.159;
365-16 (2) have performed or supervised the performance of
365-17 property tax consulting services as the applicant's primary
365-18 occupation for at least four of the seven years preceding the date
365-19 of application; and
365-20 (3) pass the examination adopted under Section
365-21 1152.160 or hold a professional designation in property taxation
365-22 granted by a nonprofit and voluntary trade association, institute,
365-23 or organization:
365-24 (A) whose membership consists primarily of
365-25 persons who represent property owners in property tax and
365-26 transactional tax matters;
365-27 (B) that has written experience and examination
366-1 requirements for granting the designation; and
366-2 (C) that subscribes to a code of professional
366-3 conduct or ethics. (V.A.C.S. Art. 8886, Sec. 3(c).)
366-4 Sec. 1152.158. REGISTRATION OF CERTAIN REAL ESTATE BROKERS.
366-5 Sections 1152.156 and 1152.157 do not apply to a person who:
366-6 (1) applied for registration before March 1, 1992;
366-7 (2) on the date of application held an active real
366-8 estate broker license under The Real Estate License Act (Article
366-9 6573a, Vernon's Texas Civil Statutes), as that law existed on the
366-10 application date; and
366-11 (3) does not perform or supervise the performance of
366-12 property tax consulting services for compensation in connection
366-13 with personal property. (V.A.C.S. Art. 8886, Sec. 2(f) (part).)
366-14 Sec. 1152.159. CREDITS FOR SENIOR PROPERTY TAX CONSULTANT
366-15 APPLICANTS. (a) The commissioner shall grant credit to an
366-16 applicant for registration as a senior property tax consultant as
366-17 follows:
366-18 (1) two credits for each year the applicant completed
366-19 at an institution of higher education that meets program and
366-20 accreditation standards comparable to those for public institutions
366-21 of higher education as determined by the Texas Higher Education
366-22 Coordinating Board, not to exceed six credits;
366-23 (2) four credits to an applicant who holds a
366-24 bachelor's degree or equivalent from an institution of higher
366-25 education described by Subdivision (1); and
366-26 (3) one credit for each year in excess of five years
366-27 that the applicant's primary occupation involved the performance or
367-1 supervision of property tax consulting services or property
367-2 appraisal, assessment, or taxation, not to exceed 10 credits.
367-3 (b) The commissioner may grant additional credits to an
367-4 applicant for registration as a senior property tax consultant for:
367-5 (1) successful completion of educational programs or
367-6 courses on:
367-7 (A) property taxation;
367-8 (B) the property tax system;
367-9 (C) property tax administration;
367-10 (D) ethical standards; or
367-11 (E) general principles of appraisal, accounting,
367-12 and law as they relate to property tax consulting services;
367-13 (2) completion of other educational programs or
367-14 courses; or
367-15 (3) advanced or postgraduate educational achievement,
367-16 occupational experience, professional licenses, or professional
367-17 designations obtained from recognized associations, institutes, or
367-18 organizations.
367-19 (c) The commissioner may assign not less than one credit or
367-20 more than five credits to a program or course described by
367-21 Subsection (b)(1). In determining the amount of credit for the
367-22 program or course, the commissioner shall consider:
367-23 (1) the nature of the program or course;
367-24 (2) the number of actual instructional hours in the
367-25 program or course;
367-26 (3) whether an examination is required for successful
367-27 completion of the program or course; and
368-1 (4) other factors the commissioner determines
368-2 appropriate. (V.A.C.S. Art. 8886, Secs. 3(d), (e), (f), (g), (h).)
368-3 Sec. 1152.160. SENIOR PROPERTY TAX CONSULTANT REGISTRATION
368-4 EXAMINATION. (a) The commissioner shall:
368-5 (1) adopt an examination for registration as a senior
368-6 property tax consultant; and
368-7 (2) establish the standards for passing the
368-8 examination.
368-9 (b) The department shall offer the examination at times and
368-10 places designated by the commissioner.
368-11 (c) To be eligible to take the examination, an applicant
368-12 must pay to the department an examination fee. The commissioner by
368-13 rule may establish conditions for refunding the examination fee to
368-14 an applicant who does not take the examination.
368-15 (d) The examination must:
368-16 (1) test the applicant's knowledge of:
368-17 (A) property taxation;
368-18 (B) the property tax system;
368-19 (C) property tax administration;
368-20 (D) ethical standards; and
368-21 (E) general principles of appraisal, accounting,
368-22 and law as they relate to property tax consulting services; and
368-23 (2) be graded according to rules adopted by the
368-24 commissioner. (V.A.C.S. Art. 8886, Secs. 4(a), (b), (c).)
368-25 Sec. 1152.161. EXAMINATION RESULTS. (a) Not later than the
368-26 30th day after the date an examination is administered, the
368-27 commission shall notify each examinee of the results of the
369-1 examination.
369-2 (b) If requested in writing by a person who fails an
369-3 examination, the commission shall provide to the person an analysis
369-4 of the person's performance on the examination. (V.A.C.S.
369-5 Art. 8886, Secs. 4(d), (e).)
369-6 Sec. 1152.162. ISSUANCE OF CERTIFICATE OF REGISTRATION. (a)
369-7 The commissioner shall act on an initial application for
369-8 registration filed under Section 1152.154 not later than the 31st
369-9 day after the date the department receives the application.
369-10 (b) The commissioner shall issue to an applicant who
369-11 qualifies for registration the appropriate certificate of
369-12 registration. (V.A.C.S. Art. 8886, Secs. 5(b), (d) (part).)
369-13 Sec. 1152.163. WAIVER FOR APPLICANT REGISTERED OR LICENSED
369-14 IN ANOTHER STATE. (a) The commissioner may waive any registration
369-15 requirement for an applicant who holds a certificate of
369-16 registration or license issued by another state that has
369-17 registration or licensing requirements that were, on the date of
369-18 registration or licensing, substantially equal to those of this
369-19 state.
369-20 (b) An applicant for registration under this section must:
369-21 (1) apply in the same manner as other applicants; and
369-22 (2) submit to the department any document or other
369-23 evidence required by the department to substantiate the applicant's
369-24 qualifications. (V.A.C.S. Art. 8886, Sec. 5(c).)
369-25 (Sections 1152.164-1152.200 reserved for expansion)
369-26 SUBCHAPTER E. RENEWAL OF CERTIFICATE OF REGISTRATION
369-27 Sec. 1152.201. TERM OF CERTIFICATE OF REGISTRATION. Except
370-1 as otherwise provided by the commission, a certificate of
370-2 registration expires on the second anniversary of the date of
370-3 issuance. (V.A.C.S. Art. 8886, Sec. 5(d) (part).)
370-4 Sec. 1152.202. PROCEDURE FOR RENEWAL. (a) The commissioner
370-5 shall issue to an eligible registrant a certificate of renewal of
370-6 registration on the timely receipt of the required renewal fee.
370-7 The certificate expires on the second anniversary of the date of
370-8 issuance.
370-9 (b) A person whose registration has been expired for less
370-10 than 30 days may renew the registration by paying the renewal fee
370-11 and a late registration renewal fee.
370-12 (c) A person whose registration has been expired for one
370-13 year or more may not renew the registration. The person may obtain
370-14 a new certificate of registration by complying with the
370-15 requirements for obtaining an original certificate of registration.
370-16 (V.A.C.S. Art. 8886, Secs. 5(e), (g).)
370-17 Sec. 1152.203. REQUIRED CONTINUING EDUCATION. The
370-18 commissioner by rule shall require that, to renew a registration,
370-19 the registrant complete during the term of the registration at
370-20 least 20 classroom hours of continuing education courses recognized
370-21 by the commissioner at least six hours of which include instruction
370-22 on laws and legal issues in this state related to property tax
370-23 consulting services. (V.A.C.S. Art. 8886, Sec. 5(f).)
370-24 Sec. 1152.204. RECOGNITION OF EDUCATIONAL PROGRAMS AND
370-25 COURSES. (a) The commissioner by rule shall recognize appropriate
370-26 continuing education programs for registrants.
370-27 (b) The commissioner shall recognize a continuing education
371-1 course, including a course on the legal issues and law related to
371-2 property tax consulting services, that is:
371-3 (1) approved by the Texas Real Estate Commission or
371-4 the Texas Appraiser Licensing and Certification Board; and
371-5 (2) completed by a registrant who also holds:
371-6 (A) an active real estate broker license or an
371-7 active real estate salesperson license under Chapter 1101; or
371-8 (B) an active real estate appraiser license or
371-9 certificate under Chapter 1103.
371-10 (c) The commissioner may recognize an educational program or
371-11 course:
371-12 (1) related to property tax consulting services; and
371-13 (2) offered or sponsored by a public provider or a
371-14 recognized private provider, including:
371-15 (A) the comptroller;
371-16 (B) the State Bar of Texas;
371-17 (C) the Texas Real Estate Commission;
371-18 (D) an institution of higher education that
371-19 meets program and accreditation standards comparable to those for
371-20 public institutions of higher education as determined by the Texas
371-21 Higher Education Coordinating Board; or
371-22 (E) a nonprofit and voluntary trade association,
371-23 institute, or organization:
371-24 (i) whose membership consists primarily of
371-25 persons who represent property owners in property tax or
371-26 transactional tax matters;
371-27 (ii) that has written experience and
372-1 examination requirements for membership or for granting
372-2 professional designation to its members; and
372-3 (iii) that subscribes to a code of
372-4 professional conduct or ethics.
372-5 (d) The commissioner may recognize a private provider of an
372-6 educational program or course if the provider:
372-7 (1) applies to the department on a printed form
372-8 prescribed by the commissioner; and
372-9 (2) pays in the amounts set by the commission:
372-10 (A) a nonrefundable application fee; and
372-11 (B) an educational provider's fee.
372-12 (e) The department shall refund the educational provider's
372-13 fee if the commissioner does not recognize the provider's
372-14 educational program or course. (V.A.C.S. Art. 8886, Secs. 5(h),
372-15 6(b), (c), (d).)
372-16 (Sections 1152.205-1152.250 reserved for expansion)
372-17 SUBCHAPTER F. PENALTIES AND ENFORCEMENT
372-18 Sec. 1152.251. DISCIPLINARY POWERS OF COMMISSIONER. After a
372-19 hearing, the commissioner may deny a certificate of registration
372-20 and may impose an administrative sanction or penalty and seek
372-21 injunctive relief and a civil penalty against a registrant as
372-22 provided by Chapter 51 for:
372-23 (1) a violation of this chapter or a rule applicable
372-24 to the registrant adopted by the commissioner under this chapter;
372-25 (2) gross incompetency in the performance of property
372-26 tax consulting services;
372-27 (3) dishonesty or fraud committed while performing
373-1 property tax consulting services; or
373-2 (4) a violation of the standards of ethics adopted by
373-3 the commissioner. (V.A.C.S. Art. 8886, Sec. 8.)
373-4 Sec. 1152.252. CRIMINAL PENALTIES. (a) A person required to
373-5 be registered under this chapter commits an offense if the person:
373-6 (1) is not registered under this chapter; and
373-7 (2) performs or offers to perform property tax
373-8 consulting services for compensation.
373-9 (b) A person commits an offense if the person:
373-10 (1) knows that a person required to be registered
373-11 under this chapter is not registered; and
373-12 (2) represents that the person required to be
373-13 registered is a property tax consultant, agent, counselor, advisor,
373-14 or representative.
373-15 (c) An offense under this section is a Class B misdemeanor.
373-16 (V.A.C.S. Art. 8886, Sec. 9.)
373-17 (Chapters 1153-1200 reserved for expansion)
373-18 SUBTITLE C. REGULATION OF CERTAIN TYPES OF HOUSING AND BUILDINGS
373-19 CHAPTER 1201. MANUFACTURED HOUSING
373-20 SUBCHAPTER A. GENERAL PROVISIONS
373-21 Sec. 1201.001. SHORT TITLE
373-22 Sec. 1201.002. LEGISLATIVE FINDINGS AND PURPOSES;
373-23 LIBERAL CONSTRUCTION
373-24 Sec. 1201.003. DEFINITIONS
373-25 Sec. 1201.004. DEFINITIONS BINDING
373-26 Sec. 1201.005. CONSUMER WAIVER VOID
373-27 Sec. 1201.006. APPLICABILITY OF BUSINESS & COMMERCE CODE
374-1 Sec. 1201.007. EXCEPTION FOR REAL ESTATE BROKERS AND
374-2 SALESPERSONS
374-3 Sec. 1201.008. REGULATION BY MUNICIPALITY
374-4 (Sections 1201.009-1201.050 reserved for expansion)
374-5 SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
374-6 Sec. 1201.051. ADMINISTRATION AND ENFORCEMENT OF CHAPTER
374-7 Sec. 1201.052. GENERAL RULEMAKING AUTHORITY
374-8 Sec. 1201.053. RULES RELATING TO COMPLIANCE WITH NATIONAL
374-9 STANDARDS FOR MANUFACTURED HOUSING
374-10 CONSTRUCTION AND SAFETY; STATE PLAN
374-11 Sec. 1201.054. PROCEDURE FOR ADOPTING RULES
374-12 Sec. 1201.055. INSPECTION, REVIEW, AND RELATED FEES
374-13 Sec. 1201.056. LICENSE FEES
374-14 Sec. 1201.057. INSTRUCTION FEE
374-15 Sec. 1201.058. AMOUNT OF FEES
374-16 Sec. 1201.059. TITLE FEES
374-17 Sec. 1201.060. VENUE FOR HEARING
374-18 Sec. 1201.061. COOPERATION WITH LOCAL GOVERNMENTAL UNITS
374-19 Sec. 1201.062. SEAL PROPERTY OF DEPARTMENT
374-20 (Sections 1201.063-1201.100 reserved for expansion)
374-21 SUBCHAPTER C. LICENSING
374-22 Sec. 1201.101. LICENSE REQUIRED
374-23 Sec. 1201.102. EXCEPTIONS TO LICENSE REQUIREMENT
374-24 Sec. 1201.103. LICENSE APPLICATION
374-25 Sec. 1201.104. QUALIFICATIONS FOR LICENSE
374-26 Sec. 1201.105. SECURITY REQUIRED
374-27 Sec. 1201.106. SECURITY: AMOUNT
375-1 Sec. 1201.107. SECURITY: LOCATION
375-2 Sec. 1201.108. SECURITY: CHANGE IN OWNERSHIP OR
375-3 LOCATION
375-4 Sec. 1201.109. SECURITY: CANCELLATION OR OTHER
375-5 IMPAIRMENT
375-6 Sec. 1201.110. SECURITY: DURATION
375-7 Sec. 1201.111. EXCEPTIONS TO SECURITY AND INSTRUCTION
375-8 REQUIREMENTS
375-9 Sec. 1201.112. TEMPORARY INSTALLER'S LICENSE
375-10 Sec. 1201.113. CERTIFICATION OR CONTINUING EDUCATION
375-11 PROGRAM
375-12 Sec. 1201.114. LICENSE RENEWAL
375-13 (Sections 1201.115-1201.150 reserved for expansion)
375-14 SUBCHAPTER D. PRACTICE
375-15 Sec. 1201.151. REFUND OF DEPOSIT
375-16 Sec. 1201.152. VOIDABLE CONTRACT
375-17 Sec. 1201.153. FORMALDEHYDE HEALTH NOTICE
375-18 Sec. 1201.154. SUFFICIENCY OF FORMALDEHYDE HEALTH NOTICE;
375-19 RETAILER AND MANUFACTURER COMPLIANCE
375-20 Sec. 1201.155. DISCLAIMER OF IMPLIED WARRANTY
375-21 Sec. 1201.156. ADVERTISEMENT AS OFFER
375-22 Sec. 1201.157. RETAILER AS WAREHOUSEMAN
375-23 Sec. 1201.158. SALESPERSON
375-24 Sec. 1201.159. BROKER
375-25 Sec. 1201.160. PROOF OF INSURANCE REQUIRED FOR INSTALLER
375-26 Sec. 1201.161. TRANSPORTATION OF MANUFACTURED HOUSING
375-27 (Sections 1201.162-1201.200 reserved for expansion)
376-1 SUBCHAPTER E. MANUFACTURED HOME TITLES
376-2 Sec. 1201.201. DEFINITIONS
376-3 Sec. 1201.202. APPLICATION OF CHAPTER TO CERTAIN
376-4 CERTIFICATES OF TITLE OR LIENS
376-5 Sec. 1201.203. FORMS; RULES
376-6 Sec. 1201.204. MANUFACTURER'S CERTIFICATE
376-7 Sec. 1201.205. DOCUMENT OF TITLE CONTENTS
376-8 Sec. 1201.206. APPLICATION FOR ISSUANCE OF TITLE
376-9 Sec. 1201.207. ISSUANCE OF TITLE
376-10 Sec. 1201.208. PAYMENT OF TAXES REQUIRED FOR ISSUANCE OF
376-11 TITLE
376-12 Sec. 1201.209. GROUNDS FOR REFUSAL TO ISSUE OR FOR
376-13 SUSPENSION OR REVOCATION OF TITLE
376-14 Sec. 1201.210. PROCEDURE FOR REFUSAL TO ISSUE OR
376-15 SUSPENSION OR REVOCATION OF TITLE
376-16 Sec. 1201.211. TRANSFER OF TITLE
376-17 Sec. 1201.212. TRANSFER OF TITLE BY OPERATION OF LAW
376-18 Sec. 1201.213. ELIGIBILITY TO SIGN RIGHT OF SURVIVORSHIP
376-19 AGREEMENT
376-20 Sec. 1201.214. LOST OR DESTROYED DOCUMENT OF TITLE
376-21 Sec. 1201.215. PREVIOUS OWNER OR LIENHOLDER UNAVAILABLE
376-22 Sec. 1201.216. CHANGE IN USE
376-23 Sec. 1201.217. PERMANENT ATTACHMENT OF MANUFACTURED HOME:
376-24 CANCELLATION OF TITLE
376-25 Sec. 1201.218. PERMANENT ATTACHMENT OF MANUFACTURED HOME:
376-26 EXCEPTION TO CANCELLATION OF TITLE
376-27 Sec. 1201.219. PERFECTION AND EFFECT OF LIENS
377-1 Sec. 1201.220. REPORT TO COUNTY TAX ASSESSOR-COLLECTOR
377-2 Sec. 1201.221. INFORMATION ON OWNERSHIP AND TAX LIEN
377-3 (Sections 1201.222-1201.250 reserved for expansion)
377-4 SUBCHAPTER F. STANDARDS
377-5 Sec. 1201.251. STANDARDS AND REQUIREMENTS ADOPTED
377-6 BY DIRECTOR
377-7 Sec. 1201.252. POWER OF LOCAL GOVERNMENTAL UNIT TO ADOPT
377-8 DIFFERENT STANDARD
377-9 Sec. 1201.253. HEARING ON STANDARD OR REQUIREMENT
377-10 Sec. 1201.254. EFFECTIVE DATE OF REQUIREMENT OR
377-11 STANDARD
377-12 Sec. 1201.255. INSTALLATION OF MANUFACTURED HOUSING
377-13 Sec. 1201.256. WIND ZONE REGULATIONS
377-14 (Sections 1201.257-1201.300 reserved for expansion)
377-15 SUBCHAPTER G. INSPECTIONS AND MONITORING
377-16 Sec. 1201.301. STATE INSPECTORS
377-17 Sec. 1201.302. INSPECTION BY ENTITIES OTHER THAN
377-18 DEPARTMENT
377-19 Sec. 1201.303. INSPECTIONS
377-20 Sec. 1201.304. INSPECTION SEARCH WARRANTS
377-21 Sec. 1201.305. PROGRAM MONITORING
377-22 (Sections 1201.306-1201.350 reserved for expansion)
377-23 SUBCHAPTER H. WARRANTIES
377-24 Sec. 1201.351. MANUFACTURER'S WARRANTY
377-25 Sec. 1201.352. RETAILER'S WARRANTY
377-26 Sec. 1201.353. NOTICE OF NEED FOR WARRANTY SERVICE
377-27 Sec. 1201.354. CORRECTIVE ACTION REQUIRED
378-1 Sec. 1201.355. CONSUMER COMPLAINT HOME INSPECTION
378-2 Sec. 1201.356. REPORT AND ORDER; AMENDMENT; COMPLIANCE
378-3 Sec. 1201.357. FAILURE TO PROVIDE WARRANTY SERVICE
378-4 Sec. 1201.358. FAILURE TO SHOW GOOD CAUSE; HEARING RESULTS
378-5 Sec. 1201.359. APPLICATION OF WARRANTIES IF HUD-CODE
378-6 MANUFACTURED HOME MOVED
378-7 Sec. 1201.360. WARRANTY FOR HUD-CODE MANUFACTURED HOME
378-8 PERMANENTLY ATTACHED TO REAL PROPERTY
378-9 Sec. 1201.361. INSTALLER'S WARRANTY
378-10 (Sections 1201.362-1201.400 reserved for expansion)
378-11 SUBCHAPTER I. MANUFACTURED HOMEOWNERS'
378-12 RECOVERY TRUST FUND
378-13 Sec. 1201.401. MANUFACTURED HOMEOWNERS' RECOVERY TRUST
378-14 FUND
378-15 Sec. 1201.402. ADMINISTRATION OF TRUST FUND
378-16 Sec. 1201.403. AMOUNT RESERVED IN TRUST FUND; PAYMENT OF
378-17 COSTS
378-18 Sec. 1201.404. CONSUMER COMPENSATION
378-19 Sec. 1201.405. LIMITATIONS ON CLAIMS
378-20 Sec. 1201.406. PROCEDURE FOR RECOVERY FROM TRUST FUND
378-21 Sec. 1201.407. DISAGREEMENT OF PARTIES; INFORMAL DISPUTE
378-22 RESOLUTION PROCESS
378-23 Sec. 1201.408. AGREEMENT OF PARTIES; ARBITRATION
378-24 Sec. 1201.409. PAYMENT BY SURETY OR FROM OTHER SECURITY
378-25 Sec. 1201.410. INFORMATIONAL PAMPHLET
378-26 (Sections 1201.411-1201.450 reserved for expansion)
378-27 SUBCHAPTER J. USED OR SALVAGED MANUFACTURED HOMES
379-1 Sec. 1201.451. TRANSFER OF GOOD AND MARKETABLE TITLE
379-2 REQUIRED
379-3 Sec. 1201.452. SEAL OR LABEL REQUIRED
379-4 Sec. 1201.453. HABITABILITY
379-5 Sec. 1201.454. HABITABILITY: PROHIBITED ALTERATION
379-6 OR REPLACEMENT
379-7 Sec. 1201.455. WARRANTY OF HABITABILITY REQUIRED
379-8 Sec. 1201.456. HABITABILITY: EXCEPTION TO WARRANTY
379-9 REQUIREMENT
379-10 Sec. 1201.457. HABITABILITY: CHANGE TO OR FROM BUSINESS
379-11 USE
379-12 Sec. 1201.458. HABITABILITY: EXCEPTION FOR CERTAIN
379-13 GOVERNMENTAL OR NONPROFIT ENTITIES
379-14 Sec. 1201.459. COMPLIANCE NOT REQUIRED FOR SALE FOR
379-15 COLLECTION OF DELINQUENT TAXES
379-16 Sec. 1201.460. COMPLIANCE NOT REQUIRED FOR LIENHOLDER
379-17 Sec. 1201.461. SALVAGED MANUFACTURED HOME
379-18 (Sections 1201.462-1201.500 reserved for expansion)
379-19 SUBCHAPTER K. PROHIBITED PRACTICES
379-20 Sec. 1201.501. PROHIBITED CONSTRUCTION BY MANUFACTURER
379-21 Sec. 1201.502. PROHIBITED SHIPPING BY MANUFACTURER
379-22 Sec. 1201.503. PROHIBITED ALTERATION
379-23 Sec. 1201.504. PROHIBITED SALE, EXCHANGE, OR
379-24 LEASE-PURCHASE
379-25 Sec. 1201.505. PROHIBITED PURCHASE
379-26 Sec. 1201.506. CREDIT
379-27 Sec. 1201.507. FALSE OR MISLEADING INFORMATION
380-1 Sec. 1201.508. DOWN PAYMENT
380-2 Sec. 1201.509. PROHIBITED RETENTION OF DEPOSIT
380-3 Sec. 1201.510. PROHIBITED INSTALLATION OF AIR CONDITIONING
380-4 EQUIPMENT
380-5 Sec. 1201.511. PROHIBITED REAL ESTATE TRANSACTION
380-6 (Sections 1201.512-1201.550 reserved for expansion)
380-7 SUBCHAPTER L. DISCIPLINARY PROCEDURES
380-8 Sec. 1201.551. DENIAL OF LICENSE; DISCIPLINARY ACTION
380-9 Sec. 1201.552. HEARING CONCERNING LICENSE
380-10 Sec. 1201.553. JUDICIAL REVIEW
380-11 (Sections 1201.554-1201.600 reserved for expansion)
380-12 SUBCHAPTER M. ENFORCEMENT PROVISIONS AND PENALTIES
380-13 Sec. 1201.601. ACTION AGAINST RETAILER OR MANUFACTURER:
380-14 HOLDER OF DEBT INSTRUMENT
380-15 Sec. 1201.602. ACTION AGAINST MANUFACTURER, INSTALLER, OR
380-16 RETAILER: ABATEMENT OR BAR
380-17 Sec. 1201.603. DECEPTIVE TRADE PRACTICES
380-18 Sec. 1201.604. CONSUMER RECOVERY FOR PROHIBITED
380-19 RETENTION OF DEPOSIT
380-20 Sec. 1201.605. ADMINISTRATIVE PENALTY
380-21 Sec. 1201.606. CRIMINAL PENALTY
380-22 CHAPTER 1201. MANUFACTURED HOUSING
380-23 SUBCHAPTER A. GENERAL PROVISIONS
380-24 Sec. 1201.001. SHORT TITLE. This chapter may be cited as the
380-25 Texas Manufactured Housing Standards Act. (V.A.C.S. Art. 5221f,
380-26 Sec. 1.)
380-27 Sec. 1201.002. LEGISLATIVE FINDINGS AND PURPOSES; LIBERAL
381-1 CONSTRUCTION. (a) The legislature finds that:
381-2 (1) there is a growing need to provide state residents
381-3 with safe, affordable, and well-constructed housing;
381-4 (2) manufactured housing has become a primary housing
381-5 source for many state residents;
381-6 (3) statutes and rules in effect before September 1,
381-7 1969, were inadequate to:
381-8 (A) fully protect the consumer; and
381-9 (B) prevent certain discrimination in this state
381-10 regarding manufactured housing;
381-11 (4) the state is responsible for:
381-12 (A) protecting state residents who want to
381-13 purchase manufactured housing by regulating the construction and
381-14 installation of manufactured housing;
381-15 (B) providing economic stability to manufactured
381-16 housing manufacturers, retailers, installers, and brokers; and
381-17 (C) providing fair and effective consumer
381-18 remedies; and
381-19 (5) the expansion of certain regulatory powers is:
381-20 (A) necessary to address the problems described
381-21 by Subdivisions (1)-(4); and
381-22 (B) the most economical and efficient means to
381-23 address those problems and serve the public interest.
381-24 (b) The purposes of this chapter are to:
381-25 (1) encourage the construction of housing for state
381-26 residents; and
381-27 (2) improve the general welfare and safety of
382-1 purchasers of manufactured housing in this state.
382-2 (c) This chapter shall be liberally construed to promote its
382-3 policies and accomplish its purposes. (V.A.C.S. Art. 5221f, Secs.
382-4 2, 18(c) (part).)
382-5 Sec. 1201.003. DEFINITIONS. In this chapter:
382-6 (1) "Advertisement" means a commercial message that
382-7 promotes the sale, exchange, or lease-purchase of a manufactured
382-8 home and that is presented on radio, television, a public-address
382-9 system, or electronic media or appears in a newspaper, a magazine,
382-10 a flyer, a catalog, direct mail literature, an inside or outside
382-11 sign or window display, point-of-sale literature, a price tag, or
382-12 other printed material. The term does not include educational
382-13 material or material required by law.
382-14 (2) "Alteration" means the replacement, addition,
382-15 modification, or removal of equipment in a new manufactured home
382-16 after sale by a manufacturer to a retailer but before sale and
382-17 installation by a retailer to a purchaser in a manner that may
382-18 affect the home's construction, fire safety, occupancy, or
382-19 plumbing, heating, or electrical system. The term includes the
382-20 modification of a manufactured home in a manner that may affect the
382-21 home's compliance with the appropriate standards but does not
382-22 include:
382-23 (A) the repair or replacement of a component or
382-24 appliance that requires plug-in to an electrical receptacle, if the
382-25 replaced item is of the same configuration and rating as the
382-26 replacement; or
382-27 (B) the addition of an appliance that requires
383-1 plug-in to an electrical receptacle and that was not provided with
383-2 the manufactured home by the manufacturer, if the rating of the
383-3 appliance does not exceed the rating of the receptacle to which the
383-4 appliance is connected.
383-5 (3) "Board" means the governing board of the
383-6 department.
383-7 (4) "Broker" means a person engaged by one or more
383-8 other persons to negotiate or offer to negotiate a bargain or
383-9 contract for the sale, exchange, or lease-purchase of a
383-10 manufactured home for which a certificate or other document of
383-11 title has been issued and is outstanding. The term does not
383-12 include a person who maintains a location for the display of
383-13 manufactured homes.
383-14 (5) "Business use" means the use of a manufactured
383-15 home for a purpose other than as a dwelling.
383-16 (6) "Consumer" means a person, other than a person
383-17 licensed under this chapter, who seeks to acquire or acquires by
383-18 purchase, exchange, or lease-purchase a manufactured home.
383-19 (7) "Department" means the Texas Department of Housing
383-20 and Community Affairs.
383-21 (8) "Director" means the executive director of the
383-22 department.
383-23 (9) "HUD-code manufactured home":
383-24 (A) means a structure:
383-25 (i) constructed on or after June 15, 1976,
383-26 according to the rules of the United States Department of Housing
383-27 and Urban Development;
384-1 (ii) built on a permanent chassis;
384-2 (iii) designed for use as a dwelling with
384-3 or without a permanent foundation when the structure is connected
384-4 to the required utilities;
384-5 (iv) transportable in one or more
384-6 sections; and
384-7 (v) in the traveling mode, at least eight
384-8 body feet in width or at least 40 body feet in length or, when
384-9 erected on site, at least 320 square feet;
384-10 (B) includes the plumbing, heating, air
384-11 conditioning, and electrical systems of the home; and
384-12 (C) does not include a recreational vehicle as
384-13 defined by 24 C.F.R. Section 3282.8(g).
384-14 (10) "Installation" means the temporary or permanent
384-15 construction of the foundation system and the placement of a
384-16 manufactured home or manufactured home component on the foundation.
384-17 The term includes supporting, blocking, leveling, securing,
384-18 anchoring, and properly connecting multiple or expandable sections
384-19 or components and making minor adjustments.
384-20 (11) "Installer" means a person, including a retailer
384-21 or manufacturer, who contracts to perform or performs an
384-22 installation function on manufactured housing.
384-23 (12) "Label" means a device or insignia that is:
384-24 (A) issued by the director to indicate
384-25 compliance with the standards, rules, and regulations established
384-26 by the United States Department of Housing and Urban Development;
384-27 and
385-1 (B) permanently attached to each transportable
385-2 section of each HUD-code manufactured home constructed after June
385-3 15, 1976, for sale to a consumer.
385-4 (13) "Lease-purchase" means entering into a lease
385-5 contract containing a provision conferring on the lessee an option
385-6 to purchase a manufactured home.
385-7 (14) "License holder" means a person who holds a
385-8 department-issued license as a manufacturer, retailer, broker,
385-9 rebuilder, salesperson, or installer.
385-10 (15) "Manufactured home" or "manufactured housing"
385-11 means a HUD-code manufactured home or a mobile home.
385-12 (16) "Manufacturer" means a person who constructs or
385-13 assembles manufactured housing for sale, exchange, or
385-14 lease-purchase in this state.
385-15 (17) "Mobile home":
385-16 (A) means a structure:
385-17 (i) constructed before June 15, 1976;
385-18 (ii) built on a permanent chassis;
385-19 (iii) designed for use as a dwelling with
385-20 or without a permanent foundation when the structure is connected
385-21 to the required utilities;
385-22 (iv) transportable in one or more
385-23 sections; and
385-24 (v) in the traveling mode, at least eight
385-25 body feet in width or at least 40 body feet in length or, when
385-26 erected on site, at least 320 square feet; and
385-27 (B) includes the plumbing, heating, air
386-1 conditioning, and electrical systems of the home.
386-2 (18) "Person" means an individual or a partnership,
386-3 company, corporation, association, or other group, however
386-4 organized.
386-5 (19) "Retailer" means a person who:
386-6 (A) is engaged in the business of buying for
386-7 resale, selling, or exchanging manufactured homes or offering
386-8 manufactured homes for sale, exchange, or lease-purchase to
386-9 consumers, including a person who maintains a location for the
386-10 display of manufactured homes; and
386-11 (B) sells, exchanges, or lease-purchases at
386-12 least two manufactured homes to consumers in a 12-month period.
386-13 (20) "Salesperson" means a person who, as an employee
386-14 or agent of a retailer or broker, sells or lease-purchases or
386-15 offers to sell or lease-purchase manufactured housing to a consumer
386-16 for any form of compensation.
386-17 (21) "Salvaged manufactured home" means a manufactured
386-18 home determined to be salvaged under Section 1201.461.
386-19 (22) "Seal" means a device or insignia issued by the
386-20 director that, for title purposes, is to be attached to a used
386-21 manufactured home as required by the director.
386-22 (23) "Standards code" means the Texas Manufactured
386-23 Housing Standards Code.
386-24 (24) "Trust fund" means the manufactured homeowners'
386-25 recovery trust fund. (V.A.C.S. Art. 5221f, Secs. 3(1) (part), (2),
386-26 (3), (4) (part), (5), (6), (7), (8), (9), (10), (11), (12), (13),
386-27 (14), (15), (16), (17), (18), (19), (20), (21) (part), 7(m) (part),
387-1 8(b) (part), as amended Acts 76th Leg., R.S., Chs. 351 and 1369;
387-2 New.)
387-3 Sec. 1201.004. DEFINITIONS BINDING. The definitions of
387-4 "mobile home," "HUD-code manufactured home," and "manufactured
387-5 housing" provided by Section 1201.003 are binding as a matter of
387-6 law on each person and agency in this state, including a home-rule
387-7 municipality or other political subdivision. A mobile home is not
387-8 a HUD-code manufactured home and a HUD-code manufactured home is
387-9 not a mobile home for any purpose under state law. Those terms may
387-10 not be defined in a manner that is not identical to the definitions
387-11 provided by Section 1201.003. (V.A.C.S. Art. 5221f, Sec. 3A.)
387-12 Sec. 1201.005. CONSUMER WAIVER VOID. A waiver by a consumer
387-13 of this chapter is contrary to public policy and void. (V.A.C.S.
387-14 Art. 5221f, Sec. 18(a).)
387-15 Sec. 1201.006. APPLICABILITY OF BUSINESS & COMMERCE CODE.
387-16 The Business & Commerce Code applies to transactions relating to
387-17 manufactured housing except to the extent that it conflicts with
387-18 this chapter. (V.A.C.S. Art. 5221f, Sec. 19(p).)
387-19 Sec. 1201.007. EXCEPTION FOR REAL ESTATE BROKERS AND
387-20 SALESPERSONS. This chapter does not:
387-21 (1) modify or amend Chapter 1101 or 1102; or
387-22 (2) apply to a person who is licensed as a real estate
387-23 broker or salesperson under Chapter 1101 and who, as agent of a
387-24 buyer or seller, negotiates the sale or lease of a manufactured
387-25 home and the real property to which the home is attached if:
387-26 (A) the same person is the record owner of both
387-27 the manufactured home and the real property; and
388-1 (B) the sale or lease occurs in a single real
388-2 estate transaction. (V.A.C.S. Art. 5221f, Sec. 18(e).)
388-3 Sec. 1201.008. REGULATION BY MUNICIPALITY. (a) A
388-4 municipality may prohibit the installation of a mobile home for use
388-5 as a dwelling in the municipality. The prohibition must be
388-6 prospective and may not apply to a mobile home previously legally
388-7 permitted by and used as a dwelling in the municipality. If a
388-8 mobile home is replaced by a HUD-code manufactured home in the
388-9 municipality, the municipality shall grant a permit for use of the
388-10 manufactured home as a dwelling in the municipality.
388-11 (b) On application, the municipality shall permit the
388-12 installation of a HUD-code manufactured home for use as a dwelling
388-13 in any area determined appropriate by the municipality, including a
388-14 subdivision, planned unit development, single lot, and rental
388-15 community or park. An application to install a new HUD-code
388-16 manufactured home for use as a dwelling is considered to be granted
388-17 unless the municipality in writing denies the application and
388-18 states the reason for the denial not later than the 45th day after
388-19 the date the application is received.
388-20 (c) Subsections (a) and (b) do not affect the validity of an
388-21 otherwise valid deed restriction.
388-22 (d) Except as approved by the department, a local
388-23 governmental unit may not require a permit, a fee, a bond, or
388-24 insurance for the transportation and installation of manufactured
388-25 housing by a licensed retailer or installer. This subsection does
388-26 not prohibit the collection of actual costs incurred by a local
388-27 governmental unit that result from the transportation of a
389-1 manufactured home. (V.A.C.S. Art. 5221f, Secs. 4A, 18(g).)
389-2 (Sections 1201.009-1201.050 reserved for expansion)
389-3 SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
389-4 Sec. 1201.051. ADMINISTRATION AND ENFORCEMENT OF CHAPTER.
389-5 The director shall administer and enforce this chapter. (V.A.C.S.
389-6 Art. 5221f, Sec. 9(a).)
389-7 Sec. 1201.052. GENERAL RULEMAKING AUTHORITY. (a) The
389-8 director shall adopt rules, issue orders, and otherwise act as
389-9 necessary to ensure compliance with the purposes of this chapter to
389-10 implement and provide for uniform enforcement of this chapter and
389-11 the standards code.
389-12 (b) To protect the public health, safety, and welfare and to
389-13 ensure the availability of low cost manufactured housing for all
389-14 consumers, the director shall adopt rules to:
389-15 (1) protect the interests of consumers who occupy or
389-16 want to purchase or install manufactured housing; and
389-17 (2) govern the business conduct of license holders.
389-18 (V.A.C.S. Art. 5221f, Secs. 9(b) (part), (m).)
389-19 Sec. 1201.053. RULES RELATING TO COMPLIANCE WITH NATIONAL
389-20 STANDARDS FOR MANUFACTURED HOUSING CONSTRUCTION AND SAFETY; STATE
389-21 PLAN. (a) The director shall adopt rules, issue orders, and
389-22 otherwise act as necessary to:
389-23 (1) comply with the National Manufactured Housing
389-24 Construction and Safety Standards Act of 1974 (42 U.S.C. Section
389-25 5401 et seq.), including adopting and enforcing rules reasonably
389-26 required to implement the notification and correction procedures
389-27 provided by 42 U.S.C. Section 5414; and
390-1 (2) provide for the effective enforcement of all
390-2 HUD-code manufactured housing construction and safety standards in
390-3 order to have the state plan authorized by the National
390-4 Manufactured Housing Construction and Safety Standards Act of 1974
390-5 (42 U.S.C. Section 5401 et seq.) approved by the secretary of
390-6 housing and urban development.
390-7 (b) The state plan described by Subsection (a)(2) must
390-8 provide for a third-party inspection agency approved by the United
390-9 States Department of Housing and Urban Development to act as an
390-10 in-plant inspection agency. (V.A.C.S. Art. 5221f, Secs. 9(b)
390-11 (part), (c).)
390-12 Sec. 1201.054. PROCEDURE FOR ADOPTING RULES. (a) Rules must
390-13 be adopted in accordance with Chapter 2001, Government Code, and
390-14 with this section.
390-15 (b) A proposed rule must be published in the Texas Register
390-16 before the 30th day preceding the date of a public hearing set to
390-17 consider the testimony of interested persons. Notice of the time
390-18 and place of the public hearing must be published in the Texas
390-19 Register before the 30th day preceding the date of the hearing.
390-20 (c) A rule as finally adopted must be published in the Texas
390-21 Register and state the rule's effective date.
390-22 (d) A rule takes effect on the 30th day after the date of
390-23 publication of notice that the rule has been adopted, except that a
390-24 rule relating to installation standards may not take effect later
390-25 than the 60th day after the date of publication of notice.
390-26 (V.A.C.S. Art. 5221f, Secs. 9(e) (part), (f) (part), (g).)
390-27 Sec. 1201.055. INSPECTION, REVIEW, AND RELATED FEES. (a)
391-1 With guidance from the federal Housing and Community Development
391-2 Act of 1974 (42 U.S.C. Section 5301 et seq.) and from the rules and
391-3 regulations adopted under the National Manufactured Housing
391-4 Construction and Safety Standards Act of 1974 (42 U.S.C. Section
391-5 5401 et seq.), the board shall establish fees as follows:
391-6 (1) if the department acts as a design approval
391-7 primary inspection agency, a schedule of fees for the review of
391-8 HUD-code manufactured home blueprints and supporting information,
391-9 to be paid by the manufacturer seeking approval of the blueprints
391-10 and supporting information;
391-11 (2) except as provided by Subsection (e), a fee for
391-12 the inspection of each HUD-code manufactured home manufactured or
391-13 assembled in this state, to be paid by the manufacturer of the
391-14 home;
391-15 (3) a fee for the inspection of an alteration made to
391-16 the structure or plumbing, heating, or electrical system of a
391-17 HUD-code manufactured home, to be charged on an hourly basis and to
391-18 be paid by the person making the alteration;
391-19 (4) a fee for the inspection of the rebuilding of a
391-20 salvaged manufactured home, to be paid by the rebuilder;
391-21 (5) a fee for the inspection of a used manufactured
391-22 home for which the title has been canceled, to determine whether
391-23 the home is habitable for the issuance of a new title; and
391-24 (6) a fee for the issuance of a seal for a used mobile
391-25 or HUD-code manufactured home.
391-26 (b) In addition to the fees imposed under Subsections
391-27 (a)(2), (3), and (4), a manufacturer, a person making an
392-1 alteration, or a rebuilder, as appropriate, shall be charged for
392-2 the actual cost of travel of a department representative to and
392-3 from:
392-4 (1) the manufacturing facility, for an inspection
392-5 described by Subsection (a)(2); or
392-6 (2) the place of inspection, for an inspection
392-7 described by Subsection (a)(3) or (4).
392-8 (c) The board shall establish a fee for the inspection of
392-9 the installation of a mobile or HUD-code manufactured home, to be
392-10 paid by the installer of the home.
392-11 (d) The board shall charge a fee for a consumer complaint
392-12 home inspection requested by a manufacturer or retailer under
392-13 Section 1201.355(b), to be paid by the manufacturer or retailer.
392-14 (e) The fee described by Subsection (a)(2) does not apply if
392-15 an inspection agency authorized by the United States Department of
392-16 Housing and Urban Development, other than the department, acts as
392-17 the in-plant inspection agency.
392-18 (f) The fee described by Subsection (c) must accompany
392-19 notice to the department of the exact location of the mobile or
392-20 HUD-code manufactured home. The department shall make an
392-21 appropriate fee distribution to a local governmental unit that
392-22 performs an inspection under a contract or other official
392-23 designation if that unit does not collect a local inspection fee.
392-24 (V.A.C.S. Art. 5221f, Secs. 11(a), (b), (e).)
392-25 Sec. 1201.056. LICENSE FEES. The board shall establish fees
392-26 for the issuance and renewal of licenses for:
392-27 (1) manufacturers;
393-1 (2) retailers;
393-2 (3) brokers;
393-3 (4) salespersons;
393-4 (5) rebuilders; and
393-5 (6) installers. (V.A.C.S. Art. 5221f, Sec. 11(c).)
393-6 Sec. 1201.057. INSTRUCTION FEE. The board shall charge a fee
393-7 to each person attending a course of instruction described by
393-8 Section 1201.104. (V.A.C.S. Art. 5221f, Sec. 11(d).)
393-9 Sec. 1201.058. AMOUNT OF FEES. The board shall establish the
393-10 fees imposed under Sections 1201.055-1201.057 in amounts that are
393-11 reasonable and necessary to cover the cost of administering this
393-12 chapter. (V.A.C.S. Art. 5221f, Sec. 11(g).)
393-13 Sec. 1201.059. TITLE FEES. (a) The board shall set fees for
393-14 issuing and canceling titles to manufactured housing.
393-15 (b) Ten dollars of the fee for each title transaction shall
393-16 be deposited to the credit of the trust fund and used for the
393-17 protection programs described by Subchapter I. (V.A.C.S.
393-18 Art. 5221f, Secs. 13A(c), 19(t) (part).)
393-19 Sec. 1201.060. VENUE FOR HEARING. A hearing under this
393-20 chapter shall be held in Travis County unless all parties agree to
393-21 another location. (V.A.C.S. Art. 5221f, Sec. 9(e) (part).)
393-22 Sec. 1201.061. COOPERATION WITH LOCAL GOVERNMENTAL UNITS.
393-23 The department shall cooperate with all local governmental units in
393-24 this state. (V.A.C.S. Art. 5221f, Sec. 4(h) (part).)
393-25 Sec. 1201.062. SEAL PROPERTY OF DEPARTMENT. A seal is the
393-26 property of the department. (V.A.C.S. Art. 5221f, Sec. 3(21)
393-27 (part).)
394-1 (Sections 1201.063-1201.100 reserved for expansion)
394-2 SUBCHAPTER C. LICENSING
394-3 Sec. 1201.101. LICENSE REQUIRED. (a) A person may not
394-4 construct or assemble in this state or ship into this state a new
394-5 HUD-code manufactured home unless the person holds, at the time the
394-6 home is constructed or assembled, a manufacturer's license.
394-7 (b) Except as otherwise provided by this chapter, a person
394-8 may not sell, exchange, or lease-purchase or offer to sell,
394-9 exchange, or lease-purchase two or more manufactured homes to
394-10 consumers in this state in a 12-month period unless the person
394-11 holds a retailer's license.
394-12 (c) A person may not offer to negotiate or negotiate for
394-13 others a bargain or contract for the sale, exchange, or
394-14 lease-purchase of two or more manufactured homes to consumers in
394-15 this state in a 12-month period unless the person holds a broker's
394-16 license.
394-17 (d) A person may not perform an installation function on
394-18 manufactured housing in this state unless the person holds an
394-19 installer's license.
394-20 (e) A person may not repair, rebuild, or otherwise alter a
394-21 salvaged manufactured home unless the person holds a rebuilder's or
394-22 retailer's license.
394-23 (f) A person may not act as a salesperson of manufactured
394-24 housing unless the person is a license holder. A retailer or
394-25 broker may not employ or otherwise use the services of a
394-26 salesperson who is not licensed.
394-27 (g) A person may not make an announcement concerning the
395-1 sale, exchange, or lease-purchase of, or offer to sell, exchange,
395-2 or lease-purchase, a manufactured home to a consumer in this state
395-3 through an advertisement unless the person holds a manufacturer's,
395-4 retailer's, or broker's license. This subsection does not apply to:
395-5 (1) a person to whom a certificate or other document
395-6 of title has been issued showing the person to be the owner of the
395-7 home if the person does not offer to sell, exchange, or
395-8 lease-purchase two or more manufactured homes in a 12-month period;
395-9 or
395-10 (2) an advertisement concerning real property to which
395-11 a manufactured home has been permanently attached. (V.A.C.S.
395-12 Art. 5221f, Secs. 6(f), 7(a), (b), (c), (d) (part), (m) (part), (n)
395-13 (part).)
395-14 Sec. 1201.102. EXCEPTIONS TO LICENSE REQUIREMENT. (a) An
395-15 employee who acts as an agent of a license holder is covered by the
395-16 holder's license and is not required to hold an individual license.
395-17 (b) Except as provided by Section 1201.510, an independent
395-18 contractor or business entity may not operate under the license of
395-19 another business entity except as an agent or subcontractor of a
395-20 licensed installer who is responsible for an installation function
395-21 performed by the agent or subcontractor.
395-22 (c) In the case of a sole proprietorship, partnership, or
395-23 corporation that holds a retailer's or broker's license, an owner,
395-24 partner, or officer of that entity is not required to apply for a
395-25 salesperson's license if that owner, partner, or officer is
395-26 properly listed in the retailer's or broker's license application.
395-27 (d) A person who holds a real estate broker's or
396-1 salesperson's license under Chapter 1101 may act as a broker or
396-2 salesperson under this chapter without holding a license or filing
396-3 a bond or other security as required by this chapter if
396-4 negotiations for the sale, exchange, or lease-purchase of a
396-5 manufactured home are conducted for a person for whom the holder of
396-6 the real estate license otherwise acts as a real estate broker or
396-7 salesperson under Chapter 1101. (V.A.C.S. Art. 5221f, Secs. 7(i),
396-8 (m) (part), (s), as added Acts 76th Leg., R.S., Chs. 351 and 1369.)
396-9 Sec. 1201.103. LICENSE APPLICATION. (a) An applicant for a
396-10 license as a manufacturer, retailer, broker, rebuilder, or
396-11 installer must file with the director a license application
396-12 containing:
396-13 (1) the legal name, address, and telephone number of
396-14 the applicant;
396-15 (2) the trade name by which the applicant does
396-16 business and, if incorporated, the name registered with the
396-17 secretary of state and the address of the business; and
396-18 (3) the dates on which the applicant became the owner
396-19 and operator of the business.
396-20 (b) A license application must be accompanied by:
396-21 (1) proof of the security required by this subchapter;
396-22 and
396-23 (2) payment of the fee required for issuance of the
396-24 license.
396-25 (c) If a change occurs in the information filed with the
396-26 director under Subsection (a), the applicant shall amend the
396-27 application to state the correct information.
397-1 (d) An applicant for a salesperson's license must:
397-2 (1) file with the director an application providing
397-3 any information the director considers necessary; and
397-4 (2) pay the required fee. (V.A.C.S. Art. 5221f, Secs.
397-5 7(e), (f), (h), (m) (part).)
397-6 Sec. 1201.104. QUALIFICATIONS FOR LICENSE. (a) Except as
397-7 provided by Subsection (e), as a prerequisite for a license, a
397-8 person who was not licensed or registered with the department or a
397-9 predecessor agency on September 1, 1987, must attend and complete
397-10 20 hours of instruction in the law, including instruction in
397-11 consumer protection regulations. The director may not issue a
397-12 license to that person until the course of instruction is
397-13 completed.
397-14 (b) The course of instruction must be offered at least
397-15 quarterly.
397-16 (c) Instead of the course of instruction:
397-17 (1) a manufacturer may request that an authorized
397-18 representative of the department present a one-day, in-plant
397-19 training program; or
397-20 (2) the director may approve a training program for a
397-21 license applicant that is conducted by a nonprofit educational
397-22 institution or foundation.
397-23 (d) A manufacturer shall reimburse the department for the
397-24 actual cost of a program presented under Subsection (c)(1).
397-25 (e) Subsection (a) does not apply to a license holder or
397-26 registration holder who applies:
397-27 (1) for a license for an additional business location;
398-1 (2) to renew or reinstate a license; or
398-2 (3) for a salesperson's license.
398-3 (f) An examination may not be made a prerequisite of
398-4 licensing. (V.A.C.S. Art. 5221f, Secs. 7(o), (q).)
398-5 Sec. 1201.105. SECURITY REQUIRED. (a) The department may
398-6 not issue or renew a license unless a bond or other security in a
398-7 form prescribed by the director is filed with the department as
398-8 provided by this subchapter. The bond or other security is payable
398-9 to the trust fund.
398-10 (b) If a bond is filed, the bond must be issued by a company
398-11 authorized to do business in this state and must conform to
398-12 applicable provisions of the Insurance Code. If other security is
398-13 filed, that security must be maintained in or by a banking
398-14 institution located in this state. (V.A.C.S. Art. 5221f, Secs.
398-15 13(a), (b), (c).)
398-16 Sec. 1201.106. SECURITY: AMOUNT. (a) An applicant for a
398-17 license or a license holder shall file a bond or other security
398-18 under Section 1201.105 for the issuance or renewal of a license in
398-19 the following amount:
398-20 (1) $100,000 for a manufacturer;
398-21 (2) $50,000 for a retailer;
398-22 (3) $30,000 for a rebuilder;
398-23 (4) $20,000 for a broker; or
398-24 (5) $10,000 for an installer.
398-25 (b) To ensure the availability of prompt and satisfactory
398-26 warranty service, a manufacturer that does not have a licensed
398-27 manufacturing plant or other facility in this state from which
399-1 warranty service and repairs can be provided shall file a bond or
399-2 other security in the additional amount of $100,000.
399-3 (c) The bond or other security is open to successive claims
399-4 up to the face value of the bond or other security. The surety is
399-5 not liable for successive claims in excess of the face value of the
399-6 bond, regardless of the number of years the bond remains in force.
399-7 (V.A.C.S. Art. 5221f, Secs. 13(d), (f) (part).)
399-8 Sec. 1201.107. SECURITY: LOCATION. (a) A manufacturer,
399-9 retailer, broker, or installer who maintains a place of business at
399-10 one or more locations shall file with the department a separate
399-11 bond or other security for each location.
399-12 (b) Property used for the business that is not contiguous
399-13 to, or located within 300 feet of, a bonded location requires a
399-14 separate bond. A location at which a manufactured home is shown to
399-15 the public or at which the home is offered for sale, exchange, or
399-16 lease-purchase by a retailer to consumers requires a bond.
399-17 (c) A manufactured home installed on a permanent foundation
399-18 system and offered for sale as real property does not require a
399-19 bond. A temporary location for a bona fide trade show sponsored by
399-20 a nonprofit corporation that qualifies for an exemption from
399-21 federal income taxation under Section 501(a), Internal Revenue Code
399-22 of 1986, by being listed as an exempt organization under Section
399-23 501(c) of that code does not require a bond. (V.A.C.S. Art. 5221f,
399-24 Sec. 13(e).)
399-25 Sec. 1201.108. SECURITY: CHANGE IN OWNERSHIP OR LOCATION.
399-26 (a) A new bond is not required for a change in:
399-27 (1) ownership of a corporation that is a license
400-1 holder; or
400-2 (2) location.
400-3 (b) The director may require a proper endorsement of the
400-4 original bond. (V.A.C.S. Art. 5221f, Sec. 13(f) (part).)
400-5 Sec. 1201.109. SECURITY: CANCELLATION OR OTHER IMPAIRMENT.
400-6 (a) If a bond required by this subchapter is canceled, the license
400-7 for which the security is filed is suspended on the effective date
400-8 of cancellation. The surety shall provide written notice to the
400-9 director before the 60th day preceding the effective date of
400-10 cancellation.
400-11 (b) If a surety files for liquidation or reorganization in
400-12 bankruptcy or is placed in receivership, the license holder shall
400-13 obtain other security not later than the 60th day after the date
400-14 that notice of the filing or receivership is received.
400-15 (c) If the required face amount of a security is impaired by
400-16 the payment of a claim, the license holder shall restore the
400-17 security to the required face amount not later than the 60th day
400-18 after the date of impairment. (V.A.C.S. Art. 5221f, Secs. 13(g)
400-19 (part), (h).)
400-20 Sec. 1201.110. SECURITY: DURATION. The department shall
400-21 maintain on file a security other than a bond canceled as provided
400-22 by Section 1201.109(a) until the later of:
400-23 (1) the second anniversary of the date the
400-24 manufacturer, retailer, broker, installer, or rebuilder ceases
400-25 doing business; or
400-26 (2) the date the director determines that a claim does
400-27 not exist against the security. (V.A.C.S. Art. 5221f, Sec. 13(g)
401-1 (part).)
401-2 Sec. 1201.111. EXCEPTIONS TO SECURITY AND INSTRUCTION
401-3 REQUIREMENTS. (a) Notwithstanding any other provision of this
401-4 chapter, a state or national bank, state or federal savings and
401-5 loan association, federal savings bank, or state or federal credit
401-6 union engaged in the business of selling, exchanging, or
401-7 lease-purchasing or offering for sale, exchange, or lease-purchase
401-8 manufactured homes that the institution has acquired through
401-9 repossession of collateral is not required to attend a course of
401-10 instruction or file a bond or other security to be licensed as a
401-11 retailer.
401-12 (b) A licensed retailer is not required to file a bond or
401-13 other security to be licensed as a broker or installer. (V.A.C.S.
401-14 Art. 5221f, Secs. 7(p), 13(f) (part).)
401-15 Sec. 1201.112. TEMPORARY INSTALLER'S LICENSE. The director
401-16 may issue a temporary installer's license to the owner of a
401-17 manufactured home for the installation of the manufactured home in
401-18 accordance with applicable requirements, standards, and rules of
401-19 the director if the owner:
401-20 (1) applies and pays the required fee; and
401-21 (2) submits proof of insurance as required by the
401-22 department. (V.A.C.S. Art. 5221f, Sec. 7(d) (part).)
401-23 Sec. 1201.113. CERTIFICATION OR CONTINUING EDUCATION
401-24 PROGRAM. (a) The director may recognize, prepare, or administer a
401-25 certification or continuing education program for persons regulated
401-26 under this chapter.
401-27 (b) The director shall issue an appropriate certificate to a
402-1 person who:
402-2 (1) completes a certification program; or
402-3 (2) participates in a continuing education program.
402-4 (c) Participation in a certification or continuing education
402-5 program is voluntary. (V.A.C.S. Art. 5221f, Sec. 7A.)
402-6 Sec. 1201.114. LICENSE RENEWAL. (a) A license is valid for
402-7 one year and may be renewed as provided by the director.
402-8 (b) The department shall renew a license if the department
402-9 receives the renewal application and payment of the annual fee
402-10 before the expiration date of the license.
402-11 (c) If the department needs additional information for the
402-12 renewal application or verification of continuing insurance or bond
402-13 coverage, the license holder must provide the requested information
402-14 or verification not later than the 20th day after the date of
402-15 receipt of notice from the department.
402-16 (d) The renewal license expires on the first anniversary of
402-17 the date the license was renewed. (V.A.C.S. Art. 5221f, Secs. 7(g),
402-18 (m) (part), (r).)
402-19 (Sections 1201.115-1201.150 reserved for expansion)
402-20 SUBCHAPTER D. PRACTICE
402-21 Sec. 1201.151. REFUND OF DEPOSIT. (a) Except as otherwise
402-22 provided by this section, a retailer, salesperson, or agent of the
402-23 retailer must refund a consumer's deposit not later than the 15th
402-24 day after the date that a written request for the refund is
402-25 received from the consumer.
402-26 (b) The deposit may be retained only if:
402-27 (1) the consumer specially orders from the
403-1 manufacturer a manufactured home that is not in the retailer's
403-2 inventory;
403-3 (2) the home conforms to the specifications of the
403-4 special order and any representations made to the consumer;
403-5 (3) the consumer fails or refuses to accept delivery
403-6 and installation of the home by the retailer; and
403-7 (4) the consumer was given conspicuous written notice
403-8 of the requirements for retaining the deposit.
403-9 (c) The retailer may not retain more than five percent of
403-10 the estimated cash price of the specially ordered home and must
403-11 refund any amount that exceeds five percent.
403-12 (d) This section does not apply to:
403-13 (1) a deposit held in escrow in a real estate
403-14 transaction; or
403-15 (2) money stated to be a down payment in an executed
403-16 retail installment sales contract. (V.A.C.S. Art. 5221f, Secs.
403-17 6(m)(1), (3), (4), (5).)
403-18 Sec. 1201.152. VOIDABLE CONTRACT. (a) If a retailer
403-19 purchases a new manufactured home from an unlicensed manufacturer
403-20 in violation of Section 1201.505, a consumer's contract with the
403-21 retailer for the purchase, exchange, or lease-purchase of the home
403-22 is voidable until the second anniversary of the date of purchase,
403-23 exchange, or lease-purchase of the home.
403-24 (b) If an unlicensed retailer, broker, or installer enters
403-25 into a contract with a consumer concerning a manufactured home, the
403-26 consumer may void the contract until the second anniversary of the
403-27 date of purchase of the home. (V.A.C.S. Art. 5221f, Sec. 18(d).)
404-1 Sec. 1201.153. FORMALDEHYDE HEALTH NOTICE. (a) A retailer
404-2 or manufacturer may not transfer title to a HUD-code manufactured
404-3 home or otherwise sell, assign, or convey a HUD-code manufactured
404-4 home to a consumer unless the retailer or manufacturer delivers to
404-5 the consumer a formaldehyde health notice, subject to the
404-6 director's rules concerning the notice.
404-7 (b) The notice must be delivered before the execution of a
404-8 mutually binding sales agreement or retail installment sales
404-9 contract.
404-10 (c) The notice must:
404-11 (1) contain the information required by the United
404-12 States Department of Housing and Urban Development; and
404-13 (2) be of the type, size, and format required by the
404-14 director.
404-15 (d) A retailer or manufacturer may not vary the content or
404-16 form of the notice. (V.A.C.S. Art. 5221f, Secs. 20(a), (b)
404-17 (part).)
404-18 Sec. 1201.154. SUFFICIENCY OF FORMALDEHYDE HEALTH NOTICE;
404-19 RETAILER AND MANUFACTURER COMPLIANCE. (a) The formaldehyde health
404-20 notice required by Section 1201.153 is sufficient, as a matter of
404-21 law, to advise a consumer of the risks of occupying a HUD-code
404-22 manufactured home.
404-23 (b) The consumer's written acknowledgement of the receipt of
404-24 the notice is conclusive proof of the delivery of the notice and
404-25 the posting of the notice in compliance with federal regulations.
404-26 (c) A retailer's or manufacturer's compliance with United
404-27 States Department of Housing and Urban Development regulations and
405-1 the director's rules concerning the notice is conclusive proof
405-2 that:
405-3 (1) the consumer received sufficient notice of the
405-4 risks of occupying the home; and
405-5 (2) the home is habitable with respect to formaldehyde
405-6 emissions.
405-7 (d) A retailer's or manufacturer's compliance, from
405-8 September 1, 1981, to September 1, 1985, with Section 1201.153 and
405-9 the revised formaldehyde warning as adopted by the department is
405-10 conclusive proof that:
405-11 (1) the consumer received sufficient notice of the
405-12 risks of occupying the home; and
405-13 (2) the home is habitable with respect to formaldehyde
405-14 emissions.
405-15 (e) A retailer's or manufacturer's knowing and wilful
405-16 failure to comply with the regulations and rules described by
405-17 Subsection (c) is conclusive proof that:
405-18 (1) the retailer or manufacturer breached the duty to
405-19 notify the consumer about formaldehyde; and
405-20 (2) the home is not habitable.
405-21 (f) A retailer's or manufacturer's knowing and wilful
405-22 failure, from September 1, 1981, to September 1, 1985, to comply
405-23 with Section 1201.153 and the revised formaldehyde warning as
405-24 adopted by the department is conclusive proof that:
405-25 (1) the retailer or manufacturer breached the duty to
405-26 notify the consumer about formaldehyde; and
405-27 (2) the home is not habitable. (V.A.C.S. Art. 5221f,
406-1 Secs. 20(b) (part), (c), (d).)
406-2 Sec. 1201.155. DISCLAIMER OF IMPLIED WARRANTY. The seller's
406-3 proper provision of the warranties and notices as required by
406-4 Subchapter H or J is a valid disclaimer of an implied warranty of
406-5 fitness for a particular purpose or of merchantability as described
406-6 by Chapter 2, Business & Commerce Code. (V.A.C.S. Art. 5221f, Sec.
406-7 18(b) (part).)
406-8 Sec. 1201.156. ADVERTISEMENT AS OFFER. An advertisement
406-9 relating to manufactured housing is an offer to sell, exchange, or
406-10 lease-purchase manufactured housing to consumers. (V.A.C.S.
406-11 Art. 5221f, Sec. 3(1) (part).)
406-12 Sec. 1201.157. RETAILER AS WAREHOUSEMAN. (a) A licensed
406-13 retailer is a "warehouseman" as defined by Section 7.102, Business
406-14 & Commerce Code, for the storage of manufactured homes for hire.
406-15 (b) The provisions of the Business & Commerce Code relating
406-16 to the storage of goods for hire apply to a licensed retailer
406-17 acting as a warehouseman. (V.A.C.S. Art. 5221f, Sec. 18(j).)
406-18 Sec. 1201.158. SALESPERSON. A licensed salesperson may work
406-19 for more than one retailer or broker or at more than one sales
406-20 location. (V.A.C.S. Art. 5221f, Sec. 7(m) (part).)
406-21 Sec. 1201.159. BROKER. (a) A broker may but is not required
406-22 to be the agent of a party involved in the sale, exchange, or
406-23 lease-purchase of a manufactured home for which a certificate or
406-24 other document of title has been issued and is outstanding.
406-25 (b) A person is not required to be a broker licensed under
406-26 this chapter but may be required to be a real estate broker or
406-27 salesperson licensed under Chapter 1101 if:
407-1 (1) the manufactured home is attached to a permanent
407-2 foundation;
407-3 (2) the manufacturer's certificate or the document of
407-4 title is canceled; and
407-5 (3) the home is offered as real property. (V.A.C.S.
407-6 Art. 5221f, Sec. 3(4) (part).)
407-7 Sec. 1201.160. PROOF OF INSURANCE REQUIRED FOR INSTALLER. A
407-8 person may not perform an installation function on manufactured
407-9 housing in this state unless the person files proof of insurance as
407-10 required by the director. (V.A.C.S. Art. 5221f, Sec. 7(d) (part).)
407-11 Sec. 1201.161. TRANSPORTATION OF MANUFACTURED HOUSING. (a)
407-12 Notwithstanding any other statute or rule or ordinance, a licensed
407-13 retailer or licensed installer is not required to obtain a permit,
407-14 certificate, or license or pay a fee to transport manufactured
407-15 housing to the place of installation except as required by:
407-16 (1) the department; or
407-17 (2) the Texas Department of Transportation under
407-18 Subchapter E, Chapter 623, Transportation Code.
407-19 (b) The department shall cooperate with the Texas Department
407-20 of Transportation by providing current lists of licensed
407-21 manufacturers, retailers, and installers.
407-22 (c) The Texas Department of Transportation shall send the
407-23 department monthly:
407-24 (1) a copy of each permit issued in the preceding
407-25 month for the movement of manufactured housing on the highways; or
407-26 (2) a list of the permits issued in the preceding
407-27 month and the information on the permits.
408-1 (d) The department shall pay the reasonable cost of
408-2 providing the copies or the list and information under Subsection
408-3 (c). (V.A.C.S. Art. 5221f, Secs. 18(f), 19(r).)
408-4 (Sections 1201.162-1201.200 reserved for expansion)
408-5 SUBCHAPTER E. MANUFACTURED HOME TITLES
408-6 Sec. 1201.201. DEFINITIONS. In this subchapter:
408-7 (1) "Debtor" has the meaning assigned by Section
408-8 9.102, Business & Commerce Code.
408-9 (2) "Document of title" means a written instrument
408-10 issued solely by and under the authority of the director that
408-11 provides the information required by Section 1201.205.
408-12 (3) "First retail sale" means a consumer's initial
408-13 acquisition of a new manufactured home from a retailer by purchase,
408-14 exchange, or lease-purchase. The term includes a bargain, sale,
408-15 transfer, or delivery of a manufactured home for which the director
408-16 has not previously issued a document of title, with intent to pass
408-17 an interest in the home, other than a lien.
408-18 (4) "Identification number" means the number
408-19 permanently attached to or imprinted on a manufactured home or
408-20 section of the home as prescribed by department rule.
408-21 (5) "Inventory" has the meaning assigned by Section
408-22 9.102, Business & Commerce Code.
408-23 (6) "Lien" means:
408-24 (A) a security interest created by a lease,
408-25 conditional sales contract, deed of trust, chattel mortgage, trust
408-26 receipt, reservation of title, or other security agreement if an
408-27 interest other than an absolute title is sought to be held or given
409-1 in a manufactured home; or
409-2 (B) a lien on a manufactured home created by the
409-3 constitution or a statute.
409-4 (7) "Manufacturer's certificate" means a document that
409-5 meets the requirements prescribed by Section 1201.204.
409-6 (8) "Secured party" has the meaning assigned by
409-7 Section 9.102, Business & Commerce Code.
409-8 (9) "Security agreement" has the meaning assigned by
409-9 Section 9.102, Business & Commerce Code.
409-10 (10) "Security interest" has the meaning assigned by
409-11 Section 1.201, Business & Commerce Code.
409-12 (11) "Subsequent sale" means a bargain, sale,
409-13 transfer, or delivery of a manufactured home, with intent to pass
409-14 an interest in the home, other than a lien, from one person to
409-15 another after the first retail sale and initial issuance of a
409-16 document of title. (V.A.C.S. Art. 5221f, Secs. 19(a)(1), (2)
409-17 (part), (3), (4), (5), (6), (7) (part), (10), (11), (12), (13).)
409-18 Sec. 1201.202. APPLICATION OF CHAPTER TO CERTAIN
409-19 CERTIFICATES OF TITLE OR LIENS. (a) This chapter applies to a
409-20 certificate of title to a manufactured home issued before March 1,
409-21 1982, under Chapter 501, Transportation Code.
409-22 (b) A lien recorded before March 1, 1982, with the Texas
409-23 Department of Transportation or a predecessor agency of that
409-24 department is recorded with the department for the purposes of this
409-25 chapter. (V.A.C.S. Art. 5221f, Sec. 19(q).)
409-26 Sec. 1201.203. FORMS; RULES. (a) The director shall
409-27 prescribe forms and adopt rules relating to:
410-1 (1) the manufacturer's certificate;
410-2 (2) the application for a document of title; and
410-3 (3) the issuance of a document of title at the first
410-4 retail sale and for a subsequent sale or transfer of a manufactured
410-5 home.
410-6 (b) The director shall adopt rules for the titling of a
410-7 manufactured home that has been previously registered or titled in
410-8 this state or another state. The rules must protect a lienholder
410-9 recorded on a certificate or other document of title. (V.A.C.S.
410-10 Art. 5221f, Secs. 19(b), (s).)
410-11 Sec. 1201.204. MANUFACTURER'S CERTIFICATE. A manufacturer's
410-12 certificate must show:
410-13 (1) on a form prescribed by the director or on another
410-14 document, the original transfer of a manufactured home from the
410-15 manufacturer to the retailer; and
410-16 (2) on a form prescribed by the director, each
410-17 subsequent transfer of a manufactured home between retailers and
410-18 from retailer to owner, if presented with an application for a
410-19 document of title. (V.A.C.S. Art. 5221f, Sec. 19(a)(7) (part).)
410-20 Sec. 1201.205. DOCUMENT OF TITLE CONTENTS. A document of
410-21 title must provide:
410-22 (1) the names and addresses of:
410-23 (A) the purchaser and seller at the first retail
410-24 sale; or
410-25 (B) the transferee and transferor at any
410-26 subsequent sale or transfer;
410-27 (2) the manufacturer's name and address and any model
411-1 designation;
411-2 (3) in accordance with the director's rules:
411-3 (A) the outside dimensions of the manufactured
411-4 home when installed for occupancy, as measured to the nearest
411-5 one-half foot at the base of the home, exclusive of the tongue or
411-6 other towing device; and
411-7 (B) the approximate square footage of the home
411-8 when installed for occupancy;
411-9 (4) the identification number for each section or
411-10 module of the home;
411-11 (5) the county of this state in which the home is
411-12 installed for occupancy;
411-13 (6) in chronological order of recordation, the date of
411-14 each lien on the home and the name and address of each lienholder,
411-15 or, if a lien is not recorded, a statement of that fact;
411-16 (7) the signature of the owner in ink, given on
411-17 receipt of the document;
411-18 (8) a statement that if two or more eligible persons,
411-19 as determined by Section 1201.213, file with the application for
411-20 document of title an agreement signed by all the persons providing
411-21 that the home is to be held jointly with a right of survivorship,
411-22 the director shall issue the document of title in all the names;
411-23 and
411-24 (9) any other information the director requires.
411-25 (V.A.C.S. Art. 5221f, Sec. 19(a)(2) (part).)
411-26 Sec. 1201.206. APPLICATION FOR ISSUANCE OF TITLE. (a) At
411-27 the first retail sale of a manufactured home, the retailer and
412-1 purchaser shall apply for the issuance of a document of title. As
412-2 part of the application, the retailer must surrender the original
412-3 manufacturer's certificate.
412-4 (b) At a subsequent sale or transfer of the home, the seller
412-5 and purchaser or the transferor and transferee, as applicable,
412-6 shall apply for the issuance of a new document of title. As part
412-7 of the application, the seller or transferor must surrender the
412-8 original document of title. (V.A.C.S. Art. 5221f, Sec. 19(c).)
412-9 Sec. 1201.207. ISSUANCE OF TITLE. (a) Except as otherwise
412-10 provided by this subchapter, if a lien is not recorded, the
412-11 department shall:
412-12 (1) issue a document of title marked "ORIGINAL" on the
412-13 face of the document of title; and
412-14 (2) send the original by first class mail to the
412-15 purchaser or transferee at the address on the application.
412-16 (b) Except as otherwise provided by this subchapter, if a
412-17 lien is shown in the application or recorded with the department,
412-18 the department shall:
412-19 (1) issue a document of title marked "ORIGINAL" on the
412-20 face of the document of title and send the original by first class
412-21 mail to the first lienholder; and
412-22 (2) send a copy of the document of title conspicuously
412-23 marked "NONTRANSFERABLE COPY" on the face of the document of title
412-24 by first class mail to the purchaser or transferee and any other
412-25 lienholder at the address on the application. (V.A.C.S.
412-26 Art. 5221f, Sec. 19(f).)
412-27 Sec. 1201.208. PAYMENT OF TAXES REQUIRED FOR ISSUANCE OF
413-1 TITLE. (a) The department may not issue a document of title for a
413-2 new manufactured home installed for occupancy in this state unless
413-3 the state sales and use tax has been paid.
413-4 (b) Proof of payment may be shown in any manner prescribed
413-5 by the department. (V.A.C.S. Art. 5221f, Sec. 19(j).)
413-6 Sec. 1201.209. GROUNDS FOR REFUSAL TO ISSUE OR FOR
413-7 SUSPENSION OR REVOCATION OF TITLE. The department may not refuse to
413-8 issue a document of title and may not suspend or revoke a document
413-9 of title unless:
413-10 (1) the application for issuance of the document of
413-11 title contains a false or fraudulent statement, the applicant
413-12 failed to provide information required by the director, or the
413-13 applicant is not entitled to issuance of the document of title;
413-14 (2) the director has reason to believe that the
413-15 manufactured home is stolen or unlawfully converted, or the
413-16 issuance of a document of title would defraud the owner or a
413-17 lienholder of the manufactured home;
413-18 (3) the director has reason to believe that the
413-19 manufactured home is salvaged, and an application for a salvage
413-20 title has not been filed;
413-21 (4) the required fee has not been paid;
413-22 (5) the state sales and use tax has not been paid in
413-23 accordance with Chapter 158, Tax Code, and Section 1201.208; or
413-24 (6) a local tax lien has been filed and recorded under
413-25 Section 32.015, Tax Code. (V.A.C.S. Art. 5221f, Sec. 19(d).)
413-26 Sec. 1201.210. PROCEDURE FOR REFUSAL TO ISSUE OR SUSPENSION
413-27 OR REVOCATION OF TITLE. (a) If the director refuses to issue or
414-1 suspends or revokes a document of title, the director shall give,
414-2 by certified mail, written notice of that action to:
414-3 (1) the seller and purchaser or transferor and
414-4 transferee, as applicable; and
414-5 (2) the holder of a lien or security interest of
414-6 record.
414-7 (b) An action by the director under Subsection (a) is a
414-8 contested case under Chapter 2001, Government Code.
414-9 (c) A notice of appeal and request for hearing must be filed
414-10 with the director not later than the 30th day after the date of
414-11 notice of the director's action. (V.A.C.S. Art. 5221f, Sec.
414-12 19(e).)
414-13 Sec. 1201.211. TRANSFER OF TITLE. (a) Before a manufactured
414-14 home is conveyed, transferred, or otherwise disposed of at a
414-15 subsequent sale, the owner designated in the original document of
414-16 title must:
414-17 (1) transfer the title on a form prescribed by the
414-18 director; and
414-19 (2) file the form with the department.
414-20 (b) The form must include:
414-21 (1) a statement that:
414-22 (A) the person signing the form is the owner of
414-23 the home; and
414-24 (B) there is not a lien on the home other than a
414-25 lien shown on the document of title; and
414-26 (2) any information the director requires.
414-27 (c) A title to a manufactured home may not pass or vest at a
415-1 subsequent sale until:
415-2 (1) the transfer is executed as provided by this
415-3 subchapter; and
415-4 (2) an application for the issuance of a new document
415-5 of title is sent to the department. (V.A.C.S. Art. 5221f, Sec.
415-6 19(g) (part).)
415-7 Sec. 1201.212. TRANSFER OF TITLE BY OPERATION OF LAW. (a)
415-8 If the ownership of a manufactured home in this state is
415-9 transferred by inheritance, devise, or bequest, by bankruptcy,
415-10 receivership, judicial sale, or other involuntary divestiture of
415-11 ownership, or by any other operation of law, the department shall
415-12 issue a new document of title after receiving a certified copy of:
415-13 (1) the order or bill of sale from an officer making a
415-14 judicial sale;
415-15 (2) the order appointing a temporary administrator;
415-16 (3) the probate proceedings;
415-17 (4) the letters testamentary or the letters of
415-18 administration; or
415-19 (5) if administration of an estate is not necessary,
415-20 an affidavit by all of the heirs at law showing:
415-21 (A) that administration is not necessary; and
415-22 (B) the name in which the certificate should be
415-23 issued.
415-24 (b) The department may issue a new document of title in the
415-25 name of the purchaser at a foreclosure sale:
415-26 (1) for a lien or security interest foreclosed
415-27 according to law by nonjudicial means, if the lienholder or secured
416-1 party files an affidavit showing the nonjudicial foreclosure
416-2 according to law; or
416-3 (2) for a foreclosed constitutional or statutory lien,
416-4 if the person entitled to the lien files an affidavit showing the
416-5 creation of the lien and the resulting divestiture of title
416-6 according to law.
416-7 (c) The department shall issue a new document of title to a
416-8 survivor if:
416-9 (1) an agreement providing for a right of survivorship
416-10 is signed by two or more eligible persons, as determined under
416-11 Section 1201.213; and
416-12 (2) on the death of one of the persons, the department
416-13 is provided with a copy of the death certificate of that person.
416-14 (V.A.C.S. Art. 5221f, Sec. 19(h).)
416-15 Sec. 1201.213. ELIGIBILITY TO SIGN RIGHT OF SURVIVORSHIP
416-16 AGREEMENT. (a) A person is eligible to sign a right of
416-17 survivorship agreement under this subchapter if the person:
416-18 (1) is married and the spouse of the signing person is
416-19 the only other party to the agreement;
416-20 (2) is unmarried and attests to that unmarried status
416-21 by affidavit; or
416-22 (3) is married and provides the department with an
416-23 affidavit from the signing person's spouse that attests that the
416-24 signing person's interest in the manufactured home is the signing
416-25 person's separate property.
416-26 (b) If the title is being issued in connection with the sale
416-27 of the home, the seller is not eligible to sign a right of
417-1 survivorship agreement under this subchapter unless the seller is
417-2 the child, grandchild, parent, grandparent, or sibling of each
417-3 other person signing the agreement. A family relationship required
417-4 by this subsection may be a relationship established by adoption.
417-5 (V.A.C.S. Art. 5221f, Secs. 19(x), (y).)
417-6 Sec. 1201.214. LOST OR DESTROYED DOCUMENT OF TITLE. (a) If
417-7 an original document of title is lost or destroyed, the owner or
417-8 lienholder may obtain a certified copy of the original from the
417-9 department by making an affidavit on a form prescribed by the
417-10 director. The department may issue the certified copy only to the
417-11 first lienholder if a lien is disclosed on the original. The
417-12 certified copy must be conspicuously marked "CERTIFIED COPY OF
417-13 ORIGINAL" on the face of the copy.
417-14 (b) If the original document of title is recovered, the
417-15 owner or lienholder shall immediately surrender the original to the
417-16 department with the certified copy of the original, and the
417-17 department shall issue a new original document of title. (V.A.C.S.
417-18 Art. 5221f, Sec. 19(i).)
417-19 Sec. 1201.215. PREVIOUS OWNER OR LIENHOLDER UNAVAILABLE. If
417-20 an original document of title is unavailable because a previous
417-21 owner or lienholder cannot be located or because a manufactured
417-22 home has been abandoned, a person may apply to the department for a
417-23 replacement title by presenting:
417-24 (1) evidence satisfactory to the department that the
417-25 effort to locate the previous owner or lienholder has been
417-26 unsuccessful; and
417-27 (2) an affidavit stating that to the best of the
418-1 applicant's knowledge, the applicant is entitled to a good and
418-2 marketable title to the manufactured home. (V.A.C.S. Art. 5221f,
418-3 Sec. 19(g) (part).)
418-4 Sec. 1201.216. CHANGE IN USE. (a) The department shall
418-5 cancel a title to a manufactured home that has been sold,
418-6 exchanged, or lease-purchased to a purchaser for the purchaser's
418-7 business use.
418-8 (b) On application, the department may issue a new title to
418-9 the home after an inspection and determination that the home is
418-10 habitable.
418-11 (c) The department shall issue a salvage title for a
418-12 salvaged manufactured home and may issue a new title for a new home
418-13 rebuilt according to the director's rules. (V.A.C.S. Art. 5221f,
418-14 Sec. 19(w).)
418-15 Sec. 1201.217. PERMANENT ATTACHMENT OF MANUFACTURED HOME:
418-16 CANCELLATION OF TITLE. (a) Except as provided by Section 1201.218,
418-17 if a manufactured home is permanently attached to real property,
418-18 the manufacturer's certificate or the original document of title
418-19 may be surrendered to the department for cancellation.
418-20 (b) The legal description or the appropriate tract or parcel
418-21 number of the real property must be given to the department when
418-22 the certificate or document of title is surrendered. The director
418-23 may require the filing of other information.
418-24 (c) The department shall issue a certificate of attachment
418-25 to real property to the person who surrenders the manufacturer's
418-26 certificate or document of title. The certificate of attachment to
418-27 real property must:
419-1 (1) contain:
419-2 (A) the legal description or the appropriate
419-3 tract or parcel number of the real property; and
419-4 (B) the identification number of the home; and
419-5 (2) certify that the manufacturer's certificate or
419-6 original document of title has been canceled. (V.A.C.S.
419-7 Art. 5221f, Sec. 19(l) (part).)
419-8 Sec. 1201.218. PERMANENT ATTACHMENT OF MANUFACTURED HOME:
419-9 EXCEPTION TO CANCELLATION OF TITLE. (a) The department may not
419-10 cancel a manufacturer's certificate or a document of title under
419-11 Section 1201.217 if a lien on the manufactured home has been
419-12 recorded with the department.
419-13 (b) If a lien on the home has been recorded, the department
419-14 shall notify the owner and each lienholder that:
419-15 (1) the title and a description of the lien have been
419-16 surrendered to the department; and
419-17 (2) the department may not cancel the title until the
419-18 lien is released.
419-19 (c) Permanent attachment of a manufactured home to real
419-20 property does not affect the validity of a lien recorded with the
419-21 department before the home is permanently attached. The rights of
419-22 a prior lienholder under a security agreement or the provisions of
419-23 a credit transaction and the rights of the state under a tax lien
419-24 are preserved. (V.A.C.S. Art. 5221f, Sec. 19(l) (part).)
419-25 Sec. 1201.219. PERFECTION AND EFFECT OF LIENS. (a) A lien
419-26 on manufactured homes in inventory is perfected by filing a
419-27 security agreement with the department in a form that contains the
420-1 information the director requires. Once perfected, the lien
420-2 applies to the manufactured homes in the inventory as well as to
420-3 any proceeds from the sale of those homes. The department may
420-4 suspend or revoke the license of a retailer who fails to satisfy a
420-5 perfected inventory lien under the terms of the security agreement.
420-6 (b) The recordation of a lien with the department is notice
420-7 to all persons that the lien exists. Except as expressly provided
420-8 by Chapter 32, Tax Code, a lien recorded with the department has
420-9 priority, according to the chronological order of recordation, over
420-10 another lien or claim against the manufactured home.
420-11 (c) Notwithstanding any other provision of this subchapter,
420-12 the filing of a security agreement by a secured party perfecting a
420-13 lien on the inventory of a retailer does not prevent a buyer in the
420-14 ordinary course of business, as defined by Section 1.201, Business
420-15 & Commerce Code, from acquiring good title free of that interest,
420-16 and the department may not consider that security interest as a
420-17 lien for the purpose of title issuance.
420-18 (d) The department shall print on each document of title
420-19 issued under this subchapter a notice that:
420-20 (1) the document of title may not reflect the
420-21 existence of a tax lien notice filed for the manufactured home
420-22 after the date the document of title was issued; and
420-23 (2) information about a tax lien for which notice has
420-24 been filed may be obtained from the department on written request.
420-25 (V.A.C.S. Art. 5221f, Secs. 19(k), (m), (n), (u).)
420-26 Sec. 1201.220. REPORT TO COUNTY TAX ASSESSOR-COLLECTOR. (a)
420-27 The department shall provide to each county tax assessor-collector
421-1 in this state a quarterly report that, for each manufactured home
421-2 installed in the county during the preceding calendar quarter and
421-3 for each manufactured home previously installed in the county for
421-4 which a transfer of ownership was recorded by the issuance of a
421-5 document of title during the preceding calendar quarter, lists:
421-6 (1) the name of the owner;
421-7 (2) the name of the manufacturer;
421-8 (3) the model designation;
421-9 (4) the identification number of each section or
421-10 module; and
421-11 (5) the address or location where the home is
421-12 installed.
421-13 (b) The director shall provide a copy of the report to the
421-14 chief appraiser of the appraisal district established for the
421-15 county in which the home is installed. (V.A.C.S. Art. 5221f, Sec.
421-16 19(o).)
421-17 Sec. 1201.221. INFORMATION ON OWNERSHIP AND TAX LIEN. (a)
421-18 On written request, the department shall provide information held
421-19 by the department on:
421-20 (1) the current ownership of a manufactured home; and
421-21 (2) the existence of any tax lien on that home for
421-22 which notice has been filed with the department.
421-23 (b) A request under Subsection (a) must contain:
421-24 (1) the name of the owner of the home who has a
421-25 document of title; or
421-26 (2) the identification number of the home. (V.A.C.S.
421-27 Art. 5221f, Sec. 19(v).)
422-1 (Sections 1201.222-1201.250 reserved for expansion)
422-2 SUBCHAPTER F. STANDARDS
422-3 Sec. 1201.251. STANDARDS AND REQUIREMENTS ADOPTED BY
422-4 DIRECTOR. (a) The director shall adopt standards and requirements
422-5 for:
422-6 (1) the installation and construction of manufactured
422-7 housing that are reasonably necessary to protect the health,
422-8 safety, and welfare of the occupants and the public; and
422-9 (2) the construction of HUD-code manufactured homes in
422-10 compliance with the federal standards and requirements established
422-11 under the National Manufactured Housing Construction and Safety
422-12 Standards Act of 1974 (42 U.S.C. Section 5401 et seq.).
422-13 (b) The standards and requirements adopted under Subsection
422-14 (a)(1) are the standards code.
422-15 (c) The standards adopted under Subsection (a)(1) must
422-16 ensure that manufactured housing installed on both permanent and
422-17 nonpermanent foundation systems resists overturning and lateral
422-18 movement, according to the design loads for the particular wind
422-19 zone for which the housing was constructed. (V.A.C.S. Art. 5221f,
422-20 Secs. 4(a), (b), (c).)
422-21 Sec. 1201.252. POWER OF LOCAL GOVERNMENTAL UNIT TO ADOPT
422-22 DIFFERENT STANDARD. (a) A local governmental unit of this state
422-23 may not adopt a standard for the construction or installation of
422-24 manufactured housing in the local governmental unit that is
422-25 different from a standard adopted by the director unless, after a
422-26 hearing, the board expressly approves the proposed standard.
422-27 (b) To adopt a different standard under this section, the
423-1 local governmental unit must demonstrate that public health and
423-2 safety require the different standard. (V.A.C.S. Art. 5221f, Sec.
423-3 4(e).)
423-4 Sec. 1201.253. HEARING ON STANDARD OR REQUIREMENT. The
423-5 director shall publish notice and conduct a public hearing in
423-6 accordance with Sections 1201.054 and 1201.060 before:
423-7 (1) adopting a standard or requirement authorized by
423-8 this subchapter;
423-9 (2) amending a standard authorized by this subchapter;
423-10 or
423-11 (3) approving a standard proposed by a local
423-12 governmental unit under Section 1201.252. (V.A.C.S. Art. 5221f,
423-13 Sec. 4(f).)
423-14 Sec. 1201.254. EFFECTIVE DATE OF REQUIREMENT OR STANDARD.
423-15 Each requirement or standard that is adopted, modified, amended, or
423-16 repealed by the director must state its effective date as provided
423-17 by Section 1201.054. (V.A.C.S. Art. 5221f, Sec. 4(g).)
423-18 Sec. 1201.255. INSTALLATION OF MANUFACTURED HOUSING. Except
423-19 as authorized under Section 1201.252, manufactured housing must be
423-20 installed in compliance with the standards and rules adopted and
423-21 orders issued by the director. (V.A.C.S. Art. 5221f, Sec. 4(d)
423-22 (part).)
423-23 Sec. 1201.256. WIND ZONE REGULATIONS. (a) Aransas,
423-24 Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy,
423-25 Kleberg, Matagorda, Nueces, Orange, Refugio, San Patricio, and
423-26 Willacy counties are in Wind Zone II. All other counties are in
423-27 Wind Zone I.
424-1 (b) To be installed in a Wind Zone II county, a manufactured
424-2 home constructed on or after September 1, 1997, must meet the Wind
424-3 Zone II standards adopted by the United States Department of
424-4 Housing and Urban Development.
424-5 (c) A manufactured home constructed before September 1,
424-6 1997, may be installed in a Wind Zone I or II county without
424-7 restriction.
424-8 (d) A retailer who sells a manufactured home constructed on
424-9 or after September 1, 1997, to Wind Zone I standards must, before
424-10 the execution of a mutually binding sales agreement or retail
424-11 installment sales contract, give the consumer notice that:
424-12 (1) the home was not designed or constructed to
424-13 withstand a hurricane force wind occurring in a Wind Zone II or III
424-14 area;
424-15 (2) installation of the home is not permitted in a
424-16 Wind Zone II county in this state; and
424-17 (3) another state may prohibit installation of the
424-18 home in a Wind Zone II or III area. (V.A.C.S. Art. 5221f, Sec.
424-19 6B.)
424-20 (Sections 1201.257-1201.300 reserved for expansion)
424-21 SUBCHAPTER G. INSPECTIONS AND MONITORING
424-22 Sec. 1201.301. STATE INSPECTORS. (a) The director may
424-23 employ state inspectors to:
424-24 (1) carry out the functions the department is required
424-25 to perform under this chapter;
424-26 (2) implement this chapter; and
424-27 (3) enforce the rules adopted and orders issued under
425-1 this chapter.
425-2 (b) In enforcing this chapter, the director may authorize a
425-3 state inspector to travel inside or outside of the state to inspect
425-4 a manufacturing facility. (V.A.C.S. Art. 5221f, Sec. 9(h).)
425-5 Sec. 1201.302. INSPECTION BY ENTITIES OTHER THAN DEPARTMENT.
425-6 (a) To ensure that a manufactured home sold or installed in this
425-7 state complies with the standards code, the director may by
425-8 contract provide for a federal agency or an agency or political
425-9 subdivision of this state or another state to perform an inspection
425-10 or inspection program under this chapter or under rules adopted by
425-11 the director.
425-12 (b) On request, the department shall authorize a local
425-13 governmental unit in this state to perform an inspection or
425-14 enforcement activity related to the construction of a foundation
425-15 system or the erection or installation of manufactured housing at a
425-16 homesite under a contract or other official designation and rules
425-17 adopted by the director. The department may withdraw the
425-18 authorization if the local governmental unit fails to follow the
425-19 rules, interpretations, and written instructions of the department.
425-20 (c) The department:
425-21 (1) shall advise each local governmental unit
425-22 biennially in writing of the program for contracting installation
425-23 inspections;
425-24 (2) shall encourage local building inspection
425-25 officials to perform enforcement and inspection activities for
425-26 manufactured housing installed in the local governmental unit; and
425-27 (3) may establish cooperative inspection training
426-1 programs. (V.A.C.S. Art. 5221f, Secs. 4(h) (part), 9(i).)
426-2 Sec. 1201.303. INSPECTIONS. (a) The director may inspect
426-3 manufactured homes at the state border and adopt rules necessary
426-4 for the inspection of manufactured homes entering this state to
426-5 ensure:
426-6 (1) compliance with:
426-7 (A) the National Manufactured Housing
426-8 Construction and Safety Standards Act of 1974 (42 U.S.C. Section
426-9 5401 et seq.);
426-10 (B) the standards code; and
426-11 (C) the rules adopted by the director; and
426-12 (2) payment of any use tax owed to the state.
426-13 (b) The department shall establish an installation
426-14 inspection program in which at least 25 percent of installed
426-15 manufactured homes are inspected on a sample basis for compliance
426-16 with the standards and rules adopted and orders issued by the
426-17 director. The program must place priority on inspecting
426-18 multisection homes and homes installed in Wind Zone II counties.
426-19 (V.A.C.S. Art. 5221f, Secs. 4(d) (part), 9(l).)
426-20 Sec. 1201.304. INSPECTION SEARCH WARRANTS. If required by
426-21 law or otherwise necessary, the director may obtain an inspection
426-22 search warrant. (V.A.C.S. Art. 5221f, Sec. 9(k).)
426-23 Sec. 1201.305. PROGRAM MONITORING. The director may enter
426-24 into a contract with the United States Department of Housing and
426-25 Urban Development or its designee to monitor the programs of that
426-26 department. (V.A.C.S. Art. 5221f, Sec. 9(j).)
426-27 (Sections 1201.306-1201.350 reserved for expansion)
427-1 SUBCHAPTER H. WARRANTIES
427-2 Sec. 1201.351. MANUFACTURER'S WARRANTY. (a) The manufacturer
427-3 of a new HUD-code manufactured home shall warrant, in a separate
427-4 written document, that:
427-5 (1) the home is constructed or assembled in accordance
427-6 with all building codes, standards, requirements, and regulations
427-7 prescribed by the United States Department of Housing and Urban
427-8 Development under the National Manufactured Housing Construction
427-9 and Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.);
427-10 and
427-11 (2) the home and all appliances and equipment included
427-12 in the home are free from defects in materials or workmanship.
427-13 (b) The manufacturer's warranty is in effect until at least
427-14 the first anniversary of the date of initial installation of the
427-15 home at the consumer's homesite.
427-16 (c) At the time the manufacturer delivers the home to the
427-17 retailer, the manufacturer shall also deliver to the retailer:
427-18 (1) the manufacturer's warranty; and
427-19 (2) the warranties given by the manufacturers of
427-20 appliances or equipment installed in the home. (V.A.C.S.
427-21 Art. 5221f, Secs. 14(a), (b), (c).)
427-22 Sec. 1201.352. RETAILER'S WARRANTY. (a) The retailer of a
427-23 new HUD-code manufactured home shall warrant to the consumer in
427-24 writing that:
427-25 (1) installation of the home at the initial homesite
427-26 will be completed in accordance with all department standards,
427-27 rules, orders, and requirements; and
428-1 (2) appliances and equipment included with the sale of
428-2 the home and installed by the retailer are or will be:
428-3 (A) installed in accordance with the
428-4 instructions or specifications of the manufacturers of the
428-5 appliances or equipment; and
428-6 (B) free from defects in materials or
428-7 workmanship.
428-8 (b) The retailer's warranty is in effect until the first
428-9 anniversary of the date of initial installation of the home at the
428-10 consumer's homesite.
428-11 (c) Before the signing of a binding retail installment sales
428-12 contract or other binding purchase agreement, the retailer must
428-13 give the consumer a copy or a general description of:
428-14 (1) the manufacturer's warranty; and
428-15 (2) the retailer's warranty.
428-16 (d) At the time of the initial installation at the
428-17 consumer's homesite, the retailer shall deliver to the consumer:
428-18 (1) the manufacturer's warranty;
428-19 (2) the retailer's warranty;
428-20 (3) the warranties given by the manufacturers of
428-21 appliances or equipment included with the home; and
428-22 (4) the name and address of the manufacturer or
428-23 retailer to whom the consumer is to give notice of a warranty
428-24 service request. (V.A.C.S. Art. 5221f, Sec. 14(d).)
428-25 Sec. 1201.353. NOTICE OF NEED FOR WARRANTY SERVICE. (a) The
428-26 consumer shall give written notice to the manufacturer or retailer,
428-27 as applicable, of a need for warranty service or repairs.
429-1 (b) Written notice to the department is notice to the
429-2 manufacturer or retailer. (V.A.C.S. Art. 5221f, Sec. 14(e)
429-3 (part).)
429-4 Sec. 1201.354. CORRECTIVE ACTION REQUIRED. The manufacturer
429-5 or retailer, as applicable, shall take appropriate corrective
429-6 action within a reasonable period as required by department rules
429-7 to fulfill the written warranty obligation. (V.A.C.S. Art. 5221f,
429-8 Sec. 14(e) (part).)
429-9 Sec. 1201.355. CONSUMER COMPLAINT HOME INSPECTION. (a) If
429-10 the manufacturer or retailer does not provide the consumer with
429-11 proper warranty service, the consumer may, at any time, request the
429-12 department to perform a consumer complaint home inspection. The
429-13 department may not charge a fee for the inspection.
429-14 (b) On payment of the required inspection fee, the
429-15 manufacturer or retailer may request the department to perform a
429-16 consumer complaint home inspection if the manufacturer or retailer:
429-17 (1) believes the consumer's complaints are not covered
429-18 by the warranty of the manufacturer or retailer, as applicable;
429-19 (2) believes that the warranty service was properly
429-20 provided; or
429-21 (3) disputes responsibility concerning the warranty
429-22 obligation.
429-23 (c) The department shall perform a consumer complaint home
429-24 inspection not later than the 30th day after the date of receipt of
429-25 a request for the inspection. (V.A.C.S. Art. 5221f, Secs. 14(g),
429-26 (h), (i) (part).)
429-27 Sec. 1201.356. REPORT AND ORDER; AMENDMENT; COMPLIANCE. (a)
430-1 Not later than the 10th day after the date of a consumer complaint
430-2 home inspection, the department shall send a written report and any
430-3 order to the consumer, manufacturer, and retailer by certified
430-4 mail, return receipt requested.
430-5 (b) The report shall specify:
430-6 (1) each of the consumer's complaints; and
430-7 (2) whether the complaint is covered by either the
430-8 manufacturer's or retailer's warranty and, if so, which of those
430-9 warranties.
430-10 (c) The director shall issue to the manufacturer or retailer
430-11 an appropriate order for corrective action by the manufacturer or
430-12 retailer, specifying a reasonable period for completion of the
430-13 corrective action.
430-14 (d) The department may issue an amended report and order if
430-15 all parties receive notice of and are given an opportunity to
430-16 respond to that report and order. The amended report and order
430-17 supersede the initial report and order.
430-18 (e) The manufacturer, retailer, or installer shall comply
430-19 with the report and order of the director. (V.A.C.S. Art. 5221f,
430-20 Secs. 14(i) (part), (j).)
430-21 Sec. 1201.357. FAILURE TO PROVIDE WARRANTY SERVICE. (a) If
430-22 the manufacturer or retailer, as applicable, fails to provide
430-23 warranty service within the period specified by the director under
430-24 Section 1201.356, the manufacturer or retailer must show good cause
430-25 in writing as to why the manufacturer or retailer failed to provide
430-26 the service.
430-27 (b) If the manufacturer or retailer, as applicable, fails or
431-1 refuses to provide warranty service in accordance with the
431-2 department order under Section 1201.356, the director shall hold a
431-3 hearing at which the manufacturer or retailer must show cause as to
431-4 why the manufacturer's or retailer's license should not be
431-5 suspended or revoked. (V.A.C.S. Art. 5221f, Secs. 14(f) (part), (k)
431-6 (part).)
431-7 Sec. 1201.358. FAILURE TO SHOW GOOD CAUSE; HEARING RESULTS.
431-8 (a) Failure by the manufacturer or retailer to show good cause
431-9 under Section 1201.357(a) is a sufficient basis for suspension or
431-10 revocation of the manufacturer's or retailer's license.
431-11 (b) If after the hearing under Section 1201.357(b), the
431-12 director determines that the order under Section 1201.356 was
431-13 correct in the determination of the warranty obligation of the
431-14 manufacturer or retailer, failure or refusal by the manufacturer or
431-15 retailer to comply with the order is a sufficient cause for
431-16 suspension or revocation of the manufacturer's or retailer's
431-17 license. If the director determines that the order was incorrect
431-18 regarding that obligation, the director shall issue a final order
431-19 stating the correct obligation and the right of the manufacturer or
431-20 retailer to indemnification from the other.
431-21 (c) The director may issue an order:
431-22 (1) directing a manufacturer or retailer whose license
431-23 is not revoked and who is not out of business to perform the
431-24 warranty obligation of a manufacturer or retailer whose license is
431-25 revoked or who is out of business; and
431-26 (2) giving the manufacturer or retailer performing the
431-27 obligation the right of indemnification against the other.
432-1 (d) A manufacturer or retailer entitled to indemnification
432-2 under this section is a consumer for purposes of Subchapter I and
432-3 may recover actual damages and attorney's fees from the trust fund.
432-4 (V.A.C.S. Art. 5221f, Secs. 14(f) (part), (k) (part).)
432-5 Sec. 1201.359. APPLICATION OF WARRANTIES IF HUD-CODE
432-6 MANUFACTURED HOME MOVED. (a) The manufacturer's and retailer's
432-7 warranties do not apply to any defect or damage caused by moving a
432-8 new HUD-code manufactured home from the initial installation site.
432-9 (b) Conspicuous notice of the warranty exception under
432-10 Subsection (a) must be given to the consumer at the time of sale.
432-11 (c) The warrantor has the burden of proof to show that the
432-12 defect or damage is caused by the move. (V.A.C.S. Art. 5221f, Sec.
432-13 14(l).)
432-14 Sec. 1201.360. WARRANTY FOR HUD-CODE MANUFACTURED HOME
432-15 PERMANENTLY ATTACHED TO REAL PROPERTY. (a) The seller of real
432-16 property to which a new HUD-code manufactured home is permanently
432-17 attached may give the initial purchaser a written warranty that
432-18 combines the manufacturer's warranty and the retailer's warranty
432-19 required by this subchapter if:
432-20 (1) the manufacturer's certificate under Section
432-21 1201.204 is canceled; and
432-22 (2) a certificate of attachment is filed in the deed
432-23 records of the county.
432-24 (b) If a combination warranty is given under this section,
432-25 the manufacturer and retailer are not required to give separate
432-26 written warranties, but the manufacturer and retailer are jointly
432-27 liable with the seller of the real property to the purchaser for
433-1 the performance of their respective warranty obligations. (V.A.C.S.
433-2 Art. 5221f, Sec. 14(n).)
433-3 Sec. 1201.361. INSTALLER'S WARRANTY. For all secondary
433-4 installations not covered by the retailer's warranty described by
433-5 Section 1201.352 and for the installation of all used manufactured
433-6 homes, the installer shall give the manufactured home owner a
433-7 written warranty that the installation of the home was performed in
433-8 accordance with all department standards, rules, orders, and
433-9 requirements. (V.A.C.S. Art. 5221f, Sec. 14(m).)
433-10 (Sections 1201.362-1201.400 reserved for expansion)
433-11 SUBCHAPTER I. MANUFACTURED HOMEOWNERS'
433-12 RECOVERY TRUST FUND
433-13 Sec. 1201.401. MANUFACTURED HOMEOWNERS' RECOVERY TRUST FUND.
433-14 The manufactured homeowners' recovery trust fund is an account in
433-15 the general revenue fund. (V.A.C.S. Art. 5221f, Sec. 13A(a)
433-16 (part).)
433-17 Sec. 1201.402. ADMINISTRATION OF TRUST FUND. (a) The
433-18 director shall administer the trust fund as trustee of that fund.
433-19 (b) The director is not required to file a bond or other
433-20 security to serve as administrator of the trust fund.
433-21 (c) The trust fund, fees collected for the trust fund, and
433-22 income earned from investment of the trust fund may be used only
433-23 for the protection programs prescribed by this subchapter.
433-24 (d) Money in the trust fund may be invested and reinvested
433-25 in the same manner as the funds of the Employees Retirement System
433-26 of Texas. An investment may not be made that would impair the
433-27 liquidity necessary to fund the protection programs prescribed by
434-1 this subchapter. Income from the trust fund shall be deposited to
434-2 the credit of the fund. (V.A.C.S. Art. 5221f, Secs. 13(j) (part),
434-3 13A(a) (part), (b), (d).)
434-4 Sec. 1201.403. AMOUNT RESERVED IN TRUST FUND; PAYMENT OF
434-5 COSTS. (a) One million dollars shall be reserved in the trust fund
434-6 for payment of valid consumer claims.
434-7 (b) Unless the balance of the trust fund is less than $1
434-8 million, the costs of the director and the department in
434-9 administering the trust fund, keeping books and records,
434-10 investigating consumer complaints, and conducting the informal
434-11 dispute resolution process shall be paid from the trust fund.
434-12 (V.A.C.S. Art. 5221f, Sec. 13A(j).)
434-13 Sec. 1201.404. CONSUMER COMPENSATION. (a) Except as
434-14 otherwise provided by Subchapter C, the trust fund shall be used
434-15 to compensate a consumer who sustains actual damages resulting from
434-16 an unsatisfied claim against a licensed manufacturer, retailer,
434-17 broker, or installer if the unsatisfied claim results from a
434-18 violation of:
434-19 (1) this chapter;
434-20 (2) a rule adopted by the director;
434-21 (3) the National Manufactured Housing Construction and
434-22 Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.);
434-23 (4) a rule or regulation of the United States
434-24 Department of Housing and Urban Development; or
434-25 (5) Subchapter E, Chapter 17, Business & Commerce
434-26 Code.
434-27 (b) The trust fund and the director are not liable to the
435-1 consumer if the trust fund does not have the money necessary to pay
435-2 the actual damages and attorney's fees determined to be payable.
435-3 The director shall record the date and time of receipt of each
435-4 verified complaint and, as money becomes available, pay the
435-5 consumer whose claim is the earliest by date and time. (V.A.C.S.
435-6 Art. 5221f, Secs. 13A(e), (i) (part).)
435-7 Sec. 1201.405. LIMITATIONS ON CLAIMS. (a) The payment of
435-8 actual damages is limited to the lesser of:
435-9 (1) the amount of actual, reasonable costs, not
435-10 including attorney's fees, that the consumer has incurred or will
435-11 incur to resolve the act or omission found to be a violation under
435-12 Section 1201.404; or
435-13 (2) $35,000.
435-14 (b) Attorney's fees and costs are limited to 20 percent of
435-15 the amount of actual damages.
435-16 (c) The trust fund is not liable for and the director may
435-17 not pay:
435-18 (1) punitive, exemplary, double, or treble damages; or
435-19 (2) damages for pain and suffering, mental anguish,
435-20 emotional distress, or other analogous tort claims.
435-21 (d) Notwithstanding other provisions of this subchapter,
435-22 this subchapter does not apply to, and a consumer may not recover
435-23 against the trust fund as a result of, a claim against a license
435-24 holder that results from a cause of action directly related to the
435-25 sale, lease-purchase, exchange, brokerage, or installation of a
435-26 manufactured home before September 1, 1987. (V.A.C.S. Art. 5221f,
435-27 Secs. 13A(i) (part), (k).)
436-1 Sec. 1201.406. PROCEDURE FOR RECOVERY FROM TRUST FUND. (a)
436-2 To recover from the trust fund, a consumer must file a written
436-3 complaint in the form required by the director not later than the
436-4 second anniversary of:
436-5 (1) the date of the alleged act or omission causing
436-6 the actual damages; or
436-7 (2) the date the act or omission is discovered or
436-8 should reasonably have been discovered.
436-9 (b) On receipt of a verified complaint, the department
436-10 shall:
436-11 (1) notify each appropriate license holder; and
436-12 (2) investigate the claim to determine:
436-13 (A) the validity of the claim; and
436-14 (B) whether the complaint can be resolved by
436-15 remedial action of the license holder. (V.A.C.S. Art. 5221f, Sec.
436-16 13A(f) (part).)
436-17 Sec. 1201.407. DISAGREEMENT OF PARTIES; INFORMAL DISPUTE
436-18 RESOLUTION PROCESS. (a) If the license holders or a license holder
436-19 and a consumer disagree as to responsibility for a complaint, the
436-20 department shall conduct an informal dispute resolution process,
436-21 including a home inspection if appropriate, to resolve the dispute.
436-22 (b) For a claim determined to be valid, the department shall
436-23 make a preliminary determination during the informal dispute
436-24 resolution process as to the responsibility and liability of the
436-25 manufacturer, retailer, and installer.
436-26 (c) Before making a final determination, the department
436-27 shall provide a license holder an opportunity to comment on the
437-1 preliminary determination.
437-2 (d) The department shall notify a license holder's surety
437-3 and give the surety an opportunity to participate in the informal
437-4 dispute resolution process if the license holder:
437-5 (1) is out of business;
437-6 (2) is no longer licensed; or
437-7 (3) has filed for liquidation or reorganization in
437-8 bankruptcy.
437-9 (e) If, after receiving notice of the claim, a license
437-10 holder or the license holder's surety fails or refuses to
437-11 participate in the informal dispute resolution process, the license
437-12 holder or surety, as applicable, is bound by the department's final
437-13 determination of responsibility and liability. (V.A.C.S.
437-14 Art. 5221f, Secs. 13A(f) (part), (g) (part).)
437-15 Sec. 1201.408. AGREEMENT OF PARTIES; ARBITRATION. (a) If
437-16 the parties agree as to responsibility for a complaint, the
437-17 department shall prepare and file with the director a written
437-18 report of the agreement.
437-19 (b) If a disputed claim is not resolved through the informal
437-20 dispute resolution process, the parties may submit the claim for
437-21 formal binding arbitration under Title 9, United States Code. The
437-22 director by rule shall establish procedures for:
437-23 (1) the arbitration; and
437-24 (2) approval and selection of arbitrators. (V.A.C.S.
437-25 Art. 5221f, Secs. 13A(f) (part), (h).)
437-26 Sec. 1201.409. PAYMENT BY SURETY OR FROM OTHER SECURITY. (a)
437-27 Except as otherwise provided by Subchapter C, the trust fund shall
438-1 be reimbursed by the surety on a bond or from other security filed
438-2 under Subchapter C for the amount of a claim that:
438-3 (1) is paid out of the trust fund by the director to a
438-4 consumer; and
438-5 (2) resulted from an act or omission of the license
438-6 holder who filed the bond or other security.
438-7 (b) Payment by the surety or from the other security must be
438-8 made not later than the 30th day after the date of receipt of
438-9 notice from the director that a consumer claim has been paid.
438-10 (c) If payment to the trust fund of a claim is not made by
438-11 the surety or from the other security in a timely manner, the
438-12 attorney general shall file suit for recovery of the amount due the
438-13 trust fund. Venue for the suit is in Travis County. (V.A.C.S.
438-14 Art. 5221f, Sec. 13(i).)
438-15 Sec. 1201.410. INFORMATIONAL PAMPHLET. (a) The director
438-16 shall prepare a pamphlet informing consumers of their rights to
438-17 recover from the trust fund.
438-18 (b) The director may contract with a private party for the
438-19 printing and distribution of the pamphlet. (V.A.C.S. Art. 5221f,
438-20 Sec. 13(j) (part).)
438-21 (Sections 1201.411-1201.450 reserved for expansion)
438-22 SUBCHAPTER J. USED OR SALVAGED MANUFACTURED HOMES
438-23 Sec. 1201.451. TRANSFER OF GOOD AND MARKETABLE TITLE
438-24 REQUIRED. (a) Except as otherwise provided by this subchapter, a
438-25 person may not sell, exchange, or lease-purchase a used
438-26 manufactured home without the appropriate transfer of good and
438-27 marketable title to the home unless the sale, exchange, or
439-1 lease-purchase is to:
439-2 (1) a purchaser for the purchaser's business use; or
439-3 (2) a rebuilder for the purpose of rebuilding a
439-4 salvaged manufactured home.
439-5 (b) Not later than the 30th day after the effective date of
439-6 the transfer of ownership or the date the seller or transferor
439-7 obtains possession of the necessary executed documents, the seller
439-8 or transferor shall forward to the department properly completed
439-9 documents for the transfer of title. (V.A.C.S. Art. 5221f, Sec.
439-10 8(d).)
439-11 Sec. 1201.452. SEAL OR LABEL REQUIRED. (a) Except as
439-12 otherwise provided by this subchapter, a person may not sell,
439-13 exchange, or lease-purchase or negotiate for the sale, exchange, or
439-14 lease-purchase of a used manufactured home to a consumer unless the
439-15 appropriate seal or label is attached to the home.
439-16 (b) If the home does not have the appropriate seal or label,
439-17 the person must:
439-18 (1) apply to the department for a seal; and
439-19 (2) pay the fee. (V.A.C.S. Art. 5221f, Sec. 8(a).)
439-20 Sec. 1201.453. HABITABILITY. Manufactured housing is
439-21 habitable only if:
439-22 (1) there is no defect or deterioration in or damage
439-23 to the home that creates a dangerous situation;
439-24 (2) the plumbing, heating, and electrical systems are
439-25 in safe working order;
439-26 (3) the walls, floor, and roof are:
439-27 (A) free from a substantial opening that was not
440-1 designed; and
440-2 (B) structurally sound; and
440-3 (4) all exterior doors and windows are in place.
440-4 (V.A.C.S. Art. 5221f, Sec. 8(c).)
440-5 Sec. 1201.454. HABITABILITY: PROHIBITED ALTERATION OR
440-6 REPLACEMENT. A manufacturer, retailer, broker, installer, or
440-7 lienholder may not repair or otherwise alter a used manufactured
440-8 home or replace a component or system of a used manufactured home
440-9 in a way that makes the home not habitable. (V.A.C.S. Art. 5221f,
440-10 Sec. 6(c) (part).)
440-11 Sec. 1201.455. WARRANTY OF HABITABILITY REQUIRED. (a)
440-12 Except as otherwise provided by this subchapter, a person may not
440-13 sell, exchange, or lease-purchase a used manufactured home to a
440-14 consumer for use as a dwelling without providing a written warranty
440-15 that the home is habitable.
440-16 (b) Unless, not later than the 60th day after the date of
440-17 the sale, exchange, or lease-purchase agreement, the consumer
440-18 notifies the seller in writing of a defect that makes the home not
440-19 habitable, any obligation or liability of the seller under this
440-20 subchapter is terminated. The warranty must conspicuously disclose
440-21 that notice requirement to the consumer. (V.A.C.S. Art. 5221f,
440-22 Sec. 8(b) (part), as amended Acts 76th Leg., R.S., Chs. 351 and
440-23 1369.)
440-24 Sec. 1201.456. HABITABILITY: EXCEPTION TO WARRANTY
440-25 REQUIREMENT. The warranty requirement imposed by Section 1201.455
440-26 does not apply to a sale, exchange, or lease-purchase of a used
440-27 manufactured home from one consumer to another. (V.A.C.S.
441-1 Art. 5221f, Sec. 8(b) (part), as amended Acts 76th Leg., R.S., Chs.
441-2 351 and 1369.)
441-3 Sec. 1201.457. HABITABILITY: CHANGE TO OR FROM BUSINESS
441-4 USE. (a) If the sale, exchange, or lease-purchase of a used
441-5 manufactured home is to a purchaser for the purchaser's business
441-6 use, the home is not required to be habitable. The seller must
441-7 surrender the title to the home to the department for cancellation.
441-8 (b) The purchaser of a used manufactured home for business
441-9 use may not sell, exchange, or lease-purchase the home for use as a
441-10 dwelling unless the director issues a new title to the home. On
441-11 the purchaser's application to the department for issuance of a new
441-12 title, the department shall inspect the home and, if the department
441-13 determines that the home is habitable, issue the title. (V.A.C.S.
441-14 Art. 5221f, Secs. 8(b) (part), as amended Acts 76th Leg., R.S.,
441-15 Chs. 351 and 1369, (e).)
441-16 Sec. 1201.458. HABITABILITY: EXCEPTION FOR CERTAIN
441-17 GOVERNMENTAL OR NONPROFIT ENTITIES. (a) Notwithstanding any other
441-18 provision of this subchapter and on a written application by the
441-19 purchaser or transferee, the director may give express written
441-20 authorization to a licensed retailer to sell or exchange a used
441-21 manufactured home that is not or may not be habitable to or with a
441-22 governmental housing agency or authority or to a nonprofit
441-23 organization that provides housing for the homeless.
441-24 (b) As a part of the application, the purchaser or
441-25 transferee must certify to the receipt of a written notice that the
441-26 home is not or may not be habitable. The consumer protection
441-27 division of the attorney general's office shall prepare the form of
442-1 the notice, which must be approved by the director.
442-2 (c) The purchaser or transferee may not occupy or allow
442-3 occupation of the home as a dwelling until the completion of any
442-4 repair necessary to make the home habitable. (V.A.C.S. Art. 5221f,
442-5 Sec. 8(h).)
442-6 Sec. 1201.459. COMPLIANCE NOT REQUIRED FOR SALE FOR
442-7 COLLECTION OF DELINQUENT TAXES. (a) In selling a manufactured home
442-8 to collect delinquent taxes, a tax collector is not required to
442-9 comply with this subchapter or another provision of this chapter
442-10 relating to the sale of a used manufactured home.
442-11 (b) If the home does not have a serial number, seal, or
442-12 label, the tax collector may:
442-13 (1) apply to the department for a seal;
442-14 (2) pay the applicable fee; and
442-15 (3) recover that fee as part of the cost of the sale
442-16 of the home.
442-17 (c) The seal issued to the tax collector is for
442-18 identification purposes only and does not imply that:
442-19 (1) the home is habitable; or
442-20 (2) a purchaser of the home at a tax sale may obtain a
442-21 document of title from the department without an inspection for
442-22 habitability. (V.A.C.S. Art. 5221f, Sec. 8(i).)
442-23 Sec. 1201.460. COMPLIANCE NOT REQUIRED FOR LIENHOLDER. (a)
442-24 A holder of a lien recorded on a department-issued manufactured
442-25 home document of title who sells, exchanges, or lease-purchases a
442-26 repossessed manufactured home covered by that document of title is
442-27 not required to comply with this chapter if the sale, exchange, or
443-1 lease-purchase is:
443-2 (1) to or through a licensed retailer; or
443-3 (2) to a purchaser for the purchaser's business use.
443-4 (b) If the sale, exchange, or lease-purchase of the
443-5 repossessed manufactured home is to or through a licensed retailer,
443-6 the retailer is responsible and liable for compliance with this
443-7 chapter and department rules. The lienholder may not be joined as
443-8 a party in any litigation relating to the sale, exchange, or
443-9 lease-purchase of the home.
443-10 (c) If the sale, exchange, or lease-purchase of the
443-11 repossessed manufactured home is to a purchaser for the purchaser's
443-12 business use, the lienholder shall surrender the title to the
443-13 department for cancellation. (V.A.C.S. Art. 5221f, Sec. 8(f).)
443-14 Sec. 1201.461. SALVAGED MANUFACTURED HOME. (a) For the
443-15 purposes of this chapter, a manufactured home is salvaged if the
443-16 home is scrapped, dismantled, or destroyed or if an insurance
443-17 company pays the full insured value of the home. The
443-18 reasonableness of the insurer's judgment that the cost of repairing
443-19 the home would exceed the full insured value of the home does not
443-20 affect whether the home is salvaged.
443-21 (b) A person who possesses the original document of title to
443-22 a used manufactured home that is salvaged shall surrender the
443-23 document of title to the director for cancellation of the title and
443-24 issuance of a salvage title.
443-25 (c) If a new manufactured home is salvaged, the retailer
443-26 shall remove the label and surrender the label and the
443-27 manufacturer's certificate under Section 1201.204 to the director
444-1 for issuance of a salvage title.
444-2 (d) A person may not sell, convey, or otherwise transfer to
444-3 a consumer in this state a manufactured home for which a salvage
444-4 title has been issued. A salvaged manufactured home may be sold
444-5 only to a licensed retailer or licensed rebuilder.
444-6 (e) A person may not repair, rebuild, or otherwise alter a
444-7 salvaged manufactured home unless the person complies with the
444-8 rules of the director relating to rebuilding a salvaged
444-9 manufactured home.
444-10 (f) If a salvaged manufactured home is rebuilt in accordance
444-11 with this chapter and the rules of the director, the director
444-12 shall, on application, issue a document of title to replace the
444-13 salvage title. (V.A.C.S. Art. 5221f, Secs. 6(h), 7(n) (part),
444-14 8(g).)
444-15 (Sections 1201.462-1201.500 reserved for expansion)
444-16 SUBCHAPTER K. PROHIBITED PRACTICES
444-17 Sec. 1201.501. PROHIBITED CONSTRUCTION BY MANUFACTURER. A
444-18 manufacturer may not construct a HUD-code manufactured home in this
444-19 state for sale or resale unless the manufacturer:
444-20 (1) supplies the department with proof of acceptance
444-21 by a design approval primary inspection agency authorized by the
444-22 United States Department of Housing and Urban Development;
444-23 (2) purchases the required labels; and
444-24 (3) has the home inspected by an in-plant inspection
444-25 agency authorized by the United States Department of Housing and
444-26 Urban Development. (V.A.C.S. Art. 5221f, Sec. 6(a) (part).)
444-27 Sec. 1201.502. PROHIBITED SHIPPING BY MANUFACTURER. A
445-1 manufacturer may not ship a HUD-code manufactured home into this
445-2 state for sale or resale unless the manufacturer complies with:
445-3 (1) all requirements of the National Manufactured
445-4 Housing Construction and Safety Standards Act of 1974 (42 U.S.C.
445-5 Section 5401 et seq.); and
445-6 (2) all standards, rules, and regulations of the
445-7 United States Department of Housing and Urban Development.
445-8 (V.A.C.S. Art. 5221f, Sec. 6(a) (part).)
445-9 Sec. 1201.503. PROHIBITED ALTERATION. Before the sale to a
445-10 consumer of a new manufactured home to which a label has been
445-11 attached and before installation of the home, a manufacturer,
445-12 retailer, broker, or installer may not alter the home or cause the
445-13 home to be altered without obtaining prior written approval from
445-14 the department. (V.A.C.S. Art. 5221f, Sec. 6(c) (part).)
445-15 Sec. 1201.504. PROHIBITED SALE, EXCHANGE, OR LEASE-PURCHASE.
445-16 (a) A manufacturer may not sell, exchange, or lease-purchase or
445-17 offer to sell, exchange, or lease-purchase a manufactured home to a
445-18 person in this state who is not a licensed retailer.
445-19 (b) A retailer may not sell, exchange, or lease-purchase or
445-20 offer to sell, exchange, or lease-purchase a new HUD-code
445-21 manufactured home that was constructed by a manufacturer who was
445-22 not licensed by the department at the time of construction.
445-23 (c) A retailer, broker, or salesperson may not sell,
445-24 exchange, or lease-purchase or offer to sell, exchange, or
445-25 lease-purchase a manufactured home to a consumer in this state for
445-26 use as a dwelling unless the appropriate seal or label is attached
445-27 to the home. (V.A.C.S. Art. 5221f, Secs. 6(d), (e), (g) (part).)
446-1 Sec. 1201.505. PROHIBITED PURCHASE. A retailer may not
446-2 purchase for resale to a consumer a new HUD-code manufactured home
446-3 that was constructed by a manufacturer who was not licensed by the
446-4 department at the time of construction. (V.A.C.S. Art. 5221f, Sec.
446-5 6(g) (part).)
446-6 Sec. 1201.506. CREDIT. (a) A retailer or broker:
446-7 (1) shall comply with Subtitles A and B, Title 4,
446-8 Finance Code, and the Truth in Lending Act (15 U.S.C. Section 1601
446-9 et seq.); and
446-10 (2) may not advertise an interest rate or finance
446-11 charge that is not expressed as an annual percentage rate.
446-12 (b) A violation of this section does not create a cause of
446-13 action or claim for damages for a consumer. The consumer may not
446-14 recover more than the penalties provided by Subtitles A and B,
446-15 Title 4, Finance Code, and the Truth in Lending Act (15 U.S.C.
446-16 Section 1601 et seq.). (V.A.C.S. Art. 5221f, Sec. 6(j).)
446-17 Sec. 1201.507. FALSE OR MISLEADING INFORMATION. (a) A
446-18 retailer or salesperson may not:
446-19 (1) assist a consumer in preparing or providing false
446-20 or misleading information on a document related to the purchase or
446-21 financing of a manufactured home; or
446-22 (2) submit to a credit underwriter or lending
446-23 institution information known to be false or misleading.
446-24 (b) A salesperson may not submit to a retailer information
446-25 known to be false or misleading. (V.A.C.S. Art. 5221f, Sec. 6(l).)
446-26 Sec. 1201.508. DOWN PAYMENT. (a) A retailer may not state
446-27 payment of a down payment in a retail installment sales contract or
447-1 other credit document unless the retailer has actually received the
447-2 entire down payment at the time of execution of the document.
447-3 (b) If part of the down payment is consideration other than
447-4 cash, including a loan or trade-in, the retailer must expressly
447-5 state that fact in the retail installment sales contract or other
447-6 credit document.
447-7 (c) A cash down payment may not be derived in any part from
447-8 a rebate or other consideration received by, or to be given to, the
447-9 consumer from the retailer or manufacturer. (V.A.C.S. Art. 5221f,
447-10 Sec. 6(k).)
447-11 Sec. 1201.509. PROHIBITED RETENTION OF DEPOSIT. A retailer,
447-12 salesperson, or agent of the retailer may not refuse to refund a
447-13 consumer's deposit except as provided by Section 1201.151.
447-14 (V.A.C.S. Art. 5221f, Sec. 6(m) (part).)
447-15 Sec. 1201.510. PROHIBITED INSTALLATION OF AIR CONDITIONING
447-16 EQUIPMENT. A retailer or an installer may not contract with a
447-17 person for the installation of air conditioning equipment in
447-18 connection with the installation of a manufactured home unless the
447-19 person is licensed by the state as an air conditioning and
447-20 refrigeration contractor. (V.A.C.S. Art. 5221f, Sec. 7(l) (part).)
447-21 Sec. 1201.511. PROHIBITED REAL ESTATE TRANSACTION. (a) This
447-22 section applies to a transaction in which a manufactured home is
447-23 sold as personal property and titled under Subchapter E. This
447-24 section does not apply to a real estate transaction in which a
447-25 manufactured home is real property under Section 2.001, Property
447-26 Code.
447-27 (b) A retailer may not sell, represent for sale, or offer
448-1 for sale real property in conjunction with the sale of a
448-2 manufactured home except as authorized by the department consistent
448-3 with Chapter 1101. (V.A.C.S. Art. 5221f, Sec. 6A.)
448-4 (Sections 1201.512-1201.550 reserved for expansion)
448-5 SUBCHAPTER L. DISCIPLINARY PROCEDURES
448-6 Sec. 1201.551. DENIAL OF LICENSE; DISCIPLINARY ACTION. (a)
448-7 The director, after notice as provided for under Section 1201.054
448-8 and a hearing as provided by Sections 1201.054 and 1201.060, may
448-9 deny, permanently revoke, or suspend for a definite period and
448-10 specified sales location or geographic area a license if the
448-11 director determines that the applicant or license holder:
448-12 (1) knowingly and wilfully violated this chapter or a
448-13 rule adopted or order issued under this chapter;
448-14 (2) unlawfully retained or converted money, property,
448-15 or any other thing of value from a consumer in the form of a down
448-16 payment, sales or use tax, deposit, or insurance premium;
448-17 (3) failed to deliver a proper certificate or other
448-18 document of title to a consumer;
448-19 (4) failed to give or breached a manufactured home
448-20 warranty required by this chapter or by the Federal Trade
448-21 Commission;
448-22 (5) engaged in a false, misleading, or deceptive act
448-23 or practice as described by Subchapter E, Chapter 17, Business &
448-24 Commerce Code;
448-25 (6) failed to provide or file a report required by the
448-26 department for the administration or enforcement of this chapter;
448-27 (7) provided false information on an application,
449-1 report, or other document filed with the department;
449-2 (8) acquired a criminal record during the five-year
449-3 period preceding the application date that, in the opinion of the
449-4 director, makes the applicant unfit for licensing; or
449-5 (9) failed to file a bond or other security for each
449-6 location as required by Subchapter C.
449-7 (b) The department may suspend or revoke a license if, after
449-8 receiving notice of a claim, the license holder or the license
449-9 holder's surety fails or refuses to participate in the informal
449-10 dispute resolution process described by Section 1201.407. (V.A.C.S.
449-11 Art. 5221f, Secs. 7(j), 13A(g) (part).)
449-12 Sec. 1201.552. HEARING CONCERNING LICENSE. The director
449-13 shall conduct a hearing involving the denial, renewal, revocation,
449-14 or suspension of a license in accordance with Chapter 2001,
449-15 Government Code. (V.A.C.S. Art. 5221f, Sec. 7(k).)
449-16 Sec. 1201.553. JUDICIAL REVIEW. Judicial review of an order,
449-17 decision, or determination of the director is instituted by filing
449-18 a petition with a district court in Travis County as provided by
449-19 Chapter 2001, Government Code. (V.A.C.S. Art. 5221f, Sec. 17(d).)
449-20 (Sections 1201.554-1201.600 reserved for expansion)
449-21 SUBCHAPTER M. ENFORCEMENT PROVISIONS AND PENALTIES
449-22 Sec. 1201.601. ACTION AGAINST RETAILER OR MANUFACTURER:
449-23 HOLDER OF DEBT INSTRUMENT. (a) If a consumer files a cause of
449-24 action against a retailer or manufacturer, a claim based on an act
449-25 of the retailer or manufacturer that the consumer could assert
449-26 against the holder of the manufactured home debt instrument must be
449-27 asserted against the holder in the primary suit against the
450-1 retailer or manufacturer.
450-2 (b) A judgment obtained in the primary suit against the
450-3 retailer or manufacturer is conclusive proof as to the holder of
450-4 the debt instrument and admissible in an action by the consumer
450-5 against the holder only if the consumer joins the holder in the
450-6 primary suit.
450-7 (c) The holder of the debt instrument is entitled to full
450-8 indemnity from the retailer or manufacturer for a claim based on an
450-9 act or omission of the retailer or manufacturer.
450-10 (d) If the consumer asserts against the holder of the debt
450-11 instrument a claim or defense that arises from a claim or defense
450-12 of the consumer against the retailer, the consumer's relief against
450-13 the holder arising from claims and defenses of the consumer against
450-14 the retailer is limited to recovery of an amount not to exceed the
450-15 total amount paid by the consumer to the holder and to cancellation
450-16 of the balance remaining on the instrument. If the balance
450-17 remaining on the instrument is canceled, the manufactured home
450-18 shall be returned to the holder. (V.A.C.S. Art. 5221f, Secs.
450-19 18(h), (i).)
450-20 Sec. 1201.602. ACTION AGAINST MANUFACTURER, INSTALLER, OR
450-21 RETAILER: ABATEMENT OR BAR. (a) Notwithstanding any other law, a
450-22 suit alleging that a manufacturer, installer, or retailer failed to
450-23 perform warranty service or failed to comply with a written or
450-24 implied warranty is abated if:
450-25 (1) a plea in abatement is filed with the court not
450-26 later than the 45th day after the movant's answer date; and
450-27 (2) the manufacturer, installer, or retailer requests
451-1 a consumer complaint home inspection under Section 1201.355.
451-2 (b) The abatement continues until the earlier of:
451-3 (1) the date on which the department performs a
451-4 consumer complaint home inspection and the manufacturer, installer,
451-5 or retailer is given an opportunity to comply with the inspection
451-6 report, determinations, and orders of the director; or
451-7 (2) the expiration of a period not to exceed 150 days.
451-8 (c) A consumer's refusal to allow the manufacturer,
451-9 installer, or retailer to perform warranty service in accordance
451-10 with the inspection report, determinations, and orders of the
451-11 director bars a cause of action relating to an alleged failure to:
451-12 (1) comply with a written or implied warranty; or
451-13 (2) perform warranty service. (V.A.C.S. Art. 5221f,
451-14 Sec. 17(c) (part).)
451-15 Sec. 1201.603. DECEPTIVE TRADE PRACTICES. (a) A person's
451-16 violation of this chapter or the failure by a manufacturer,
451-17 installer, or retailer to comply with an implied warranty is a
451-18 deceptive trade practice actionable under Subchapter E, Chapter 17,
451-19 Business & Commerce Code.
451-20 (b) The venue provisions of Subchapter E, Chapter 17,
451-21 Business & Commerce Code, apply to a claim under Subsection (a).
451-22 The remedies available under Subchapter E, Chapter 17, Business &
451-23 Commerce Code, are cumulative of the remedies under this chapter.
451-24 (V.A.C.S. Art. 5221f, Secs. 17(c) (part), 18(b) (part).)
451-25 Sec. 1201.604. CONSUMER RECOVERY FOR PROHIBITED RETENTION OF
451-26 DEPOSIT. In addition to any other remedy, a consumer may recover
451-27 from a retailer, salesperson, or agent of the retailer who violates
452-1 Section 1201.151:
452-2 (1) three times the amount of the deposit; and
452-3 (2) reasonable attorney's fees. (V.A.C.S. Art. 5221f,
452-4 Sec. 6(m)(2).)
452-5 Sec. 1201.605. ADMINISTRATIVE PENALTY. The director may
452-6 assess a person who fails to obtain or maintain a license as
452-7 required by this chapter an administrative penalty in an amount not
452-8 to exceed $10,000 for each violation of this chapter and:
452-9 (1) reasonable attorney's fees;
452-10 (2) administrative costs;
452-11 (3) witness fees;
452-12 (4) investigative costs; and
452-13 (5) deposition expenses. (V.A.C.S. Art. 5221f, Sec.
452-14 17(b).)
452-15 Sec. 1201.606. CRIMINAL PENALTY. (a) A person or a
452-16 director, officer, or agent of a corporation commits an offense if
452-17 the person, director, officer, or agent knowingly and wilfully
452-18 violates this chapter or a rule adopted or order issued by the
452-19 department in a manner that threatens consumer health or safety.
452-20 (b) An offense under this section is a Class A misdemeanor
452-21 punishable by:
452-22 (1) a fine of not more than $2,000;
452-23 (2) confinement in county jail for a term of not more
452-24 than one year; or
452-25 (3) both the fine and confinement. (V.A.C.S.
452-26 Art. 5221f, Sec. 17(a).)
452-27 CHAPTER 1202. INDUSTRIALIZED HOUSING AND BUILDINGS
453-1 SUBCHAPTER A. GENERAL PROVISIONS
453-2 Sec. 1202.001. GENERAL DEFINITIONS
453-3 Sec. 1202.002. DEFINITION OF INDUSTRIALIZED HOUSING
453-4 Sec. 1202.003. DEFINITION OF INDUSTRIALIZED BUILDING
453-5 (Sections 1202.004-1202.050 reserved for expansion)
453-6 SUBCHAPTER B. TEXAS INDUSTRIALIZED BUILDING
453-7 CODE COUNCIL
453-8 Sec. 1202.051. COUNCIL MEMBERSHIP
453-9 Sec. 1202.052. MEMBERSHIP RESTRICTIONS
453-10 Sec. 1202.053. TERMS
453-11 Sec. 1202.054. PRESIDING OFFICER
453-12 Sec. 1202.055. SECRETARY; PERSONNEL
453-13 Sec. 1202.056. REIMBURSEMENT
453-14 Sec. 1202.057. QUORUM
453-15 (Sections 1202.058-1202.100 reserved for expansion)
453-16 SUBCHAPTER C. COUNCIL AND COMMISSION
453-17 POWERS AND DUTIES
453-18 Sec. 1202.101. RULES; ORDERS
453-19 Sec. 1202.102. RULES PROVIDING FOR REGISTRATION
453-20 AND REGULATION
453-21 Sec. 1202.103. CONTINUING EDUCATION
453-22 Sec. 1202.104. FEES
453-23 Sec. 1202.105. APPROVAL OF THIRD-PARTY INSPECTORS AND
453-24 DESIGN REVIEW AGENCIES
453-25 (Sections 1202.106-1202.150 reserved for expansion)
453-26 SUBCHAPTER D. REQUIREMENTS AND STANDARDS
453-27 FOR INDUSTRIALIZED HOUSING AND BUILDINGS
454-1 Sec. 1202.151. BUILDING CODES
454-2 Sec. 1202.152. BUILDING CODE AMENDMENT
454-3 Sec. 1202.153. BUILDING CODE AMENDMENT: MUNICIPALITY
454-4 OR OTHER POLITICAL SUBDIVISION
454-5 Sec. 1202.154. DESIGN REVIEW
454-6 Sec. 1202.155. COUNCIL STAMP OF APPROVAL
454-7 Sec. 1202.156. COUNCIL DETERMINATION OF CERTAIN QUESTIONS
454-8 RELATED TO INDUSTRIALIZED HOUSING AND
454-9 BUILDINGS
454-10 Sec. 1202.157. COUNCIL DECISIONS BINDING
454-11 (Sections 1202.158-1202.200 reserved for expansion)
454-12 SUBCHAPTER E. INSPECTIONS
454-13 Sec. 1202.201. INSPECTION PROCEDURES
454-14 Sec. 1202.202. IN-PLANT INSPECTIONS
454-15 Sec. 1202.203. ON-SITE INSPECTIONS
454-16 Sec. 1202.204. RULES PROVIDING FOR DECALS OR INSIGNIA
454-17 Sec. 1202.205. RECIPROCITY
454-18 (Sections 1202.206-1202.250 reserved for expansion)
454-19 SUBCHAPTER F. MUNICIPAL AUTHORITY
454-20 Sec. 1202.251. RESERVATION OF MUNICIPAL AUTHORITY
454-21 Sec. 1202.252. MUNICIPAL REGULATION OF INDUSTRIALIZED
454-22 HOUSING AND BUILDINGS
454-23 (Sections 1202.253-1202.300 reserved for expansion)
454-24 SUBCHAPTER G. PROHIBITED PRACTICES
454-25 AND DISCIPLINARY PROCEDURES
454-26 Sec. 1202.301. PROHIBITED PRACTICES
454-27 Sec. 1202.302. DENIAL OF CERTIFICATE;
455-1 DISCIPLINARY ACTION
455-2 (Sections 1202.303-1202.350 reserved for expansion)
455-3 SUBCHAPTER H. PENALTIES
455-4 Sec. 1202.351. CRIMINAL PENALTY
455-5 CHAPTER 1202. INDUSTRIALIZED HOUSING AND BUILDINGS
455-6 SUBCHAPTER A. GENERAL PROVISIONS
455-7 Sec. 1202.001. GENERAL DEFINITIONS. In this chapter:
455-8 (1) "Commission" means the Texas Commission of
455-9 Licensing and Regulation.
455-10 (2) "Commissioner" means the commissioner of licensing
455-11 and regulation.
455-12 (3) "Council" means the Texas Industrialized Building
455-13 Code Council.
455-14 (4) "Department" means the Texas Department of
455-15 Licensing and Regulation.
455-16 (5) "Modular component" means a structural part of
455-17 housing or a building constructed at a location other than the
455-18 building site in a manner that prevents the construction from being
455-19 adequately inspected for code compliance at the building site
455-20 without:
455-21 (A) damage; or
455-22 (B) removal and reconstruction of a part of the
455-23 housing or building. (V.A.C.S. Art. 5221f-1, Secs. 1(3), (4), (5),
455-24 (6), (7).)
455-25 Sec. 1202.002. DEFINITION OF INDUSTRIALIZED HOUSING. (a)
455-26 Industrialized housing is a residential structure that is:
455-27 (1) designed for the occupancy of one or more
456-1 families;
456-2 (2) constructed in one or more modules or constructed
456-3 using one or more modular components built at a location other than
456-4 the permanent site; and
456-5 (3) designed to be used as a permanent residential
456-6 structure when the module or the modular component is transported
456-7 to the permanent site and erected or installed on a permanent
456-8 foundation system.
456-9 (b) Industrialized housing includes the structure's
456-10 plumbing, heating, air conditioning, and electrical systems.
456-11 (c) Industrialized housing does not include:
456-12 (1) a residential structure that exceeds three stories
456-13 or 49 feet in height as measured from the finished grade elevation
456-14 at the building entrance to the peak of the roof;
456-15 (2) housing constructed of a sectional or panelized
456-16 system that does not use a modular component; or
456-17 (3) a ready-built home constructed in a manner in
456-18 which the entire living area is contained in a single unit or
456-19 section at a temporary location for the purpose of selling and
456-20 moving the home to another location. (V.A.C.S. Art. 5221f-1, Sec.
456-21 1(1).)
456-22 Sec. 1202.003. DEFINITION OF INDUSTRIALIZED BUILDING. (a)
456-23 An industrialized building is a commercial structure that is:
456-24 (1) constructed in one or more modules or constructed
456-25 using one or more modular components built at a location other than
456-26 the permanent site; and
456-27 (2) designed to be used as a commercial building when
457-1 the module or the modular component is transported to the permanent
457-2 site and erected or installed on a permanent foundation system.
457-3 (b) An industrialized building includes the structure's
457-4 plumbing, heating, air conditioning, and electrical systems.
457-5 (c) An industrialized building does not include a commercial
457-6 structure that exceeds three stories or 49 feet in height as
457-7 measured from the finished grade elevation at the building entrance
457-8 to the peak of the roof. (V.A.C.S. Art. 5221f-1, Sec. 1(2).)
457-9 (Sections 1202.004-1202.050 reserved for expansion)
457-10 SUBCHAPTER B. TEXAS INDUSTRIALIZED BUILDING CODE COUNCIL
457-11 Sec. 1202.051. COUNCIL MEMBERSHIP. The Texas Industrialized
457-12 Building Code Council consists of 12 members appointed by the
457-13 governor as follows:
457-14 (1) three members who represent the industrialized
457-15 housing and building industries;
457-16 (2) three members who represent municipal building
457-17 officials from municipalities with a population of more than
457-18 25,000;
457-19 (3) three members who represent general contractors
457-20 who construct housing or buildings on-site;
457-21 (4) one member who is an engineer licensed in this
457-22 state who acts as a structural engineer;
457-23 (5) one member who is an engineer licensed in this
457-24 state who acts as an electrical engineer; and
457-25 (6) one member who is an architect registered in this
457-26 state. (V.A.C.S. Art. 5221f-1, Secs. 5(a) (part), (c) (part).)
457-27 Sec. 1202.052. MEMBERSHIP RESTRICTIONS. An engineer or
458-1 architect member of the council may not:
458-2 (1) be designated as, be employed by, or have an
458-3 ownership interest in, an entity that is a third-party inspector or
458-4 design review agency;
458-5 (2) have an ownership interest in a business that
458-6 manufactures or builds industrialized housing or buildings;
458-7 (3) in a capacity relating to a matter subject to
458-8 council review, be employed by or be a paid consultant to a
458-9 manufacturer or builder of industrialized housing or buildings; or
458-10 (4) be an officer, employee, or paid consultant of a
458-11 trade association that represents the industrialized housing or
458-12 building industry. (V.A.C.S. Art. 5221f-1, Sec. 5(b).)
458-13 Sec. 1202.053. TERMS. Council members serve staggered
458-14 two-year terms, with the terms of half of the members expiring on
458-15 February 1 of each even-numbered year and the terms of the other
458-16 half of the members expiring on February 1 of each odd-numbered
458-17 year. (V.A.C.S. Art. 5221f-1, Sec. 5(c) (part).)
458-18 Sec. 1202.054. PRESIDING OFFICER. The council shall annually
458-19 elect one of its members as the council's presiding officer.
458-20 (V.A.C.S. Art. 5221f-1, Sec. 5(c) (part).)
458-21 Sec. 1202.055. SECRETARY; PERSONNEL. The commissioner shall:
458-22 (1) act as secretary of the council; and
458-23 (2) provide personnel from the department necessary to
458-24 perform staff functions for the council. (V.A.C.S. Art. 5221f-1,
458-25 Sec. 5(e).)
458-26 Sec. 1202.056. REIMBURSEMENT. (a) A council member may be
458-27 reimbursed for actual costs of travel to attend meetings but may
459-1 not receive a per diem allowance for food or lodging.
459-2 (b) The travel costs shall be paid out of fees collected by
459-3 the department under Section 1202.104. (V.A.C.S. Art. 5221f-1, Sec.
459-4 5(n).)
459-5 Sec. 1202.057. QUORUM. The vote of at least seven members
459-6 present at a meeting or the written approval of at least seven
459-7 members is required for the council to take an action or make a
459-8 decision. (V.A.C.S. Art. 5221f-1, Sec. 5(c) (part).)
459-9 (Sections 1202.058-1202.100 reserved for expansion)
459-10 SUBCHAPTER C. COUNCIL AND COMMISSION
459-11 POWERS AND DUTIES
459-12 Sec. 1202.101. RULES; ORDERS. (a) The commissioner shall
459-13 adopt rules and issue orders as necessary to:
459-14 (1) ensure compliance with the purposes of this
459-15 chapter; and
459-16 (2) provide for uniform enforcement of this chapter.
459-17 (b) The commissioner shall adopt rules as appropriate to
459-18 implement the council's actions, decisions, interpretations, and
459-19 instructions. (V.A.C.S. Art. 5221f-1, Secs. 5(m) (part), 6 (part).)
459-20 Sec. 1202.102. RULES PROVIDING FOR REGISTRATION AND
459-21 REGULATION. The commissioner by rule shall provide for
459-22 registration and regulation of manufacturers or builders of
459-23 industrialized housing or buildings. (V.A.C.S. Art. 5221f-1, Sec. 6
459-24 (part).)
459-25 Sec. 1202.103. CONTINUING EDUCATION. (a) The commissioner
459-26 may recognize, prepare, or administer continuing education programs
459-27 for persons regulated under this chapter.
460-1 (b) Participation in a continuing education program is
460-2 voluntary. (V.A.C.S. Art. 5221f-1, Sec. 6A.)
460-3 Sec. 1202.104. FEES. (a) The commission shall set fees, in
460-4 amounts sufficient to cover the costs of the inspections described
460-5 by this chapter and the administration of this chapter, for:
460-6 (1) the registration of manufacturers or builders of
460-7 industrialized housing or buildings;
460-8 (2) the inspection of industrialized housing or
460-9 buildings at the manufacturing facility; and
460-10 (3) the issuance of decals or insignia required under
460-11 Section 1202.204.
460-12 (b) The fees shall be paid to the comptroller and placed in
460-13 the general revenue fund, except that a fee for an inspection may
460-14 be paid directly to an approved third-party inspector who performs
460-15 the inspection.
460-16 (c) The building and permit fees charged by a municipality
460-17 for an inspection of industrialized housing or buildings to be
460-18 located in the municipality may not exceed the fees charged for the
460-19 equivalent inspection of a building constructed on-site. (V.A.C.S.
460-20 Art. 5221f-1, Sec. 7.)
460-21 Sec. 1202.105. APPROVAL OF THIRD-PARTY INSPECTORS AND DESIGN
460-22 REVIEW AGENCIES. (a) The council shall establish criteria for the
460-23 approval of, and approve accordingly, all third-party inspectors
460-24 and design review agencies.
460-25 (b) The commissioner shall recommend qualified third-party
460-26 inspectors and design review agencies to the council.
460-27 (c) The commissioner shall publish a list of all approved
461-1 inspectors and design review agencies. (V.A.C.S. Art. 5221f-1,
461-2 Sec. 5(f).)
461-3 (Sections 1202.106-1202.150 reserved for expansion)
461-4 SUBCHAPTER D. REQUIREMENTS AND STANDARDS
461-5 FOR INDUSTRIALIZED HOUSING AND BUILDINGS
461-6 Sec. 1202.151. BUILDING CODES. (a) In addition to complying
461-7 with Subsection (b) or (c), as applicable, industrialized housing
461-8 and buildings must be constructed to meet or exceed the
461-9 requirements and standards of the National Electrical Code,
461-10 published by the National Fire Protection Association, as that code
461-11 existed on January 1, 1985.
461-12 (b) Industrialized housing and buildings erected or
461-13 installed in a municipality must be constructed to meet or exceed
461-14 the requirements and standards of whichever of the following two
461-15 groups of codes is used by the municipality:
461-16 (1) the Uniform Building Code, Uniform Plumbing Code,
461-17 and Uniform Mechanical Code, published by the International
461-18 Conference of Building Officials, as those codes existed on January
461-19 1, 1985; or
461-20 (2) the Standard Building Code, Standard Mechanical
461-21 Code, Standard Plumbing Code, and Standard Gas Code, published by
461-22 the Southern Building Code Congress International, Inc., as those
461-23 codes existed on January 1, 1985.
461-24 (c) Industrialized housing and buildings erected or
461-25 installed outside a municipality or in a municipality that does not
461-26 use a building code group described by Subsection (b)(1) or (2)
461-27 must be constructed to meet or exceed the requirements and
462-1 standards of whichever of those building code groups is selected by
462-2 the manufacturer of the housing or buildings. (V.A.C.S.
462-3 Art. 5221f-1, Secs. 2(a), (b).)
462-4 Sec. 1202.152. BUILDING CODE AMENDMENT. If a code described
462-5 by Section 1202.151 is amended after January 1, 1985, the
462-6 requirements and standards of the amended code shall be used in
462-7 place of the January 1, 1985, edition if the council determines
462-8 that use of the amended code is:
462-9 (1) in the public interest; and
462-10 (2) consistent with the purposes of this chapter.
462-11 (V.A.C.S. Art. 5221f-1, Sec. 2(c).)
462-12 Sec. 1202.153. BUILDING CODE AMENDMENT: MUNICIPALITY OR
462-13 OTHER POLITICAL SUBDIVISION. (a) A municipality or other political
462-14 subdivision may not require or enforce, as a prerequisite for
462-15 granting or approving a building or construction permit or
462-16 certificate of occupancy, an amendment to a code described by
462-17 Section 1202.151.
462-18 (b) On the petition of a local building official and after a
462-19 hearing, the council may require a reasonable amendment to a
462-20 building code group described by Section 1202.151(b)(1) or (2) that
462-21 the council determines to be essential for public health and
462-22 safety. The amendment shall be applied uniformly on a statewide
462-23 basis. (V.A.C.S. Art. 5221f-1, Secs. 2(e), 5(i).)
462-24 Sec. 1202.154. DESIGN REVIEW. To ensure compliance with the
462-25 mandatory construction codes, the department or approved design
462-26 review agency shall review all designs, plans, and specifications
462-27 of industrialized housing and buildings in accordance with council
463-1 interpretations and instructions. (V.A.C.S. Art. 5221f-1, Secs. 3
463-2 (part), 5(g).)
463-3 Sec. 1202.155. COUNCIL STAMP OF APPROVAL. (a) The
463-4 department or approved design review agency shall place the
463-5 council's stamp of approval on each page of the designs, plans, and
463-6 specifications of industrialized housing and buildings that:
463-7 (1) meet or exceed the code standards and requirements
463-8 under council interpretations and instructions; and
463-9 (2) are approved by the department or design review
463-10 agency.
463-11 (b) Each page of the designs, plans, and specifications must
463-12 bear the council's stamp of approval if the designs, plans, and
463-13 specifications satisfy the requirements of Subsection (a)(1) and
463-14 are approved in accordance with Subsection (a)(2). (V.A.C.S.
463-15 Art. 5221f-1, Secs. 3 (part), 5(k).)
463-16 Sec. 1202.156. COUNCIL DETERMINATION OF CERTAIN QUESTIONS
463-17 RELATED TO INDUSTRIALIZED HOUSING AND BUILDINGS. (a) The council
463-18 shall determine all questions raised by a municipality in
463-19 connection with the review of designs, plans, and specifications of
463-20 industrialized housing and buildings, as authorized by Section
463-21 1202.252.
463-22 (b) With reference to the standards and requirements of the
463-23 mandatory construction codes, the council shall determine, from an
463-24 engineering performance standpoint, all questions concerning:
463-25 (1) code equivalency; or
463-26 (2) alternative materials or methods of construction.
463-27 (V.A.C.S. Art. 5221f-1, Secs. 5(h), (j).)
464-1 Sec. 1202.157. COUNCIL DECISIONS BINDING. The decisions,
464-2 actions, and interpretations of the council are binding on the
464-3 department, third-party inspectors, design review agencies, and
464-4 municipalities and other political subdivisions. (V.A.C.S.
464-5 Art. 5221f-1, Sec. 5(m) (part).)
464-6 (Sections 1202.158-1202.200 reserved for expansion)
464-7 SUBCHAPTER E. INSPECTIONS
464-8 Sec. 1202.201. INSPECTION PROCEDURES. The council may issue
464-9 instructions to establish procedures for inspecting the
464-10 construction and installation of industrialized housing and
464-11 buildings to ensure compliance with approved designs, plans, and
464-12 specifications. (V.A.C.S. Art. 5221f-1, Sec. 5(l).)
464-13 Sec. 1202.202. IN-PLANT INSPECTIONS. (a) To ensure
464-14 compliance with approved designs, plans, and specifications, the
464-15 department shall inspect the construction of industrialized housing
464-16 and buildings at the manufacturing facility. The commissioner may
464-17 designate approved third-party inspectors to perform the
464-18 inspections subject to the rules of the commissioner.
464-19 (b) Local building officials may witness in-plant
464-20 inspections to enable the local officials to make recommendations
464-21 on inspection procedures to the council. (V.A.C.S. Art. 5221f-1,
464-22 Sec. 4(a).)
464-23 Sec. 1202.203. ON-SITE INSPECTIONS. (a) A municipal
464-24 building official shall inspect all construction at the permanent
464-25 site of industrialized housing and buildings to be located in the
464-26 municipality to ensure compliance with designs, plans, and
464-27 specifications, including inspection of:
465-1 (1) the construction of the foundation system; and
465-2 (2) the erection and installation of the modules or
465-3 modular components on the permanent foundation.
465-4 (b) An approved third-party inspector shall perform on-site
465-5 inspections of industrialized housing and buildings to be located
465-6 outside the municipality. (V.A.C.S. Art. 5221f-1, Sec. 4(b).)
465-7 Sec. 1202.204. RULES PROVIDING FOR DECALS OR INSIGNIA. The
465-8 commissioner by rule shall provide for the placement of decals or
465-9 insignia on each transportable modular section or modular component
465-10 to indicate compliance with the mandatory construction codes.
465-11 (V.A.C.S. Art. 5221f-1, Sec. 6 (part).)
465-12 Sec. 1202.205. RECIPROCITY. (a) The commissioner by rule
465-13 may authorize an inspection of industrialized housing or buildings
465-14 constructed in another state to be performed by an inspector of the
465-15 equivalent regulatory agency of the other state.
465-16 (b) The commissioner by rule may authorize an inspection of
465-17 industrialized housing or buildings constructed in this state for
465-18 use in another state.
465-19 (c) The commissioner shall enter into a reciprocity
465-20 agreement with the equivalent regulatory agency of the other state
465-21 as necessary to implement this section. (V.A.C.S. Art. 5221f-1,
465-22 Sec. 4(c).)
465-23 (Sections 1202.206-1202.250 reserved for expansion)
465-24 SUBCHAPTER F. MUNICIPAL AUTHORITY
465-25 Sec. 1202.251. RESERVATION OF MUNICIPAL AUTHORITY. (a)
465-26 Municipal authority is specifically and entirely reserved to a
465-27 municipality, including, as applicable:
466-1 (1) land use and zoning requirements;
466-2 (2) building setback requirements;
466-3 (3) side and rear yard requirements;
466-4 (4) site planning and development and property line
466-5 requirements;
466-6 (5) subdivision control; and
466-7 (6) landscape architectural requirements.
466-8 (b) Requirements and regulations not in conflict with this
466-9 chapter or with other state law relating to transportation,
466-10 erection, installation, or use of industrialized housing or
466-11 buildings must be reasonably and uniformly applied and enforced
466-12 without distinctions as to whether the housing or buildings are
466-13 manufactured or are constructed on-site. (V.A.C.S. Art. 5221f-1,
466-14 Sec. 2(d) (part).)
466-15 Sec. 1202.252. MUNICIPAL REGULATION OF INDUSTRIALIZED
466-16 HOUSING AND BUILDINGS. (a) A municipality that regulates the
466-17 on-site construction or installation of industrialized housing and
466-18 buildings may:
466-19 (1) require and review, for compliance with mandatory
466-20 construction codes, a complete set of designs, plans, and
466-21 specifications bearing the council's stamp of approval for each
466-22 installation of industrialized housing or buildings in the
466-23 municipality;
466-24 (2) require that all applicable local permits and
466-25 licenses be obtained before construction begins on a building site;
466-26 (3) require, in accordance with commissioner rules,
466-27 that all modules or modular components bear an approved decal or
467-1 insignia indicating inspection at the manufacturing facility; and
467-2 (4) establish procedures for the inspection of:
467-3 (A) the erection and installation of
467-4 industrialized housing or buildings to be located in the
467-5 municipality, to ensure compliance with mandatory construction
467-6 codes and commissioner rules; and
467-7 (B) all foundation and other on-site
467-8 construction, to ensure compliance with approved designs, plans,
467-9 and specifications.
467-10 (b) Procedures described by Subsection (a)(4) may require:
467-11 (1) before occupancy, a final inspection or test in
467-12 accordance with mandatory construction codes; and
467-13 (2) correction of any deficiency identified by the
467-14 test or discovered in the final inspection. (V.A.C.S.
467-15 Art. 5221f-1, Sec. 2(d) (part).)
467-16 (Sections 1202.253-1202.300 reserved for expansion)
467-17 SUBCHAPTER G. PROHIBITED PRACTICES
467-18 AND DISCIPLINARY PROCEDURES
467-19 Sec. 1202.301. PROHIBITED PRACTICES. (a) In this section,
467-20 "person" means an individual, partnership, company, corporation,
467-21 association, or other group, however organized.
467-22 (b) A person may not construct, sell or offer to sell, lease
467-23 or offer to lease, or transport over a street or highway of this
467-24 state any industrialized housing or building, or modular section or
467-25 component of a modular section, in violation of this chapter or a
467-26 rule or order of the commissioner. (V.A.C.S. Art. 5221f-1, Secs.
467-27 8(a), (e).)
468-1 Sec. 1202.302. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION.
468-2 The commissioner may deny, permanently revoke, or suspend for a
468-3 definite period and specified location or geographic area a
468-4 certificate of registration if the commissioner finds that the
468-5 applicant or registrant:
468-6 (1) provided false information on an application or
468-7 other document filed with the department;
468-8 (2) failed to pay a fee or file a report required by
468-9 the department for the administration or enforcement of this
468-10 chapter;
468-11 (3) engaged in a false, misleading, or deceptive act
468-12 or practice as described by Subchapter E, Chapter 17, Business &
468-13 Commerce Code; or
468-14 (4) violated:
468-15 (A) this chapter;
468-16 (B) a rule adopted or order issued by the
468-17 commissioner under this chapter; or
468-18 (C) a decision, action, or interpretation of the
468-19 council. (V.A.C.S. Art. 5221f-1, Sec. 9(a).)
468-20 (Sections 1202.303-1202.350 reserved for expansion)
468-21 SUBCHAPTER H. PENALTIES
468-22 Sec. 1202.351. CRIMINAL PENALTY. (a) In this section,
468-23 "person" has the meaning assigned by Section 1202.301.
468-24 (b) A person commits an offense if the person knowingly and
468-25 wilfully violates this chapter or a published rule or order of the
468-26 commissioner.
468-27 (c) An offense under this section is a Class A misdemeanor.
469-1 (V.A.C.S. Art. 5221f-1, Secs. 8(d), (e).)
469-2 SECTION 3. ADOPTION OF ENVIRONMENTAL AND INDUSTRIAL TRADES
469-3 TITLE. The Occupations Code is amended by adding Title 8 to read as
469-4 follows:
469-5 TITLE 8. REGULATION OF ENVIRONMENTAL AND INDUSTRIAL TRADES
469-6 CHAPTER 1301. PLUMBERS
469-7 CHAPTER 1302. AIR CONDITIONING AND REFRIGERATION CONTRACTORS
469-8 CHAPTER 1303. RESIDENTIAL SERVICE COMPANIES
469-9 CHAPTER 1304. SERVICE CONTRACT PROVIDERS
469-10 CHAPTER 1301. PLUMBERS
469-11 SUBCHAPTER A. GENERAL PROVISIONS
469-12 Sec. 1301.001. SHORT TITLE
469-13 Sec. 1301.002. DEFINITIONS
469-14 Sec. 1301.003. APPLICATION OF SUNSET ACT
469-15 (Sections 1301.004-1301.050 reserved for expansion)
469-16 SUBCHAPTER B. EXEMPTIONS
469-17 Sec. 1301.051. PLUMBING BY PROPERTY OWNER IN HOMESTEAD
469-18 Sec. 1301.052. WORK INSIDE OR OUTSIDE MUNICIPALITIES
469-19 Sec. 1301.053. WORK INCIDENTAL TO OTHER PROFESSIONS
469-20 Sec. 1301.054. IRRIGATORS AND WATER WELL PUMP INSTALLERS
469-21 Sec. 1301.055. LP GAS INSTALLERS
469-22 Sec. 1301.056. LAWN IRRIGATION SYSTEMS
469-23 Sec. 1301.057. SELF-HELP PROJECT
469-24 (Sections 1301.058-1301.150 reserved for expansion)
469-25 SUBCHAPTER C. TEXAS STATE BOARD OF PLUMBING EXAMINERS
469-26 Sec. 1301.151. TEXAS STATE BOARD OF PLUMBING EXAMINERS
469-27 MEMBERSHIP
470-1 Sec. 1301.152. ELIGIBILITY OF PUBLIC MEMBERS
470-2 Sec. 1301.153. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
470-3 Sec. 1301.154. TERMS
470-4 Sec. 1301.155. ISSUANCE OF COMMISSION
470-5 Sec. 1301.156. GROUNDS FOR REMOVAL
470-6 Sec. 1301.157. OFFICERS
470-7 Sec. 1301.158. PER DIEM; REIMBURSEMENT
470-8 (Sections 1301.159-1301.200 reserved for expansion)
470-9 SUBCHAPTER D. BOARD PERSONNEL
470-10 Sec. 1301.201. STAFF
470-11 Sec. 1301.202. PLUMBING EXAMINER
470-12 Sec. 1301.203. FIELD REPRESENTATIVE; INSPECTIONS
470-13 Sec. 1301.204. CAREER LADDER PROGRAM; PERFORMANCE
470-14 EVALUATIONS
470-15 (Sections 1301.205-1301.250 reserved for expansion)
470-16 SUBCHAPTER E. BOARD POWERS AND DUTIES
470-17 Sec. 1301.251. GENERAL DUTIES OF BOARD
470-18 Sec. 1301.252. RULES RESTRICTING ADVERTISING OR
470-19 COMPETITIVE BIDDING
470-20 Sec. 1301.253. FEES
470-21 Sec. 1301.254. SEAL
470-22 Sec. 1301.255. ADOPTION OF PLUMBING CODES
470-23 Sec. 1301.256. SUBPOENA
470-24 Sec. 1301.257. NOTICE OF LICENSE ISSUANCE
470-25 (Sections 1301.258-1301.300 reserved for expansion)
470-26 SUBCHAPTER F. CONSUMER INTEREST INFORMATION AND
470-27 COMPLAINT PROCEDURES
471-1 Sec. 1301.301. CONSUMER INTEREST INFORMATION
471-2 Sec. 1301.302. CONTRACT INFORMATION
471-3 Sec. 1301.303. COMPLAINTS
471-4 (Sections 1301.304-1301.350 reserved for expansion)
471-5 SUBCHAPTER G. LICENSE REQUIREMENTS
471-6 Sec. 1301.351. LICENSE REQUIRED
471-7 Sec. 1301.352. EXAMINATION REQUIRED
471-8 Sec. 1301.353. INSPECTOR CONFLICTS PROHIBITED
471-9 Sec. 1301.354. APPRENTICE ELIGIBILITY FOR EXAMINATION
471-10 Sec. 1301.355. EXAMINATION RESULTS
471-11 Sec. 1301.356. ENDORSEMENT: MEDICAL GAS PIPING
471-12 INSTALLATION
471-13 Sec. 1301.357. ENDORSEMENT: WATER SUPPLY PROTECTION
471-14 SPECIALIST
471-15 Sec. 1301.358. OUT-OF-STATE APPLICANTS
471-16 Sec. 1301.359. STATEWIDE VALIDITY OF LICENSE;
471-17 NONTRANSFERABILITY
471-18 (Sections 1301.360-1301.400 reserved for expansion)
471-19 SUBCHAPTER H. LICENSE EXPIRATION AND RENEWAL
471-20 Sec. 1301.401. ANNUAL RENEWAL REQUIRED
471-21 Sec. 1301.402. NOTICE OF LICENSE EXPIRATION
471-22 Sec. 1301.403. PROCEDURE FOR RENEWAL
471-23 Sec. 1301.404. MANDATORY CONTINUING PROFESSIONAL EDUCATION
471-24 Sec. 1301.405. VOLUNTARY CONTINUING EDUCATION
471-25 (Sections 1301.406-1301.450 reserved for expansion)
471-26 SUBCHAPTER I. DISCIPLINARY PROCEDURES
471-27 Sec. 1301.451. DISCIPLINARY POWERS OF BOARD
472-1 Sec. 1301.452. GROUNDS FOR DISCIPLINARY ACTION
472-2 Sec. 1301.453. HEARING
472-3 Sec. 1301.454. ADMINISTRATIVE PROCEDURE
472-4 (Sections 1301.455-1301.500 reserved for expansion)
472-5 SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
472-6 Sec. 1301.501. BACKFLOW PREVENTION
472-7 Sec. 1301.502. CITATION
472-8 Sec. 1301.503. ENFORCEMENT BY PLUMBING INSPECTOR
472-9 Sec. 1301.504. INJUNCTION
472-10 Sec. 1301.505. REPRESENTATION BY ATTORNEY GENERAL
472-11 Sec. 1301.506. APPEAL BOND NOT REQUIRED
472-12 Sec. 1301.507. CIVIL PENALTY
472-13 Sec. 1301.508. CRIMINAL PENALTY
472-14 (Sections 1301.509-1301.550 reserved for expansion)
472-15 SUBCHAPTER K. REGULATION BY CERTAIN POLITICAL SUBDIVISIONS
472-16 Sec. 1301.551. MUNICIPAL PLUMBING ORDINANCES AND PERMITS
472-17 Sec. 1301.552. CERTIFICATE OF INSURANCE FOR PLUMBING PERMIT
472-18 IN POLITICAL SUBDIVISION
472-19 (Sections 1301.553-1301.600 reserved for expansion)
472-20 SUBCHAPTER L. CERTIFICATION: RESIDENTIAL WATER TREATMENT
472-21 Sec. 1301.601. RESIDENTIAL WATER TREATMENT CERTIFICATION
472-22 Sec. 1301.602. FEE; CERTIFICATE
472-23 CHAPTER 1301. PLUMBERS
472-24 SUBCHAPTER A. GENERAL PROVISIONS
472-25 Sec. 1301.001. SHORT TITLE. This chapter may be cited as the
472-26 Plumbing License Law. (V.A.C.S. Art. 6243-101, Sec. 1.)
472-27 Sec. 1301.002. DEFINITIONS. In this chapter:
473-1 (1) "Board" means the Texas State Board of Plumbing
473-2 Examiners.
473-3 (2) "Journeyman plumber" means a person other than a
473-4 master plumber who:
473-5 (A) installs, changes, repairs, services, or
473-6 renovates plumbing or supervises any of those activities; and
473-7 (B) has passed the required examination and
473-8 fulfilled the other requirements of the board.
473-9 (3) "Master plumber" means a person who:
473-10 (A) is skilled in the planning and
473-11 superintending of plumbing and in the practical installation,
473-12 repair, and servicing of plumbing;
473-13 (B) is familiar with the codes, ordinances, or
473-14 rules governing those activities;
473-15 (C) performs or supervises plumbing work; and
473-16 (D) has passed the required examination and
473-17 fulfilled the other requirements of the board.
473-18 (4) "Plumber's apprentice" means a person other than a
473-19 master plumber or a journeyman plumber who, as the person's
473-20 principal occupation, learns about and assists in the installation
473-21 of plumbing.
473-22 (5) "Plumbing" means:
473-23 (A) a fixture, appurtenance, appliance, or
473-24 piping, including a disposal system, used in or around a building
473-25 in which a person lives or works or in which persons assemble, to:
473-26 (i) supply or recirculate water, other
473-27 liquid, or gas; or
474-1 (ii) eliminate sewage for a personal or
474-2 domestic purpose;
474-3 (B) a fixture, appurtenance, appliance, or
474-4 piping used outside a building to connect the building to:
474-5 (i) a supply of water, other liquid, or
474-6 gas on the premises; or
474-7 (ii) the main in the street or alley or at
474-8 the curb;
474-9 (C) a fixture, appurtenance, appliance, or
474-10 piping, including a drain or waste pipe, used to carry wastewater
474-11 or sewage from or within a building to:
474-12 (i) a sewer service lateral at the curb or
474-13 in the street or alley; or
474-14 (ii) a disposal or septic terminal that
474-15 holds private or domestic sewage; or
474-16 (D) the installation, repair, service, or
474-17 maintenance of a fixture, appurtenance, appliance, or piping
474-18 described by Paragraph (A), (B), or (C).
474-19 (6) "Plumbing inspector" means a person who:
474-20 (A) is employed by a political subdivision to
474-21 inspect plumbing in connection with health and safety laws; and
474-22 (B) has passed the required examination and
474-23 fulfilled the other requirements of the board.
474-24 (7) "Water supply protection specialist" means a
474-25 person who holds an endorsement issued by the board to engage in
474-26 the inspection, in connection with health and safety laws,
474-27 including ordinances, of:
475-1 (A) the plumbing of a public water system
475-2 distribution facility; or
475-3 (B) customer-owned plumbing connected to the
475-4 water distribution lines of a public water system.
475-5 (8) "Water treatment" means a business conducted under
475-6 contract that requires ability, experience, and skill in analyzing
475-7 water to determine how to treat influent and effluent water to
475-8 change or purify the water or to add or remove minerals, chemicals,
475-9 or bacteria. The term includes:
475-10 (A) installing and servicing fixed or portable
475-11 water treatment equipment in a public or private water treatment
475-12 system; or
475-13 (B) making connections necessary to install a
475-14 water treatment system. (V.A.C.S. Art. 6243-101, Secs. 2(1), (2),
475-15 (3), (4), (5) (part), (6), (7), (9).)
475-16 Sec. 1301.003. APPLICATION OF SUNSET ACT. The Texas State
475-17 Board of Plumbing Examiners is subject to Chapter 325, Government
475-18 Code (Texas Sunset Act). Unless continued in existence as provided
475-19 by that chapter, the board is abolished and this chapter expires
475-20 September 1, 2003. (V.A.C.S. Art. 6243-101, Sec. 4a.)
475-21 (Sections 1301.004-1301.050 reserved for expansion)
475-22 SUBCHAPTER B. EXEMPTIONS
475-23 Sec. 1301.051. PLUMBING BY PROPERTY OWNER IN HOMESTEAD. A
475-24 property owner is not required to be licensed under this chapter to
475-25 perform plumbing in the property owner's homestead. (V.A.C.S.
475-26 Art. 6243-101, Sec. 3(a) (part).)
475-27 Sec. 1301.052. WORK INSIDE OR OUTSIDE MUNICIPALITIES. A
476-1 person is not required to be licensed under this chapter to perform
476-2 plumbing:
476-3 (1) outside a municipality; or
476-4 (2) inside a municipality with fewer than 5,000
476-5 inhabitants, unless an ordinance of the municipality requires the
476-6 person to be licensed. (V.A.C.S. Art. 6243-101, Sec. 3(a) (part).)
476-7 Sec. 1301.053. WORK INCIDENTAL TO OTHER PROFESSIONS. (a) A
476-8 person is not required to be licensed under this chapter to
476-9 perform:
476-10 (1) plumbing incidental to and in connection with the
476-11 business in which the person is employed or engaged if the person:
476-12 (A) is regularly employed as or acting as a
476-13 maintenance person or maintenance engineer; and
476-14 (B) does not engage in plumbing for the public;
476-15 (2) construction, installation, or maintenance on the
476-16 premises or equipment of a railroad if the person is an employee of
476-17 the railroad who does not engage in plumbing for the public;
476-18 (3) plumbing if the person is engaged by a public
476-19 service company to:
476-20 (A) lay, maintain, or operate its service mains
476-21 or lines to the point of measurement; and
476-22 (B) install, change, adjust, repair, remove, or
476-23 renovate appurtenances, equipment, or appliances;
476-24 (4) appliance installation and service work that
476-25 involves connecting appliances to existing piping if the person
476-26 performs the work as an appliance dealer or an employee of an
476-27 appliance dealer; or
477-1 (5) water treatment installations, exchanges,
477-2 services, or repairs.
477-3 (b) Work described by this section is subject to inspection
477-4 and approval as provided by municipal ordinance. (V.A.C.S.
477-5 Art. 6243-101, Sec. 3(a) (part).)
477-6 Sec. 1301.054. IRRIGATORS AND WATER WELL PUMP INSTALLERS. A
477-7 person is not required to be licensed under this chapter to perform
477-8 plumbing if the person holds a:
477-9 (1) certificate of registration as an irrigator issued
477-10 under Chapter 1903; or
477-11 (2) license as a water well pump installer issued
477-12 under Chapter 1902. (V.A.C.S. Art. 6243-101, Sec. 3(a) (part).)
477-13 Sec. 1301.055. LP GAS INSTALLERS. A person is not required
477-14 to be licensed under this chapter to perform plumbing if the person
477-15 performs the plumbing as an LP gas installer licensed under
477-16 Subchapter D, Chapter 113, Natural Resources Code. (V.A.C.S.
477-17 Art. 6243-101, Sec. 3(a) (part).)
477-18 Sec. 1301.056. LAWN IRRIGATION SYSTEMS. A person licensed by
477-19 the board is not required to be licensed by another board or agency
477-20 to install or work on a lawn irrigation system. (V.A.C.S.
477-21 Art. 6243-101, Sec. 3(a) (part).)
477-22 Sec. 1301.057. SELF-HELP PROJECT. (a) A person is not
477-23 required to be licensed under this chapter to perform plumbing,
477-24 limited to the provision of a residential potable water supply or
477-25 residential sanitary sewer connection, for a project that:
477-26 (1) is in a county a part of which is within 50 miles
477-27 of an international border; and
478-1 (2) is performed by an organization that:
478-2 (A) is certified by the Texas Natural Resource
478-3 Conservation Commission to provide self-help project assistance;
478-4 and
478-5 (B) provides the board with the following
478-6 information before the 30th day before the date the project begins:
478-7 (i) the exact location of the project;
478-8 (ii) the intended duration of the project;
478-9 and
478-10 (iii) other information the board
478-11 requires.
478-12 (b) The board may require under Subsection (a)(2)(B)(iii)
478-13 that the organization provide a post-construction report signed by
478-14 a plumbing inspector stating that the plumbing is safe.
478-15 (c) The board may provide training to an organization that
478-16 provides self-help project assistance under this section. (V.A.C.S.
478-17 Art. 6243-101, Secs. 3(a) (part), (c).)
478-18 (Sections 1301.058-1301.150 reserved for expansion)
478-19 SUBCHAPTER C. TEXAS STATE BOARD OF PLUMBING EXAMINERS
478-20 Sec. 1301.151. TEXAS STATE BOARD OF PLUMBING EXAMINERS
478-21 MEMBERSHIP. (a) The Texas State Board of Plumbing Examiners
478-22 consists of nine members appointed by the governor with the advice
478-23 and consent of the senate as follows:
478-24 (1) one member with at least 10 years' practical
478-25 experience as a master plumber;
478-26 (2) one member with at least five years' practical
478-27 experience as a journeyman plumber;
479-1 (3) one member with at least five years' practical
479-2 experience as a plumbing inspector;
479-3 (4) one member who is a plumbing contractor with at
479-4 least five years' experience;
479-5 (5) one member who is a licensed sanitary engineer;
479-6 (6) two members who are building contractors with at
479-7 least five years' contracting experience, one of whom is
479-8 principally engaged in home building and one of whom is principally
479-9 engaged in commercial building; and
479-10 (7) two members who represent the public.
479-11 (b) Each member of the board must be a United States
479-12 citizen.
479-13 (c) Appointments to the board shall be made without regard
479-14 to the race, creed, sex, religion, or national origin of the
479-15 appointee. (V.A.C.S. Art. 6243-101, Sec. 4(a) (part).)
479-16 Sec. 1301.152. ELIGIBILITY OF PUBLIC MEMBERS. A person is
479-17 not eligible for appointment as a public member of the board if the
479-18 person or the person's spouse:
479-19 (1) is licensed by an occupational regulatory agency
479-20 in the building construction industry;
479-21 (2) is employed by or participates in the management
479-22 of an agency or business entity related to the building
479-23 construction industry; or
479-24 (3) has, other than as a consumer, a financial
479-25 interest in a business entity related to the building construction
479-26 industry. (V.A.C.S. Art. 6243-101, Sec. 4(a) (part).)
479-27 Sec. 1301.153. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) A
480-1 member or employee of the board may not be:
480-2 (1) an officer, employee, or paid consultant of a
480-3 trade association in the building construction industry; or
480-4 (2) related within the second degree by consanguinity
480-5 or affinity, as determined under Chapter 573, Government Code, to a
480-6 person who is an officer, employee, or paid consultant of a trade
480-7 association in the regulated industry.
480-8 (b) A person may not serve as a member of the board or act
480-9 as the general counsel to the board if the person is required to
480-10 register as a lobbyist under Chapter 305, Government Code.
480-11 (V.A.C.S. Art. 6243-101, Sec. 4(b).)
480-12 Sec. 1301.154. TERMS. Board members serve staggered six-year
480-13 terms. (V.A.C.S. Art. 6243-101, Sec. 4(a) (part).)
480-14 Sec. 1301.155. ISSUANCE OF COMMISSION. On presentation of
480-15 the constitutional oath of office and a certificate of appointment,
480-16 the secretary of state shall issue a commission to a board member
480-17 as evidence of the person's authority to act as a board member.
480-18 (V.A.C.S. Art. 6243-101, Sec. 6 (part).)
480-19 Sec. 1301.156. GROUNDS FOR REMOVAL. (a) It is a ground for
480-20 removal from the board that a member:
480-21 (1) does not have at the time of appointment the
480-22 qualifications required by Section 1301.151 or 1301.152;
480-23 (2) does not maintain during service on the board the
480-24 qualifications required by Section 1301.151 or 1301.152;
480-25 (3) violates a prohibition prescribed by Section
480-26 1301.153; or
480-27 (4) fails to attend at least half of the regularly
481-1 scheduled board meetings that the member is eligible to attend
481-2 during a calendar year.
481-3 (b) The validity of an action of the board is not affected
481-4 by the fact that it is taken when a ground for removal of a board
481-5 member exists. (V.A.C.S. Art. 6243-101, Secs. 4(c), (d).)
481-6 Sec. 1301.157. OFFICERS. The board shall elect a presiding
481-7 officer and a secretary from its membership. (V.A.C.S.
481-8 Art. 6243-101, Sec. 5(a) (part).)
481-9 Sec. 1301.158. PER DIEM; REIMBURSEMENT. (a) A board member
481-10 may not receive a fixed salary for service on the board.
481-11 (b) A board member is entitled to receive a per diem as set
481-12 by the General Appropriations Act for each day the member engages
481-13 in the business of the board.
481-14 (c) A board member may not receive reimbursement for travel
481-15 expenses, including expenses for meals and lodging, other than
481-16 transportation expenses. A member is entitled to reimbursement for
481-17 transportation expenses as provided by the General Appropriations
481-18 Act. (V.A.C.S. Art. 6243-101, Sec. 6 (part).)
481-19 (Sections 1301.159-1301.200 reserved for expansion)
481-20 SUBCHAPTER D. BOARD PERSONNEL
481-21 Sec. 1301.201. STAFF. The board may employ personnel as
481-22 necessary to administer this chapter. The board may determine the
481-23 compensation and duties of its employees and the terms of their
481-24 employment. (V.A.C.S. Art. 6243-101, Sec. 5(a) (part).)
481-25 Sec. 1301.202. PLUMBING EXAMINER. (a) The board shall
481-26 employ one or more plumbing examiners. A plumbing examiner serves
481-27 at the will of the board.
482-1 (b) A plumbing examiner shall:
482-2 (1) examine the fitness and qualifications of a person
482-3 applying to the board:
482-4 (A) for a license as a master plumber or
482-5 journeyman plumber; or
482-6 (B) to serve as a plumbing inspector; and
482-7 (2) promptly certify the result of the examination to
482-8 the board. (V.A.C.S. Art. 6243-101, Sec. 5(a) (part).)
482-9 Sec. 1301.203. FIELD REPRESENTATIVE; INSPECTIONS. (a) The
482-10 board may employ a field representative to assist the board in
482-11 enforcing this chapter and rules adopted under this chapter. A
482-12 field representative must be:
482-13 (1) knowledgeable of this chapter and municipal
482-14 ordinances relating to plumbing; and
482-15 (2) qualified by experience and training in plumbing
482-16 practice.
482-17 (b) A field representative may:
482-18 (1) conduct on-site license checks to determine
482-19 compliance with this chapter;
482-20 (2) investigate consumer complaints filed under
482-21 Section 1301.303;
482-22 (3) assist municipal plumbing inspectors in enforcing
482-23 this chapter; and
482-24 (4) issue citations as provided by Section 1301.502.
482-25 (V.A.C.S. Art. 6243-101, Sec. 8B, as added Acts 70th Leg., R.S.,
482-26 Ch. 670.)
482-27 Sec. 1301.204. CAREER LADDER PROGRAM; PERFORMANCE
483-1 EVALUATIONS. (a) The presiding officer of the board or the
483-2 presiding officer's designee shall develop an intra-agency career
483-3 ladder program. The program must require intra-agency posting of
483-4 each nonentry level position at least 10 days before the date of
483-5 any public posting.
483-6 (b) The presiding officer of the board or the presiding
483-7 officer's designee shall develop a system of annual performance
483-8 evaluations based on measurable job tasks. All merit pay for board
483-9 employees must be based on the system established under this
483-10 subsection. (V.A.C.S. Art. 6243-101, Sec. 5A.)
483-11 (Sections 1301.205-1301.250 reserved for expansion)
483-12 SUBCHAPTER E. BOARD POWERS AND DUTIES
483-13 Sec. 1301.251. GENERAL DUTIES OF BOARD. The board shall:
483-14 (1) administer this chapter;
483-15 (2) adopt and enforce rules necessary to administer
483-16 this chapter; and
483-17 (3) keep a record of each proceeding conducted before
483-18 and action taken by the board. (V.A.C.S. Art. 6243-101, Sec. 5(a)
483-19 (part).)
483-20 Sec. 1301.252. RULES RESTRICTING ADVERTISING OR COMPETITIVE
483-21 BIDDING. (a) The board may not adopt a rule restricting
483-22 advertising or competitive bidding by a person licensed under this
483-23 chapter except to prohibit false, misleading, or deceptive
483-24 practices by the person.
483-25 (b) The board may not include in its rules to prohibit
483-26 false, misleading, or deceptive practices a rule that:
483-27 (1) restricts the person's use of any medium for
484-1 advertising;
484-2 (2) restricts the person's personal appearance or use
484-3 of the person's voice in an advertisement;
484-4 (3) relates to the size or duration of an
484-5 advertisement by the person; or
484-6 (4) restricts the person's advertisement under a trade
484-7 name. (V.A.C.S. Art. 6243-101, Sec. 5(b).)
484-8 Sec. 1301.253. FEES. The board shall set fees in amounts
484-9 that are reasonable and necessary to cover the cost of
484-10 administering this chapter. (V.A.C.S. Art. 6243-101, Sec. 13(a).)
484-11 Sec. 1301.254. SEAL. The board shall have an official seal.
484-12 (V.A.C.S. Art. 6243-101, Sec. 5(a) (part).)
484-13 Sec. 1301.255. ADOPTION OF PLUMBING CODES. (a) The board
484-14 shall adopt:
484-15 (1) the Southern Standard Plumbing Code;
484-16 (2) the Uniform Plumbing Code; and
484-17 (3) the National Standard Plumbing Code.
484-18 (b) A municipality or an owner of a public water system may
484-19 adopt standards for the design, installation, and maintenance of a
484-20 plumbing system only if those standards do not substantially vary
484-21 from board rules or other rules of this state. (V.A.C.S.
484-22 Art. 6243-101, Sec. 5B.)
484-23 Sec. 1301.256. SUBPOENA. (a) The board may request and, if
484-24 necessary, compel by subpoena:
484-25 (1) the attendance of a witness for examination under
484-26 oath; and
484-27 (2) the production for inspection and copying of
485-1 records, documents, and other evidence relevant to the
485-2 investigation of an alleged violation of this chapter.
485-3 (b) The board, acting through the attorney general, may
485-4 bring an action to enforce a subpoena issued under Subsection (a)
485-5 against a person who fails to comply with the subpoena.
485-6 (c) Venue for an action brought under Subsection (b) is in a
485-7 district court in:
485-8 (1) Travis County; or
485-9 (2) any county in which the board may hold a hearing.
485-10 (d) The court shall order compliance with the subpoena if
485-11 the court finds that good cause exists to issue the subpoena.
485-12 (V.A.C.S. Art. 6243-101, Sec. 8A(f) (part).)
485-13 Sec. 1301.257. NOTICE OF LICENSE ISSUANCE. The board shall
485-14 forward the name and address of each person in a municipality who
485-15 receives a license under this chapter to the authority that
485-16 enforces regulations relating to plumbing in the municipality.
485-17 (V.A.C.S. Art. 6243-101, Sec. 12(a) (part).)
485-18 (Sections 1301.258-1301.300 reserved for expansion)
485-19 SUBCHAPTER F. CONSUMER INTEREST INFORMATION AND
485-20 COMPLAINT PROCEDURES
485-21 Sec. 1301.301. CONSUMER INTEREST INFORMATION. (a) The board
485-22 shall prepare information of consumer interest describing the
485-23 regulatory functions of the board and the procedures by which
485-24 consumer complaints are filed with and resolved by the board.
485-25 (b) The board shall make the information available to the
485-26 public and appropriate state agencies. (V.A.C.S. Art. 6243-101,
485-27 Sec. 8A(d).)
486-1 Sec. 1301.302. CONTRACT INFORMATION. A written contract for
486-2 the services of a plumber licensed under this chapter must contain
486-3 the name, mailing address, and telephone number of the board.
486-4 (V.A.C.S. Art. 6243-101, Sec. 8A(e).)
486-5 Sec. 1301.303. COMPLAINTS. (a) The board may investigate an
486-6 alleged violation of this chapter by a person who:
486-7 (1) is licensed under this chapter; or
486-8 (2) performs plumbing without holding a license under
486-9 this chapter.
486-10 (b) The board shall keep an information file about each
486-11 complaint filed with the board relating to a person licensed under
486-12 this chapter.
486-13 (c) If a written complaint is filed with the board relating
486-14 to a person licensed under this chapter, the board, at least
486-15 quarterly and until final disposition of the complaint, shall
486-16 notify the parties to the complaint of the status of the complaint
486-17 unless the notice would jeopardize an undercover investigation.
486-18 (V.A.C.S. Art. 6243-101, Secs. 8A(a), (b), (c).)
486-19 (Sections 1301.304-1301.350 reserved for expansion)
486-20 SUBCHAPTER G. LICENSE REQUIREMENTS
486-21 Sec. 1301.351. LICENSE REQUIRED. (a) A person may not
486-22 engage in the business of plumbing unless:
486-23 (1) the person is licensed under this chapter; or
486-24 (2) the person's work is supervised and controlled by
486-25 a person licensed under this chapter.
486-26 (b) A person may not serve as a plumbing inspector unless
486-27 the person is licensed under this chapter as a plumbing inspector.
487-1 (V.A.C.S. Art. 6243-101, Sec. 14(a) (part).)
487-2 Sec. 1301.352. EXAMINATION REQUIRED. The board shall issue a
487-3 license as a master plumber, journeyman plumber, or plumbing
487-4 inspector to a person who demonstrates the fitness, competence, and
487-5 qualifications to receive the license by passing a uniform,
487-6 reasonable examination. (V.A.C.S. Art. 6243-101, Sec. 8(a).)
487-7 Sec. 1301.353. INSPECTOR CONFLICTS PROHIBITED. The board may
487-8 not issue a plumbing inspector license to a person who has a
487-9 financial or advisory interest in a plumbing company. (V.A.C.S.
487-10 Art. 6243-101, Sec. 2(5) (part).)
487-11 Sec. 1301.354. APPRENTICE ELIGIBILITY FOR EXAMINATION. A
487-12 person who has worked as a plumber's apprentice for a period
487-13 established by board rule may apply for and take an examination for
487-14 a license as a journeyman plumber. (V.A.C.S. Art. 6243-101, Sec.
487-15 11.)
487-16 Sec. 1301.355. EXAMINATION RESULTS. (a) The board shall
487-17 notify each examinee of the results of an examination not later
487-18 than the 30th day after the date the examination is administered.
487-19 (b) If requested in writing by a person who fails an
487-20 examination, the board shall provide to the person an analysis of
487-21 the person's performance on the examination. (V.A.C.S.
487-22 Art. 6243-101, Secs. 8(b), (c).)
487-23 Sec. 1301.356. ENDORSEMENT: MEDICAL GAS PIPING
487-24 INSTALLATION. (a) A person may not install pipe used solely to
487-25 transport gas for medical purposes unless the person:
487-26 (1) is licensed under this chapter as a master plumber
487-27 or journeyman plumber; and
488-1 (2) holds an endorsement issued under this section.
488-2 (b) A person is eligible to receive a medical gas piping
488-3 installation endorsement if the person performs satisfactorily on a
488-4 separate examination related to the endorsement.
488-5 (c) An endorsement under this section is valid for three
488-6 years and may be renewed on or before February 1 or on another date
488-7 that the board may set as it does under Section 1301.401 for a
488-8 license. A person may renew an endorsement in the same manner that
488-9 a license is renewed under Subchapter H.
488-10 (d) An endorsement under this section coincides with rules
488-11 adopted by the Texas Department of Health. (V.A.C.S.
488-12 Art. 6243-101, Secs. 8C, 14(b).)
488-13 Sec. 1301.357. ENDORSEMENT: WATER SUPPLY PROTECTION
488-14 SPECIALIST. (a) A person licensed under this chapter may not act
488-15 as a water supply protection specialist unless the person holds an
488-16 endorsement issued under this section.
488-17 (b) The board shall issue an endorsement as a water supply
488-18 protection specialist to a person who:
488-19 (1) is licensed under this chapter as a master plumber
488-20 or journeyman plumber;
488-21 (2) applies to the board on a form prescribed by the
488-22 board;
488-23 (3) pays a fee set by the board;
488-24 (4) presents evidence satisfactory to the board of
488-25 successful completion of a certification program approved by the
488-26 board for water supply protection specialists; and
488-27 (5) passes an examination required by the board.
489-1 (c) An endorsement issued under this section is valid until
489-2 the third anniversary of the date of issuance and may be renewed on
489-3 compliance with any requirements prescribed by board rule.
489-4 (d) A person who holds an endorsement under this section may
489-5 represent to the public that the person is a water supply
489-6 protection specialist.
489-7 (e) A person is not required to hold a water supply
489-8 protection specialist endorsement if the person:
489-9 (1) is employed by:
489-10 (A) a political subdivision; or
489-11 (B) an electric utility as defined by Section
489-12 31.002, Utilities Code; and
489-13 (2) acts as a backflow prevention device specialist or
489-14 water supply protection specialist in the course of the person's
489-15 employment. (V.A.C.S. Art. 6243-101, Secs. 11A, 11B, 11C, 14(a)
489-16 (part).)
489-17 Sec. 1301.358. OUT-OF-STATE APPLICANTS. The board may waive
489-18 any license requirement under this chapter for an applicant who
489-19 holds a license issued by another state that has licensing
489-20 requirements substantially equivalent to the requirements of this
489-21 state. (V.A.C.S. Art. 6243-101, Sec. 8(d).)
489-22 Sec. 1301.359. STATEWIDE VALIDITY OF LICENSE;
489-23 NONTRANSFERABILITY. (a) A license issued under this chapter is
489-24 valid throughout this state.
489-25 (b) A license issued under this chapter is not assignable or
489-26 transferable. (V.A.C.S. Art. 6243-101, Sec. 12(a) (part).)
489-27 (Sections 1301.360-1301.400 reserved for expansion)
490-1 SUBCHAPTER H. LICENSE EXPIRATION AND RENEWAL
490-2 Sec. 1301.401. ANNUAL RENEWAL REQUIRED. (a) A license under
490-3 this chapter is valid for one year. On payment of the required
490-4 fee, a license may be renewed on or before February 1 or as
490-5 provided by this section.
490-6 (b) The board by rule may adopt a system under which
490-7 licenses expire on various dates during the year.
490-8 (c) For the year in which the license expiration date is
490-9 changed, renewal fees payable on February 1 shall be prorated on a
490-10 monthly basis so that each license holder pays only that portion of
490-11 the fee that is allocable to the number of months during which the
490-12 license is valid. On renewal of the license on the new expiration
490-13 date, the total renewal fee is payable. (V.A.C.S. Art. 6243-101,
490-14 Secs. 12(a) (part), 12A.)
490-15 Sec. 1301.402. NOTICE OF LICENSE EXPIRATION. Not later than
490-16 the 31st day before the expiration date of a person's license, the
490-17 board shall send written notice of the impending license expiration
490-18 to the person at the person's last known address according to board
490-19 records. (V.A.C.S. Art. 6243-101, Sec. 12(f).)
490-20 Sec. 1301.403. PROCEDURE FOR RENEWAL. (a) A person may
490-21 renew an unexpired license by paying the required renewal fee to
490-22 the board before the expiration date of the license.
490-23 (b) A person whose license has been expired for 90 days or
490-24 less may renew the license by paying to the board the required
490-25 renewal fee and a fee equal to half of the examination fee for the
490-26 license.
490-27 (c) A person whose license has been expired for more than 90
491-1 days but less than two years may renew the license by paying to the
491-2 board all unpaid renewal fees and a fee that is equal to the
491-3 examination fee for the license.
491-4 (d) A person whose license has been expired for two years or
491-5 more may not renew the license. The person may obtain a new
491-6 license by submitting to reexamination and complying with the
491-7 requirements and procedures for obtaining an original license.
491-8 (V.A.C.S. Art. 6243-101, Secs. 12(b) (part), (c) (part), (d)
491-9 (part), (e).)
491-10 Sec. 1301.404. MANDATORY CONTINUING PROFESSIONAL EDUCATION.
491-11 (a) A person licensed under this chapter must complete at least
491-12 six hours of continuing professional education each license year to
491-13 renew the person's license. Three of the six hours must be in the
491-14 subjects of health protection, energy conservation, and water
491-15 conservation.
491-16 (b) The board by rule shall adopt the criteria for the
491-17 continuing professional education.
491-18 (c) A person may receive credit for participating in a
491-19 continuing professional education program or course only if the
491-20 program or course is provided:
491-21 (1) by an individual, business, or association
491-22 approved by the board; and
491-23 (2) according to criteria adopted by the board.
491-24 (d) A person may complete the continuing professional
491-25 education requirement of this section through a correspondence
491-26 course if the person lives in a county in which there is not a
491-27 municipality with a population of more than 100,000.
492-1 (e) The board by rule may exempt certain persons from the
492-2 requirements of this section if the board determines that the
492-3 exemption is in the public interest. (V.A.C.S. Art. 6243-101,
492-4 Secs. 12(b) (part), 12(c) (part), 12(d) (part), 12B.)
492-5 Sec. 1301.405. VOLUNTARY CONTINUING EDUCATION. The board may
492-6 recognize, prepare, or implement continuing education programs for
492-7 persons licensed under this chapter. Participation in the programs
492-8 is voluntary. (V.A.C.S. Art. 6243-101, Sec. 5(d).)
492-9 (Sections 1301.406-1301.450 reserved for expansion)
492-10 SUBCHAPTER I. DISCIPLINARY PROCEDURES
492-11 Sec. 1301.451. DISCIPLINARY POWERS OF BOARD. (a) On
492-12 determining that a person licensed under this chapter engaged in
492-13 conduct for which the person is subject to disciplinary action
492-14 under Section 1301.452, the board shall:
492-15 (1) revoke or suspend the person's license;
492-16 (2) probate suspension of the person's license; or
492-17 (3) reprimand the person.
492-18 (b) A person whose license has been revoked may not apply
492-19 for a new license before the first anniversary of the date of
492-20 revocation. (V.A.C.S. Art. 6243-101, Sec. 9(a) (part).)
492-21 Sec. 1301.452. GROUNDS FOR DISCIPLINARY ACTION. (a) A
492-22 person is subject to disciplinary action under Section 1301.451 if
492-23 the person violates this chapter or a board rule. A violation of
492-24 this chapter includes:
492-25 (1) obtaining a license through error or fraud;
492-26 (2) wilfully, negligently, or arbitrarily violating a
492-27 municipal rule or ordinance that regulates sanitation, drainage, or
493-1 plumbing;
493-2 (3) knowingly making a substantial misrepresentation
493-3 of services provided or to be provided; or
493-4 (4) making a false promise with the intent to induce a
493-5 person to contract for a service.
493-6 (b) Retesting procedures may be used to determine whether
493-7 grounds exist for suspension or revocation of a license due to
493-8 incompetence or a wilful violation by a person licensed under this
493-9 chapter. (V.A.C.S. Art. 6243-101, Secs. 9(a) (part), (c) (part).)
493-10 Sec. 1301.453. HEARING. A person is entitled to a hearing
493-11 before the board if the board proposes to:
493-12 (1) deny the person's application for a license; or
493-13 (2) suspend or revoke the person's license. (V.A.C.S.
493-14 Art. 6243-101, Sec. 9(c) (part).)
493-15 Sec. 1301.454. ADMINISTRATIVE PROCEDURE. A proceeding under
493-16 this subchapter is a contested case for purposes of Chapter 2001,
493-17 Government Code. (V.A.C.S. Art. 6243-101, Sec. 9(d).)
493-18 (Sections 1301.455-1301.500 reserved for expansion)
493-19 SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
493-20 Sec. 1301.501. BACKFLOW PREVENTION. (a) A person may not
493-21 sell, donate, or transfer a water closet plumbing fixture or other
493-22 equipment that uses water if the fixture or equipment:
493-23 (1) does not comply with a state-approved plumbing
493-24 code; and
493-25 (2) may permit the backflow of a nonpotable substance
493-26 into a potable water supply.
493-27 (b) The board shall adopt rules under this section that
494-1 include a list describing the types of plumbing to which this
494-2 section applies. (V.A.C.S. Art. 6243-101, Sec. 14(f).)
494-3 Sec. 1301.502. CITATION. A field representative, water
494-4 district plumbing inspector, or, within the jurisdiction of the
494-5 municipality, municipal plumbing inspector may issue a citation to
494-6 a person who engages in conduct described by Section 1301.508.
494-7 (V.A.C.S. Art. 6243-101, Sec. 14(e).)
494-8 Sec. 1301.503. ENFORCEMENT BY PLUMBING INSPECTOR. A plumbing
494-9 inspector may enforce this chapter. (V.A.C.S. Art. 6243-101, Sec.
494-10 8B, as added Acts 70th Leg., R.S., Ch. 857.)
494-11 Sec. 1301.504. INJUNCTION. (a) In addition to any other
494-12 action authorized by law, the board may bring an action in the
494-13 board's name to enjoin a person from violating this chapter or a
494-14 board rule.
494-15 (b) To sustain an action under this section, the board is
494-16 not required to allege or prove that:
494-17 (1) an adequate remedy at law does not exist; or
494-18 (2) substantial or irreparable damage would result
494-19 from the continued violation.
494-20 (c) Any party to an action under this section may appeal.
494-21 (V.A.C.S. Art. 6243-101, Sec. 14(d) (part).)
494-22 Sec. 1301.505. REPRESENTATION BY ATTORNEY GENERAL. The
494-23 attorney general shall represent the board in an action to enforce
494-24 this chapter. (V.A.C.S. Art. 6243-101, Sec. 14(d) (part).)
494-25 Sec. 1301.506. APPEAL BOND NOT REQUIRED. The board is not
494-26 required to post an appeal bond in an action arising under this
494-27 chapter. (V.A.C.S. Art. 6243-101, Sec. 14(d) (part).)
495-1 Sec. 1301.507. CIVIL PENALTY. A person who violates this
495-2 chapter or a rule, permit, or order of the board is subject to a
495-3 civil penalty of not less than $50 or more than $1,000 for each act
495-4 of violation and for each day of violation after notice is provided
495-5 to the person. (V.A.C.S. Art. 6243-101, Sec. 9(b).)
495-6 Sec. 1301.508. CRIMINAL PENALTY. (a) A person commits an
495-7 offense if the person:
495-8 (1) knowingly violates this chapter or a rule adopted
495-9 under this chapter;
495-10 (2) is not licensed under this chapter and engages in
495-11 an activity for which a license is required; or
495-12 (3) employs an unlicensed person to engage in an
495-13 activity for which a license is required under this chapter.
495-14 (b) An offense under this section is a Class C misdemeanor.
495-15 (V.A.C.S. Art. 6243-101, Secs. 9(e), 14(c).)
495-16 (Sections 1301.509-1301.550 reserved for expansion)
495-17 SUBCHAPTER K. REGULATION BY CERTAIN POLITICAL SUBDIVISIONS
495-18 Sec. 1301.551. MUNICIPAL PLUMBING ORDINANCES AND PERMITS.
495-19 (a) A municipality with more than 5,000 inhabitants shall regulate
495-20 by ordinance or bylaw the material, construction, alteration, and
495-21 inspection of any pipe, faucet, tank, valve, or other fixture by or
495-22 through which a supply of water, gas, or sewage is used or carried.
495-23 (b) Any other municipality may regulate by ordinance or
495-24 bylaw the matters described by Subsection (a).
495-25 (c) A municipality that adopts an ordinance under this
495-26 section shall provide by ordinance that a person must obtain a
495-27 permit before the person performs plumbing, other than the
496-1 repairing of leaks. The municipality may prescribe the terms on
496-2 which the permit is issued. (V.A.C.S. Art. 6243-101, Sec. 15(a).)
496-3 Sec. 1301.552. CERTIFICATE OF INSURANCE FOR PLUMBING PERMIT
496-4 IN POLITICAL SUBDIVISION. A political subdivision that requires a
496-5 master plumber to have a bond before issuing a permit to the master
496-6 plumber shall accept either a bond or a certificate of insurance.
496-7 The certificate of insurance must:
496-8 (1) be written by a company licensed to do business in
496-9 this state;
496-10 (2) provide for commercial general liability insurance
496-11 for the master plumber for a claim for property damage or bodily
496-12 injury, regardless of whether the claim arises from negligence or
496-13 on a contract; and
496-14 (3) provide coverage of not less than $300,000 for all
496-15 claims arising in a one-year period. (V.A.C.S. Art. 6243-101,
496-16 Secs. 15(b), (c).)
496-17 (Sections 1301.553-1301.600 reserved for expansion)
496-18 SUBCHAPTER L. CERTIFICATION: RESIDENTIAL WATER TREATMENT
496-19 Sec. 1301.601. RESIDENTIAL WATER TREATMENT CERTIFICATION.
496-20 (a) The commissioner of public health or the commissioner's
496-21 designee shall certify a person as qualified to install, exchange,
496-22 service, and repair residential water treatment facilities.
496-23 (b) The Texas Board of Health shall set standards for
496-24 certification under this section. The standards must ensure the
496-25 public health and protect the public from unqualified persons
496-26 engaging in activities relating to water treatment.
496-27 (c) The Texas Board of Health shall adopt rules establishing
497-1 classes of certificates, the duration of certificates, and fees.
497-2 (d) This subchapter does not require a person licensed under
497-3 this chapter to be certified under this subchapter. (V.A.C.S.
497-4 Art. 6243-101, Secs. 3A(a), (b) (part).)
497-5 Sec. 1301.602. FEE; CERTIFICATE. (a) A person who applies
497-6 for or renews a certificate under this subchapter must pay an
497-7 annual fee of $10.
497-8 (b) On receipt of the required fee, the Texas Department of
497-9 Health shall issue to a qualified person a certificate stating that
497-10 the person is qualified to install, exchange, service, and repair
497-11 residential water treatment facilities. (V.A.C.S. Art. 6243-101,
497-12 Sec. 3A(b) (part).)
497-13 CHAPTER 1302. AIR CONDITIONING AND REFRIGERATION CONTRACTORS
497-14 SUBCHAPTER A. GENERAL PROVISIONS
497-15 Sec. 1302.001. SHORT TITLE
497-16 Sec. 1302.002. DEFINITIONS
497-17 (Sections 1302.003-1302.050 reserved for expansion)
497-18 SUBCHAPTER B. EXEMPTIONS
497-19 Sec. 1302.051. LIMITATION ON EXEMPTIONS
497-20 Sec. 1302.052. APPLICATION OF MUNICIPAL ORDINANCES
497-21 Sec. 1302.053. HOMEOWNERS
497-22 Sec. 1302.054. CERTAIN MAINTENANCE PERSONNEL
497-23 Sec. 1302.055. CERTAIN UTILITIES PERSONNEL
497-24 Sec. 1302.056. ENGINEERS
497-25 Sec. 1302.057. INDUSTRIAL OPERATION PERSONNEL
497-26 Sec. 1302.058. CERTAIN PRODUCTS OR EQUIPMENT
497-27 Sec. 1302.059. MOTOR VEHICLES
498-1 Sec. 1302.060. VENT HOODS
498-2 Sec. 1302.061. MANUFACTURED HOMES
498-3 Sec. 1302.062. NO LICENSE REQUIRED FOR CERTAIN ASSISTANTS
498-4 Sec. 1302.063. NO EXEMPTION FOR CERTAIN PERSONS LICENSED
498-5 UNDER OTHER LAW
498-6 (Sections 1302.064-1302.100 reserved for expansion)
498-7 SUBCHAPTER C. COMMISSIONER AND DEPARTMENT POWERS AND DUTIES
498-8 Sec. 1302.101. GENERAL POWERS AND DUTIES OF COMMISSIONER
498-9 Sec. 1302.102. INSURANCE REQUIREMENTS
498-10 Sec. 1302.103. RULES REGARDING USE AND DISPLAY OF LICENSE
498-11 Sec. 1302.104. CONTRACTS FOR ENFORCEMENT
498-12 Sec. 1302.105. PERSONNEL; EXAMINERS
498-13 Sec. 1302.106. DIRECTORY OF LICENSE HOLDERS
498-14 Sec. 1302.107. CONTINUING EDUCATION
498-15 (Sections 1302.108-1302.150 reserved for expansion)
498-16 SUBCHAPTER D. CONSUMER INTEREST INFORMATION AND COMPLAINTS
498-17 Sec. 1302.151. CONSUMER INTEREST INFORMATION
498-18 Sec. 1302.152. COMPLAINT INVESTIGATION
498-19 (Sections 1302.153-1302.200 reserved for expansion)
498-20 SUBCHAPTER E. AIR CONDITIONING AND REFRIGERATION
498-21 CONTRACTORS ADVISORY BOARD
498-22 Sec. 1302.201. ADVISORY BOARD MEMBERSHIP
498-23 Sec. 1302.202. APPOINTED MEMBERS
498-24 Sec. 1302.203. EX OFFICIO MEMBERS
498-25 Sec. 1302.204. ADVISORY BOARD DUTIES
498-26 Sec. 1302.205. TERMS; VACANCY
498-27 Sec. 1302.206. PRESIDING OFFICER
499-1 Sec. 1302.207. COMPENSATION; REIMBURSEMENT
499-2 Sec. 1302.208. MEETINGS
499-3 Sec. 1302.209. VOTE REQUIRED FOR ACTION
499-4 (Sections 1302.210-1302.250 reserved for expansion)
499-5 SUBCHAPTER F. LICENSE REQUIREMENTS
499-6 Sec. 1302.251. LICENSE REQUIRED
499-7 Sec. 1302.252. REQUIREMENT FOR AIR CONDITIONING AND
499-8 REFRIGERATION CONTRACTING COMPANY
499-9 Sec. 1302.253. LICENSE CLASSIFICATIONS
499-10 Sec. 1302.254. LICENSE ENDORSEMENTS
499-11 Sec. 1302.255. ELIGIBILITY REQUIREMENTS
499-12 Sec. 1302.256. APPLICATION; FEE
499-13 Sec. 1302.257. EXAMINATIONS
499-14 Sec. 1302.258. EXAMINATION RESULTS; REEXAMINATION
499-15 Sec. 1302.259. WAIVER OF LICENSE REQUIREMENT
499-16 Sec. 1302.260. ISSUANCE AND TERM OF LICENSE
499-17 Sec. 1302.261. TEMPORARY LICENSE
499-18 Sec. 1302.262. NOTICE TO MUNICIPALITIES
499-19 Sec. 1302.263. LIMITATION ON LICENSE HOLDER
499-20 (Sections 1302.264-1302.300 reserved for expansion)
499-21 SUBCHAPTER G. MUNICIPAL LICENSING AND REGULATION
499-22 Sec. 1302.301. MUNICIPAL LICENSE
499-23 Sec. 1302.302. MUNICIPAL LICENSE: ELIGIBILITY
499-24 REQUIREMENTS
499-25 Sec. 1302.303. MUNICIPAL AIR CONDITIONING AND
499-26 REFRIGERATION STANDARDS
499-27 (Sections 1302.304-1302.350 reserved for expansion)
500-1 SUBCHAPTER H. SALE AND USE OF REFRIGERANTS
500-2 Sec. 1302.351. APPLICATION OF SUBCHAPTER
500-3 Sec. 1302.352. COMPLIANCE WITH FEDERAL REQUIREMENTS
500-4 Sec. 1302.353. PURCHASE OF REFRIGERANT: LICENSE OR
500-5 REGISTRATION REQUIRED
500-6 Sec. 1302.354. REGISTRATION
500-7 Sec. 1302.355. PURCHASE OF REFRIGERANT: EVIDENCE
500-8 REQUIREMENT
500-9 Sec. 1302.356. SALE OR USE OF CERTAIN REFRIGERANTS
500-10 PROHIBITED
500-11 (Sections 1302.357-1302.400 reserved for expansion)
500-12 SUBCHAPTER I. DISCIPLINARY ACTION AND PROCEDURES
500-13 Sec. 1302.401. DISCIPLINARY ACTION
500-14 Sec. 1302.402. ADMINISTRATIVE PROCEDURES
500-15 (Sections 1302.403-1302.450 reserved for expansion)
500-16 SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
500-17 Sec. 1302.451. EMERGENCY AND CEASE AND DESIST ORDERS
500-18 Sec. 1302.452. CITATIONS FOR CERTAIN VIOLATIONS
500-19 Sec. 1302.453. CRIMINAL PENALTY
500-20 CHAPTER 1302. AIR CONDITIONING AND REFRIGERATION CONTRACTORS
500-21 SUBCHAPTER A. GENERAL PROVISIONS
500-22 Sec. 1302.001. SHORT TITLE. This chapter may be cited as the
500-23 Air Conditioning and Refrigeration Contractor License Law.
500-24 (V.A.C.S. Art. 8861, Sec. 1.)
500-25 Sec. 1302.002. DEFINITIONS. In this chapter:
500-26 (1) "Advisory board" means the air conditioning and
500-27 refrigeration contractors advisory board.
501-1 (2) "Air conditioning and refrigeration contracting"
501-2 means performing or offering to perform the design, installation,
501-3 construction, repair, maintenance, service, or modification of
501-4 equipment or a product in an environmental air conditioning system,
501-5 a commercial refrigeration system, or a process cooling or heating
501-6 system.
501-7 (3) "Air conditioning and refrigeration contracting
501-8 company" means a person who or business entity that engages in air
501-9 conditioning and refrigeration contracting for the public.
501-10 (4) "Air conditioning and refrigeration contractor"
501-11 means a person who engages in air conditioning and refrigeration
501-12 contracting.
501-13 (5) "Air conditioning and refrigeration maintenance
501-14 work" means all work, including repair work, required for the
501-15 continued normal performance of an environmental air conditioning
501-16 system, a process cooling or heating system, a commercial
501-17 refrigeration system, or commercial refrigeration equipment. The
501-18 term does not include:
501-19 (A) the total replacement of a system; or
501-20 (B) the installation or repair of a boiler or
501-21 pressure vessel that must be installed in accordance with rules
501-22 adopted by the commissioner under Chapter 755, Health and Safety
501-23 Code.
501-24 (6) "Commercial refrigeration" means the use of
501-25 mechanical or absorption equipment to control temperature or
501-26 humidity to satisfy the intended use of a specific space.
501-27 (7) "Commission" means the Texas Commission of
502-1 Licensing and Regulation.
502-2 (8) "Commissioner" means the commissioner of licensing
502-3 and regulation.
502-4 (9) "Cooling capacity" means the nominal tonnage of
502-5 compression equipment based on 40 degrees Fahrenheit suction
502-6 temperature and 105 degrees Fahrenheit condensing temperature.
502-7 (10) "Department" means the Texas Department of
502-8 Licensing and Regulation.
502-9 (11) "Environmental air conditioning" means treating
502-10 air to control temperature, humidity, cleanliness, ventilation, and
502-11 circulation to meet human comfort requirements.
502-12 (12) "Mechanical integrity" means the condition of a
502-13 product, a system, or equipment installed in accordance with its
502-14 intended purpose and according to:
502-15 (A) standards at least as strict as the
502-16 standards provided by:
502-17 (i) the Uniform Mechanical Code published
502-18 jointly by the International Conference of Building Officials and
502-19 the International Association of Plumbing and Mechanical Officials,
502-20 or their successor organizations; or
502-21 (ii) the Standard Mechanical Code
502-22 published by the Southern Building Code Congress International,
502-23 Inc., or its successor organization;
502-24 (B) all other applicable codes; and
502-25 (C) the manufacturer's specifications.
502-26 (13) "MVAC-like appliance" has the meaning assigned
502-27 that term by 40 C.F.R. Section 82.152.
503-1 (14) "Person" means an individual.
503-2 (15) "Process cooling or heating" includes controlling
503-3 temperature, humidity, or cleanliness solely for production
503-4 requirements or the proper operation of equipment.
503-5 (16) "Refrigerant" means a class I or class II
503-6 substance as listed in 42 U.S.C. Section 7671a and rules adopted
503-7 under that section. (V.A.C.S. Art. 8861, Secs. 2, 6(a) (part),
503-8 10(a).)
503-9 (Sections 1302.003-1302.050 reserved for expansion)
503-10 SUBCHAPTER B. EXEMPTIONS
503-11 Sec. 1302.051. LIMITATION ON EXEMPTIONS. The exemptions
503-12 provided by this subchapter do not exempt a person from the
503-13 application of Subchapter H, except as otherwise provided by
503-14 Subchapter H. (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
503-15 Sec. 1302.052. APPLICATION OF MUNICIPAL ORDINANCES. Work
503-16 performed by a person who is exempt from this chapter is subject to
503-17 any permit, inspection, or approval required by a municipal
503-18 ordinance. (V.A.C.S. Art. 8861, Sec. 6(b).)
503-19 Sec. 1302.053. HOMEOWNERS. This chapter does not apply to a
503-20 person who engages in air conditioning and refrigeration
503-21 contracting in a building owned solely by the person as the
503-22 person's home. (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
503-23 Sec. 1302.054. CERTAIN MAINTENANCE PERSONNEL. This chapter
503-24 does not apply to a person who performs air conditioning and
503-25 refrigeration maintenance work if:
503-26 (1) the person is a maintenance person or maintenance
503-27 engineer and is a regular employee of the owner, lessee, or
504-1 management company of the property where the work is being
504-2 performed;
504-3 (2) the person performs the work in connection with
504-4 the business in which the person is employed; and
504-5 (3) the person and the person's employer do not engage
504-6 in air conditioning and refrigeration contracting for the public.
504-7 (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
504-8 Sec. 1302.055. CERTAIN UTILITIES PERSONNEL. This chapter
504-9 does not apply to a person who engages in air conditioning and
504-10 refrigeration contracting and is regularly employed by a regulated
504-11 electric or gas utility. (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
504-12 Sec. 1302.056. ENGINEERS. This chapter does not apply to a
504-13 person who is licensed as an engineer under Chapter 1001 and
504-14 engages in air conditioning and refrigeration contracting work in
504-15 connection with the business in which the person is employed but
504-16 does not engage in that work for the public. (V.A.C.S. Art. 8861,
504-17 Sec. 6(a) (part).)
504-18 Sec. 1302.057. INDUSTRIAL OPERATION PERSONNEL. This chapter
504-19 does not apply to a person who is employed by an industrial
504-20 operation, including a chemical plant, petrochemical plant,
504-21 refinery, natural gas plant, or natural gas treating plant, and
504-22 performs process cooling or heating work for the operation.
504-23 (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
504-24 Sec. 1302.058. CERTAIN PRODUCTS OR EQUIPMENT. This chapter
504-25 does not apply to a person who engages in air conditioning and
504-26 refrigeration contracting on:
504-27 (1) a portable or self-contained ductless air
505-1 conditioning product that has a cooling capacity of three tons or
505-2 less;
505-3 (2) a portable or self-contained heating product that
505-4 does not require the forced movement of air outside the heating
505-5 unit;
505-6 (3) environmental air conditioning equipment that is
505-7 intended for temporary use and is not fixed in place; or
505-8 (4) a residential refrigerator, freezer, or ice
505-9 machine. (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
505-10 Sec. 1302.059. MOTOR VEHICLES. This chapter does not apply
505-11 to a person who engages in or employs a person who engages in air
505-12 conditioning services only on a motor vehicle or MVAC-like
505-13 appliance air conditioner. (V.A.C.S. Art. 8861, Sec. 6(a) (part).)
505-14 Sec. 1302.060. VENT HOODS. This chapter does not apply to a
505-15 person who installs, repairs, or removes a vent hood of the type
505-16 commonly used in residential or commercial kitchens. (V.A.C.S.
505-17 Art. 8861, Sec. 6(h).)
505-18 Sec. 1302.061. MANUFACTURED HOMES. This chapter does not
505-19 apply to a person or entity licensed as a manufacturer, retailer,
505-20 rebuilder, or installer under Chapter 1201 and engaged exclusively
505-21 in air conditioning and refrigeration contracting for manufactured
505-22 homes if the installation of air conditioning components at the
505-23 site where the home will be occupied is performed by a person
505-24 licensed under this chapter. (V.A.C.S. Art. 8861, Sec. 6(f).)
505-25 Sec. 1302.062. NO LICENSE REQUIRED FOR CERTAIN ASSISTANTS. A
505-26 person is not required to hold a license if the person assists in
505-27 air conditioning and refrigeration contracting under the
506-1 supervision of a license holder. (V.A.C.S. Art. 8861, Secs. 6(g),
506-2 9(a) (part).)
506-3 Sec. 1302.063. NO EXEMPTION FOR CERTAIN PERSONS LICENSED
506-4 UNDER OTHER LAW. A person who is licensed and engaged in business
506-5 in this state as a plumber or who is regulated under Chapter 113,
506-6 Natural Resources Code, may not engage or offer or attempt to
506-7 engage in air conditioning and refrigeration contracting without a
506-8 license under this chapter. (V.A.C.S. Art. 8861, Secs. 6(d) (part),
506-9 (e) (part).)
506-10 (Sections 1302.064-1302.100 reserved for expansion)
506-11 SUBCHAPTER C. COMMISSIONER AND DEPARTMENT POWERS AND DUTIES
506-12 Sec. 1302.101. GENERAL POWERS AND DUTIES OF COMMISSIONER.
506-13 (a) The commissioner shall:
506-14 (1) adopt rules for the practice of air conditioning
506-15 and refrigeration contracting that are at least as strict as the
506-16 standards provided by:
506-17 (A) the Uniform Mechanical Code published
506-18 jointly by the International Conference of Building Officials and
506-19 the International Association of Plumbing and Mechanical Officials,
506-20 as that code exists at the time the rules are adopted; or
506-21 (B) the Standard Mechanical Code published by
506-22 the Southern Building Code Congress International, Inc., as that
506-23 code exists at the time the rules are adopted;
506-24 (2) prescribe the design of an original and a renewal
506-25 license; and
506-26 (3) maintain a record of the commissioner's
506-27 proceedings under this chapter.
507-1 (b) The commissioner may authorize disbursements necessary
507-2 to implement this chapter, including disbursements for office
507-3 expenses, equipment costs, and other necessary facilities.
507-4 (V.A.C.S. Art. 8861, Secs. 3(a) (part), (d), (h), (j).)
507-5 Sec. 1302.102. INSURANCE REQUIREMENTS. (a) The commissioner
507-6 shall set insurance requirements for a license holder under this
507-7 chapter.
507-8 (b) The commissioner may waive the insurance requirements
507-9 for a license holder who does not engage in air conditioning and
507-10 refrigeration contracting for the public. (V.A.C.S. Art. 8861,
507-11 Sec. 3(f).)
507-12 Sec. 1302.103. RULES REGARDING USE AND DISPLAY OF LICENSE.
507-13 The commissioner, with the advice of the advisory board, shall
507-14 adopt rules relating to the use, display, and advertisement of a
507-15 license. (V.A.C.S. Art. 8861, Sec. 4(i).)
507-16 Sec. 1302.104. CONTRACTS FOR ENFORCEMENT. The department may
507-17 contract with another state agency or a political subdivision of
507-18 the state to enforce this chapter and rules adopted under this
507-19 chapter. (V.A.C.S. Art. 8861, Sec. 3(l).)
507-20 Sec. 1302.105. PERSONNEL; EXAMINERS. (a) The department may
507-21 employ personnel necessary to administer this chapter.
507-22 (b) The department shall employ at least two full-time air
507-23 conditioning and refrigeration contractors to serve as examiners.
507-24 (V.A.C.S. Art. 8861, Sec. 3(g).)
507-25 Sec. 1302.106. DIRECTORY OF LICENSE HOLDERS. (a) The
507-26 department shall annually publish a directory of license holders.
507-27 (b) The department may sell the directory on payment of a
508-1 reasonable fee set by the commission. (V.A.C.S. Art. 8861, Sec.
508-2 3(k) (part).)
508-3 Sec. 1302.107. CONTINUING EDUCATION. (a) The commissioner
508-4 may recognize, prepare, or administer continuing education programs
508-5 for license holders.
508-6 (b) Participation in a continuing education program is
508-7 voluntary. (V.A.C.S. Art. 8861, Sec. 4B.)
508-8 (Sections 1302.108-1302.150 reserved for expansion)
508-9 SUBCHAPTER D. CONSUMER INTEREST INFORMATION AND COMPLAINTS
508-10 Sec. 1302.151. CONSUMER INTEREST INFORMATION. (a) The
508-11 commissioner shall prepare information of consumer interest
508-12 describing:
508-13 (1) the functions performed by the commissioner under
508-14 this chapter; and
508-15 (2) the rights of a consumer affected by this chapter.
508-16 (b) The information must describe the procedure by which a
508-17 consumer complaint is filed with and resolved by the commissioner.
508-18 (c) The commissioner shall make the information available to
508-19 the public. (V.A.C.S. Art. 8861, Sec. 5A(a).)
508-20 Sec. 1302.152. COMPLAINT INVESTIGATION. (a) The
508-21 commissioner shall investigate a consumer complaint filed with the
508-22 commissioner.
508-23 (b) The commissioner may take appropriate action under
508-24 Section 51.353 if the commissioner determines after an
508-25 investigation that a license holder violated this chapter or a rule
508-26 adopted under this chapter. (V.A.C.S. Art. 8861, Sec. 5A(b).)
508-27 (Sections 1302.153-1302.200 reserved for expansion)
509-1 SUBCHAPTER E. AIR CONDITIONING AND REFRIGERATION
509-2 CONTRACTORS ADVISORY BOARD
509-3 Sec. 1302.201. ADVISORY BOARD MEMBERSHIP. The air
509-4 conditioning and refrigeration contractors advisory board consists
509-5 of six members appointed by the governor with the advice and
509-6 consent of the senate and two ex officio nonvoting members.
509-7 (V.A.C.S. Art. 8861, Secs. 3A(b) (part), (e) (part).)
509-8 Sec. 1302.202. APPOINTED MEMBERS. (a) Each appointed
509-9 advisory board member must be experienced in the design,
509-10 installation, construction, maintenance, service, repair, or
509-11 modification of equipment used for environmental air conditioning,
509-12 commercial refrigeration, or process cooling or heating. Of the
509-13 appointed members:
509-14 (1) one must be an official of a municipality with a
509-15 population of more than 250,000;
509-16 (2) one must be an official of a municipality with a
509-17 population of not more than 250,000; and
509-18 (3) four must be full-time licensed air conditioning
509-19 and refrigeration contractors, as follows:
509-20 (A) one member who holds a Class A license and
509-21 practices in a municipality with a population of more than 250,000;
509-22 (B) one member who holds a Class B license and
509-23 practices in a municipality with a population of more than 250,000;
509-24 (C) one member who holds a Class A license and
509-25 practices in a municipality with a population of more than 25,000
509-26 but not more than 250,000; and
509-27 (D) one member who holds a Class B license and
510-1 practices in a municipality with a population of not more than
510-2 25,000.
510-3 (b) At least one appointed advisory board member must be an
510-4 air conditioning and refrigeration contractor who employs organized
510-5 labor and at least two appointed members must be air conditioning
510-6 and refrigeration contractors who are licensed engineers. (V.A.C.S.
510-7 Art. 8861, Secs. 3A(b) (part), (c), (f).)
510-8 Sec. 1302.203. EX OFFICIO MEMBERS. The commissioner and the
510-9 chief administrator of this chapter serve as ex officio, nonvoting
510-10 members of the advisory board. (V.A.C.S. Art. 8861, Sec. 3A(e)
510-11 (part).)
510-12 Sec. 1302.204. ADVISORY BOARD DUTIES. (a) The advisory
510-13 board shall advise the commissioner in adopting rules and in
510-14 administering and enforcing this chapter.
510-15 (b) The advisory board shall advise the commission in
510-16 setting fees under this chapter. (V.A.C.S. Art. 8861, Sec. 3A(a).)
510-17 Sec. 1302.205. TERMS; VACANCY. (a) Appointed advisory board
510-18 members serve staggered six-year terms. The terms of two appointed
510-19 members expire on February 1 of each odd-numbered year.
510-20 (b) If a vacancy occurs during an appointed member's term,
510-21 the governor shall fill the vacancy for the remainder of the
510-22 unexpired term with a person who represents the same interests as
510-23 the predecessor. (V.A.C.S. Art. 8861, Secs. 3A(b) (part), (e)
510-24 (part).)
510-25 Sec. 1302.206. PRESIDING OFFICER. The governor shall
510-26 designate one member of the advisory board to serve as presiding
510-27 officer. (V.A.C.S. Art. 8861, Sec. 3A(e) (part).)
511-1 Sec. 1302.207. COMPENSATION; REIMBURSEMENT. An appointed
511-2 advisory board member serves without compensation but is entitled
511-3 to reimbursement for actual and necessary expenses incurred in
511-4 performing functions as an advisory board member, subject to any
511-5 applicable limitation on reimbursement provided by the General
511-6 Appropriations Act. (V.A.C.S. Art. 8861, Sec. 3A(h).)
511-7 Sec. 1302.208. MEETINGS. (a) The advisory board shall meet
511-8 at least every six months and may meet at other times at the call
511-9 of the presiding officer.
511-10 (b) The advisory board shall meet in this state at a place
511-11 designated by the board. (V.A.C.S. Art. 8861, Sec. 3A(g) (part).)
511-12 Sec. 1302.209. VOTE REQUIRED FOR ACTION. A decision of the
511-13 advisory board is not effective unless it receives the affirmative
511-14 vote of at least four members. (V.A.C.S. Art. 8861, Sec. 3A(g)
511-15 (part).)
511-16 (Sections 1302.210-1302.250 reserved for expansion)
511-17 SUBCHAPTER F. LICENSE REQUIREMENTS
511-18 Sec. 1302.251. LICENSE REQUIRED. (a) A person may not
511-19 engage in air conditioning and refrigeration contracting unless the
511-20 person holds a license under this subchapter or Subchapter G.
511-21 (b) A license issued under this subchapter is valid
511-22 throughout the state. A person who holds a license issued under
511-23 this subchapter is not required to hold a municipal license under
511-24 Subchapter G to engage in air conditioning and refrigeration
511-25 contracting in any municipality in this state. (V.A.C.S. Art. 8861,
511-26 Secs. 3B(a), 9(a) (part).)
511-27 Sec. 1302.252. REQUIREMENT FOR AIR CONDITIONING AND
512-1 REFRIGERATION CONTRACTING COMPANY. (a) An air conditioning and
512-2 refrigeration contracting company must employ full-time in each
512-3 permanent office a license holder who holds an appropriate license
512-4 assigned to that company.
512-5 (b) A company that does not employ a license holder as
512-6 required by Subsection (a) at the time a contract for air
512-7 conditioning and refrigeration contracting services is signed and
512-8 at the time the services are performed may not collect a fee or
512-9 otherwise enforce the contract. (V.A.C.S. Art. 8861, Secs. 3B(b),
512-10 3C.)
512-11 Sec. 1302.253. LICENSE CLASSIFICATIONS. (a) The
512-12 commissioner shall issue a Class A or Class B air conditioning and
512-13 refrigeration contractor license.
512-14 (b) A Class A license entitles the license holder to engage
512-15 in each type of air conditioning and refrigeration contracting that
512-16 is endorsed on the license in relation to a system, a product, or
512-17 equipment of any size or capacity.
512-18 (c) A Class B license entitles the license holder to engage
512-19 in each type of air conditioning and refrigeration contracting that
512-20 is endorsed on the license in relation to a system, a product, or
512-21 equipment of not more than:
512-22 (1) 25 tons cooling capacity; or
512-23 (2) 1.5 million British thermal units per hour output
512-24 heating capacity. (V.A.C.S. Art. 8861, Sec. 4(a).)
512-25 Sec. 1302.254. LICENSE ENDORSEMENTS. (a) An air
512-26 conditioning and refrigeration contractor license must be endorsed
512-27 with one or both of the following endorsements:
513-1 (1) an environmental air conditioning endorsement; or
513-2 (2) a commercial refrigeration and process cooling or
513-3 heating endorsement.
513-4 (b) An environmental air conditioning endorsement entitles
513-5 the license holder to engage in air conditioning and refrigeration
513-6 contracting for environmental air conditioning within the class of
513-7 license held.
513-8 (c) A commercial refrigeration and process cooling or
513-9 heating endorsement entitles the license holder to engage in air
513-10 conditioning and refrigeration contracting for commercial
513-11 refrigeration and process cooling or heating within the class of
513-12 license held.
513-13 (d) A license holder may not engage in a type of air
513-14 conditioning and refrigeration contracting for which the person's
513-15 license is not endorsed. (V.A.C.S. Art. 8861, Secs. 4(b), (c)
513-16 (part).)
513-17 Sec. 1302.255. ELIGIBILITY REQUIREMENTS. (a) An applicant
513-18 for a license under this chapter must:
513-19 (1) be at least 18 years old; and
513-20 (2) have at least 36 months of practical experience
513-21 with the tools of the trade in the preceding five years.
513-22 (b) For purposes of determining an applicant's practical
513-23 experience under Subsection (a)(2), a degree or diploma in air
513-24 conditioning engineering, refrigeration engineering, or mechanical
513-25 engineering is equivalent to two years of practical experience if:
513-26 (1) the degree or diploma is from an institution of
513-27 higher education; and
514-1 (2) the institution's program is approved by the Texas
514-2 Board of Professional Engineers for the purpose of licensing
514-3 engineers. (V.A.C.S. Art. 8861, Sec. 4(e) (part).)
514-4 Sec. 1302.256. APPLICATION; FEE. (a) An applicant for a
514-5 license must submit a verified application on a form prescribed by
514-6 the commissioner.
514-7 (b) The application must specify the class of license and
514-8 each endorsement for which the applicant is applying.
514-9 (c) The application must be accompanied by:
514-10 (1) a statement containing evidence satisfactory to
514-11 the commissioner of the applicant's practical experience required
514-12 by Section 1302.255(a)(2); and
514-13 (2) the examination fee. (V.A.C.S. Art. 8861, Secs.
514-14 4(e) (part), (f).)
514-15 Sec. 1302.257. EXAMINATIONS. (a) The commissioner shall
514-16 prescribe:
514-17 (1) a separate examination for each class of license;
514-18 and
514-19 (2) within each class of license, a separate
514-20 examination for:
514-21 (A) an environmental air conditioning
514-22 endorsement; and
514-23 (B) a commercial refrigeration and process
514-24 cooling or heating endorsement.
514-25 (b) The commissioner shall prescribe the method and content
514-26 of an examination administered under this chapter and shall set
514-27 compliance requirements for the examination. To obtain an
515-1 endorsement, an applicant must pass the examination for the
515-2 endorsement.
515-3 (c) The examination shall be offered on a monthly basis or
515-4 more frequently as determined by the commissioner.
515-5 (d) The examination shall be offered at locations within the
515-6 state as determined by the commissioner. The examination may be
515-7 offered by computer at locations within the state as determined by
515-8 the commissioner. (V.A.C.S. Art. 8861, Secs. 3(e), 4(c) (part),
515-9 (d).)
515-10 Sec. 1302.258. EXAMINATION RESULTS; REEXAMINATION. (a) The
515-11 commissioner shall notify each examinee of the results of an
515-12 examination not later than the 30th day after the date the
515-13 examination is administered. If an examination is graded or
515-14 reviewed by a national testing service, the commissioner shall
515-15 notify each examinee of the results of the examination not later
515-16 than the 14th day after the date the commissioner receives the
515-17 results from the testing service.
515-18 (b) If the notice of the results of an examination graded or
515-19 reviewed by a national testing service will be delayed for more
515-20 than 90 days after the examination date, the commissioner shall
515-21 notify each examinee of the reason for the delay before the 90th
515-22 day.
515-23 (c) If requested in writing by a person who fails the
515-24 examination, the commissioner shall provide to the person an
515-25 analysis of the person's performance on the examination.
515-26 (d) An applicant who fails an examination is eligible for
515-27 reexamination. (V.A.C.S. Art. 8861, Secs. 4(g) (part), 4A.)
516-1 Sec. 1302.259. WAIVER OF LICENSE REQUIREMENT. The
516-2 commissioner may waive any license requirement for an applicant who
516-3 holds a license issued by another state that has a reciprocity
516-4 agreement with this state. (V.A.C.S. Art. 8861, Sec. 4C.)
516-5 Sec. 1302.260. ISSUANCE AND TERM OF LICENSE. (a) On payment
516-6 of the license fee, the commissioner shall issue an air
516-7 conditioning and refrigeration contractor license to an applicant
516-8 who:
516-9 (1) meets the requirements of this subchapter;
516-10 (2) provides evidence of insurance coverage required
516-11 by the commissioner in accordance with this chapter; and
516-12 (3) passes the applicable examination.
516-13 (b) A license issued under this chapter expires at the end
516-14 of the license period set by the commission. (V.A.C.S. Art. 8861,
516-15 Secs. 4(g) (part), (h).)
516-16 Sec. 1302.261. TEMPORARY LICENSE. The commissioner by rule
516-17 may provide for the issuance of a temporary air conditioning and
516-18 refrigeration contracting license to an applicant who:
516-19 (1) submits to the commissioner an application on a
516-20 form prescribed by the commissioner; and
516-21 (2) pays the required fees. (V.A.C.S. Art. 8861, Sec.
516-22 4D.)
516-23 Sec. 1302.262. NOTICE TO MUNICIPALITIES. (a) A person who
516-24 obtains a license under this subchapter shall provide a notice to
516-25 the municipal authority that enforces air conditioning and
516-26 refrigeration contracting regulations in the municipality in which
516-27 the person engages in air conditioning and refrigeration
517-1 contracting.
517-2 (b) The notice must inform the municipality that the person
517-3 has obtained a license under this subchapter and must be in the
517-4 form required by the municipality.
517-5 (c) A municipality may charge a fee to a person who provides
517-6 the notice required by this section. The municipality shall set
517-7 the fee in an amount reasonable and necessary to administer this
517-8 section. (V.A.C.S. Art. 8861, Sec. 7.)
517-9 Sec. 1302.263. LIMITATION ON LICENSE HOLDER. A person
517-10 licensed under this chapter may not perform or offer or attempt to
517-11 perform an act, service, or function that is:
517-12 (1) defined as the practice of engineering under
517-13 Chapter 1001, unless the person holds a license under that chapter;
517-14 (2) regulated under Chapter 113, Natural Resources
517-15 Code, unless the person holds a license or is exempt by rule under
517-16 that chapter; or
517-17 (3) defined as plumbing under Chapter 1301, unless the
517-18 person holds a license under that chapter. (V.A.C.S. Art. 8861,
517-19 Secs. 6(c), (d) (part), (e) (part).)
517-20 (Sections 1302.264-1302.300 reserved for expansion)
517-21 SUBCHAPTER G. MUNICIPAL LICENSING AND REGULATION
517-22 Sec. 1302.301. MUNICIPAL LICENSE. An air conditioning and
517-23 refrigeration contractor license issued by a municipality of this
517-24 state and that complies with the requirements of this subchapter is
517-25 valid under the terms of the license within the municipality.
517-26 (V.A.C.S. Art. 8861, Sec. 9(a) (part).)
517-27 Sec. 1302.302. MUNICIPAL LICENSE: ELIGIBILITY REQUIREMENTS.
518-1 An applicant for a municipal license must:
518-2 (1) pass an examination that covers the same subjects
518-3 as the examination required under Subchapter F for a license of the
518-4 class that entitles the holder of the license to perform the work
518-5 the applicant proposes to perform; and
518-6 (2) meet experience requirements that are at least as
518-7 strict as the requirements under Section 1302.255(a)(2). (V.A.C.S.
518-8 Art. 8861, Sec. 9(b).)
518-9 Sec. 1302.303. MUNICIPAL AIR CONDITIONING AND REFRIGERATION
518-10 STANDARDS. (a) A municipality may by ordinance adopt and enforce
518-11 standards for air conditioning and refrigeration contractors that
518-12 are consistent with the standards established under this chapter.
518-13 (b) The municipality shall report a violation of the
518-14 ordinance to the commissioner not later than the 10th day after the
518-15 date the municipality acts to enforce the ordinance. (V.A.C.S.
518-16 Art. 8861, Sec. 9(c) (part).)
518-17 (Sections 1302.304-1302.350 reserved for expansion)
518-18 SUBCHAPTER H. SALE AND USE OF REFRIGERANTS
518-19 Sec. 1302.351. APPLICATION OF SUBCHAPTER. This subchapter
518-20 does not apply to:
518-21 (1) a "small appliance" as defined by 40 C.F.R.
518-22 Section 82.152, as amended; or
518-23 (2) a person who is exempt from this chapter under
518-24 Section 1302.055, 1302.057, or 1302.059. (V.A.C.S. Art. 8861,
518-25 Secs. 10(i), (j).)
518-26 Sec. 1302.352. COMPLIANCE WITH FEDERAL REQUIREMENTS. (a) A
518-27 person who purchases, sells, or uses a refrigerant in this state
519-1 shall comply with the requirements of the federal Clean Air Act (42
519-2 U.S.C. Section 7401 et seq.) and rules adopted under that Act.
519-3 (b) Consistent with Subsection (a), the department shall
519-4 regulate the sale and use of a refrigerant as provided by this
519-5 subchapter. (V.A.C.S. Art. 8861, Sec. 10(b).)
519-6 Sec. 1302.353. PURCHASE OF REFRIGERANT: LICENSE OR
519-7 REGISTRATION REQUIRED. (a) Except as provided by Subsection (b), a
519-8 person may not purchase a refrigerant or equipment containing a
519-9 refrigerant in this state unless the person holds:
519-10 (1) a license under Subchapter F or G; or
519-11 (2) a certificate of registration issued by the
519-12 department under this subchapter.
519-13 (b) A person authorized to purchase a refrigerant under
519-14 other state or federal law may purchase a refrigerant if the
519-15 person's use is exempt from this chapter under Section 1302.053,
519-16 1302.055, 1302.057, 1302.058, or 1302.059. (V.A.C.S. Art. 8861,
519-17 Secs. 10(e), (g) (part).)
519-18 Sec. 1302.354. REGISTRATION. (a) A person who is exempt
519-19 from this chapter under Section 1302.054 or 1302.056 must obtain a
519-20 certificate of registration from the department to purchase a
519-21 refrigerant.
519-22 (b) The commissioner by rule shall adopt requirements
519-23 governing the registration and issuance of a certificate of
519-24 registration. (V.A.C.S. Art. 8861, Sec. 10(d) (part).)
519-25 Sec. 1302.355. PURCHASE OF REFRIGERANT: EVIDENCE
519-26 REQUIREMENT. (a) Except as provided by Subsection (b), a person
519-27 who purchases a refrigerant must provide to the seller evidence of
520-1 the person's compliance with the applicable license or registration
520-2 requirement under this chapter.
520-3 (b) A purchaser described by Section 1302.353(b) is not
520-4 required to provide evidence of the person's exemption to a seller.
520-5 (c) The commissioner by rule shall establish requirements
520-6 for evidence that satisfies this section. (V.A.C.S. Art. 8861,
520-7 Secs. 10(d) (part), (f), (g) (part).)
520-8 Sec. 1302.356. SALE OR USE OF CERTAIN REFRIGERANTS
520-9 PROHIBITED. A person may not:
520-10 (1) sell a flammable refrigerant or refrigerant
520-11 substitute that contains a liquid petroleum-based product for use
520-12 in an automotive, aviation, commercial, or residential air
520-13 conditioning or refrigeration system; or
520-14 (2) use a flammable refrigerant or refrigerant
520-15 substitute that contains a liquid petroleum-based product in the
520-16 maintenance or installation of any system relating to aircraft.
520-17 (V.A.C.S. Art. 8861, Sec. 10(c).)
520-18 (Sections 1302.357-1302.400 reserved for expansion)
520-19 SUBCHAPTER I. DISCIPLINARY ACTION AND PROCEDURES
520-20 Sec. 1302.401. DISCIPLINARY ACTION. (a) A person is subject
520-21 to the denial of an application or disciplinary action under
520-22 Section 51.353 if the person:
520-23 (1) violates this chapter or a rule adopted under this
520-24 chapter; or
520-25 (2) is convicted of an offense under a municipal
520-26 ordinance adopted under Section 1302.303.
520-27 (b) A violation of this chapter includes:
521-1 (1) failing to provide proper installation, service,
521-2 or mechanical integrity;
521-3 (2) intentionally or knowingly misrepresenting a
521-4 necessary service, service to be provided, or service that has been
521-5 provided; or
521-6 (3) making a fraudulent promise to induce a person to
521-7 contract for services. (V.A.C.S. Art. 8861, Secs. 5(a), 9(c)
521-8 (part).)
521-9 Sec. 1302.402. ADMINISTRATIVE PROCEDURES. A proceeding for
521-10 the denial of a license application or disciplinary action and an
521-11 appeal from that proceeding are governed by Chapter 2001,
521-12 Government Code. (V.A.C.S. Art. 8861, Sec. 5(b).)
521-13 (Sections 1302.403-1302.450 reserved for expansion)
521-14 SUBCHAPTER J. PENALTIES AND ENFORCEMENT PROVISIONS
521-15 Sec. 1302.451. EMERGENCY AND CEASE AND DESIST ORDERS. (a)
521-16 The commissioner may issue an emergency order as necessary to
521-17 enforce this chapter if the commissioner determines that an
521-18 emergency exists requiring immediate action to protect the public
521-19 health and safety.
521-20 (b) The commissioner may issue the emergency order without
521-21 notice and hearing or with any notice and hearing the commissioner
521-22 considers practicable under the circumstances. The commissioner
521-23 shall set the time and place for a hearing to affirm, modify, or
521-24 set aside an emergency order that was issued without a hearing.
521-25 (c) The commissioner may issue a cease and desist order.
521-26 (V.A.C.S. Art. 8861, Sec. 3(b).)
521-27 Sec. 1302.452. CITATIONS FOR CERTAIN VIOLATIONS. (a) A
522-1 municipal or county official may issue a citation to an air
522-2 conditioning and refrigeration contracting company that engages in
522-3 air conditioning and refrigeration contracting without complying
522-4 with Section 1302.252.
522-5 (b) The department or a municipal air conditioning or
522-6 refrigeration inspector within the jurisdiction of the municipality
522-7 in which a violation occurs may issue a citation to a person who
522-8 violates Section 1302.353(a) or 1302.355(a). (V.A.C.S. Art. 8861,
522-9 Secs. 3(m), 3B(c) (part).)
522-10 Sec. 1302.453. CRIMINAL PENALTY. (a) A person commits an
522-11 offense if the person:
522-12 (1) knowingly engages in air conditioning and
522-13 refrigeration contracting without holding a license issued under
522-14 this chapter; or
522-15 (2) purchases a refrigerant or equipment containing a
522-16 refrigerant in this state in violation of Section 1302.353,
522-17 1302.355, or 1302.356.
522-18 (b) An offense under this section is a Class C misdemeanor.
522-19 (V.A.C.S. Art. 8861, Secs. 8, 10(h).)
522-20 CHAPTER 1303. RESIDENTIAL SERVICE COMPANIES
522-21 SUBCHAPTER A. GENERAL PROVISIONS
522-22 Sec. 1303.001. SHORT TITLE
522-23 Sec. 1303.002. DEFINITIONS
522-24 Sec. 1303.003. APPLICABILITY OF INSURANCE LAWS
522-25 Sec. 1303.004. NONAPPLICABILITY TO CERTAIN PERSONS
522-26 Sec. 1303.005. APPLICABILITY TO CERTAIN AGREEMENTS
522-27 Sec. 1303.006. LIABILITY FOR CERTAIN ACTIONS BY AGENT
523-1 (Sections 1303.007-1303.050 reserved for expansion)
523-2 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
523-3 Sec. 1303.051. GENERAL POWERS AND DUTIES OF COMMISSION;
523-4 DELEGATION
523-5 Sec. 1303.052. FEES
523-6 Sec. 1303.053. EXAMINATION OF RESIDENTIAL SERVICE
523-7 COMPANY
523-8 (Sections 1303.054-1303.100 reserved for expansion)
523-9 SUBCHAPTER C. LICENSE REQUIREMENTS
523-10 Sec. 1303.101. LICENSE REQUIRED
523-11 Sec. 1303.102. ELIGIBILITY
523-12 Sec. 1303.103. LICENSE APPLICATION
523-13 Sec. 1303.104. APPROVAL OF APPLICATION MATERIALS
523-14 Sec. 1303.105. ISSUANCE OR DENIAL OF LICENSE
523-15 Sec. 1303.106. LICENSE DENIAL: APPEAL TO
523-16 COMMISSION
523-17 Sec. 1303.107. TERM OF LICENSE
523-18 (Sections 1303.108-1303.150 reserved for expansion)
523-19 SUBCHAPTER D. FINANCIAL REQUIREMENTS
523-20 Sec. 1303.151. RESERVE REQUIRED
523-21 Sec. 1303.152. AMOUNT OF RESERVE
523-22 Sec. 1303.153. SECURITY REQUIRED
523-23 Sec. 1303.154. AMOUNT OF SECURITY
523-24 (Sections 1303.155-1303.200 reserved for expansion)
523-25 SUBCHAPTER E. GENERAL POWERS AND DUTIES OF LICENSE HOLDER
523-26 Sec. 1303.201. NOTICE OF MODIFICATION
523-27 Sec. 1303.202. ANNUAL REPORT
524-1 (Sections 1303.203-1303.250 reserved for expansion)
524-2 SUBCHAPTER F. RESIDENTIAL SERVICE CONTRACTS
524-3 Sec. 1303.251. EVIDENCE OF COVERAGE
524-4 Sec. 1303.252. CONTENTS OF EVIDENCE OF
524-5 COVERAGE
524-6 Sec. 1303.253. SCHEDULE OF CHARGES
524-7 Sec. 1303.254. REMEDIES NOT WAIVED; NOTICE
524-8 Sec. 1303.255. CANCELLATION OF CONTRACT
524-9 (Sections 1303.256-1303.300 reserved for expansion)
524-10 SUBCHAPTER G. PROHIBITED PRACTICES
524-11 Sec. 1303.301. FALSE OR DECEPTIVE STATEMENTS
524-12 PROHIBITED
524-13 Sec. 1303.302. CERTAIN CONDITIONAL SALES OF PROPERTY
524-14 PROHIBITED
524-15 Sec. 1303.303. CERTAIN CHARGES WITHOUT CONSENT
524-16 PROHIBITED
524-17 Sec. 1303.304. CERTAIN PAYMENTS BY RESIDENTIAL SERVICE COMPANY
524-18 PROHIBITED
524-19 (Sections 1303.305-1303.350 reserved for expansion)
524-20 SUBCHAPTER H. DISCIPLINARY ACTION AND OTHER PROCEDURES
524-21 Sec. 1303.351. DISCIPLINARY POWERS OF COMMISSION
524-22 Sec. 1303.352. GROUNDS FOR DISCIPLINARY ACTION
524-23 Sec. 1303.353. DUTIES AFTER LICENSE REVOCATION
524-24 Sec. 1303.354. JUDICIAL REVIEW
524-25 (Sections 1303.355-1303.400 reserved for expansion)
524-26 SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
524-27 Sec. 1303.401. HAZARDOUS FINANCIAL CONDITION OF RESIDENTIAL
525-1 SERVICE COMPANY
525-2 Sec. 1303.402. APPOINTMENT OF RECEIVER
525-3 Sec. 1303.403. INJUNCTIVE RELIEF
525-4 Sec. 1303.404. CIVIL PENALTY
525-5 Sec. 1303.405. DECEPTIVE TRADE PRACTICE
525-6 Sec. 1303.406. CRIMINAL PENALTY
525-7 Sec. 1303.407. ADDITIONAL PENALTY
525-8 CHAPTER 1303. RESIDENTIAL SERVICE COMPANIES
525-9 SUBCHAPTER A. GENERAL PROVISIONS
525-10 Sec. 1303.001. SHORT TITLE. This chapter may be cited as the
525-11 Residential Service Company Act. (V.A.C.S. Art. 6573b, Sec. 1.)
525-12 Sec. 1303.002. DEFINITIONS. In this chapter:
525-13 (1) "Commission" means the Texas Real Estate
525-14 Commission.
525-15 (2) "Contract holder" means a person who is entitled
525-16 to receive services from a residential service company under a
525-17 residential service contract.
525-18 (3) "Person" means an individual, partnership,
525-19 corporation, association, or other organization.
525-20 (4) "Residential service company" means a person who:
525-21 (A) issues a residential service contract; and
525-22 (B) performs or arranges to perform services
525-23 under the contract.
525-24 (5) "Residential service contract" means an agreement
525-25 under which, in exchange for a fee, a person undertakes for a
525-26 specified period to maintain, repair, or replace all or any part of
525-27 a structural component, an appliance, or an electrical, plumbing,
526-1 heating, cooling, or air-conditioning system of a residential
526-2 property. The term does not include a service or maintenance
526-3 agreement sold, offered for sale, or issued by a manufacturer or
526-4 merchant under which the manufacturer or merchant undertakes to
526-5 maintain, repair, or replace a product or part of a product,
526-6 including a structural component, an appliance, or an electrical,
526-7 plumbing, heating, cooling, or air-conditioning system of a
526-8 residential property, that is:
526-9 (A) manufactured or sold by the manufacturer or
526-10 merchant; or
526-11 (B) installed by the merchant in a building or
526-12 residence. (V.A.C.S. Art. 6573b, Secs. 4(a), (b), (d), (e), (f).)
526-13 Sec. 1303.003. APPLICABILITY OF INSURANCE LAWS. (a) Except
526-14 as otherwise provided by this chapter, the insurance laws of this
526-15 state do not apply to a residential service company. This
526-16 subsection does not apply to an insurance company licensed and
526-17 regulated under the insurance laws of this state.
526-18 (b) This chapter does not exempt a warranty or service
526-19 contract other than a residential service contract from the
526-20 Insurance Code. (V.A.C.S. Art. 6573b, Secs. 2(a), (d).)
526-21 Sec. 1303.004. NONAPPLICABILITY TO CERTAIN PERSONS. (a)
526-22 This chapter does not apply to a person who:
526-23 (1) manufactures or sells a product or part of a
526-24 product; and
526-25 (2) sells, offers to sell, or issues a service or
526-26 maintenance agreement that provides for the maintenance, repair,
526-27 replacement, or performance of the product or part of the product.
527-1 (b) A person described by Subsection (a) or an employee or
527-2 agent of a person described by Subsection (a) is not required to be
527-3 licensed or regulated under this chapter.
527-4 (c) This chapter does not apply to a person who engages in
527-5 the business of structural pest control in compliance with Chapter
527-6 1951. (V.A.C.S. Art. 6573b, Secs. 2(c), 25 (part).)
527-7 Sec. 1303.005. APPLICABILITY TO CERTAIN AGREEMENTS. This
527-8 chapter does not apply to:
527-9 (1) a performance guarantee given by:
527-10 (A) the builder of a residential property; or
527-11 (B) the manufacturer or seller of an appliance
527-12 or other system or component of a residential property;
527-13 (2) a residential service contract executed before
527-14 August 28, 1979;
527-15 (3) a service contract, guarantee, or warranty that
527-16 is:
527-17 (A) designed to guarantee or warrant the repair
527-18 or service of an appliance, system, or component of a residential
527-19 property; and
527-20 (B) issued by a person who:
527-21 (i) does not engage in the business of a
527-22 residential service company; and
527-23 (ii) sells, services, repairs, or replaces
527-24 the appliance, system, or component at the time or before the
527-25 contract, guarantee, or warranty is issued;
527-26 (4) a service or maintenance agreement or a warranty
527-27 that:
528-1 (A) is sold, offered for sale, or issued by a
528-2 manufacturer or merchant who manufactures or sells a product or
528-3 part of a product, including a structural component, an appliance,
528-4 or an electrical, plumbing, heating, cooling, or air-conditioning
528-5 system of a building or residence; and
528-6 (B) provides for, warrants, or guarantees the
528-7 maintenance, repair, replacement, or performance of the product or
528-8 part of the product; or
528-9 (5) home warranty insurance as defined by Section 2,
528-10 Article 5.53-A, Insurance Code. (V.A.C.S. Art. 6573b, Secs. 2(b),
528-11 25 (part).)
528-12 Sec. 1303.006. LIABILITY FOR CERTAIN ACTIONS BY AGENT. This
528-13 chapter does not exempt a residential service company from common
528-14 law or statutory liability for an action taken by the company's
528-15 agent or representative that is relevant to the conduct of the
528-16 company's business. (V.A.C.S. Art. 6573b, Sec. 11(d).)
528-17 (Sections 1303.007-1303.050 reserved for expansion)
528-18 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
528-19 Sec. 1303.051. GENERAL POWERS AND DUTIES OF COMMISSION;
528-20 DELEGATION. (a) The commission shall administer this chapter and
528-21 may adopt and enforce rules necessary to implement this chapter.
528-22 (b) The commission may delegate a power, right, or duty
528-23 under this chapter to the administrator or assistant administrator
528-24 of the commission. (V.A.C.S. Art. 6573b, Secs. 3, 5.)
528-25 Sec. 1303.052. FEES. (a) A residential service company must
528-26 pay to the commission a fee for filing an application for a license
528-27 or an amendment to the application, not to exceed $3,500.
529-1 (b) A residential service company shall pay to the
529-2 commission a fee for:
529-3 (1) filing an annual report under Section 1303.202,
529-4 not to exceed $3,500; and
529-5 (2) any other filing required by this chapter, not to
529-6 exceed $500.
529-7 (c) A residential service company shall pay to the
529-8 commission a fee for the cost of an examination conducted under
529-9 Section 1303.053. (V.A.C.S. Art. 6573b, Secs. 7(a) (part), 24.)
529-10 Sec. 1303.053. EXAMINATION OF RESIDENTIAL SERVICE COMPANY.
529-11 (a) The commission may examine the affairs of a residential
529-12 service company as necessary. For the purpose of an examination,
529-13 the commission may administer an oath to and examine an officer or
529-14 agent of the residential service company.
529-15 (b) A residential service company shall:
529-16 (1) make available for the examination its books and
529-17 records relating to its operation; and
529-18 (2) facilitate the examination in every way. (V.A.C.S.
529-19 Art. 6573b, Sec. 13.)
529-20 (Sections 1303.054-1303.100 reserved for expansion)
529-21 SUBCHAPTER C. LICENSE REQUIREMENTS
529-22 Sec. 1303.101. LICENSE REQUIRED. (a) A person may not issue
529-23 a residential service contract or perform or arrange to perform
529-24 services under a residential service contract unless the person is
529-25 licensed as a residential service company under this chapter or is
529-26 the authorized representative of a person licensed as a residential
529-27 service company under this chapter.
530-1 (b) A person may not sell, offer to sell, arrange or solicit
530-2 the sale of, or receive an application for a residential service
530-3 contract unless:
530-4 (1) the person is:
530-5 (A) employed by a residential service company
530-6 licensed under this chapter; or
530-7 (B) licensed as a real estate salesperson, real
530-8 estate broker, mobile home dealer, or insurance agent in this
530-9 state; and
530-10 (2) the contract is issued by a residential service
530-11 company licensed under this chapter.
530-12 (c) A person may not use the phrase "residential service
530-13 company" in the course of engaging in business unless the person:
530-14 (1) is licensed by the commission as provided by this
530-15 chapter; and
530-16 (2) complies with this chapter. (V.A.C.S. Art. 6573b,
530-17 Secs. 6(a), (b); 11(c).)
530-18 Sec. 1303.102. ELIGIBILITY. (a) Notwithstanding any other
530-19 law of this state, any person may apply to the commission for and
530-20 obtain a license to issue residential service contracts in
530-21 compliance with this chapter.
530-22 (b) A foreign corporation may qualify under this chapter if
530-23 the corporation:
530-24 (1) registers to engage in business in this state as a
530-25 foreign corporation under the Texas Business Corporation Act; and
530-26 (2) complies with this chapter and other applicable
530-27 statutes of this state. (V.A.C.S. Art. 6573b, Sec. 6(c).)
531-1 Sec. 1303.103. LICENSE APPLICATION. (a) An application for
531-2 a license under this chapter must be:
531-3 (1) on a form prescribed by commission rule; and
531-4 (2) verified by the applicant or an officer or other
531-5 authorized representative of the applicant.
531-6 (b) Each application for a license must contain or be
531-7 accompanied by:
531-8 (1) a copy of the articles of incorporation, articles
531-9 of association, partnership agreement, trust agreement, or any
531-10 other basic organizational document of the applicant;
531-11 (2) a copy of any amendment to the applicant's basic
531-12 organizational document;
531-13 (3) a copy of any bylaws, rules, or other similar
531-14 document that regulates the conduct of the applicant's internal
531-15 affairs;
531-16 (4) the name, address, and official position of each
531-17 person who will be responsible for the conduct of the applicant's
531-18 affairs, including:
531-19 (A) each member of the board of directors, board
531-20 of trustees, executive committee, or other governing body or
531-21 committee of the applicant;
531-22 (B) the applicant's principal officer, if the
531-23 applicant is a corporation; and
531-24 (C) each partner or member of the applicant, if
531-25 the applicant is a partnership or association;
531-26 (5) a copy of the residential service contract made or
531-27 to be made between the applicant and another person;
532-1 (6) a general description of the residential service
532-2 contract or the contract's coverage or plan;
532-3 (7) a financial statement that:
532-4 (A) is prepared by an independent certified
532-5 public accountant within six months preceding the date the
532-6 application is submitted; and
532-7 (B) shows the applicant's assets, liabilities,
532-8 and sources of financial support;
532-9 (8) a description of the applicant's proposed method
532-10 of marketing a residential service contract;
532-11 (9) a statement regarding the applicant's sources of
532-12 working capital and any other funding sources;
532-13 (10) if the applicant is not domiciled in this state,
532-14 a power of attorney appointing the administrator and the
532-15 administrator's successors in office, or the administrator's
532-16 authorized deputy, as the applicant's agent for service of process
532-17 in this state in a legal action arising in this state against the
532-18 applicant or the applicant's agents; and
532-19 (11) any other information the commission requires to
532-20 make a determination required by this chapter.
532-21 (c) For the proper administration of this chapter, the
532-22 commission may require additional or more recent financial
532-23 information than the financial information required under
532-24 Subsection (b)(7). (V.A.C.S. Art. 6573b, Sec. 7(a) (part).)
532-25 Sec. 1303.104. APPROVAL OF APPLICATION MATERIALS. (a) The
532-26 commission shall approve or disapprove the application materials in
532-27 writing as soon as reasonably possible after the date the
533-1 application materials are submitted. Except as provided by
533-2 Subsection (b), the application materials are considered approved
533-3 unless disapproved not later than the 30th day after the date the
533-4 application materials are submitted.
533-5 (b) The commission by official order may postpone approval
533-6 or disapproval of the application materials for a period necessary
533-7 for proper consideration, not to exceed 30 days. (V.A.C.S.
533-8 Art. 6573b, Sec. 7(c).)
533-9 Sec. 1303.105. ISSUANCE OR DENIAL OF LICENSE. (a) On
533-10 receipt of an approved application as provided by Section 1303.104,
533-11 the commission shall determine whether the applicant has
533-12 demonstrated the potential ability to ensure that the services will
533-13 be provided in a timely and responsible manner. The commission
533-14 shall issue a license to an applicant if the commission determines
533-15 that:
533-16 (1) the applicant has demonstrated the potential
533-17 ability to ensure that the services will be provided in a timely
533-18 and responsible manner;
533-19 (2) the person responsible for the conduct of the
533-20 applicant's affairs is competent and trustworthy and possesses a
533-21 good reputation;
533-22 (3) the applicant may reasonably be expected to meet
533-23 its obligations under its residential service contract; and
533-24 (4) the applicant has complied with or will comply
533-25 with this chapter.
533-26 (b) In making the determination under Subsection (a)(3), the
533-27 commission shall consider:
534-1 (1) the applicant's financial soundness;
534-2 (2) any agreement between the applicant and another
534-3 party to provide the services required in the residential service
534-4 contract; and
534-5 (3) any other matter the commission considers
534-6 relevant.
534-7 (c) Not later than the 75th day after the date the
534-8 commission receives an approved application, the commission shall,
534-9 in writing, issue or deny a license to the applicant.
534-10 (d) If the commission denies a license, the commission shall
534-11 notify the applicant in writing of the denial not later than the
534-12 fifth day after the date of denial. (V.A.C.S. Art. 6573b, Secs.
534-13 8(a), (b), (c), (d).)
534-14 Sec. 1303.106. LICENSE DENIAL: APPEAL TO COMMISSION. (a)
534-15 To appeal the denial of a license as provided by Section 1303.354,
534-16 a license applicant must file not later than the 10th day after the
534-17 date of the notice of denial a written appeal requesting a hearing
534-18 before the commission. If an applicant fails to request a hearing
534-19 as provided by this subsection, the commission's decision is final
534-20 and not subject to judicial review.
534-21 (b) The commission shall:
534-22 (1) set a time and place for the hearing not later
534-23 than the 30th day after the date the commission receives the
534-24 appeal; and
534-25 (2) notify the applicant in writing of the scheduled
534-26 hearing not later than the 10th day before the date of the
534-27 scheduled hearing.
535-1 (c) The hearing may be continued with the applicant's
535-2 consent. After the hearing, the commission shall enter an
535-3 appropriate order. (V.A.C.S. Art. 6573b, Sec. 8(e).)
535-4 Sec. 1303.107. TERM OF LICENSE. A license continues in
535-5 effect as long as the license holder meets the requirements of this
535-6 chapter or until the license is:
535-7 (1) suspended or revoked by the commission; or
535-8 (2) terminated at the request of the license holder.
535-9 (V.A.C.S. Art. 6573b, Sec. 8(f).)
535-10 (Sections 1303.108-1303.150 reserved for expansion)
535-11 SUBCHAPTER D. FINANCIAL REQUIREMENTS
535-12 Sec. 1303.151. RESERVE REQUIRED. A residential service
535-13 company shall maintain a funded reserve against its liability to
535-14 provide repair and replacement services under its outstanding
535-15 residential service contracts written in this state. (V.A.C.S.
535-16 Art. 6573b, Sec. 9(a) (part).)
535-17 Sec. 1303.152. AMOUNT OF RESERVE. (a) The amount of the
535-18 reserve required by Section 1303.151 is based on the amount of
535-19 liability remaining under outstanding residential service contracts
535-20 written in this state by the residential service company, as
535-21 determined by multiplying the total number of months remaining on
535-22 all of those contracts by the pro rata monthly contract charge.
535-23 (b) The amount of the reserve must be equal to the lesser
535-24 of:
535-25 (1) an amount equal to the amount of remaining
535-26 liability multiplied by the ratio of direct losses incurred by the
535-27 residential service company to contract fees earned by the company
536-1 during the preceding calendar year; or
536-2 (2) an amount equal to 50 percent of the amount of
536-3 remaining liability.
536-4 (c) For purposes of this chapter, the reserve is not
536-5 required to include a contract fee on a residential service
536-6 contract to the extent that provision is made for reinsurance of
536-7 the outstanding risk on the contract by:
536-8 (1) a residential service company licensed in this
536-9 state;
536-10 (2) an admitted insurer; or
536-11 (3) a surplus line insurer or a surplus line bonding
536-12 company if the insurer or bonding company:
536-13 (A) is rated A+ or better by a rating service
536-14 recognized by the commission; and
536-15 (B) submits to the commission for its approval
536-16 evidence, in the form of a certified audit and other pertinent
536-17 information the commission may require, of the insurer's or bonding
536-18 company's ability to meet its contractual obligations. (V.A.C.S.
536-19 Art. 6573b, Secs. 9(a) (part), (b).)
536-20 Sec. 1303.153. SECURITY REQUIRED. (a) As a guarantee that a
536-21 residential service company will meet its obligations to its
536-22 contract holders, the company shall maintain with the commission a
536-23 bond or other security accepted by the commission.
536-24 (b) A bond posted as security must:
536-25 (1) be issued by a carrier admitted in this state;
536-26 (2) be continuous;
536-27 (3) be cancellable by the surety only after not less
537-1 than 90 days' notice to the commission; and
537-2 (4) recognize that the obligation continues for the
537-3 terms of the residential service contracts written by the
537-4 residential service company while the bond is in force.
537-5 (c) Any security provided under this section in a form other
537-6 than a bond must be convertible to cash by the commission for the
537-7 benefit of contract holders in this state, without resort to the
537-8 courts, if the commission determines that the residential service
537-9 company is in default of its financial obligations to the contract
537-10 holders. Any amount remaining after all contract holders' claims
537-11 are paid must be returned to the residential service company not
537-12 later than the 120th day after the date the last outstanding
537-13 residential service contract expires. (V.A.C.S. Art. 6573b, Secs.
537-14 9(c) (part), (e), (f).)
537-15 Sec. 1303.154. AMOUNT OF SECURITY. (a) An applicant for a
537-16 new license must provide security in the amount of $25,000. The
537-17 amount of the security may not be reduced before the residential
537-18 service company files a second report under Section 1303.202.
537-19 (b) After a residential service company files the second
537-20 report, the company must maintain security in one of the following
537-21 minimum amounts based on the amount of claims paid in this state
537-22 during the preceding calendar year:
537-23 (1) $10,000, if the amount of claims paid is less than
537-24 $50,000;
537-25 (2) $25,000, if the amount of claims paid is $50,000
537-26 or more but less than $200,000;
537-27 (3) $50,000, if the amount of claims paid is $200,000
538-1 or more but less than $500,000; and
538-2 (4) $100,000, if the amount of claims paid is $500,000
538-3 or more.
538-4 (c) A revision to the amount of security must be based on
538-5 the figures a residential service company provides in its report
538-6 under Section 1303.202. The company shall revise the amount of
538-7 security as required by the commission not later than the 30th day
538-8 after the date the company is notified by the commission of the
538-9 revised amount. (V.A.C.S. Art. 6573b, Secs. 9(c) (part), (d),
538-10 (g).)
538-11 (Sections 1303.155-1303.200 reserved for expansion)
538-12 SUBCHAPTER E. GENERAL POWERS AND DUTIES OF LICENSE HOLDER
538-13 Sec. 1303.201. NOTICE OF MODIFICATION. A residential service
538-14 company shall file notice with the commission before the company
538-15 modifies an operation or document described in Section 1303.103.
538-16 (V.A.C.S. Art. 6573b, Sec. 7(b).)
538-17 Sec. 1303.202. ANNUAL REPORT. (a) Not later than April 1 of
538-18 each year, each residential service company shall file with the
538-19 commission a report covering the preceding calendar year.
538-20 (b) The report must:
538-21 (1) be on a form prescribed by the commission;
538-22 (2) be verified by at least two of the residential
538-23 service company's principal officers; and
538-24 (3) include:
538-25 (A) a financial statement of the residential
538-26 service company, including its balance sheet and receipts and
538-27 disbursements for the preceding year, certified by an independent
539-1 public accountant;
539-2 (B) any material change to the information
539-3 submitted under Section 1303.103;
539-4 (C) the number of residential service contracts
539-5 entered into during the year, the number of contract holders as of
539-6 the end of the year, and the number of contracts terminating during
539-7 the year; and
539-8 (D) any other information that:
539-9 (i) relates to the performance and
539-10 solvency of the residential service company; and
539-11 (ii) is necessary for the commission to
539-12 perform its duties under this chapter.
539-13 (c) Information provided by a residential service company
539-14 under Subsection (b)(3)(D) is:
539-15 (1) confidential; and
539-16 (2) for the exclusive use of the commission. (V.A.C.S.
539-17 Art. 6573b, Sec. 10.)
539-18 (Sections 1303.203-1303.250 reserved for expansion)
539-19 SUBCHAPTER F. RESIDENTIAL SERVICE CONTRACTS
539-20 Sec. 1303.251. EVIDENCE OF COVERAGE. (a) Each contract
539-21 holder residing in this state is entitled to evidence of coverage
539-22 under a residential service contract. The residential service
539-23 company that issued the contract shall issue evidence of coverage
539-24 under the contract.
539-25 (b) A residential service company may not issue or deliver
539-26 evidence of coverage under a residential service contract, or an
539-27 amendment to that evidence, to a person in this state until a copy
540-1 of the evidence or amendment is filed with and approved by the
540-2 commission.
540-3 (c) The commission may require a residential service company
540-4 to submit relevant information the commission considers necessary
540-5 to determine whether to approve or disapprove the company's
540-6 evidence of coverage.
540-7 (d) The commission shall approve a residential service
540-8 company's evidence of coverage if the requirements of this section
540-9 and Section 1303.252 are met.
540-10 (e) If the commission disapproves a residential service
540-11 company's evidence of coverage, the commission shall notify the
540-12 company of the disapproval and in the notice shall specify in
540-13 detail the reason for the disapproval.
540-14 (f) A residential service company whose evidence of coverage
540-15 is disapproved by the commission may request a hearing on the
540-16 commission's decision. If a hearing is requested, the commission
540-17 shall set a hearing on the decision as soon as reasonably possible.
540-18 Not later than the 60th day after the date of the hearing, the
540-19 commission by written order shall approve or disapprove the
540-20 evidence. If the evidence is disapproved, the commission shall
540-21 state in the order the grounds for the disapproval. (V.A.C.S.
540-22 Art. 6573b, Secs. 15(a)(1), (2), (c), (d).)
540-23 Sec. 1303.252. CONTENTS OF EVIDENCE OF COVERAGE. (a)
540-24 Evidence of coverage under a residential service contract must
540-25 contain a clear and complete statement, if the evidence is a
540-26 contract, or a reasonably complete facsimile, if the evidence is a
540-27 certificate, of:
541-1 (1) the services or benefits to which the contract
541-2 holder is entitled;
541-3 (2) any limitation on the services, kinds of services,
541-4 or benefits to be provided, including a deductible or co-payment
541-5 provision;
541-6 (3) where and in what manner information is available
541-7 on how to obtain services;
541-8 (4) the period during which the coverage is in effect;
541-9 (5) the residential service company's agreement to
541-10 perform services on the contract holder's telephone request to the
541-11 company, without a requirement that a claim form or application be
541-12 filed before the services are performed;
541-13 (6) the company's agreement that, under normal
541-14 circumstances, the company will initiate the performance of
541-15 services within 48 hours after the contract holder requests the
541-16 services; and
541-17 (7) any service fee to be charged for a service call.
541-18 (b) Evidence of coverage may not contain a provision that
541-19 encourages misrepresentation or that is unjust, unfair,
541-20 inequitable, misleading, deceptive, or false. (V.A.C.S. Art. 6573b,
541-21 Sec. 15(a)(3).)
541-22 Sec. 1303.253. SCHEDULE OF CHARGES. (a) A residential
541-23 service company may not use in conjunction with a residential
541-24 service contract a schedule of charges for services covered under
541-25 the contract or an amendment to that schedule until a copy of the
541-26 schedule or amendment is filed with and approved by the commission.
541-27 (b) The commission shall approve a schedule of charges if
542-1 the commission determines that the schedule is reasonably related
542-2 to the amount, term, and conditions of the contract.
542-3 (c) If the commission determines that the schedule of
542-4 charges is not reasonably related to the contract as described by
542-5 Subsection (b), the commission may reject the schedule. If the
542-6 commission rejects the schedule, the commission shall notify the
542-7 company of the rejection and shall specify in detail the reason for
542-8 the rejection.
542-9 (d) A residential service company whose schedule of charges
542-10 is rejected by the commission may request a hearing on the
542-11 commission's decision to be held as soon as reasonably possible.
542-12 Not later than the 60th day after the date of the hearing, the
542-13 commission by written order shall approve or reject the schedule.
542-14 If the schedule is rejected, the commission shall state in the
542-15 order the grounds for the rejection. (V.A.C.S. Art. 6573b, Sec.
542-16 15(b).)
542-17 Sec. 1303.254. REMEDIES NOT WAIVED; NOTICE. (a) A contract
542-18 holder does not waive under a residential service contract a remedy
542-19 that the holder may have under another law against another person.
542-20 (b) A person may not sell or offer to sell a residential
542-21 service contract unless the contract contains the following
542-22 statement in at least 10-point bold type above or adjacent to the
542-23 signature of the buyer:
542-24 NOTICE: YOU THE BUYER HAVE OTHER RIGHTS AND REMEDIES
542-25 UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
542-26 PROTECTION ACT WHICH ARE IN ADDITION TO ANY REMEDY
542-27 WHICH MAY BE AVAILABLE UNDER THIS CONTRACT.
543-1 FOR MORE INFORMATION CONCERNING YOUR RIGHTS, CONTACT
543-2 THE CONSUMER PROTECTION DIVISION OF THE ATTORNEY
543-3 GENERAL'S OFFICE, YOUR LOCAL DISTRICT OR COUNTY
543-4 ATTORNEY OR THE ATTORNEY OF YOUR CHOICE.
543-5 (V.A.C.S. Art. 6573b, Secs. 16(a), (b) (part).)
543-6 Sec. 1303.255. CANCELLATION OF CONTRACT. A residential
543-7 service company may not cancel a residential service contract
543-8 during the initial term for which the contract is issued unless:
543-9 (1) the contract holder does not pay a fee or charge
543-10 due under the terms of the contract;
543-11 (2) the contract holder engages in fraud or
543-12 misrepresentation of facts material to the issuance of the
543-13 contract; or
543-14 (3) an interest in the residential property covered
543-15 under the contract is sold, and the contract is contingent on an
543-16 interest in the property not being sold. (V.A.C.S. Art. 6573b,
543-17 Sec. 17.)
543-18 (Sections 1303.256-1303.300 reserved for expansion)
543-19 SUBCHAPTER G. PROHIBITED PRACTICES
543-20 Sec. 1303.301. FALSE OR DECEPTIVE STATEMENTS PROHIBITED. (a)
543-21 A residential service company may not cause or permit the use of:
543-22 (1) a false or misleading advertisement or
543-23 solicitation; or
543-24 (2) any deceptive evidence of coverage.
543-25 (b) Unless a residential service company is licensed as an
543-26 insurer, the company may not use in the company's name, contracts,
543-27 or literature the word "insurance," "casualty," "surety," or
544-1 "mutual" or another word that is:
544-2 (1) descriptive of the insurance, casualty, or surety
544-3 business; or
544-4 (2) deceptively similar to the name or description of
544-5 an insurance or surety corporation or another residential service
544-6 company engaging in business in this state. (V.A.C.S. Art. 6573b,
544-7 Secs. 11(a), (b).)
544-8 Sec. 1303.302. CERTAIN CONDITIONAL SALES OF PROPERTY
544-9 PROHIBITED. (a) A seller of a residential property or the seller's
544-10 agent may not condition the sale of the property on the buyer's
544-11 purchase of a residential service contract.
544-12 (b) A seller of a residential property or the seller's agent
544-13 shall provide to the buyer a statement that clearly and
544-14 conspicuously states that:
544-15 (1) the purchase of a residential service contract is
544-16 optional; and
544-17 (2) the buyer may purchase similar coverage through
544-18 another residential service company or insurance company authorized
544-19 to engage in business in this state. (V.A.C.S. Art. 6573b, Sec.
544-20 11(e).)
544-21 Sec. 1303.303. CERTAIN CHARGES WITHOUT CONSENT PROHIBITED.
544-22 Unless a homeowner, lessor, or renter consents in writing, a
544-23 residential service company or the company's agent may not
544-24 knowingly charge the homeowner, lessor, or renter for duplication
544-25 of coverage or duties required by:
544-26 (1) state or federal law, including coverage under
544-27 Subchapter H, Chapter 1201;
545-1 (2) a warranty expressly issued by a manufacturer or
545-2 seller of a product; or
545-3 (3) an implied warranty enforceable against a lessor,
545-4 seller, or manufacturer of a product. (V.A.C.S. Art. 6573b, Sec.
545-5 11(f).)
545-6 Sec. 1303.304. CERTAIN PAYMENTS BY RESIDENTIAL SERVICE
545-7 COMPANY PROHIBITED. (a) A residential service company may not
545-8 directly or indirectly pay, as an inducement or compensation for
545-9 the issuance, purchase, or acquisition of a residential service
545-10 contract, a commission or other consideration to an agent,
545-11 representative, attorney, or employee of an owner or prospective
545-12 owner of a residential property for which a residential service
545-13 contract has been or will be issued.
545-14 (b) Notwithstanding Subsection (a), a residential service
545-15 company may pay a reasonable amount for the sale, advertising,
545-16 inspection, or processing of a residential service contract.
545-17 (V.A.C.S. Art. 6573b, Sec. 12.)
545-18 (Sections 1303.305-1303.350 reserved for expansion)
545-19 SUBCHAPTER H. DISCIPLINARY ACTION AND OTHER PROCEDURES
545-20 Sec. 1303.351. DISCIPLINARY POWERS OF COMMISSION. The
545-21 commission may suspend or revoke a license issued to a residential
545-22 service company under this chapter if the commission determines
545-23 that a ground for discipline exists under Section 1303.352.
545-24 (V.A.C.S. Art. 6573b, Sec. 18(a) (part).)
545-25 Sec. 1303.352. GROUNDS FOR DISCIPLINARY ACTION. (a) The
545-26 commission may discipline a residential service company under
545-27 Section 1303.351 if the continued operation of the company would be
546-1 hazardous to its contract holders or if the company:
546-2 (1) operates in conflict with its basic organizational
546-3 document or in a manner that is contrary to that described in and
546-4 reasonably inferred from information submitted under Section
546-5 1303.103, unless an amendment to the information has been filed
546-6 with and approved by the commission;
546-7 (2) issues evidence of coverage that does not comply
546-8 with Sections 1303.251 and 1303.252;
546-9 (3) uses a schedule of charges that does not comply
546-10 with Section 1303.253;
546-11 (4) is not financially responsible and may be
546-12 reasonably expected to be unable to meet the company's obligations
546-13 to contract holders;
546-14 (5) did not comply with Subchapter D;
546-15 (6) advertised or marketed the company's services in a
546-16 false, misrepresentative, misleading, deceptive, or unfair manner;
546-17 or
546-18 (7) otherwise did not substantially comply with this
546-19 chapter or a rule adopted under this chapter.
546-20 (b) Subsection (a)(6) applies to any advertising or
546-21 marketing conducted on behalf of a residential service company by
546-22 another person. (V.A.C.S. Art. 6573b, Sec. 18(a) (part).)
546-23 Sec. 1303.353. DUTIES AFTER LICENSE REVOCATION. (a)
546-24 Immediately after the effective date of an order revoking a
546-25 residential service company's license, the company:
546-26 (1) shall wind up its affairs;
546-27 (2) may not engage in further advertising or
547-1 solicitation; and
547-2 (3) may not conduct further business except as may be
547-3 essential to the orderly conclusion of the company's affairs.
547-4 (b) Notwithstanding Subsection (a), to provide contract
547-5 holders with the greatest practical opportunity to obtain services
547-6 for which they contracted, the commission by written order may
547-7 permit further operation of the residential service company as the
547-8 commission determines is in the best interests of the contract
547-9 holders. (V.A.C.S. Art. 6573b, Sec. 18(b).)
547-10 Sec. 1303.354. JUDICIAL REVIEW. (a) A person who is
547-11 adversely affected by a rule or decision of the commission may file
547-12 in a district court in Travis County a petition stating the
547-13 particular objection to the rule or decision. The commission is a
547-14 defendant in the action.
547-15 (b) The petition must be filed not later than the 20th day
547-16 after the date the commission enters an order.
547-17 (c) The district court may not enjoin or stay the
547-18 commission's decision except on application to that court after
547-19 notice to the commission.
547-20 (d) The substantial evidence rule applies to the proceedings
547-21 in the district court.
547-22 (e) Each party to the action may appeal from the district
547-23 court. The appeal takes precedence in the appellate court over all
547-24 actions of a different character pending in that court. The
547-25 commission is not required to give an appeal bond in an action
547-26 arising under this section. (V.A.C.S. Art. 6573b, Sec. 20.)
547-27 (Sections 1303.355-1303.400 reserved for expansion)
548-1 SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS
548-2 Sec. 1303.401. HAZARDOUS FINANCIAL CONDITION OF RESIDENTIAL
548-3 SERVICE COMPANY. (a) If the financial condition of a residential
548-4 service company indicates that its continued operation may be
548-5 hazardous to its contract holders or creditors or to the public,
548-6 the commission may, after notice of hearing, order the company to
548-7 take reasonably necessary action to remedy the condition,
548-8 including:
548-9 (1) reducing the total amount of present and potential
548-10 liability for benefits by reinsurance or by obtaining an
548-11 appropriate bond from an admitted carrier or a surplus line
548-12 carrier;
548-13 (2) reducing the volume of new business being
548-14 accepted;
548-15 (3) reducing expenses by specified methods;
548-16 (4) suspending or limiting the writing of new business
548-17 for a period of time; or
548-18 (5) increasing the company's net worth by
548-19 contribution.
548-20 (b) The commission by rule may establish:
548-21 (1) uniform standards and criteria for early warning
548-22 that the continued operation of a residential service company may
548-23 be hazardous to its contract holders or creditors or to the public;
548-24 and
548-25 (2) standards for evaluating the financial condition
548-26 of a residential service company that are consistent with the
548-27 purposes described in Subsection (a). (V.A.C.S. Art. 6573b, Sec.
549-1 14.)
549-2 Sec. 1303.402. APPOINTMENT OF RECEIVER. (a) If in the
549-3 commission's opinion the continued operation of a residential
549-4 service company would be hazardous to its contract holders or the
549-5 public, the commission may request a district court of Travis
549-6 County to appoint a receiver.
549-7 (b) After adequate notice and a hearing, if the court
549-8 determines that a receiver should be appointed to protect the
549-9 rights of the contract holders or the public, the court shall issue
549-10 an order appointing a receiver. The order must clearly state
549-11 whether the receiver has the power to:
549-12 (1) manage and operate the residential service
549-13 company's business generally; or
549-14 (2) manage only the residential service company's
549-15 finances. (V.A.C.S. Art. 6573b, Sec. 19.)
549-16 Sec. 1303.403. INJUNCTIVE RELIEF. (a) The commission may
549-17 bring an action in the name of the state in a district court of
549-18 Travis County for a restraining order, injunction, or other relief
549-19 the court determines is appropriate if it appears to the commission
549-20 that:
549-21 (1) a residential service company is violating or has
549-22 violated this chapter or a rule adopted under this chapter; and
549-23 (2) bringing the action is in the public interest.
549-24 (b) The commission has exclusive authority to bring an
549-25 action under this section.
549-26 (c) On application for injunctive relief and a finding that
549-27 a residential service company is violating or has violated this
550-1 chapter or a rule adopted under this chapter, the court shall grant
550-2 the injunctive relief that the facts warrant. The court shall
550-3 grant the relief without a bond. (V.A.C.S. Art. 6573b, Sec. 22.)
550-4 Sec. 1303.404. CIVIL PENALTY. (a) A person who violates
550-5 this chapter is liable for a civil penalty in an amount not to
550-6 exceed $2,500 for each violation or $50,000 in the aggregate for
550-7 all violations of a similar nature.
550-8 (b) The commission may bring an action to collect a civil
550-9 penalty under this section.
550-10 (c) For purposes of this section, violations are of a
550-11 similar nature if the violations consist of the same or a similar
550-12 course of conduct, action, or practice, regardless of the number of
550-13 times the conduct, act, or practice occurred. (V.A.C.S.
550-14 Art. 6573b, Sec. 23.)
550-15 Sec. 1303.405. DECEPTIVE TRADE PRACTICE. A violation of this
550-16 chapter is actionable by a consumer as a deceptive trade practice
550-17 under Subchapter E, Chapter 17, Business & Commerce Code.
550-18 (V.A.C.S. Art. 6573b, Secs. 16(b) (part), 23A.)
550-19 Sec. 1303.406. CRIMINAL PENALTY. (a) A person commits an
550-20 offense if the person:
550-21 (1) wilfully violates this chapter or a rule adopted
550-22 under this chapter; or
550-23 (2) knowingly makes a false statement with respect to
550-24 a report or a statement required by this chapter.
550-25 (b) An offense under this section is a Class B misdemeanor.
550-26 (V.A.C.S. Art. 6573b, Sec. 21 (part).)
550-27 Sec. 1303.407. ADDITIONAL PENALTY. A residential service
551-1 company that engages in business in violation of this chapter shall
551-2 pay $100 for each day the company continues to write new business
551-3 while in violation of this chapter. (V.A.C.S. Art. 6573b, Sec. 21
551-4 (part).)
551-5 CHAPTER 1304. SERVICE CONTRACT PROVIDERS
551-6 SUBCHAPTER A. GENERAL PROVISIONS
551-7 Sec. 1304.001. SHORT TITLE
551-8 Sec. 1304.002. DEFINITIONS
551-9 Sec. 1304.003. SERVICE CONTRACT
551-10 Sec. 1304.004. EXEMPTIONS
551-11 Sec. 1304.005. EXEMPTIONS FROM CERTAIN OTHER LAWS
551-12 Sec. 1304.006. PURCHASE REQUIREMENT PROHIBITED
551-13 Sec. 1304.007. GENERAL INVESTIGATIVE POWER OF
551-14 COMMISSIONER
551-15 (Sections 1304.008-1304.050 reserved for expansion)
551-16 SUBCHAPTER B. SERVICE CONTRACT PROVIDERS ADVISORY BOARD
551-17 Sec. 1304.051. SERVICE CONTRACT PROVIDERS ADVISORY BOARD
551-18 Sec. 1304.052. ADVISORY BOARD DUTIES
551-19 Sec. 1304.053. TERMS; VACANCY
551-20 Sec. 1304.054. PRESIDING OFFICER
551-21 Sec. 1304.055. COMPENSATION; REIMBURSEMENT
551-22 Sec. 1304.056. MEETINGS
551-23 Sec. 1304.057. VOTE REQUIRED FOR ACTION
551-24 (Sections 1304.058-1304.100 reserved for expansion)
551-25 SUBCHAPTER C. REGISTRATION REQUIREMENTS
551-26 Sec. 1304.101. REGISTRATION REQUIRED; EXEMPTION FROM
551-27 OTHER LICENSING REQUIREMENTS
552-1 Sec. 1304.102. APPLICATION FOR REGISTRATION
552-2 Sec. 1304.103. ANNUAL REGISTRATION FEES
552-3 Sec. 1304.104. INFORMATION CONCERNING NUMBER OF SERVICE
552-4 CONTRACTS SOLD
552-5 (Sections 1304.105-1304.150 reserved for expansion)
552-6 SUBCHAPTER D. PRACTICE BY SERVICE CONTRACT PROVIDERS
552-7 Sec. 1304.151. FINANCIAL SECURITY REQUIREMENTS
552-8 Sec. 1304.152. REIMBURSEMENT INSURANCE POLICY
552-9 Sec. 1304.153. APPOINTMENT AND RESPONSIBILITIES OF
552-10 ADMINISTRATOR
552-11 Sec. 1304.154. PROVIDER REQUIREMENTS
552-12 Sec. 1304.155. PROVIDER RECORDS
552-13 Sec. 1304.156. FORM OF SERVICE CONTRACT AND REQUIRED
552-14 DISCLOSURES
552-15 Sec. 1304.157. RETURNING A SERVICE CONTRACT
552-16 Sec. 1304.158. VOIDING A SERVICE CONTRACT
552-17 Sec. 1304.159. CANCELING A SERVICE CONTRACT
552-18 Sec. 1304.160. LIMITATIONS ON PROVIDER NAME
552-19 Sec. 1304.161. MISLEADING STATEMENTS PROHIBITED
552-20 (Sections 1304.162-1304.200 reserved for expansion)
552-21 SUBCHAPTER E. DISCIPLINARY ACTION
552-22 Sec. 1304.201. DISCIPLINARY ACTION
552-23 Sec. 1304.202. INJUNCTIVE RELIEF; CIVIL PENALTY
552-24 Sec. 1304.203. MULTIPLE VIOLATIONS
552-25 Sec. 1304.204. ADMINISTRATIVE PROCEDURE
552-26 CHAPTER 1304. SERVICE CONTRACT PROVIDERS
552-27 SUBCHAPTER A. GENERAL PROVISIONS
553-1 Sec. 1304.001. SHORT TITLE. This chapter may be cited as the
553-2 Service Contract Regulatory Act. (V.A.C.S. Art. 9034, Sec. 1, as
553-3 added Acts 76th Leg., R.S., Ch. 1559.)
553-4 Sec. 1304.002. DEFINITIONS. In this chapter:
553-5 (1) "Administrator" means the person responsible for
553-6 the administration of a service contract. The term includes a
553-7 person responsible for any filing required by this chapter.
553-8 (2) "Commission" means the Texas Commission of
553-9 Licensing and Regulation.
553-10 (3) "Commissioner" means the commissioner of licensing
553-11 and regulation.
553-12 (4) "Consumer" means an individual who, for a purpose
553-13 other than resale, buys tangible personal property that is:
553-14 (A) distributed in commerce; and
553-15 (B) normally used for personal, family, or
553-16 household purposes and not for business or research purposes.
553-17 (5) "Department" means the Texas Department of
553-18 Licensing and Regulation.
553-19 (6) "Person" means an individual or an association,
553-20 company, corporation, partnership, or other group.
553-21 (7) "Provider" means a person who is contractually
553-22 obligated to a service contract holder under the terms of a service
553-23 contract.
553-24 (8) "Reimbursement insurance policy" means a policy of
553-25 insurance issued to a provider to:
553-26 (A) reimburse the provider under a service
553-27 contract the provider issued or sold; or
554-1 (B) pay on behalf of the provider all covered
554-2 contractual obligations that are incurred by the provider under a
554-3 service contract the provider issued or sold and that the provider
554-4 does not perform.
554-5 (9) "Service contract holder" means a person who
554-6 purchases or otherwise holds a service contract. (V.A.C.S.
554-7 Art. 9034, Secs. 2(1), (2), (3), (4), (5), (7), (9), (11), (13), as
554-8 added Acts 76th Leg., R.S., Ch. 1559.)
554-9 Sec. 1304.003. SERVICE CONTRACT. (a) In this chapter,
554-10 "service contract" means an agreement:
554-11 (1) that is entered into for a separately stated
554-12 consideration and for a specified term; and
554-13 (2) under which a provider agrees to repair, replace,
554-14 or maintain a product, or provide indemnification for the repair,
554-15 replacement, or maintenance of a product, for operational or
554-16 structural failure caused by a defect in materials or workmanship
554-17 or by normal wear.
554-18 (b) A service contract may also provide for:
554-19 (1) incidental payment or indemnity under limited
554-20 circumstances, including towing, rental, and emergency road
554-21 service; or
554-22 (2) the repair or replacement of a product for damage
554-23 resulting from a power surge or for accidental damage incurred in
554-24 handling the product. (V.A.C.S. Art. 9034, Sec. 2(12), as added
554-25 Acts 76th Leg., R.S., Ch. 1559.)
554-26 Sec. 1304.004. EXEMPTIONS. (a) In this section:
554-27 (1) "Maintenance agreement" means an agreement that
555-1 provides only for scheduled maintenance for a limited period.
555-2 (2) "Warranty" means an undertaking made solely by the
555-3 manufacturer or importer of a product or the seller of a product or
555-4 service that:
555-5 (A) guarantees indemnity for a defective part,
555-6 mechanical or electrical breakdown, or labor cost or guarantees
555-7 another remedial measure, including the repair or replacement of
555-8 the product or the repetition of service;
555-9 (B) is made without payment of additional
555-10 consideration;
555-11 (C) is not negotiated or separated from the sale
555-12 of the product or service; and
555-13 (D) is incidental to the sale of the product or
555-14 service.
555-15 (b) This chapter does not apply to:
555-16 (1) a warranty;
555-17 (2) a maintenance agreement;
555-18 (3) a service contract sold or offered for sale to a
555-19 person who is not a consumer;
555-20 (4) a residential service contract sold by an entity
555-21 licensed by the Texas Real Estate Commission under Chapter 1303;
555-22 (5) an agreement issued by an automobile service club
555-23 that holds a certificate of authority under Chapter 722,
555-24 Transportation Code;
555-25 (6) a service contract sold by a motor vehicle dealer
555-26 on a motor vehicle sold by that dealer, if the dealer:
555-27 (A) is the provider;
556-1 (B) is licensed as a motor vehicle dealer under
556-2 Chapter 2301; and
556-3 (C) covers its obligations under the service
556-4 contract with a reimbursement insurance policy; or
556-5 (7) a contract offered by a local exchange telephone
556-6 company that provides for the repair of inside telephone wiring,
556-7 if:
556-8 (A) the contract term does not exceed one month;
556-9 and
556-10 (B) the consumer can terminate the contract
556-11 before a new contract term begins without liability except for
556-12 payment of charges for the term that has begun. (V.A.C.S.
556-13 Art. 9034, Secs. 2(6), (14), 5(e), as added Acts 76th Leg., R.S.,
556-14 Ch. 1559.)
556-15 Sec. 1304.005. EXEMPTIONS FROM CERTAIN OTHER LAWS.
556-16 Marketing, selling, offering for sale, issuing, making, proposing
556-17 to make, and administering a service contract are exempt from:
556-18 (1) Chapter 1303;
556-19 (2) Chapter 722, Transportation Code; and
556-20 (3) the Insurance Code and other laws of this state
556-21 regulating the business of insurance. (V.A.C.S. Art. 9034, Sec.
556-22 5(d), as added Acts 76th Leg., R.S., Ch. 1559.)
556-23 Sec. 1304.006. PURCHASE REQUIREMENT PROHIBITED. A person,
556-24 including a bank, a savings and loan association, a lending
556-25 institution, or the manufacturer or seller of a product, may not
556-26 require the purchase of a service contract as a condition of a loan
556-27 or the sale of property. (V.A.C.S. Art. 9034, Sec. 13(b), as added
557-1 Acts 76th Leg., R.S., Ch. 1559.)
557-2 Sec. 1304.007. GENERAL INVESTIGATIVE POWER OF COMMISSIONER.
557-3 (a) The commissioner may investigate a provider, administrator,
557-4 or other person as necessary to enforce this chapter and protect
557-5 service contract holders in this state.
557-6 (b) On request of the commissioner, a provider shall make
557-7 the records required by Section 1304.155 available to the
557-8 commissioner as necessary to enable the commissioner to reasonably
557-9 determine compliance with this chapter. (V.A.C.S. Art. 9034, Sec.
557-10 3(b), as added Acts 76th Leg., R.S., Ch. 1559.)
557-11 (Sections 1304.008-1304.050 reserved for expansion)
557-12 SUBCHAPTER B. SERVICE CONTRACT PROVIDERS ADVISORY BOARD
557-13 Sec. 1304.051. SERVICE CONTRACT PROVIDERS ADVISORY BOARD.
557-14 (a) The Service Contract Providers Advisory Board consists of six
557-15 members appointed by the commissioner and one ex officio nonvoting
557-16 member.
557-17 (b) Of the appointed members:
557-18 (1) two must be officers, directors, or employees of a
557-19 provider of service contracts that have been approved by the
557-20 commissioner;
557-21 (2) two must be officers, directors, or employees of a
557-22 retail outlet or other entity in this state that provides to
557-23 consumers service contracts approved by the commissioner for sale
557-24 to consumers;
557-25 (3) one must be an officer, director, or employee of
557-26 an entity authorized by the Texas Department of Insurance to sell
557-27 reimbursement insurance policies; and
558-1 (4) one must be a resident of this state who holds, as
558-2 a consumer, a service contract that is in force in this state on
558-3 the date of the member's appointment and was issued by a provider
558-4 registered under this chapter.
558-5 (c) The commissioner or the commissioner's designee serves
558-6 as an ex officio nonvoting member of the advisory board. (V.A.C.S.
558-7 Art. 9034, Secs. 4(b), (d) (part), as added Acts 76th Leg., R.S.,
558-8 Ch. 1559.)
558-9 Sec. 1304.052. ADVISORY BOARD DUTIES. (a) The advisory
558-10 board shall advise the commissioner in adopting rules and in
558-11 administering and enforcing this chapter.
558-12 (b) The advisory board shall advise the commission in
558-13 setting fees under this chapter. (V.A.C.S. Art. 9034, Sec. 4(a),
558-14 as added Acts 76th Leg., R.S., Ch. 1559.)
558-15 Sec. 1304.053. TERMS; VACANCY. (a) Appointed advisory board
558-16 members serve six-year terms, with the terms expiring on February 1
558-17 of odd-numbered years.
558-18 (b) If a vacancy occurs during an appointed member's term,
558-19 the commissioner shall fill the vacancy for the remainder of the
558-20 unexpired term with a person who represents the same interests as
558-21 the predecessor. (V.A.C.S. Art. 9034, Secs. 4(c), (d) (part), as
558-22 added Acts 76th Leg., R.S., Ch. 1559.)
558-23 Sec. 1304.054. PRESIDING OFFICER. The commissioner shall
558-24 designate one member of the advisory board to serve as presiding
558-25 officer. (V.A.C.S. Art. 9034, Sec. 4(d) (part), as added Acts 76th
558-26 Leg., R.S., Ch. 1559.)
558-27 Sec. 1304.055. COMPENSATION; REIMBURSEMENT. (a) An advisory
559-1 board member may not receive compensation for service on the
559-2 advisory board.
559-3 (b) An advisory board member is entitled to reimbursement
559-4 for actual and necessary expenses incurred in performing functions
559-5 as an advisory board member, subject to any applicable limitation
559-6 on reimbursement provided by the General Appropriations Act.
559-7 (V.A.C.S. Art. 9034, Sec. 4(g), as added Acts 76th Leg., R.S., Ch.
559-8 1559.)
559-9 Sec. 1304.056. MEETINGS. (a) The advisory board shall meet
559-10 at least once every six months and may meet at other times at the
559-11 call of the presiding officer.
559-12 (b) The advisory board shall meet at a location in this
559-13 state designated by the advisory board. (V.A.C.S. Art. 9034, Sec.
559-14 4(e), as added Acts 76th Leg., R.S., Ch. 1559.)
559-15 Sec. 1304.057. VOTE REQUIRED FOR ACTION. A decision of the
559-16 advisory board is not effective unless it receives the affirmative
559-17 vote of at least four members. (V.A.C.S. Art. 9034, Sec. 4(f), as
559-18 added Acts 76th Leg., R.S., Ch. 1559.)
559-19 (Sections 1304.058-1304.100 reserved for expansion)
559-20 SUBCHAPTER C. REGISTRATION REQUIREMENTS
559-21 Sec. 1304.101. REGISTRATION REQUIRED; EXEMPTION FROM OTHER
559-22 LICENSING REQUIREMENTS. (a) A person may not operate as a provider
559-23 of service contracts sold in this state unless the person is
559-24 registered with the department.
559-25 (b) Except for the registration requirement of this
559-26 subchapter, a provider, service contract seller, administrator, or
559-27 other person who markets, sells, or offers to sell service
560-1 contracts is exempt from any licensing requirement of this state
560-2 that relates to an activity regulated under this chapter.
560-3 (V.A.C.S. Art. 9034, Sec. 5(a), as added Acts 76th Leg., R.S., Ch.
560-4 1559.)
560-5 Sec. 1304.102. APPLICATION FOR REGISTRATION. (a) An
560-6 applicant for registration must submit an application to the
560-7 commissioner.
560-8 (b) The application must:
560-9 (1) be in the form prescribed by the commissioner; and
560-10 (2) include evidence satisfactory to the commissioner
560-11 of compliance with the applicable financial security requirements
560-12 prescribed by Section 1304.151. (V.A.C.S. Art. 9034, Sec. 5(b), as
560-13 added Acts 76th Leg., R.S., Ch. 1559.)
560-14 Sec. 1304.103. ANNUAL REGISTRATION FEES. (a) The
560-15 commissioner shall develop a tiered schedule of annual registration
560-16 fees under which a provider's registration fee is based on the
560-17 number of service contracts the provider sold in this state during
560-18 the preceding 12-month period.
560-19 (b) The commission shall set the amounts of the fees to
560-20 cover the costs of administering this chapter. The maximum fee may
560-21 not exceed $2,000.
560-22 (c) To be registered, a provider must pay the appropriate
560-23 annual registration fee. (V.A.C.S. Art. 9034, Sec. 5(c) (part), as
560-24 added Acts 76th Leg., R.S., Ch. 1559.)
560-25 Sec. 1304.104. INFORMATION CONCERNING NUMBER OF SERVICE
560-26 CONTRACTS SOLD. Information concerning the number of service
560-27 contracts sold by a provider that is submitted under Section
561-1 1304.103:
561-2 (1) is a trade secret to which Section 552.110,
561-3 Government Code, applies; and
561-4 (2) may be used only by the commissioner and the
561-5 department in developing the tiered fee schedule under Section
561-6 1304.103. (V.A.C.S. Art. 9034, Sec. 5(c) (part), as added Acts 76th
561-7 Leg., R.S., Ch. 1559.)
561-8 (Sections 1304.105-1304.150 reserved for expansion)
561-9 SUBCHAPTER D. PRACTICE BY SERVICE CONTRACT PROVIDERS
561-10 Sec. 1304.151. FINANCIAL SECURITY REQUIREMENTS. (a) To
561-11 ensure the faithful performance of a provider's obligations to its
561-12 service contract holders, each provider must:
561-13 (1) insure the provider's service contracts under a
561-14 reimbursement insurance policy issued by an insurer authorized to
561-15 transact insurance in this state or by a surplus lines insurer
561-16 eligible to place coverage in this state under Article 1.14-2,
561-17 Insurance Code;
561-18 (2) maintain a funded reserve account covering the
561-19 provider's obligations under its service contracts that are issued
561-20 and outstanding in this state and place in trust with the
561-21 commissioner a financial security deposit consisting of:
561-22 (A) a surety bond issued by an authorized
561-23 surety;
561-24 (B) securities of the type eligible for deposit
561-25 by an authorized insurer in this state;
561-26 (C) a statutory deposit of cash or cash
561-27 equivalents;
562-1 (D) a letter of credit issued by a qualified
562-2 financial institution; or
562-3 (E) another form of security prescribed by rules
562-4 adopted by the commissioner; or
562-5 (3) maintain, or have a parent company that maintains,
562-6 a net worth or stockholders' equity of at least $100 million.
562-7 (b) If the provider ensures its obligations under Subsection
562-8 (a)(2), the amount maintained in the reserve account may not be
562-9 less than an amount equal to 40 percent of the gross consideration
562-10 the provider received from consumers from the sale of all service
562-11 contracts issued and outstanding in this state, minus any claims
562-12 paid. The commissioner may review and examine the reserve account.
562-13 The amount of the security deposit may not be less than the greater
562-14 of:
562-15 (1) $25,000; or
562-16 (2) an amount equal to five percent of the gross
562-17 consideration the provider received from consumers from the sale of
562-18 all service contracts issued and outstanding in this state, minus
562-19 any claims paid.
562-20 (c) If the provider ensures its obligations under Subsection
562-21 (a)(3), the provider must give to the commissioner on request:
562-22 (1) a copy of the provider's or the provider's parent
562-23 company's most recent Form 10-K or Form 20-F filed with the
562-24 Securities and Exchange Commission within the preceding calendar
562-25 year; or
562-26 (2) if the provider or the provider's parent company
562-27 does not file with the Securities and Exchange Commission, a copy
563-1 of the provider's or the provider's parent company's audited
563-2 financial statements showing a net worth of the provider or its
563-3 parent company of at least $100 million.
563-4 (d) If the provider's parent company's Form 10-K, Form 20-F,
563-5 or audited financial statements are filed to show that the provider
563-6 meets the financial security requirement, the parent company shall
563-7 agree to guarantee the obligations of the provider relating to
563-8 service contracts sold by the provider in this state.
563-9 (e) The commissioner may not require a provider to meet any
563-10 additional financial security requirement. (V.A.C.S. Art. 9034,
563-11 Sec. 6, as added Acts 76th Leg., R.S., Ch. 1559.)
563-12 Sec. 1304.152. REIMBURSEMENT INSURANCE POLICY. (a) A
563-13 reimbursement insurance policy that a provider uses to comply with
563-14 Section 1304.151(a)(1) must state that:
563-15 (1) the insurer that issued the policy shall:
563-16 (A) reimburse or pay on behalf of the provider
563-17 any covered amount the provider is legally obligated to pay; or
563-18 (B) provide the service that the provider is
563-19 legally obligated to perform according to the provider's
563-20 contractual obligations under the insured service contract; and
563-21 (2) if the covered service is not provided to a
563-22 service contract holder not later than the 60th day after the date
563-23 of proof of loss, the insurer shall pay the covered amount directly
563-24 to the service contract holder or provide the required service.
563-25 (b) The insurer may not cancel the policy until the insurer
563-26 delivers to the provider a written notice of cancellation that
563-27 complies with the notice requirements prescribed by Articles
564-1 21.49-2A and 21.49-2B, Insurance Code, for cancellation of an
564-2 insurance policy under those articles. The provider shall forward
564-3 a copy of the cancellation notice to the commissioner not later
564-4 than the 15th business day after the date the notice is delivered
564-5 to the provider. Cancellation of the policy does not reduce the
564-6 insurer's responsibility for a service contract issued by the
564-7 provider and insured under the policy before the date of the
564-8 cancellation.
564-9 (c) A provider is considered the agent of an insurer that
564-10 issues a reimbursement insurance policy for purposes of obligating
564-11 the insurer to the service contract holder in accordance with the
564-12 service contract and this chapter.
564-13 (d) This chapter does not prevent or limit the right of the
564-14 insurer to seek indemnification or subrogation against a provider
564-15 for any amount the insurer pays or is obligated to pay to a service
564-16 contract holder on behalf of the provider. (V.A.C.S. Art. 9034,
564-17 Sec. 7, as added Acts 76th Leg., R.S., Ch. 1559.)
564-18 Sec. 1304.153. APPOINTMENT AND RESPONSIBILITIES OF
564-19 ADMINISTRATOR. A provider may appoint an administrator or designate
564-20 a person to be responsible for:
564-21 (1) all or any part of the administration or sale of
564-22 service contracts; and
564-23 (2) compliance with this chapter. (V.A.C.S.
564-24 Art. 9034, Sec. 8(a), as added Acts 76th Leg., R.S., Ch. 1559.)
564-25 Sec. 1304.154. PROVIDER REQUIREMENTS. A provider may not
564-26 sell, offer for sale, or issue a service contract in this state
564-27 unless the provider gives the service contract holder:
565-1 (1) a receipt for, or other written evidence of, the
565-2 purchase of the contract; and
565-3 (2) a copy of the contract within a reasonable period
565-4 after the date of purchase. (V.A.C.S. Art. 9034, Sec. 8(b), as
565-5 added Acts 76th Leg., R.S., Ch. 1559.)
565-6 Sec. 1304.155. PROVIDER RECORDS. (a) A provider shall
565-7 maintain accurate accounts, books, and other records regarding
565-8 transactions regulated under this chapter. The provider's records
565-9 must include:
565-10 (1) a copy of each unique form of service contract
565-11 sold;
565-12 (2) the name and address of each service contract
565-13 holder who provided the holder's name and address;
565-14 (3) a list of each location at which the provider's
565-15 service contracts are marketed, sold, or offered for sale; and
565-16 (4) written claims files that contain at least the
565-17 date and a description of each claim related to the service
565-18 contracts.
565-19 (b) The records required by this section may be maintained
565-20 in an electronic medium or through other recordkeeping technology.
565-21 If a record is not in a hard copy, the provider must be able to
565-22 reformat the record into a legible hard copy at the request of the
565-23 commissioner.
565-24 (c) Except as provided by Subsection (d), a provider shall
565-25 retain the records required by this section until at least the
565-26 first anniversary of the expiration date of the specified period of
565-27 coverage under the service contract.
566-1 (d) A provider that discontinues business in this state
566-2 shall retain its records until the provider furnishes the
566-3 commissioner with proof satisfactory to the commissioner that the
566-4 provider has discharged all obligations to service contract holders
566-5 in this state. (V.A.C.S. Art. 9034, Sec. 9, as added Acts 76th
566-6 Leg., R.S., Ch. 1559.)
566-7 Sec. 1304.156. FORM OF SERVICE CONTRACT AND REQUIRED
566-8 DISCLOSURES. (a) A service contract marketed, sold, offered for
566-9 sale, issued, made, proposed to be made, or administered in this
566-10 state must:
566-11 (1) be written, printed, or typed in clear,
566-12 understandable language that is easy to read;
566-13 (2) state the name and address of the provider;
566-14 (3) state the purchase price of the contract and the
566-15 terms under which the contract is sold;
566-16 (4) state the terms and restrictions governing
566-17 cancellation of the contract by the provider or the service
566-18 contract holder before the expiration date of the contract;
566-19 (5) identify:
566-20 (A) any administrator, if the administrator is
566-21 not the provider;
566-22 (B) the contract seller; and
566-23 (C) the service contract holder, if the service
566-24 contract holder provides the holder's name;
566-25 (6) state the amount of any deductible;
566-26 (7) specify the products and services to be provided
566-27 under the contract and any limitation, exception, or exclusion;
567-1 (8) specify any restriction governing the
567-2 transferability of the contract;
567-3 (9) state the duties of the service contract holder,
567-4 including any duty to protect against any further damage and any
567-5 requirement to follow the instructions in the owner's manual; and
567-6 (10) state whether the contract provides for or
567-7 excludes consequential damages or preexisting conditions, if
567-8 applicable.
567-9 (b) The identity of a person described by Subsection (a)(5)
567-10 is not required to be preprinted on the service contract and may be
567-11 added to the contract at the time of sale.
567-12 (c) The purchase price is not required to be preprinted on
567-13 the service contract and may be negotiated with the service
567-14 contract holder at the time of sale.
567-15 (d) A service contract insured under a reimbursement
567-16 insurance policy under Section 1304.151(a)(1) must:
567-17 (1) state the name and address of the insurer;
567-18 (2) state that the service contract holder may apply
567-19 for reimbursement directly to the insurer if a covered service is
567-20 not provided to the service contract holder by the provider not
567-21 later than the 60th day after the date of proof of loss; and
567-22 (3) contain a statement substantially similar to the
567-23 following: "Obligations of the provider under this service
567-24 contract are insured under a service contract reimbursement
567-25 insurance policy."
567-26 (e) A service contract that is not insured under a
567-27 reimbursement insurance policy must contain a statement
568-1 substantially similar to the following: "Obligations of the
568-2 provider under this service contract are backed by the full faith
568-3 and credit of the provider." (V.A.C.S. Art. 9034, Secs. 10(a),
568-4 (b), (c), (d), (e), (f) (part), (g), as added Acts 76th Leg., R.S.,
568-5 Ch. 1559.)
568-6 Sec. 1304.157. RETURNING A SERVICE CONTRACT. A service
568-7 contract must require the provider to allow the service contract
568-8 holder to return the contract to the provider not later than:
568-9 (1) the 20th day after the date the contract is mailed
568-10 to the service contract holder; or
568-11 (2) the 10th day after the date of delivery, if the
568-12 contract is delivered to the service contract holder at the time of
568-13 sale. (V.A.C.S. Art. 9034, Sec. 11(a) (part), as added Acts 76th
568-14 Leg., R.S., Ch. 1559.)
568-15 Sec. 1304.158. VOIDING A SERVICE CONTRACT. (a) If a service
568-16 contract holder returns a service contract in accordance with
568-17 Section 1304.157 and a claim has not been made under the contract
568-18 before the contract is returned, the contract is void.
568-19 (b) A service contract holder may void the service contract
568-20 at a later time as provided by the contract.
568-21 (c) If a service contract is voided, the provider shall
568-22 refund to the service contract holder or credit to the account of
568-23 the service contract holder the full purchase price of the
568-24 contract. If the provider does not pay the refund or credit the
568-25 service contract holder's account before the 46th day after the
568-26 date the contract is returned to the provider, the provider is
568-27 liable to the service contract holder for a penalty each month an
569-1 amount remains outstanding. The monthly penalty may not exceed 10
569-2 percent of the amount outstanding.
569-3 (d) The right to void a service contract is not
569-4 transferable. (V.A.C.S. Art. 9034, Secs. 11(a) (part), (b), as
569-5 added Acts 76th Leg., R.S., Ch. 1559.)
569-6 Sec. 1304.159. CANCELING A SERVICE CONTRACT. (a) A provider
569-7 may cancel a service contract by mailing a written notice of
569-8 cancellation to the service contract holder at the service contract
569-9 holder's last known address according to the records of the
569-10 provider. The provider must mail the notice before the fifth day
569-11 preceding the effective date of the cancellation. The notice must
569-12 state the effective date of the cancellation and the reason for the
569-13 cancellation.
569-14 (b) The provider is not required to provide prior notice of
569-15 cancellation if the service contract is canceled because of:
569-16 (1) nonpayment of the consideration for the contract;
569-17 (2) a material misrepresentation by the service
569-18 contract holder to the provider; or
569-19 (3) a substantial breach of a duty by the service
569-20 contract holder relating to the covered product or its use.
569-21 (V.A.C.S. Art. 9034, Secs. 2(10), 10(f) (part), as added Acts 76th
569-22 Leg., R.S., Ch. 1559.)
569-23 Sec. 1304.160. LIMITATIONS ON PROVIDER NAME. (a) A provider
569-24 may not use a name that:
569-25 (1) includes "insurance," "casualty," "surety," or
569-26 "mutual" or any other word descriptive of the insurance, casualty,
569-27 or surety business; or
570-1 (2) is deceptively similar to the name or description
570-2 of an insurance or surety corporation or to the name of any other
570-3 provider.
570-4 (b) A provider may include in its name "guaranty" or a
570-5 similar word.
570-6 (c) This section does not apply to a provider that, before
570-7 September 1, 1999, included a word prohibited under this section in
570-8 its name. A provider described by this subsection must include in
570-9 each service contract a statement substantially similar to the
570-10 following: "This agreement is not an insurance contract."
570-11 (V.A.C.S. Art. 9034, Sec. 12, as added Acts 76th Leg., R.S., Ch.
570-12 1559.)
570-13 Sec. 1304.161. MISLEADING STATEMENTS PROHIBITED. A provider
570-14 or the provider's representative may not, in the provider's service
570-15 contracts or literature:
570-16 (1) make, permit, or cause to be made any false or
570-17 misleading statement; or
570-18 (2) deliberately omit a material statement if the
570-19 omission would be considered misleading. (V.A.C.S. Art. 9034, Sec.
570-20 13(a), as added Acts 76th Leg., R.S., Ch. 1559.)
570-21 (Sections 1304.162-1304.200 reserved for expansion)
570-22 SUBCHAPTER E. DISCIPLINARY ACTION
570-23 Sec. 1304.201. DISCIPLINARY ACTION. (a) On a finding that a
570-24 ground for disciplinary action exists under this chapter, the
570-25 commissioner may impose an administrative sanction, including an
570-26 administrative penalty, as provided by Chapter 51.
570-27 (b) The amount of an administrative penalty imposed under
571-1 this section may not exceed;
571-2 (1) $500 for each violation; or
571-3 (2) $10,000 in the aggregate for all violations of a
571-4 similar nature. (V.A.C.S. Art. 9034, Sec. 14(a), as added Acts
571-5 76th Leg., R.S., Ch. 1559.)
571-6 Sec. 1304.202. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
571-7 commissioner may institute an action under Section 51.352 for
571-8 injunctive relief to restrain a violation or a threatened violation
571-9 of this chapter or an order issued or rule adopted under this
571-10 chapter.
571-11 (b) In addition to the injunctive relief provided by
571-12 Subsection (a), the commissioner may institute an action for a
571-13 civil penalty as provided by Section 51.352. The amount of a civil
571-14 penalty assessed under this section may not exceed:
571-15 (1) $2,500 for each violation; or
571-16 (2) $50,000 in the aggregate for all violations of a
571-17 similar nature. (V.A.C.S. Art. 9034, Sec. 14(c), as added Acts
571-18 76th Leg., R.S., Ch. 1559.)
571-19 Sec. 1304.203. MULTIPLE VIOLATIONS. For purposes of this
571-20 subchapter, violations are of a similar nature if the violations
571-21 consist of the same or a similar course of conduct, action, or
571-22 practice, regardless of the number of times the conduct, act, or
571-23 practice occurred. (V.A.C.S. Art. 9034, Sec. 14(d), as added Acts
571-24 76th Leg., R.S., Ch. 1559.)
571-25 Sec. 1304.204. ADMINISTRATIVE PROCEDURE. Sections 51.310 and
571-26 51.354 apply to disciplinary action taken under this chapter.
571-27 (V.A.C.S. Art. 9034, Sec. 14(b), as added Acts 76th Leg., R.S., Ch.
572-1 1559.)
572-2 SECTION 4. ADOPTION OF WATER, HEALTH, AND SAFETY TITLE. The
572-3 Occupations Code is amended by adding Title 12 to read as follows:
572-4 TITLE 12. PRACTICES AND TRADES RELATED TO WATER,
572-5 HEALTH, AND SAFETY
572-6 SUBTITLE A. OCCUPATIONS RELATED TO WATER
572-7 CHAPTER 1901. WATER WELL DRILLERS
572-8 CHAPTER 1902. WATER WELL PUMP INSTALLERS
572-9 CHAPTER 1903. IRRIGATORS
572-10 (Chapters 1904-1950 reserved for expansion)
572-11 SUBTITLE B. PRACTICES RELATED TO HEALTH AND SAFETY
572-12 CHAPTER 1951. STRUCTURAL PEST CONTROL
572-13 CHAPTER 1952. CODE ENFORCEMENT OFFICERS
572-14 CHAPTER 1953. SANITARIANS
572-15 CHAPTER 1954. ASBESTOS HEALTH PROTECTION
572-16 CHAPTER 1955. LEAD-BASED PAINT ABATEMENT
572-17 CHAPTER 1956. SALES TO METAL DEALERS AND METAL RECYCLING
572-18 ENTITIES
572-19 CHAPTER 1957. INDUSTRIAL HYGIENISTS
572-20 TITLE 12. PRACTICES AND TRADES RELATED TO WATER,
572-21 HEALTH, AND SAFETY
572-22 SUBTITLE A. OCCUPATIONS RELATED TO WATER
572-23 CHAPTER 1901. WATER WELL DRILLERS
572-24 SUBCHAPTER A. GENERAL PROVISIONS
572-25 Sec. 1901.001. DEFINITIONS
572-26 Sec. 1901.002. EFFECT ON GROUNDWATER RIGHTS
572-27 Sec. 1901.003. LIABILITY UNDER LAW
573-1 (Sections 1901.004-1901.050 reserved for expansion)
573-2 SUBCHAPTER B. ADMINISTRATION AND LICENSING PROGRAMS
573-3 Sec. 1901.051. LICENSING
573-4 Sec. 1901.052. RULES
573-5 Sec. 1901.053. WATER WELL DRILLERS ACCOUNT
573-6 Sec. 1901.054. REGISTER OF LICENSE HOLDERS
573-7 Sec. 1901.055. TRANSFER OF FUNCTIONS
573-8 (Sections 1901.056-1901.100 reserved for expansion)
573-9 SUBCHAPTER C. TEXAS WATER WELL DRILLERS ADVISORY COUNCIL
573-10 Sec. 1901.101. COUNCIL MEMBERSHIP
573-11 Sec. 1901.102. ELIGIBILITY OF MEMBERS
573-12 Sec. 1901.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
573-13 Sec. 1901.104. TERMS
573-14 Sec. 1901.105. PRESIDING OFFICER
573-15 Sec. 1901.106. GROUNDS FOR REMOVAL
573-16 Sec. 1901.107. MEETINGS; QUORUM
573-17 Sec. 1901.108. PER DIEM; REIMBURSEMENT
573-18 Sec. 1901.109. COUNCIL POWERS AND DUTIES
573-19 (Sections 1901.110-1901.150 reserved for expansion)
573-20 SUBCHAPTER D. LICENSE REQUIREMENTS
573-21 Sec. 1901.151. LICENSE REQUIRED
573-22 Sec. 1901.152. LICENSE APPLICATION; EXAMINATION FEE
573-23 Sec. 1901.153. RESIDENCY REQUIREMENT
573-24 Sec. 1901.154. LICENSE FEE
573-25 Sec. 1901.155. LICENSE EXPIRATION; RENEWAL
573-26 Sec. 1901.156. NOTICE OF LICENSE EXPIRATION
573-27 Sec. 1901.157. PROCEDURE FOR RENEWAL
574-1 Sec. 1901.158. LICENSE NOT TRANSFERABLE
574-2 Sec. 1901.159. REPLACEMENT OF LOST OR DESTROYED LICENSE
574-3 Sec. 1901.160. CONTINUING EDUCATION
574-4 Sec. 1901.161. EXEMPTION: DEWATERING WELL
574-5 Sec. 1901.162. WAIVER FOR APPLICANT LICENSED IN
574-6 ANOTHER STATE
574-7 (Sections 1901.163-1901.200 reserved for expansion)
574-8 SUBCHAPTER E. EXAMINATION
574-9 Sec. 1901.201. FREQUENCY OF EXAMINATION
574-10 Sec. 1901.202. CONTENTS OF EXAMINATION
574-11 Sec. 1901.203. ORAL EXAMINATION
574-12 Sec. 1901.204. GRADING OF EXAMINATION
574-13 Sec. 1901.205. EXAMINATION RESULTS
574-14 Sec. 1901.206. REEXAMINATION
574-15 (Sections 1901.207-1901.250 reserved for expansion)
574-16 SUBCHAPTER F. PRACTICE BY LICENSE HOLDER
574-17 Sec. 1901.251. WELL LOG
574-18 Sec. 1901.252. MARKING RIG
574-19 Sec. 1901.253. COMPLETING WATER WELL
574-20 Sec. 1901.254. NOTICE REGARDING INJURIOUS WATER; PLUGGING,
574-21 REPAIR, OR COMPLETION OF WELL
574-22 Sec. 1901.255. PLUGGING WATER WELL
574-23 (Sections 1901.256-1901.300 reserved for expansion)
574-24 SUBCHAPTER G. PROHIBITED PRACTICES AND DISCIPLINARY PROCEDURES
574-25 Sec. 1901.301. GROUNDS FOR DISCIPLINARY ACTION
574-26 Sec. 1901.302. NOTICE AND HEARING
574-27 Sec. 1901.303. DECISION; ORDER
575-1 Sec. 1901.304. APPEAL
575-2 (Sections 1901.305-1901.350 reserved for expansion)
575-3 SUBCHAPTER H. ADMINISTRATIVE PENALTY
575-4 Sec. 1901.351. AMOUNT OF ADMINISTRATIVE PENALTY
575-5 Sec. 1901.352. HEARING
575-6 (Sections 1901.353-1901.400 reserved for expansion)
575-7 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
575-8 Sec. 1901.401. CIVIL PENALTY
575-9 Sec. 1901.402. INJUNCTION AND OTHER ENFORCEMENT PROVISIONS
575-10 Sec. 1901.403. VENUE
575-11 Sec. 1901.404. ACTION BY ATTORNEY GENERAL
575-12 CHAPTER 1901. WATER WELL DRILLERS
575-13 SUBCHAPTER A. GENERAL PROVISIONS
575-14 Sec. 1901.001. DEFINITIONS. In this chapter:
575-15 (1) "Commission" means the Texas Commission of
575-16 Licensing and Regulation.
575-17 (2) "Commissioner" means the commissioner of licensing
575-18 and regulation.
575-19 (3) "Council" means the Texas Water Well Drillers
575-20 Advisory Council.
575-21 (4) "Department" means the Texas Department of
575-22 Licensing and Regulation.
575-23 (5) "Dewatering well" means an artificial excavation
575-24 that is constructed to produce groundwater to lower the water table
575-25 or potentiometric surface and that is not used to produce or to
575-26 facilitate the production of minerals under a state regulatory
575-27 program.
576-1 (6) "Dewatering well driller" means a person who
576-2 drills, bores, cores, or constructs a dewatering well. The term
576-3 includes the owner or operator of a well or the contractor or
576-4 drilling supervisor. The term does not include a person who acts
576-5 under the direct supervision of a dewatering well driller and is
576-6 not primarily responsible for the drilling operation.
576-7 (7) "Driller" means a water well driller, injection
576-8 well driller, dewatering well driller, or monitoring well driller.
576-9 (8) "Injection well" includes:
576-10 (A) an air-conditioning return flow well used to
576-11 return water that has been used for heating or cooling in a heat
576-12 pump to the aquifer that supplied the water;
576-13 (B) a cooling water return flow well used to
576-14 inject water that has been used for cooling;
576-15 (C) a drainage well used to drain surface fluid
576-16 into a subsurface formation;
576-17 (D) a recharge well used to replenish water in
576-18 an aquifer;
576-19 (E) a saltwater intrusion barrier well used to
576-20 inject water into a freshwater aquifer to prevent the intrusion of
576-21 salt water into fresh water;
576-22 (F) a sand backfill well used to inject a
576-23 mixture of water and sand, mill tailings, or other solids into
576-24 subsurface mines;
576-25 (G) a subsidence control well used to inject
576-26 fluids into a non-oil-producing or non-gas-producing zone to reduce
576-27 or eliminate subsidence associated with the overdraft of fresh
577-1 water; and
577-2 (H) a closed system geothermal well used to
577-3 circulate water, other fluids, or gases through the earth as a heat
577-4 source or heat sink.
577-5 (9) "Injection well driller" means a person who
577-6 drills, bores, cores, or constructs an injection well. The term
577-7 includes the owner or operator of a well or the contractor or
577-8 drilling supervisor. The term does not include a person who acts
577-9 under the direct supervision of an injection well driller and is
577-10 not primarily responsible for the drilling operation.
577-11 (10) "Monitoring well" means an artificial excavation
577-12 that is constructed to measure or monitor the quantity or movement
577-13 of substances below the surface of the ground and that is not used
577-14 in conjunction with the production of oil, gas, or other minerals.
577-15 (11) "Monitoring well driller" means a person who
577-16 drills, bores, cores, or constructs a monitoring well. The term
577-17 includes the owner or operator of a well or the contractor or
577-18 drilling supervisor.
577-19 (12) "Person" means an individual, firm, partnership,
577-20 association, corporation, or other private legal entity.
577-21 (13) "Pollution" means a change to the physical,
577-22 thermal, chemical, or biological quality of water in a way that:
577-23 (A) makes the water harmful to humans, animals,
577-24 vegetation, or property; or
577-25 (B) impairs the public enjoyment of the water
577-26 for a reasonable purpose.
577-27 (14) "Water well" means an artificial excavation
578-1 constructed to explore for or produce groundwater. The term does
578-2 not include:
578-3 (A) a test or blast hole in a quarry or mine or
578-4 a well or excavation constructed to explore for or produce oil,
578-5 gas, or other minerals unless the hole is also used to produce
578-6 groundwater; or
578-7 (B) an injection water source well regulated
578-8 under Section 91.101, Natural Resources Code.
578-9 (15) "Water well driller" means a person who drills,
578-10 bores, cores, or constructs a water well in this state. The term
578-11 includes the owner or operator of a well or the contractor or
578-12 drilling supervisor. The term does not include a person who:
578-13 (A) drills, bores, cores, or constructs a water
578-14 well on the person's own property for the person's own use; or
578-15 (B) assists in constructing a water well under
578-16 the direct supervision of a driller and is not primarily
578-17 responsible for the drilling operation.
578-18 (16) "Well" means a water well, injection well,
578-19 dewatering well, or monitoring well. (Water Code, Secs. 32.001(1),
578-20 (2), (4), (5), (6), (7), (8), (9), (11), (12), (13), (14), (15),
578-21 (16), (17); New.)
578-22 Sec. 1901.002. EFFECT ON GROUNDWATER RIGHTS. This chapter
578-23 does not affect the ownership of or the rights of landowners in
578-24 groundwater. (Water Code, Sec. 32.018.)
578-25 Sec. 1901.003. LIABILITY UNDER LAW. A person is not relieved
578-26 from liability under law by obtaining a license under this chapter.
578-27 (Water Code, Sec. 32.015 (part).)
579-1 (Sections 1901.004-1901.050 reserved for expansion)
579-2 SUBCHAPTER B. ADMINISTRATION AND LICENSING PROGRAMS
579-3 Sec. 1901.051. LICENSING. (a) The department, with the
579-4 advice of the council, shall prepare licensing examinations and
579-5 evaluate the qualifications of license applicants.
579-6 (b) The commissioner shall issue licenses to applicants who
579-7 qualify. (Water Code, Sec. 32.007(a).)
579-8 Sec. 1901.052. RULES. (a) The commissioner, with advice and
579-9 comment from the Texas Natural Resource Conservation Commission,
579-10 shall adopt rules as necessary to enforce this chapter, including
579-11 rules governing:
579-12 (1) license applications;
579-13 (2) qualifications of applicants;
579-14 (3) standards of conduct for drillers, including
579-15 standards for marking well drilling rigs and equipment; and
579-16 (4) procedures and practices before the department.
579-17 (b) The commissioner may not adopt a rule under this chapter
579-18 that:
579-19 (1) regulates the installation or repair of well pumps
579-20 and equipment by:
579-21 (A) a person on property the person owns or
579-22 controls for the person's own use;
579-23 (B) an employee of a person described by
579-24 Paragraph (A); or
579-25 (C) a person who is not hired or compensated and
579-26 who acts on behalf of a person described by Paragraph (A); or
579-27 (2) requires a person who owns or controls property or
580-1 possesses a well to complete, repair, or retrofit the well to any
580-2 standard other than a standard in effect at the time the well was
580-3 originally completed unless the well is found to be a threat to
580-4 public health and safety or to water quality. (Water Code, Secs.
580-5 32.009(a), (d).)
580-6 Sec. 1901.053. WATER WELL DRILLERS ACCOUNT. (a) The
580-7 department shall deposit money collected under this chapter to the
580-8 credit of the water well drillers account in the general revenue
580-9 fund. Money deposited in that account under this section may be
580-10 used only to administer this chapter.
580-11 (b) The department shall allocate not more than 20 percent
580-12 of the money in the account to cover the department's
580-13 administrative costs. (Water Code, Sec. 32.014(b).)
580-14 Sec. 1901.054. REGISTER OF LICENSE HOLDERS. The department
580-15 shall maintain a current register of license holders. (Water Code,
580-16 Sec. 32.002(f).)
580-17 Sec. 1901.055. TRANSFER OF FUNCTIONS. If the functions
580-18 necessary to the proper implementation of duties under this chapter
580-19 are transferred to another entity, the powers and duties under this
580-20 chapter are transferred to that entity. (Water Code, Sec. 32.019.)
580-21 (Sections 1901.056-1901.100 reserved for expansion)
580-22 SUBCHAPTER C. TEXAS WATER WELL DRILLERS ADVISORY COUNCIL
580-23 Sec. 1901.101. COUNCIL MEMBERSHIP. (a) The Texas Water Well
580-24 Drillers Advisory Council consists of nine members appointed by the
580-25 department as follows:
580-26 (1) six members who are drillers experienced in the
580-27 well drilling business and familiar with well drilling, completion,
581-1 and plugging methods and techniques; and
581-2 (2) three public members.
581-3 (b) One member appointed under Subsection (a)(1) must be
581-4 selected from the state at large and the remaining five driller
581-5 members must be selected from each of the following geographic
581-6 areas of the state:
581-7 (1) Gulf Coast area;
581-8 (2) Trans-Pecos area;
581-9 (3) Central Texas area;
581-10 (4) Northeast Texas area; and
581-11 (5) Panhandle-South Plains area.
581-12 (c) Appointments to the council shall be made without regard
581-13 to the race, creed, sex, religion, or national origin of the
581-14 appointee. (Water Code, Secs. 32.006(a), (b), (d) (part).)
581-15 Sec. 1901.102. ELIGIBILITY OF MEMBERS. (a) A person is not
581-16 eligible to serve as a member under Section 1901.101(a)(1) if:
581-17 (1) the person is employed by or owns an interest in a
581-18 company, firm, or business association engaged in any phase of the
581-19 well drilling business; and
581-20 (2) a member serving under Section 1901.101(a)(1) is
581-21 employed by or owns an interest in the same company, firm, or
581-22 business association.
581-23 (b) A person is not eligible for appointment as a public
581-24 member of the council if the person or the person's spouse:
581-25 (1) is licensed by an occupational regulatory agency
581-26 in the field of well drilling; or
581-27 (2) is employed by, participates in the management of,
582-1 or has, other than as a consumer, a financial interest in a
582-2 business entity or other organization related to the field of well
582-3 drilling. (Water Code, Secs. 32.006(c), (d) (part).)
582-4 Sec. 1901.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) An
582-5 officer, employee, or paid consultant of a trade association in the
582-6 well drilling industry may not be a council member or an employee
582-7 of the department connected with the administration of this
582-8 chapter.
582-9 (b) A council member or an employee of the department
582-10 connected with the administration of this chapter may not be
582-11 related within the second degree by affinity or consanguinity to a
582-12 person who is an officer, employee, or paid consultant of a trade
582-13 association in the well drilling industry.
582-14 (c) A person may not serve as a member of the council if the
582-15 person is required to register as a lobbyist under Chapter 305,
582-16 Government Code, because of the person's activities on behalf of a
582-17 trade or professional association in the well drilling industry.
582-18 (Water Code, Secs. 32.006(e), (f).)
582-19 Sec. 1901.104. TERMS. Council members serve six-year terms
582-20 expiring September 15. (Water Code, Sec. 32.006(h).)
582-21 Sec. 1901.105. PRESIDING OFFICER. The council shall elect a
582-22 presiding officer by a majority vote at the first meeting each
582-23 year. (Water Code, Sec. 32.006(l).)
582-24 Sec. 1901.106. GROUNDS FOR REMOVAL. It is a ground for
582-25 removal from the council that a member:
582-26 (1) does not have at the time of appointment the
582-27 qualifications required by Section 1901.101 or 1901.102;
583-1 (2) does not maintain during service on the council
583-2 the qualifications required by Section 1901.101 or 1901.102;
583-3 (3) violates a prohibition established by Section
583-4 1901.103; or
583-5 (4) is absent from more than half of the regularly
583-6 scheduled council meetings that the member is eligible to attend
583-7 each year. (Water Code, Sec. 32.006(g).)
583-8 Sec. 1901.107. MEETINGS; QUORUM. (a) The council shall hold
583-9 meetings at the call of the presiding officer.
583-10 (b) The council shall conduct meetings in compliance with
583-11 Chapter 551, Government Code.
583-12 (c) A majority of the council constitutes a quorum. (Water
583-13 Code, Secs. 32.006(j), (k).)
583-14 Sec. 1901.108. PER DIEM; REIMBURSEMENT. (a) A council
583-15 member is entitled to a per diem as set by legislative
583-16 appropriation for each day the member engages in the business of
583-17 the council.
583-18 (b) A council member may be reimbursed for travel expenses,
583-19 including expenses for meals and lodging. A member is entitled to
583-20 reimbursement for transportation expenses as prescribed by the
583-21 General Appropriations Act. (Water Code, Sec. 32.006(i).)
583-22 Sec. 1901.109. COUNCIL POWERS AND DUTIES. (a) The council
583-23 may propose rules for adoption by the commissioner relating to the
583-24 regulation of drillers registered under this chapter.
583-25 (b) The council shall advise the department on the contents
583-26 of licensing examinations.
583-27 (c) The council may:
584-1 (1) recommend standards for continuing education
584-2 programs, including standards relating to:
584-3 (A) the qualifications of program providers and
584-4 instructors; and
584-5 (B) the amount of program fees; and
584-6 (2) recommend topics to be covered in a continuing
584-7 education course.
584-8 (d) The council shall assist the department in evaluating
584-9 continuing education programs.
584-10 (e) The council may hear consumer complaints and make
584-11 recommendations to the commission or department, as appropriate,
584-12 relating to the disposition of those complaints. (Water Code, Secs.
584-13 32.006(m), (n).)
584-14 (Sections 1901.110-1901.150 reserved for expansion)
584-15 SUBCHAPTER D. LICENSE REQUIREMENTS
584-16 Sec. 1901.151. LICENSE REQUIRED. A person may not act or
584-17 offer to act as a driller unless the person holds a license issued
584-18 by the commissioner under this chapter and rules adopted under this
584-19 chapter. (Water Code, Sec. 32.002(a).)
584-20 Sec. 1901.152. LICENSE APPLICATION; EXAMINATION FEE. (a) An
584-21 application for a license must contain:
584-22 (1) the applicant's name;
584-23 (2) the applicant's business address;
584-24 (3) the applicant's permanent mailing address; and
584-25 (4) any other relevant information required by the
584-26 department.
584-27 (b) An applicant must pay to the department a nonrefundable
585-1 examination fee at the time the application is submitted. (Water
585-2 Code, Secs. 32.002(b), (c).)
585-3 Sec. 1901.153. RESIDENCY REQUIREMENT. A person must reside
585-4 in this state for at least 90 days before the date the person
585-5 applies for a license under this chapter. (Water Code, Sec.
585-6 32.002(j).)
585-7 Sec. 1901.154. LICENSE FEE. A person who qualifies for a
585-8 license must pay to the department the license fee set by the
585-9 commission. (Water Code, Sec. 32.002(d).)
585-10 Sec. 1901.155. LICENSE EXPIRATION; RENEWAL. (a) Except as
585-11 provided by Section 51.205(a), a license issued under this chapter
585-12 expires August 31 of each year. On or before that date, a license
585-13 holder must pay an annual renewal fee to the department.
585-14 (b) For a year in which a license expiration date is changed
585-15 under Section 51.205(a), the commissioner shall prorate license
585-16 renewal fees payable on August 31. On renewal of the license on
585-17 the new expiration date, the total license renewal fee is payable.
585-18 (Water Code, Secs. 32.002(e) (part), 32.003 (part).)
585-19 Sec. 1901.156. NOTICE OF LICENSE EXPIRATION. Not later than
585-20 August 1 of each year, the commission shall send written notice of
585-21 the impending license expiration to each license holder. (Water
585-22 Code, Sec. 32.002(e) (part).)
585-23 Sec. 1901.157. PROCEDURE FOR RENEWAL. (a) A person whose
585-24 license has been expired for 90 days or less may renew the license
585-25 by paying to the department the required renewal fee and a late fee
585-26 that is equal to half the license examination fee. If a person's
585-27 license has been expired for more than 90 days but less than two
586-1 years, the person may renew the license by paying to the department
586-2 all unpaid renewal fees and a late fee that is equal to the license
586-3 examination fee.
586-4 (b) A person whose license has been expired for two years or
586-5 more may not renew the license. The person may obtain a new
586-6 license by submitting to reexamination and complying with the
586-7 requirements and procedures for obtaining an original license.
586-8 (Water Code, Sec. 32.002(e) (part).)
586-9 Sec. 1901.158. LICENSE NOT TRANSFERABLE. A license is not
586-10 transferable or assignable. (Water Code, Sec. 32.002(g).)
586-11 Sec. 1901.159. REPLACEMENT OF LOST OR DESTROYED LICENSE. On
586-12 application and payment of a fee, the department shall issue a
586-13 duplicate license to replace a lost or destroyed license. (Water
586-14 Code, Sec. 32.002(h).)
586-15 Sec. 1901.160. CONTINUING EDUCATION. (a) The department,
586-16 with the participation of the council, may recognize, prepare, or
586-17 offer continuing education programs for license holders.
586-18 (b) Participation in continuing education programs is
586-19 voluntary unless the council determines that the department should
586-20 require participation. (Water Code, Sec. 32.008.)
586-21 Sec. 1901.161. EXEMPTION: DEWATERING WELL. The licensing
586-22 requirements of this subchapter do not apply to a person who
586-23 drills, bores, cores, or constructs a dewatering well or system to
586-24 remove water for the purpose of constructing a highway, road,
586-25 bridge, drainage, or underground utility project. (Water Code,
586-26 Sec. 32.002(k).)
586-27 Sec. 1901.162. WAIVER FOR APPLICANT LICENSED IN ANOTHER
587-1 STATE. The commissioner may adopt rules allowing waiver of a
587-2 license requirement for an applicant who is licensed in another
587-3 state that has license requirements substantially equivalent to
587-4 those of this state. (Water Code, Sec. 32.004.)
587-5 (Sections 1901.163-1901.200 reserved for expansion)
587-6 SUBCHAPTER E. EXAMINATION
587-7 Sec. 1901.201. FREQUENCY OF EXAMINATION. (a) The department
587-8 shall offer examinations at least once each year.
587-9 (b) The department shall offer examinations more frequently
587-10 if more than 10 persons petition for an additional examination.
587-11 (Water Code, Sec. 32.007(c).)
587-12 Sec. 1901.202. CONTENTS OF EXAMINATION. (a) The department
587-13 shall design written examinations to disqualify a person who lacks
587-14 the necessary knowledge of drilling, of completion and plugging
587-15 methods and techniques, and of groundwater formations to the extent
587-16 that drilling by the person would create a serious risk of
587-17 polluting fresh water.
587-18 (b) The department may prescribe additional requirements:
587-19 (1) for the examination of monitoring well drillers;
587-20 and
587-21 (2) that relate to water conservation for the
587-22 examination of dewatering well drillers. (Water Code, Sec.
587-23 32.007(b) (part).)
587-24 Sec. 1901.203. ORAL EXAMINATION. An applicant may take an
587-25 oral examination. (Water Code, Sec. 32.007(b) (part).)
587-26 Sec. 1901.204. GRADING OF EXAMINATION. The department shall
587-27 administer examinations so that a person grading an examination
588-1 does not know the identity of the person taking the examination.
588-2 (Water Code, Sec. 32.007(d).)
588-3 Sec. 1901.205. EXAMINATION RESULTS. (a) The department
588-4 shall notify each examinee of the results of the licensing
588-5 examination not later than the 30th day after the date the
588-6 examination is administered.
588-7 (b) The department shall maintain files of examination
588-8 papers. Not later than the sixth month after the date a person is
588-9 notified of the results of an examination, the person may inspect
588-10 the person's examination paper during normal business hours at the
588-11 department's offices to challenge the propriety of the questions or
588-12 the method or accuracy of grading.
588-13 (c) If requested in writing by a person who fails an
588-14 examination, the department shall provide to the person an analysis
588-15 of the person's performance on the examination. (Water Code, Secs.
588-16 32.007(e), (f).)
588-17 Sec. 1901.206. REEXAMINATION. A person who fails an
588-18 examination may apply to take a subsequent examination on payment
588-19 of the examination fee. (Water Code, Sec. 32.007(g).)
588-20 (Sections 1901.207-1901.250 reserved for expansion)
588-21 SUBCHAPTER F. PRACTICE BY LICENSE HOLDER
588-22 Sec. 1901.251. WELL LOG. (a) Each driller who drills,
588-23 deepens, or otherwise alters a water well in this state shall make
588-24 and keep a legible and accurate well log in accordance with rules
588-25 adopted by and on forms prescribed by the commissioner. The well
588-26 log shall be recorded at the time of drilling, deepening, or
588-27 otherwise altering the well and must contain:
589-1 (1) the depth, thickness, and character of the strata
589-2 penetrated;
589-3 (2) the location of water-bearing strata;
589-4 (3) the depth, size, and character of casing
589-5 installed; and
589-6 (4) any other information required by rules adopted by
589-7 the commissioner.
589-8 (b) Not later than the 60th day after the date of the
589-9 completion or cessation of drilling, deepening, or otherwise
589-10 altering the well, the driller shall deliver or send by certified
589-11 mail a copy of the well log to:
589-12 (1) the department;
589-13 (2) the Texas Natural Resource Conservation
589-14 Commission; and
589-15 (3) the owner of the well or the person for whom the
589-16 well was drilled.
589-17 (c) If the department receives, by certified mail, a written
589-18 request from the owner of the well or from the person for whom the
589-19 well was drilled that the well log be made confidential, the
589-20 department shall protect the contents of the well log as
589-21 confidential and not a matter of public record. (Water Code, Sec.
589-22 32.005.)
589-23 Sec. 1901.252. MARKING RIG. (a) A driller shall legibly
589-24 mark the license number that appears on the driller's license on
589-25 each rig used by the driller or the driller's employees in the well
589-26 drilling business.
589-27 (b) The commissioner shall adopt rules specifying the manner
590-1 for marking a rig. (Water Code, Sec. 32.016.)
590-2 Sec. 1901.253. COMPLETING WATER WELL. A driller shall
590-3 complete a well under standards and procedures adopted by the
590-4 commissioner. (Water Code, Sec. 32.017(a).)
590-5 Sec. 1901.254. NOTICE REGARDING INJURIOUS WATER; PLUGGING,
590-6 REPAIR, OR COMPLETION OF WELL. (a) A driller shall notify the
590-7 department and the landowner or person having a well drilled on
590-8 encountering water injurious to vegetation, land, or other water
590-9 and determining that the well must be plugged, repaired, or
590-10 properly completed in order to avoid injury or pollution.
590-11 (b) The driller shall ensure that the well is plugged,
590-12 repaired, or properly completed under standards and procedures
590-13 adopted by the commissioner. (Water Code, Sec. 32.017(b).)
590-14 Sec. 1901.255. PLUGGING WATER WELL. (a) In this section:
590-15 (1) "Abandoned well" means a well that is not in use.
590-16 A well is considered to be in use if:
590-17 (A) the well is not a deteriorated well and
590-18 contains the casing, pump, and pump column in good condition;
590-19 (B) the well is not a deteriorated well and has
590-20 been capped;
590-21 (C) the water from the well has been put to an
590-22 authorized beneficial use, as defined by the Water Code;
590-23 (D) the well is used in the normal course and
590-24 scope and with the intensity and frequency of other similar users
590-25 in the general community; or
590-26 (E) the owner is participating in the
590-27 Conservation Reserve Program authorized by Sections 1231-1236, Food
591-1 Security Act of 1985 (16 U.S.C. Sections 3831-3836), or a similar
591-2 governmental program.
591-3 (2) "Deteriorated well" means a well that, because of
591-4 its condition, will cause or is likely to cause pollution of any
591-5 water in this state, including groundwater.
591-6 (b) A driller who knows of an abandoned or deteriorated well
591-7 shall notify the landowner or person who possesses the well that
591-8 the well must be plugged or capped to avoid injury or pollution.
591-9 (c) Not later than the 180th day after the date a landowner
591-10 or other person who possesses an abandoned or deteriorated well
591-11 learns of its condition, the landowner or other person shall have
591-12 the well plugged or capped under standards and procedures adopted
591-13 by the commissioner.
591-14 (d) A driller, licensed pump installer, or well owner who
591-15 plugs an abandoned or deteriorated well shall submit a plugging
591-16 report to the commissioner not later than the 30th day after the
591-17 date the well is plugged. The department shall furnish plugging
591-18 report forms on request. (Water Code, Secs. 32.001(3), 32.017(c),
591-19 (d), (e).)
591-20 (Sections 1901.256-1901.300 reserved for expansion)
591-21 SUBCHAPTER G. PROHIBITED PRACTICES AND DISCIPLINARY PROCEDURES
591-22 Sec. 1901.301. GROUNDS FOR DISCIPLINARY ACTION. The
591-23 commissioner may discipline a person under Section 51.353 for a
591-24 violation of this chapter or a rule adopted under this chapter,
591-25 including:
591-26 (1) an intentional misstatement or misrepresentation
591-27 of a fact on an application or well log or to a person for whom a
592-1 well is being drilled, deepened, or otherwise altered;
592-2 (2) the failure to keep, deliver, or send a well log
592-3 as required by Section 1901.251;
592-4 (3) the failure to advise a person for whom a well is
592-5 being drilled that:
592-6 (A) injurious water has been encountered;
592-7 (B) the water is a pollution hazard; and
592-8 (C) the well must be immediately plugged in an
592-9 acceptable manner; or
592-10 (4) the failure to complete a well in accordance with
592-11 standards and procedures adopted by the commissioner. (Water Code,
592-12 Secs. 32.010(a) (part), (b).)
592-13 Sec. 1901.302. NOTICE AND HEARING. (a) Before revoking a
592-14 license, placing a license holder on probation, or reprimanding a
592-15 license holder, the commissioner must:
592-16 (1) notify the license holder in writing of the
592-17 alleged violation; and
592-18 (2) provide the license holder with an opportunity for
592-19 a hearing.
592-20 (b) The notice must be mailed by registered mail to the last
592-21 known business address of the license holder.
592-22 (c) The license holder, each person complaining against the
592-23 license holder, and any other witness whose testimony is relied on
592-24 to substantiate the charges made may be present at the hearing.
592-25 (d) The license holder may present relevant oral or written
592-26 evidence. (Water Code, Secs. 32.010(a) (part), (c) (part).)
592-27 Sec. 1901.303. DECISION; ORDER. (a) Each decision or order
593-1 rendered by the commissioner in a disciplinary hearing must:
593-2 (1) be in writing; and
593-3 (2) briefly state the findings of fact and the
593-4 commissioner's conclusions.
593-5 (b) Each party to the proceeding shall be notified of the
593-6 decision or order not later than the 30th day after the date the
593-7 hearing is concluded. (Water Code, Sec. 32.010(d).)
593-8 Sec. 1901.304. APPEAL. (a) A person affected by a ruling,
593-9 order, decision, or other action of the commission, commissioner,
593-10 or department may appeal by filing a petition in a district court
593-11 in Travis County.
593-12 (b) A petition must be filed not later than the 30th day
593-13 after the date of the commission's, commissioner's, or department's
593-14 action or, in the case of a ruling, order, or decision, not later
593-15 than the 30th day after its effective date.
593-16 (c) Service of citation on the commission, commissioner, or
593-17 department shall be accomplished not later than the 30th day after
593-18 the date the petition is filed. Citation may be served on the
593-19 commissioner.
593-20 (d) The plaintiff must pursue the action with reasonable
593-21 diligence.
593-22 (e) The substantial evidence rule applies to the judicial
593-23 review of any commission, commissioner, or department ruling,
593-24 order, decision, or other action. An administrative or executive
593-25 action taken before the filing of the suit continues in effect
593-26 until the rights of the parties are determined by the court.
593-27 (Water Code, Sec. 32.012.)
594-1 (Sections 1901.305-1901.350 reserved for expansion)
594-2 SUBCHAPTER H. ADMINISTRATIVE PENALTY
594-3 Sec. 1901.351. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
594-4 amount of an administrative penalty imposed under Subchapter F,
594-5 Chapter 51, for a violation of this chapter or a rule adopted under
594-6 this chapter may not exceed $2,500 for each violation.
594-7 (b) The commission shall set the amount of an administrative
594-8 penalty. In determining the amount of the penalty, the commission
594-9 shall consider:
594-10 (1) the person's history of previous violations; and
594-11 (2) the seriousness of the violation. (Water Code,
594-12 Secs. 32.011(a) (part), (b).)
594-13 Sec. 1901.352. HEARING. (a) The commission may impose an
594-14 administrative penalty on a person regulated under this chapter
594-15 only after it has given the person charged with a violation of this
594-16 chapter or a rule adopted under this chapter an opportunity for a
594-17 public hearing.
594-18 (b) If a public hearing is held, the commission shall:
594-19 (1) make findings of fact and issue a written decision
594-20 as to the occurrence of the violation; and
594-21 (2) if appropriate, issue an order requiring a person
594-22 who violates this chapter or a rule adopted under this chapter to
594-23 pay a penalty.
594-24 (c) If the person charged with a violation does not appear
594-25 for the hearing, the commission, after determining that a violation
594-26 has occurred, may impose a penalty and issue an order requiring the
594-27 person to pay the penalty.
595-1 (d) Not later than the 30th day after the date an order
595-2 imposing a penalty is issued, the commissioner shall inform the
595-3 person ordered to pay the penalty of the amount of the penalty.
595-4 (Water Code, Secs. 32.011(c), (d), (e), (f).)
595-5 (Sections 1901.353-1901.400 reserved for expansion)
595-6 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
595-7 Sec. 1901.401. CIVIL PENALTY. A person who violates this
595-8 chapter or a rule adopted under this chapter is subject to a civil
595-9 penalty of not less than $200 or more than $1,000 for each day of
595-10 noncompliance or each act of noncompliance as determined by the
595-11 court. (Water Code, Sec. 32.015 (part).)
595-12 Sec. 1901.402. INJUNCTION AND OTHER ENFORCEMENT PROVISIONS.
595-13 (a) The commissioner may bring an action to enjoin a person from
595-14 violating this chapter.
595-15 (b) The commissioner may enforce by injunction or other
595-16 appropriate remedy in a court any rule, decision, determination, or
595-17 order adopted or entered under this chapter. (Water Code, Secs.
595-18 32.009(b) (part), 32.015 (part).)
595-19 Sec. 1901.403. VENUE. The commissioner may bring an action
595-20 in:
595-21 (1) Travis County; or
595-22 (2) the county in which:
595-23 (A) the offending activity occurred; or
595-24 (B) the person engaging in the activity resides.
595-25 (Water Code, Sec. 32.015 (part).)
595-26 Sec. 1901.404. ACTION BY ATTORNEY GENERAL. (a) On request,
595-27 the attorney general shall represent the department in an action
596-1 under Section 1901.402.
596-2 (b) At the request of the commissioner, the attorney general
596-3 shall bring an action in the name of the state for injunctive
596-4 relief, to recover a civil penalty, or for both injunctive relief
596-5 and a civil penalty, as authorized by this subchapter. (Water
596-6 Code, Secs. 32.009(b) (part), 32.015 (part).)
596-7 CHAPTER 1902. WATER WELL PUMP INSTALLERS
596-8 SUBCHAPTER A. GENERAL PROVISIONS
596-9 Sec. 1902.001. DEFINITIONS
596-10 Sec. 1902.002. LIABILITY UNDER LAW
596-11 (Sections 1902.003-1902.050 reserved for expansion)
596-12 SUBCHAPTER B. ADMINISTRATION AND LICENSING PROGRAMS
596-13 Sec. 1902.051. LICENSING
596-14 Sec. 1902.052. RULES
596-15 Sec. 1902.053. WATER WELL DRILLERS ACCOUNT
596-16 Sec. 1902.054. REGISTER OF LICENSE HOLDERS
596-17 Sec. 1902.055. TRANSFER OF FUNCTIONS
596-18 (Sections 1902.056-1902.100 reserved for expansion)
596-19 SUBCHAPTER C. COUNCIL POWERS AND DUTIES
596-20 Sec. 1902.101. COUNCIL RECOMMENDATION REGARDING
596-21 COMPLAINTS
596-22 (Sections 1902.102-1902.150 reserved for expansion)
596-23 SUBCHAPTER D. LICENSE REQUIREMENTS
596-24 Sec. 1902.151. LICENSE REQUIRED
596-25 Sec. 1902.152. LICENSE APPLICATION; EXAMINATION
596-26 FEE
596-27 Sec. 1902.153. RESIDENCY REQUIREMENT
597-1 Sec. 1902.154. LICENSE FEE
597-2 Sec. 1902.155. LICENSE EXPIRATION; RENEWAL
597-3 Sec. 1902.156. NOTICE OF LICENSE EXPIRATION
597-4 Sec. 1902.157. PROCEDURE FOR RENEWAL
597-5 Sec. 1902.158. LICENSE NOT TRANSFERABLE
597-6 Sec. 1902.159. REPLACEMENT OF LOST OR DESTROYED
597-7 LICENSE
597-8 Sec. 1902.160. CONTINUING EDUCATION
597-9 Sec. 1902.161. EXEMPTION: DEWATERING WELL PUMPS AND
597-10 EQUIPMENT
597-11 Sec. 1902.162. WAIVER FOR APPLICANT LICENSED IN ANOTHER
597-12 STATE
597-13 (Sections 1902.163-1902.200 reserved for expansion)
597-14 SUBCHAPTER E. EXAMINATION
597-15 Sec. 1902.201. FREQUENCY OF EXAMINATION
597-16 Sec. 1902.202. CONTENTS OF EXAMINATION
597-17 Sec. 1902.203. GRADING OF EXAMINATION
597-18 Sec. 1902.204. EXAMINATION FILES
597-19 (Sections 1902.205-1902.250 reserved for expansion)
597-20 SUBCHAPTER F. PRACTICE BY LICENSE HOLDER
597-21 Sec. 1902.251. INSTALLING AND REPAIRING PUMPS
597-22 Sec. 1902.252. NOTICE REGARDING INJURIOUS WATER; REPAIR
597-23 OR COMPLETION OF WELL
597-24 Sec. 1902.253. NOTICE REGARDING ABANDONED OR DETERIORATED
597-25 WELL
597-26 (Sections 1902.254-1902.300 reserved for expansion)
597-27 SUBCHAPTER G. PROHIBITED PRACTICES AND DISCIPLINARY
598-1 PROCEDURES
598-2 Sec. 1902.301. GROUNDS FOR DISCIPLINARY ACTION
598-3 Sec. 1902.302. NOTICE AND HEARING
598-4 Sec. 1902.303. DECISION; ORDER
598-5 Sec. 1902.304. APPEAL
598-6 (Sections 1902.305-1902.350 reserved for expansion)
598-7 SUBCHAPTER H. ADMINISTRATIVE PENALTY
598-8 Sec. 1902.351. AMOUNT OF PENALTY
598-9 Sec. 1902.352. HEARING
598-10 (Sections 1902.353-1902.400 reserved for expansion)
598-11 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
598-12 Sec. 1902.401. CIVIL PENALTY
598-13 Sec. 1902.402. INJUNCTION AND OTHER ENFORCEMENT
598-14 PROVISIONS
598-15 Sec. 1902.403. VENUE
598-16 Sec. 1902.404. ACTION BY ATTORNEY GENERAL
598-17 CHAPTER 1902. WATER WELL PUMP INSTALLERS
598-18 SUBCHAPTER A. GENERAL PROVISIONS
598-19 Sec. 1902.001. DEFINITIONS. In this chapter:
598-20 (1) "Commission" means the Texas Commission of
598-21 Licensing and Regulation.
598-22 (2) "Commissioner" means the commissioner of licensing
598-23 and regulation.
598-24 (3) "Council" means the Texas Water Well Drillers
598-25 Advisory Council.
598-26 (4) "Department" means the Texas Department of
598-27 Licensing and Regulation.
599-1 (5) "Installer" means a person who installs or repairs
599-2 well pumps and equipment. The term does not include a person who:
599-3 (A) installs or repairs well pumps and equipment
599-4 on the person's own property for the person's own use; or
599-5 (B) assists in pump installation under the
599-6 direct supervision of an installer and is not primarily responsible
599-7 for the installation.
599-8 (6) "Person" means an individual, firm, partnership,
599-9 association, corporation, or other private legal entity.
599-10 (7) "Pollution" means a change to the physical,
599-11 thermal, chemical, or biological quality of water in a way that:
599-12 (A) makes the water harmful to humans, animals,
599-13 vegetation, or property; or
599-14 (B) impairs the public enjoyment of water for a
599-15 reasonable purpose.
599-16 (8) "Pump installation" means the procedures employed
599-17 in the placement and preparation for operation of equipment and
599-18 materials used to obtain water from a well, including:
599-19 (A) construction involved in making the well and
599-20 establishing seals and safeguards as necessary to protect the water
599-21 from contamination; and
599-22 (B) repairs to an existing pump.
599-23 (9) "Well" means a water well, injection well,
599-24 dewatering well, or monitoring well, as those terms are defined by
599-25 Section 1901.001. The term does not include an injection water
599-26 source well regulated under Section 91.101, Natural Resources Code.
599-27 (10) "Well pumps and equipment" means equipment and
600-1 materials used to obtain water from a well, including the seals and
600-2 safeguards necessary to protect the water from contamination.
600-3 (Water Code, Secs. 33.001(1), (2), (3), (4), (6), (7), (8), (9),
600-4 (10); New.)
600-5 Sec. 1902.002. LIABILITY UNDER LAW. A person is not relieved
600-6 from liability under law by obtaining a license under this chapter.
600-7 (Water Code, Sec. 33.013 (part).)
600-8 (Sections 1902.003-1902.050 reserved for expansion)
600-9 SUBCHAPTER B. ADMINISTRATION AND LICENSING PROGRAMS
600-10 Sec. 1902.051. LICENSING. (a) The department, with the
600-11 advice of the council, shall prepare licensing examinations and
600-12 evaluate the qualifications of license applicants.
600-13 (b) The commissioner shall issue licenses to applicants who
600-14 qualify. (Water Code, Secs. 33.005(a), (c) (part).)
600-15 Sec. 1902.052. RULES. (a) The commissioner shall adopt
600-16 rules as necessary to enforce this chapter.
600-17 (b) The commissioner may not adopt a rule under this chapter
600-18 that:
600-19 (1) regulates the installation or repair of well pumps
600-20 and equipment by:
600-21 (A) a person on property the person owns or
600-22 controls for the person's own use;
600-23 (B) an employee of a person described by
600-24 Paragraph (A); or
600-25 (C) a person who is not hired or compensated and
600-26 who acts on behalf of a person described by Paragraph (A); or
600-27 (2) requires a person who owns or controls property or
601-1 possesses a well to complete, repair, or retrofit the well to any
601-2 standard other than a standard in effect at the time the well was
601-3 originally completed unless the well is found to be a threat to
601-4 public health and safety or to water quality. (Water Code, Secs.
601-5 33.007(a), (d).)
601-6 Sec. 1902.053. WATER WELL DRILLERS ACCOUNT. (a) The
601-7 department shall deposit money collected under this chapter to the
601-8 credit of the water well drillers account in the general revenue
601-9 fund. Money deposited in that account under this section may be
601-10 used only to administer this chapter.
601-11 (b) The department shall allocate not more than 20 percent
601-12 of the money in the account to cover the department's
601-13 administrative costs. (Water Code, Sec. 33.012(b).)
601-14 Sec. 1902.054. REGISTER OF LICENSE HOLDERS. The department
601-15 shall maintain a current register of license holders. (Water Code,
601-16 Sec. 33.002(e).)
601-17 Sec. 1902.055. TRANSFER OF FUNCTIONS. If the functions
601-18 necessary to the proper implementation of duties under this chapter
601-19 are transferred to another entity, the powers and duties under this
601-20 chapter are transferred to that entity. (Water Code, Sec. 33.015.)
601-21 (Sections 1902.056-1902.100 reserved for expansion)
601-22 SUBCHAPTER C. COUNCIL POWERS AND DUTIES
601-23 Sec. 1902.101. COUNCIL RECOMMENDATION REGARDING
601-24 COMPLAINTS. The council may hear consumer complaints and make
601-25 recommendations to the commission or department, as appropriate,
601-26 relating to the disposition of those complaints. (Water Code, Sec.
601-27 33.011(a) (part).)
602-1 (Sections 1902.102-1902.150 reserved for expansion)
602-2 SUBCHAPTER D. LICENSE REQUIREMENTS
602-3 Sec. 1902.151. LICENSE REQUIRED. A person may not act or
602-4 offer to act as an installer unless the person holds a license
602-5 issued by the commissioner under rules adopted under this chapter.
602-6 (Water Code, Sec. 33.002(a).)
602-7 Sec. 1902.152. LICENSE APPLICATION; EXAMINATION FEE. (a) An
602-8 application for a license must contain:
602-9 (1) the applicant's name;
602-10 (2) the applicant's business address;
602-11 (3) the applicant's permanent mailing address; and
602-12 (4) any other information required by the department.
602-13 (b) An applicant must pay to the department a nonrefundable
602-14 examination fee at the time the application is submitted. (Water
602-15 Code, Secs. 33.002(b), (c) (part).)
602-16 Sec. 1902.153. RESIDENCY REQUIREMENT. A person must reside
602-17 in this state for at least 90 days before the date the person
602-18 applies for a license under this chapter. (Water Code, Sec.
602-19 33.002(i).)
602-20 Sec. 1902.154. LICENSE FEE. A person who qualifies for a
602-21 license must pay to the department the license fee set by the
602-22 commission. (Water Code, Sec. 33.002(c) (part).)
602-23 Sec. 1902.155. LICENSE EXPIRATION; RENEWAL. (a) Except as
602-24 provided by Section 51.205(a), a license issued under this chapter
602-25 expires August 31 of each year. On or before that date, a license
602-26 holder must pay an annual renewal fee to the department.
602-27 (b) For a year in which a license expiration date is changed
603-1 under Section 51.205(a), the commissioner shall prorate license
603-2 renewal fees payable on August 31. On renewal of the license on
603-3 the new expiration date, the total license renewal fee is payable.
603-4 (Water Code, Secs. 33.002(d) (part), 33.003 (part).)
603-5 Sec. 1902.156. NOTICE OF LICENSE EXPIRATION. Not later than
603-6 August 1 of each year, the commission shall send written notice of
603-7 the impending license expiration to each license holder. (Water
603-8 Code, Sec. 33.002(d) (part).)
603-9 Sec. 1902.157. PROCEDURE FOR RENEWAL. (a) A person whose
603-10 license has been expired for 90 days or less may renew the license
603-11 by paying to the department the required renewal fee and a late fee
603-12 that is equal to half the license examination fee. If a person's
603-13 license has been expired for more than 90 days but less than two
603-14 years, the person may renew the license by paying to the department
603-15 all unpaid renewal fees and a late fee that is equal to the license
603-16 examination fee.
603-17 (b) A person whose license has been expired for two years or
603-18 more may not renew the license. The person may obtain a new
603-19 license by submitting to reexamination and complying with the
603-20 requirements for obtaining an original license. (Water Code, Sec.
603-21 33.002(d) (part).)
603-22 Sec. 1902.158. LICENSE NOT TRANSFERABLE. A license is not
603-23 transferable or assignable. (Water Code, Sec. 33.002(f).)
603-24 Sec. 1902.159. REPLACEMENT OF LOST OR DESTROYED LICENSE. On
603-25 application and payment of a fee, the department shall issue a
603-26 duplicate license to replace a lost or destroyed license. (Water
603-27 Code, Sec. 33.002(g).)
604-1 Sec. 1902.160. CONTINUING EDUCATION. (a) The department,
604-2 with the participation of the council, may recognize, prepare, or
604-3 offer continuing education programs for license holders.
604-4 (b) Participation in continuing education programs is
604-5 voluntary unless the council determines that the department should
604-6 require participation. (Water Code, Sec. 33.006.)
604-7 Sec. 1902.161. EXEMPTION: DEWATERING WELL PUMPS AND
604-8 EQUIPMENT. The licensing requirements of this subchapter do not
604-9 apply to a person who installs or repairs well pumps and equipment
604-10 to remove water for the purpose of constructing a highway, road,
604-11 bridge, drainage, or underground utility project. (Water Code, Sec.
604-12 33.002(j).)
604-13 Sec. 1902.162. WAIVER FOR APPLICANT LICENSED IN ANOTHER
604-14 STATE. The commissioner may adopt rules allowing waiver of a
604-15 license requirement for an applicant who is licensed in another
604-16 state that has license requirements substantially equivalent to
604-17 those of this state. (Water Code, Sec. 33.004.)
604-18 (Sections 1902.163-1902.200 reserved for expansion)
604-19 SUBCHAPTER E. EXAMINATION
604-20 Sec. 1902.201. FREQUENCY OF EXAMINATION. (a) The department
604-21 shall offer examinations at least once each month.
604-22 (b) The department shall offer examinations more frequently
604-23 if more than 10 persons petition for an additional examination.
604-24 (Water Code, Sec. 33.005(c) (part).)
604-25 Sec. 1902.202. CONTENTS OF EXAMINATION. The department shall
604-26 design written examinations to disqualify a person who lacks the
604-27 knowledge of pump installation to the extent that pump installation
605-1 by the person would create a serious risk of polluting fresh water.
605-2 (Water Code, Sec. 33.005(b).)
605-3 Sec. 1902.203. GRADING OF EXAMINATION. The department shall
605-4 administer examinations so that a person grading an examination
605-5 does not know the identity of the person taking the examination.
605-6 (Water Code, Sec. 33.005(c) (part).)
605-7 Sec. 1902.204. EXAMINATION FILES. The department shall
605-8 maintain files of examination papers. (Water Code, Sec. 33.005(c)
605-9 (part).)
605-10 (Sections 1902.205-1902.250 reserved for expansion)
605-11 SUBCHAPTER F. PRACTICE BY LICENSE HOLDER
605-12 Sec. 1902.251. INSTALLING AND REPAIRING PUMPS. An installer
605-13 shall install or repair pumps under standards and procedures
605-14 adopted by the commissioner with the advice of the council. (Water
605-15 Code, Sec. 33.014(a).)
605-16 Sec. 1902.252. NOTICE REGARDING INJURIOUS WATER; REPAIR OR
605-17 COMPLETION OF WELL. (a) An installer shall notify the department
605-18 and the landowner or person having a pump installed or repaired on
605-19 encountering water injurious to vegetation, land, or other water.
605-20 (b) To avoid injury or pollution, the installer shall repair
605-21 or properly complete the well under standards and procedures
605-22 adopted by the commissioner. (Water Code, Sec. 33.014(b).)
605-23 Sec. 1902.253. NOTICE REGARDING ABANDONED OR DETERIORATED
605-24 WELL. An installer who knows of an abandoned or deteriorated well
605-25 as defined by Section 1901.255 shall notify the landowner or person
605-26 who possesses the well that the well must be plugged or capped to
605-27 avoid injury or pollution. (Water Code, Sec. 33.014(c).)
606-1 (Sections 1902.254-1902.300 reserved for expansion)
606-2 SUBCHAPTER G. PROHIBITED PRACTICES AND DISCIPLINARY
606-3 PROCEDURES
606-4 Sec. 1902.301. GROUNDS FOR DISCIPLINARY ACTION. The
606-5 commissioner may revoke a license, place a license holder on
606-6 probation, or reprimand a license holder under Section 51.353 for a
606-7 violation of this chapter or a rule adopted under this chapter.
606-8 (Water Code, Sec. 33.008(a).)
606-9 Sec. 1902.302. NOTICE AND HEARING. (a) Before revoking a
606-10 license, placing a license holder on probation, or reprimanding a
606-11 license holder, the commissioner must:
606-12 (1) notify the license holder in writing of the
606-13 alleged violation; and
606-14 (2) provide the license holder with an opportunity for
606-15 a hearing.
606-16 (b) The notice must be mailed by registered mail to the last
606-17 known business address of the license holder.
606-18 (c) The license holder, each person complaining against the
606-19 license holder, and any other witness whose testimony is relied on
606-20 to substantiate the charges made may be present at the hearing.
606-21 (d) The license holder may present relevant oral or written
606-22 evidence. (Water Code, Sec. 33.008(b) (part).)
606-23 Sec. 1902.303. DECISION; ORDER. (a) Each decision or order
606-24 rendered by the commissioner in a disciplinary hearing must:
606-25 (1) be in writing; and
606-26 (2) briefly state the findings of fact and the
606-27 commissioner's conclusions.
607-1 (b) Each party to the proceeding shall be notified of the
607-2 decision or order not later than the 30th day after the date the
607-3 hearing is concluded. (Water Code, Sec. 33.008(c).)
607-4 Sec. 1902.304. APPEAL. (a) A person affected by a ruling,
607-5 order, decision, or other action of the commission, commissioner,
607-6 or department may appeal by filing a petition in a district court
607-7 in Travis County.
607-8 (b) A petition must be filed not later than the 30th day
607-9 after the date of the commission's, commissioner's, or department's
607-10 action or, in the case of a ruling, order, or decision, not later
607-11 than the 30th day after its effective date.
607-12 (c) Service of citation on the commission, commissioner, or
607-13 department shall be accomplished not later than the 30th day after
607-14 the date the petition is filed. Citation may be served on the
607-15 commissioner.
607-16 (d) The plaintiff must pursue the action with reasonable
607-17 diligence.
607-18 (e) The substantial evidence rule applies to the judicial
607-19 review of any commission, commissioner, or department ruling,
607-20 order, decision, or other action. An administrative or executive
607-21 action taken before the filing of the suit continues in effect
607-22 until the rights of the parties are determined by the court. (Water
607-23 Code, Sec. 33.010.)
607-24 (Sections 1902.305-1902.350 reserved for expansion)
607-25 SUBCHAPTER H. ADMINISTRATIVE PENALTY
607-26 Sec. 1902.351. AMOUNT OF PENALTY. (a) The amount of an
607-27 administrative penalty imposed under Subchapter F, Chapter 51, for
608-1 a violation of this chapter or a rule adopted under this chapter
608-2 may not exceed $2,500 for each violation.
608-3 (b) The commission shall set the amount of an administrative
608-4 penalty. In determining the amount of the penalty, the commission
608-5 shall consider:
608-6 (1) the person's history of previous violations; and
608-7 (2) the seriousness of the violation. (Water Code,
608-8 Secs. 33.009(a) (part), (b).)
608-9 Sec. 1902.352. HEARING. (a) The commission may impose an
608-10 administrative penalty on a person regulated under this chapter
608-11 only after it has given the person charged with a violation of this
608-12 chapter or a rule adopted under this chapter an opportunity for a
608-13 public hearing.
608-14 (b) If a public hearing is held, the commission shall:
608-15 (1) make findings of fact and issue a written decision
608-16 as to the occurrence of the violation; and
608-17 (2) if appropriate, issue an order requiring a person
608-18 who violates this chapter or a rule adopted under this chapter to
608-19 pay a penalty.
608-20 (c) If the person charged with a violation does not appear
608-21 for the hearing, the commission, after determining that a violation
608-22 has occurred, may impose a penalty and issue an order requiring the
608-23 person to pay the penalty.
608-24 (d) Not later than the 30th day after the date an order
608-25 imposing a penalty is issued, the commissioner shall inform the
608-26 person ordered to pay the penalty of the amount of the penalty.
608-27 (Water Code, Secs. 33.009(c), (d), (e), (f).)
609-1 (Sections 1902.353-1902.400 reserved for expansion)
609-2 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
609-3 Sec. 1902.401. CIVIL PENALTY. A person who violates this
609-4 chapter or a rule adopted under this chapter is subject to a civil
609-5 penalty of not less than $200 or more than $1,000 for each day of
609-6 noncompliance or each act of noncompliance as determined by the
609-7 court. (Water Code, Sec. 33.013 (part).)
609-8 Sec. 1902.402. INJUNCTION AND OTHER ENFORCEMENT PROVISIONS.
609-9 (a) The commissioner may bring an action to enjoin a person from
609-10 violating this chapter.
609-11 (b) The commissioner may enforce by injunction or other
609-12 appropriate remedy in a court any rule, decision, determination, or
609-13 order adopted or entered under this chapter. (Water Code, Secs.
609-14 33.007(b) (part), 33.013 (part).)
609-15 Sec. 1902.403. VENUE. The commissioner may bring an action
609-16 in:
609-17 (1) Travis County; or
609-18 (2) the county in which:
609-19 (A) the offending activity occurred; or
609-20 (B) the person engaging in the activity resides.
609-21 (Water Code, Sec. 33.013 (part).)
609-22 Sec. 1902.404. ACTION BY ATTORNEY GENERAL. (a) On request,
609-23 the attorney general shall represent the department in an action
609-24 under Section 1902.402.
609-25 (b) At the request of the commissioner, the attorney general
609-26 shall bring an action in the name of the state for injunctive
609-27 relief, to recover a civil penalty, or for both injunctive relief
610-1 and a civil penalty, as authorized by this subchapter. (Water
610-2 Code, Secs. 33.007(b) (part), 33.013 (part).)
610-3 CHAPTER 1903. IRRIGATORS
610-4 SUBCHAPTER A. GENERAL PROVISIONS
610-5 Sec. 1903.001. DEFINITIONS
610-6 Sec. 1903.002. EXEMPTIONS
610-7 (Sections 1903.003-1903.050 reserved for expansion)
610-8 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
610-9 Sec. 1903.051. RULES RESTRICTING ADVERTISING OR
610-10 COMPETITIVE BIDDING
610-11 Sec. 1903.052. CRITERIA FOR TRAINING AND CONTINUING
610-12 EDUCATION
610-13 Sec. 1903.053. STANDARDS
610-14 Sec. 1903.054. HEARING OF CONTESTED CASES
610-15 Sec. 1903.055. COMMISSION OCCUPATIONAL LICENSING ACCOUNT
610-16 Sec. 1903.056. APPLICABILITY OF OPEN MEETINGS AND
610-17 ADMINISTRATIVE PROCEDURE LAWS
610-18 (Sections 1903.057-1903.100 reserved for expansion)
610-19 SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER PERSONNEL
610-20 Sec. 1903.101. SUPERVISOR AND PERSONNEL
610-21 Sec. 1903.102. DUTIES OF EXECUTIVE DIRECTOR
610-22 (Sections 1903.103-1903.150 reserved for expansion)
610-23 SUBCHAPTER D. TEXAS IRRIGATORS ADVISORY COUNCIL
610-24 Sec. 1903.151. COUNCIL MEMBERSHIP
610-25 Sec. 1903.152. ELIGIBILITY OF PUBLIC MEMBERS
610-26 Sec. 1903.153. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
610-27 Sec. 1903.154. TERMS
611-1 Sec. 1903.155. PRESIDING OFFICER
611-2 Sec. 1903.156. GROUNDS FOR REMOVAL
611-3 Sec. 1903.157. MEETINGS; QUORUM
611-4 Sec. 1903.158. PER DIEM; REIMBURSEMENT
611-5 (Sections 1903.159-1903.200 reserved for expansion)
611-6 SUBCHAPTER E. COMPLAINT PROCEDURES AND PUBLIC PARTICIPATION
611-7 Sec. 1903.201. COMPLAINTS
611-8 Sec. 1903.202. PUBLIC PARTICIPATION
611-9 (Sections 1903.203-1903.250 reserved for expansion)
611-10 SUBCHAPTER F. REGISTRATION REQUIREMENTS
611-11 Sec. 1903.251. CERTIFICATE OF REGISTRATION REQUIRED
611-12 Sec. 1903.252. CERTIFICATION OF LANDSCAPE ARCHITECT
611-13 Sec. 1903.253. APPLICABILITY OF OTHER LICENSING
611-14 REQUIREMENTS
611-15 Sec. 1903.254. CLASSES OF CERTIFICATES; FEES
611-16 Sec. 1903.255. RECIPROCAL REGISTRATION
611-17 Sec. 1903.256. ISSUANCE OF CERTIFICATE
611-18 (Sections 1903.257-1903.300 reserved for expansion)
611-19 SUBCHAPTER G. EXAMINATION
611-20 Sec. 1903.301. EXAMINATION REQUIRED
611-21 Sec. 1903.302. EXAMINATION FEE
611-22 Sec. 1903.303. EXAMINATION PREPARATION COURSES
611-23 Sec. 1903.304. EXAMINATION RESULTS
611-24 (Sections 1903.305-1903.350 reserved for expansion)
611-25 SUBCHAPTER H. RENEWAL
611-26 Sec. 1903.351. ANNUAL RENEWAL REQUIRED
611-27 Sec. 1903.352. NOTICE OF CERTIFICATE EXPIRATION
612-1 Sec. 1903.353. PROCEDURE FOR RENEWAL
612-2 CHAPTER 1903. IRRIGATORS
612-3 SUBCHAPTER A. GENERAL PROVISIONS
612-4 Sec. 1903.001. DEFINITIONS. In this chapter:
612-5 (1) "Commission" means the Texas Natural Resource
612-6 Conservation Commission.
612-7 (2) "Council" means the Texas Irrigators Advisory
612-8 Council.
612-9 (3) "Executive director" means the executive director
612-10 of the commission.
612-11 (4) "Installer" means a person who connects an
612-12 irrigation system to a private or public, raw or potable water
612-13 supply system or any water supply.
612-14 (5) "Irrigation system" means an assembly of component
612-15 parts permanently installed for the controlled distribution and
612-16 conservation of water to irrigate landscape vegetation, reduce
612-17 dust, or control erosion.
612-18 (6) "Irrigator" means a person who sells, designs,
612-19 consults regarding, installs, maintains, alters, repairs, or
612-20 services an irrigation system, including the connection of an
612-21 irrigation system in and to a private or public, raw or potable
612-22 water supply system or any water supply. The term does not include:
612-23 (A) a person who assists in the installation,
612-24 maintenance, alteration, repair, or service of an irrigation system
612-25 under the direct supervision of an irrigator; or
612-26 (B) an owner of a business that regularly
612-27 employs an irrigator who directly supervises the business's sale,
613-1 design, consultation regarding, installation, maintenance,
613-2 alteration, repair, or service of irrigation systems.
613-3 (7) "Person" means an individual. (Water Code, Secs.
613-4 34.001(1), (2), (3), (4), (5), (6), (8).)
613-5 Sec. 1903.002. EXEMPTIONS. (a) In this section:
613-6 (1) "Irrigation system" does not include a system used
613-7 on or by an agricultural operation as defined by Section 251.002,
613-8 Agriculture Code.
613-9 (2) "Property owners' association" has the meaning
613-10 assigned by Section 202.001, Property Code.
613-11 (b) The registration requirements of this chapter do not
613-12 apply to a person who is:
613-13 (1) licensed by the Texas State Board of Plumbing
613-14 Examiners; or
613-15 (2) a licensed engineer, registered architect, or
613-16 registered landscape architect to the extent the person's acts are
613-17 incidental to the pursuit of the person's profession.
613-18 (c) The registration requirements of this chapter do not
613-19 apply to:
613-20 (1) irrigation or yard sprinkler work performed by a
613-21 property owner in a building or on premises owned or occupied by
613-22 the person as the person's home;
613-23 (2) irrigation or yard sprinkler repair work, other
613-24 than extension of an existing irrigation or yard sprinkler system
613-25 or installation of a replacement system, that is:
613-26 (A) performed by a maintenance person who does
613-27 not act as an irrigator or engage in yard sprinkler construction or
614-1 maintenance for the public; and
614-2 (B) incidental to and on premises owned by the
614-3 business in which the person is regularly employed or engaged;
614-4 (3) irrigation or yard sprinkler work performed:
614-5 (A) by a regular employee of a railroad who does
614-6 not act as an irrigator or engage in yard sprinkler construction or
614-7 maintenance for the public; and
614-8 (B) on the premises or equipment of the
614-9 railroad;
614-10 (4) irrigation or yard sprinkler work performed on
614-11 public property by a person who is regularly employed by a
614-12 political subdivision of this state;
614-13 (5) irrigation or yard sprinkler work performed by an
614-14 agriculturist, agronomist, horticulturist, forester, gardener,
614-15 contract gardener, garden or lawn caretaker, nurseryman, or grader
614-16 or cultivator of land on land owned by the person;
614-17 (6) irrigation or yard sprinkler work performed by a
614-18 member of a property owners' association on real property owned by
614-19 the association or in common by the association's members if the
614-20 irrigation or yard sprinkler system waters real property that:
614-21 (A) is less than one-half acre in size; and
614-22 (B) is used for aesthetic or recreational
614-23 purposes;
614-24 (7) the use of a garden hose, hose sprinkler, hose-end
614-25 product, soaker hose, or agricultural irrigation system; or
614-26 (8) the use of a portable or solid set or other type
614-27 of commercial agricultural irrigation system.
615-1 (d) A person who is exempt from the registration
615-2 requirements of this chapter shall comply with the standards
615-3 established by this chapter and the rules adopted under this
615-4 chapter. (Water Code, Sec. 34.002.)
615-5 (Sections 1903.003-1903.050 reserved for expansion)
615-6 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
615-7 Sec. 1903.051. RULES RESTRICTING ADVERTISING OR COMPETITIVE
615-8 BIDDING. (a) The commission may not adopt rules restricting
615-9 advertising or competitive bidding by a person regulated under this
615-10 chapter except to prohibit false, misleading, or deceptive
615-11 practices by the person.
615-12 (b) The commission may not include in its rules to prohibit
615-13 false, misleading, or deceptive practices by a person regulated
615-14 under this chapter a rule that:
615-15 (1) restricts the use of any advertising medium;
615-16 (2) restricts the person's personal appearance or use
615-17 of the person's voice in an advertisement;
615-18 (3) relates to the size or duration of an
615-19 advertisement used by the person; or
615-20 (4) restricts the use of a trade name in advertising
615-21 by the person. (Water Code, Secs. 34.006(c), (d).)
615-22 Sec. 1903.052. CRITERIA FOR TRAINING AND CONTINUING
615-23 EDUCATION. The commission shall establish criteria for
615-24 accreditation of training courses and continuing education programs
615-25 for irrigators and installers. (Water Code, Sec. 34.006(i).)
615-26 Sec. 1903.053. STANDARDS. (a) The commission shall adopt
615-27 standards governing connection to a public or private water supply
616-1 by an irrigator or installer.
616-2 (b) The commission may adopt standards for irrigation that
616-3 include water conservation, irrigation system design and
616-4 installation, and compliance with municipal codes by an irrigator
616-5 or installer.
616-6 (c) The commission may not require or prohibit the use of
616-7 any irrigation system, component part, or equipment of any
616-8 particular brand or manufacturer. (Water Code, Sec. 34.006(a)
616-9 (part).)
616-10 Sec. 1903.054. HEARING OF CONTESTED CASES. The commission
616-11 shall hear each contested case arising under this chapter. (Water
616-12 Code, Sec. 34.004(c) (part).)
616-13 Sec. 1903.055. COMMISSION OCCUPATIONAL LICENSING ACCOUNT.
616-14 (a) The commission shall deposit all money collected by the
616-15 commission under this chapter to the credit of the commission
616-16 occupational licensing account in the general revenue fund.
616-17 (b) Revenue collected under this chapter may be used only to
616-18 pay expenses approved by the commission that are incurred in the
616-19 administration and enforcement of this chapter. (Water Code, Sec.
616-20 34.005.)
616-21 Sec. 1903.056. APPLICABILITY OF OPEN MEETINGS AND
616-22 ADMINISTRATIVE PROCEDURE LAWS. The commission is subject to
616-23 Chapters 551 and 2001, Government Code. (Water Code, Sec.
616-24 34.004(c) (part).)
616-25 (Sections 1903.057-1903.100 reserved for expansion)
616-26 SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER PERSONNEL
616-27 Sec. 1903.101. SUPERVISOR AND PERSONNEL. The executive
617-1 director shall designate a supervisor and employ sufficient
617-2 personnel with the advice of the council to perform the duties and
617-3 functions provided by this chapter. (Water Code, Sec. 34.004(a).)
617-4 Sec. 1903.102. DUTIES OF EXECUTIVE DIRECTOR. The executive
617-5 director shall provide necessary services to assist the commission
617-6 in conducting investigations and examinations, holding hearings,
617-7 and performing other duties and functions under this chapter.
617-8 (Water Code, Sec. 34.004(b).)
617-9 (Sections 1903.103-1903.150 reserved for expansion)
617-10 SUBCHAPTER D. TEXAS IRRIGATORS ADVISORY COUNCIL
617-11 Sec. 1903.151. COUNCIL MEMBERSHIP. (a) The Texas Irrigators
617-12 Advisory Council consists of nine members appointed by the
617-13 commission as follows:
617-14 (1) six members who are irrigators, residents of this
617-15 state, experienced in the irrigation business, and familiar with
617-16 irrigation methods and techniques; and
617-17 (2) three public members.
617-18 (b) Appointments to the council shall be made without regard
617-19 to the race, creed, sex, religion, or national origin of the
617-20 appointee. (Water Code, Secs. 34.003(a), (b), (c) (part).)
617-21 Sec. 1903.152. ELIGIBILITY OF PUBLIC MEMBERS. A person is
617-22 not eligible for appointment as a public member of the council if
617-23 the person or the person's spouse:
617-24 (1) is licensed by an occupational regulatory agency
617-25 in the field of irrigation; or
617-26 (2) is employed by, participates in the management of,
617-27 or has, other than as a consumer, a financial interest in a
618-1 business entity or other organization related to the field of
618-2 irrigation. (Water Code, Sec. 34.003(c) (part).)
618-3 Sec. 1903.153. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) An
618-4 officer, employee, or paid consultant of a trade association in the
618-5 irrigation industry may not be a council member or an employee of
618-6 the commission connected with the administration of this chapter.
618-7 (b) A council member or an employee of the commission
618-8 connected with the administration of this chapter may not be
618-9 related within the second degree by affinity or consanguinity to a
618-10 person who is an officer, employee, or paid consultant of a trade
618-11 association in the irrigation industry.
618-12 (c) A person may not serve as a member of the council if the
618-13 person is required to register as a lobbyist under Chapter 305,
618-14 Government Code, because of the person's activities on behalf of a
618-15 trade or professional association in the irrigation industry.
618-16 (Water Code, Secs. 34.003(d), (e).)
618-17 Sec. 1903.154. TERMS. Members of the council serve staggered
618-18 six-year terms, with the terms of two members expiring on February
618-19 1 of each odd-numbered year. (Water Code, Sec. 34.003(g).)
618-20 Sec. 1903.155. PRESIDING OFFICER. The council shall elect a
618-21 presiding officer by a majority vote at the first meeting each
618-22 fiscal year. (Water Code, Sec. 34.003(k).)
618-23 Sec. 1903.156. GROUNDS FOR REMOVAL. It is a ground for
618-24 removal from the council that a member:
618-25 (1) does not have at the time of appointment the
618-26 qualifications required by Section 1903.151 or 1903.152;
618-27 (2) does not maintain during service on the council
619-1 the qualifications required by Section 1903.151 or 1903.152;
619-2 (3) violates a prohibition prescribed by Section
619-3 1903.153; or
619-4 (4) is absent from more than half of the regularly
619-5 scheduled council meetings that the member is eligible to attend
619-6 each year. (Water Code, Sec. 34.003(f).)
619-7 Sec. 1903.157. MEETINGS; QUORUM. (a) The council shall hold
619-8 meetings at the call of the presiding officer.
619-9 (b) The council shall conduct meetings in compliance with
619-10 Chapter 551, Government Code.
619-11 (c) A majority of the council constitutes a quorum. (Water
619-12 Code, Secs. 34.003(i), (j).)
619-13 Sec. 1903.158. PER DIEM; REIMBURSEMENT. A council member is
619-14 entitled to a per diem as set by legislative appropriation for each
619-15 day the member engages in the business of the council. A council
619-16 member is entitled to reimbursement for travel expenses, including
619-17 expenses for meals and lodging, as prescribed by the General
619-18 Appropriations Act. (Water Code, Sec. 34.003(h).)
619-19 (Sections 1903.159-1903.200 reserved for expansion)
619-20 SUBCHAPTER E. COMPLAINT PROCEDURES AND PUBLIC PARTICIPATION
619-21 Sec. 1903.201. COMPLAINTS. The commission by rule shall
619-22 establish methods by which consumers and service recipients are
619-23 notified of the name, mailing address, and telephone number of the
619-24 commission for the purpose of directing a complaint to the
619-25 commission under this chapter. The commission may require that
619-26 notice:
619-27 (1) on each registration form, application, or written
620-1 contract for services of a person regulated under this chapter;
620-2 (2) on a sign prominently displayed in the place of
620-3 business of each person regulated under this chapter; or
620-4 (3) in a bill for service provided by a person
620-5 regulated under this chapter. (Water Code, Sec. 34.006(h).)
620-6 Sec. 1903.202. PUBLIC PARTICIPATION. The commission shall
620-7 prepare and maintain a written plan that describes how a person who
620-8 does not speak English or who has a physical, mental, or
620-9 developmental disability may be provided reasonable access to the
620-10 commission's programs under this chapter. (Water Code, Sec.
620-11 34.006(f).)
620-12 (Sections 1903.203-1903.250 reserved for expansion)
620-13 SUBCHAPTER F. REGISTRATION REQUIREMENTS
620-14 Sec. 1903.251. CERTIFICATE OF REGISTRATION REQUIRED. A
620-15 person may not act as an irrigator or installer unless the person
620-16 holds a certificate of registration under this chapter. (Water
620-17 Code, Secs. 34.007(a), 34.015 (part).)
620-18 Sec. 1903.252. CERTIFICATION OF LANDSCAPE ARCHITECT. A
620-19 person who on August 27, 1979, held a license as a landscape
620-20 architect under Chapter 457, Acts of the 61st Legislature, Regular
620-21 Session, 1969 (Article 249c, Vernon's Texas Civil Statutes), is
620-22 entitled to be certified as an irrigator without complying with
620-23 Section 1903.251. (Water Code, Sec. 34.015 (part).)
620-24 Sec. 1903.253. APPLICABILITY OF OTHER LICENSING
620-25 REQUIREMENTS. A person who holds a certificate of registration
620-26 under this chapter is not required to comply with a licensing
620-27 requirement of another state agency to perform a function within
621-1 the scope of the certificate. (Water Code, Sec. 34.007(d).)
621-2 Sec. 1903.254. CLASSES OF CERTIFICATES; FEES. The commission
621-3 by rule shall establish classes of certificates of registration and
621-4 fees. (Water Code, Sec. 34.007(f).)
621-5 Sec. 1903.255. RECIPROCAL REGISTRATION. (a) The commission
621-6 may issue a certificate of registration to an applicant without
621-7 requiring the applicant to pass an examination under Subchapter G
621-8 if the applicant is registered or licensed as an irrigator or
621-9 installer in another state or country that:
621-10 (1) has registration requirements that are at least
621-11 substantially equivalent to the requirements of this state; and
621-12 (2) provides reciprocity to irrigators or installers
621-13 registered in this state.
621-14 (b) An application for a certificate of registration under
621-15 this section must be accompanied by a fee in an amount determined
621-16 by the commission not to exceed:
621-17 (1) $200 for an irrigator; or
621-18 (2) $150 for an installer. (Water Code, Sec. 34.008.)
621-19 Sec. 1903.256. ISSUANCE OF CERTIFICATE. The commission shall
621-20 issue a certificate of registration to a person who passes an
621-21 examination under Subchapter G qualifying the person to act as an
621-22 irrigator or installer. (Water Code, Sec. 34.007(b) (part).)
621-23 (Sections 1903.257-1903.300 reserved for expansion)
621-24 SUBCHAPTER G. EXAMINATION
621-25 Sec. 1903.301. EXAMINATION REQUIRED. (a) The commission by
621-26 rule shall provide for the preparation, administration, and grading
621-27 of uniform, reasonable examinations for applicants for certificates
622-1 of registration under this chapter.
622-2 (b) An examination must include the principles of
622-3 cross-connections and safety devices to prevent contamination of
622-4 potable water supplies. (Water Code, Secs. 34.007(b) (part), (c)
622-5 (part).)
622-6 Sec. 1903.302. EXAMINATION FEE. The commission shall set the
622-7 fee for taking an examination in an amount not to exceed:
622-8 (1) $200 for an irrigator certificate of registration;
622-9 or
622-10 (2) $150 for an installer certificate of registration.
622-11 (Water Code, Sec. 34.007(c) (part).)
622-12 Sec. 1903.303. EXAMINATION PREPARATION COURSES. (a) The
622-13 commission shall establish criteria for certification of
622-14 instructors and establish standards for instructional course
622-15 studies designed to prepare applicants for an examination
622-16 administered under this chapter.
622-17 (b) Certification is voluntary and is based on the
622-18 instructor's compliance with the standards of the commission.
622-19 (c) The commission may provide a list containing the names
622-20 of all certified instructors. (Water Code, Sec. 34.006(j).)
622-21 Sec. 1903.304. EXAMINATION RESULTS. (a) Not later than the
622-22 45th day after the date the person completes an examination, the
622-23 commission shall send to each person the person's examination
622-24 results.
622-25 (b) If requested in writing by a person who fails an
622-26 examination, the commission shall send to the person an analysis of
622-27 the person's performance on the examination not later than the 60th
623-1 day after the date the commission receives the request. (Water
623-2 Code, Sec. 34.007(e).)
623-3 (Sections 1903.305-1903.350 reserved for expansion)
623-4 SUBCHAPTER H. RENEWAL
623-5 Sec. 1903.351. ANNUAL RENEWAL REQUIRED. (a) A certificate
623-6 of registration expires on August 31 of each year.
623-7 (b) The commission by rule may adopt a system under which
623-8 certificates of registration expire on various dates during the
623-9 year. For the year in which the expiration date is changed, the
623-10 commission shall prorate on a monthly basis renewal fees payable on
623-11 August 31 so that each certificate holder pays only that portion of
623-12 the fee that is allocable to the number of months during which the
623-13 certificate is valid. On renewal of the certificate on the new
623-14 expiration date, the total renewal fee is due. (Water Code, Secs.
623-15 34.009(a), (f).)
623-16 Sec. 1903.352. NOTICE OF CERTIFICATE EXPIRATION. Not later
623-17 than the 30th day before the date a person's certificate of
623-18 registration expires, the commission shall send written notice of
623-19 the impending expiration to the person at the person's last known
623-20 address as shown on the commission's records. (Water Code, Sec.
623-21 34.009(b).)
623-22 Sec. 1903.353. PROCEDURE FOR RENEWAL. (a) A person may
623-23 renew an unexpired certificate of registration by paying to the
623-24 commission the required renewal fee.
623-25 (b) A person whose certificate of registration has been
623-26 expired for 90 days or less may renew the certificate by paying to
623-27 the commission the required renewal fee and a penalty fee that is
624-1 equal to half of the amount of the examination fee.
624-2 (c) A person whose certificate of registration has been
624-3 expired for more than 90 days may not renew the certificate. The
624-4 person may obtain a new certificate of registration by submitting
624-5 to reexamination and complying with the requirements and procedures
624-6 for obtaining an original certificate of registration. (Water Code,
624-7 Secs. 34.009(c), (d), (e).)
624-8 (Chapters 1904-1950 reserved for expansion)
624-9 SUBTITLE B. PRACTICES RELATED TO HEALTH AND SAFETY
624-10 CHAPTER 1951. STRUCTURAL PEST CONTROL
624-11 SUBCHAPTER A. GENERAL PROVISIONS
624-12 Sec. 1951.001. SHORT TITLE
624-13 Sec. 1951.002. DEFINITIONS
624-14 Sec. 1951.003. BUSINESS OF STRUCTURAL PEST CONTROL
624-15 Sec. 1951.004. DIRECT SUPERVISION
624-16 Sec. 1951.005. LOCAL REGULATION OF PESTICIDE SALE OR USE
624-17 Sec. 1951.006. APPLICABILITY OF FEES TO GOVERNMENT
624-18 EMPLOYEES
624-19 Sec. 1951.007. APPLICATION OF SUNSET ACT
624-20 (Sections 1951.008-1951.050 reserved for expansion)
624-21 SUBCHAPTER B. EXEMPTIONS
624-22 Sec. 1951.051. INDIVIDUAL PERFORMING PEST CONTROL WORK
624-23 ON OWN OR EMPLOYER'S PREMISES
624-24 Sec. 1951.052. PERSON PERFORMING PEST CONTROL WORK ON
624-25 PERSON'S DWELLING
624-26 Sec. 1951.053. PERSON PERFORMING PEST CONTROL WORK REGULATED
624-27 BY DEPARTMENT OF AGRICULTURE
625-1 Sec. 1951.054. PERSON PERFORMING PEST CONTROL WORK ON
625-2 AGRICULTURAL LAND
625-3 Sec. 1951.055. PERSON USING PEST CONTROL CHEMICALS FOR
625-4 HOUSEHOLD USE
625-5 Sec. 1951.056. BEEKEEPERS
625-6 (Sections 1951.057-1951.100 reserved for expansion)
625-7 SUBCHAPTER C. TEXAS STRUCTURAL PEST CONTROL BOARD
625-8 Sec. 1951.101. BOARD MEMBERSHIP
625-9 Sec. 1951.102. ELIGIBILITY OF PUBLIC MEMBERS
625-10 Sec. 1951.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
625-11 Sec. 1951.104. TERMS
625-12 Sec. 1951.105. PRESIDING OFFICER
625-13 Sec. 1951.106. GROUNDS FOR REMOVAL
625-14 Sec. 1951.107. COMPENSATION; REIMBURSEMENT
625-15 (Sections 1951.108-1951.150 reserved for expansion)
625-16 SUBCHAPTER D. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
625-17 Sec. 1951.151. EXECUTIVE DIRECTOR
625-18 Sec. 1951.152. GENERAL DUTIES OF EXECUTIVE DIRECTOR
625-19 Sec. 1951.153. LEGAL COUNSEL
625-20 Sec. 1951.154. DIVISION OF RESPONSIBILITIES
625-21 Sec. 1951.155. QUALIFICATIONS AND STANDARDS OF CONDUCT
625-22 INFORMATION
625-23 Sec. 1951.156. CAREER LADDER PROGRAM; PERFORMANCE
625-24 EVALUATIONS
625-25 Sec. 1951.157. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT
625-26 Sec. 1951.158. COMPENSATION OF ADVISORY COMMITTEE MEMBERS
625-27 (Sections 1951.159-1951.200 reserved for expansion)
626-1 SUBCHAPTER E. BOARD POWERS AND DUTIES
626-2 Sec. 1951.201. SOLE LICENSING AUTHORITY
626-3 Sec. 1951.202. BYLAWS
626-4 Sec. 1951.203. STANDARDS AND CRITERIA FOR LICENSES
626-5 Sec. 1951.204. SUBPOENA AUTHORITY
626-6 Sec. 1951.205. ENVIRONMENTAL RULES
626-7 Sec. 1951.206. RULES RESTRICTING ADVERTISING OR
626-8 COMPETITIVE BIDDING
626-9 Sec. 1951.207. INSPECTION OF LICENSE HOLDERS
626-10 Sec. 1951.208. MISAPPLICATION OF PESTICIDES
626-11 Sec. 1951.209. AVAILABILITY OF CERTAIN INFORMATION
626-12 Sec. 1951.210. PRETREATMENT INSPECTION SERVICE;
626-13 FEES; LIABILITY
626-14 Sec. 1951.211. CONSULTATION WITH INTEGRATED PEST
626-15 MANAGEMENT TECHNIQUES EXPERT
626-16 Sec. 1951.212. INTEGRATED PEST MANAGEMENT PROGRAMS FOR
626-17 SCHOOL DISTRICTS
626-18 (Sections 1951.213-1951.250 reserved for expansion)
626-19 SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
626-20 COMPLAINT PROCEDURES
626-21 Sec. 1951.251. PUBLIC INTEREST INFORMATION
626-22 Sec. 1951.252. COMPLAINTS
626-23 Sec. 1951.253. PUBLIC PARTICIPATION
626-24 Sec. 1951.254. PUBLIC INFORMATION PROGRAM
626-25 (Sections 1951.255-1951.300 reserved for expansion)
626-26 SUBCHAPTER G. LICENSE REQUIREMENTS, ISSUANCE, AND RENEWAL
626-27 Sec. 1951.301. STRUCTURAL PEST CONTROL BUSINESS
627-1 LICENSE REQUIRED
627-2 Sec. 1951.302. CERTIFIED COMMERCIAL APPLICATOR'S LICENSE
627-3 Sec. 1951.303. CERTIFIED NONCOMMERCIAL APPLICATOR'S
627-4 LICENSE
627-5 Sec. 1951.304. TECHNICIAN LICENSE
627-6 Sec. 1951.305. APPLICATION
627-7 Sec. 1951.306. WAIVER FOR APPLICANT LICENSED IN ANOTHER
627-8 STATE
627-9 Sec. 1951.307. LICENSE RENEWAL
627-10 Sec. 1951.308. LICENSE EXPIRATION
627-11 Sec. 1951.309. FEE FOR INITIAL OR RENEWAL LICENSE
627-12 Sec. 1951.310. LATE RENEWAL OF LICENSE
627-13 Sec. 1951.311. REPLACEMENT LICENSE; FEE
627-14 Sec. 1951.312. LIABILITY INSURANCE
627-15 Sec. 1951.313. MEMORANDUM OF AGREEMENT
627-16 Sec. 1951.314. LICENSE NOT TRANSFERABLE
627-17 (Sections 1951.315-1951.350 reserved for expansion)
627-18 SUBCHAPTER H. TRAINING
627-19 Sec. 1951.351. TECHNICIAN TRAINING PROGRAM
627-20 Sec. 1951.352. NEW DEVELOPMENTS; PROOF OF STUDY
627-21 Sec. 1951.353. FEES RELATED TO TRAINING PROGRAMS
627-22 (Sections 1951.354-1951.400 reserved for expansion)
627-23 SUBCHAPTER I. EXAMINATIONS
627-24 Sec. 1951.401. EXAMINATION FOR CERTIFIED APPLICATOR'S
627-25 LICENSE
627-26 Sec. 1951.402. EXAMINATION FOR TECHNICIAN LICENSE
627-27 Sec. 1951.403. EXAMINATION FEE
628-1 Sec. 1951.404. LIST OF STUDY MATERIALS AND SEMINARS
628-2 Sec. 1951.405. EXAMINATION RESULTS
628-3 (Sections 1951.406-1951.450 reserved for expansion)
628-4 SUBCHAPTER J. PRACTICE BY LICENSE HOLDER
628-5 Sec. 1951.451. CONTRACT FOR PEST CONTROL SERVICES
628-6 Sec. 1951.452. RECORDS OF LICENSE HOLDER
628-7 Sec. 1951.453. PEST CONTROL INFORMATION FOR INDOOR
628-8 TREATMENTS: RESIDENTIAL PROPERTY
628-9 Sec. 1951.454. PEST CONTROL INFORMATION FOR INDOOR
628-10 TREATMENTS: WORKPLACE
628-11 Sec. 1951.455. PEST CONTROL INFORMATION FOR INDOOR
628-12 TREATMENTS: CERTAIN OTHER BUILDINGS
628-13 Sec. 1951.456. PEST CONTROL INFORMATION FOR INDOOR
628-14 TREATMENTS; RULES; EXCEPTION
628-15 Sec. 1951.457. PEST CONTROL INFORMATION FOR OUTDOOR
628-16 TREATMENTS
628-17 Sec. 1951.458. PRACTICE BY NONCOMMERCIAL APPLICATOR
628-18 OR TECHNICIAN
628-19 Sec. 1951.459. PEST CONTROL SERVICES FOR CERTAIN
628-20 BUILDINGS
628-21 (Sections 1951.460-1951.500 reserved for expansion)
628-22 SUBCHAPTER K. DISCIPLINARY PROCEDURES
628-23 Sec. 1951.501. DISCIPLINARY POWERS OF BOARD
628-24 Sec. 1951.502. RIGHT TO HEARING
628-25 Sec. 1951.503. JUDICIAL REVIEW
628-26 Sec. 1951.504. SETTLEMENT OF CONTESTED CASES
628-27 Sec. 1951.505. EFFECT OF REVOCATION
629-1 (Sections 1951.506-1951.550 reserved for expansion)
629-2 SUBCHAPTER L. ADMINISTRATIVE PENALTY
629-3 Sec. 1951.551. IMPOSITION OF ADMINISTRATIVE PENALTY
629-4 Sec. 1951.552. AMOUNT OF PENALTY
629-5 Sec. 1951.553. REPORT AND NOTICE OF VIOLATION AND PENALTY
629-6 Sec. 1951.554. PENALTY TO BE PAID OR HEARING REQUESTED
629-7 Sec. 1951.555. HEARING; DECISION BY BOARD
629-8 Sec. 1951.556. NOTICE OF ORDER
629-9 Sec. 1951.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
629-10 Sec. 1951.558. COLLECTION OF PENALTY
629-11 Sec. 1951.559. REMITTANCE OF PENALTY AND INTEREST
629-12 (Sections 1951.560-1951.600 reserved for expansion)
629-13 SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
629-14 Sec. 1951.601. ENFORCEMENT ACTION FOR MISAPPLICATION
629-15 OF PESTICIDES
629-16 Sec. 1951.602. CIVIL PENALTY; INJUNCTION
629-17 Sec. 1951.603. CRIMINAL PENALTY
629-18 CHAPTER 1951. STRUCTURAL PEST CONTROL
629-19 SUBCHAPTER A. GENERAL PROVISIONS
629-20 Sec. 1951.001. SHORT TITLE. This chapter may be cited as the
629-21 Texas Structural Pest Control Act. (V.A.C.S. Art. 135b-6, Sec. 1.)
629-22 Sec. 1951.002. DEFINITIONS. In this chapter:
629-23 (1) "Apartment building" means a building that
629-24 contains at least two dwelling units that are rented primarily for
629-25 nontransient permanent dwelling purposes, with rental paid by
629-26 intervals of one week or longer.
629-27 (2) "Board" means the Texas Structural Pest Control
630-1 Board.
630-2 (3) "Certified applicator" means a certified
630-3 commercial applicator or a certified noncommercial applicator.
630-4 (4) "Certified commercial applicator" means a person
630-5 who holds a certified commercial applicator's license.
630-6 (5) "Certified noncommercial applicator" means a
630-7 person who holds a certified noncommercial applicator's license.
630-8 (6) "Day-care center" has the meaning assigned by
630-9 Section 42.002, Human Resources Code.
630-10 (7) "Device" means an instrument or contrivance that
630-11 is designed for trapping, destroying, repelling, or mitigating the
630-12 effects of a pest or another form of plant or animal life, other
630-13 than human beings or bacteria, viruses, or other microorganisms
630-14 that live on or in human beings or animals. The term does not
630-15 include:
630-16 (A) a firearm; or
630-17 (B) equipment used for the application of
630-18 pesticides that is sold separately from a device.
630-19 (8) "Hospital" has the meaning assigned by Section
630-20 241.003, Health and Safety Code.
630-21 (9) "Institution of higher education" has the meaning
630-22 assigned by Section 61.003, Education Code.
630-23 (10) "Nursing home" means an institution as that term
630-24 is defined by Section 242.002, Health and Safety Code.
630-25 (11) "Person" means an individual, firm, partnership,
630-26 corporation, association, or other organization, any combination of
630-27 those persons, or any type of business entity.
631-1 (12) "Restricted-use pesticide" means a pesticide
631-2 classified for restricted or limited use by the administrator of
631-3 the United States Environmental Protection Agency.
631-4 (13) "School" means a:
631-5 (A) public primary or secondary school; or
631-6 (B) private or parochial primary or secondary
631-7 school that is accredited by an accreditation body that is a member
631-8 of the Texas Private School Accreditation Commission.
631-9 (14) "State-limited-use pesticide" means a pesticide
631-10 classified for restricted or limited use by the commissioner of
631-11 agriculture.
631-12 (15) "Structural pest control business license" means
631-13 a license issued under Section 1951.301.
631-14 (16) "Technician" means a person who, under the direct
631-15 supervision of a certified noncommercial applicator or as an
631-16 employee of a holder of a structural pest control business license,
631-17 performs supervised pesticide applications, maintains or uses
631-18 structural pest control devices, makes sales presentations, or
631-19 identifies pest infestation or damage. The term does not include a
631-20 person whose duties are solely clerical or are otherwise completely
631-21 disassociated with pest control. (V.A.C.S. Art. 135b-6, Secs.
631-22 2(b)(1), (2), (3), (4) (part), (7) (part), (8), (10), (11), (12),
631-23 (13), (14), (15), (16), (18); 4B(a)(1); New.)
631-24 Sec. 1951.003. BUSINESS OF STRUCTURAL PEST CONTROL. In this
631-25 chapter, a person is engaged in the "business of structural pest
631-26 control" if the person performs, offers to perform, or advertises
631-27 for or solicits the person's performance of any of the following
632-1 services for compensation, including services performed as a part
632-2 of the person's employment:
632-3 (1) identifying infestations or making inspections for
632-4 the purpose of identifying or attempting to identify infestations
632-5 of:
632-6 (A) arthropods, including insects, spiders,
632-7 mites, ticks, and related pests, wood-infesting organisms, rodents,
632-8 weeds, nuisance birds, and any other obnoxious or undesirable
632-9 animals that may infest households, railroad cars, ships, docks,
632-10 trucks, airplanes, or other structures or their contents; or
632-11 (B) pests or diseases of trees, shrubs, or other
632-12 plantings in a park or adjacent to a residence, business
632-13 establishment, industrial plant, institutional building, or street;
632-14 (2) making oral or written inspection reports,
632-15 recommendations, estimates, or bids with respect to an infestation
632-16 described by Subdivision (1); or
632-17 (3) making contracts, or submitting bids for services
632-18 or performing services designed to prevent, control, or eliminate
632-19 an infestation described by Subdivision (1) by the use of
632-20 insecticides, pesticides, rodenticides, fumigants, allied chemicals
632-21 or substances, or mechanical devices. (V.A.C.S. Art. 135b-6, Sec.
632-22 2(a).)
632-23 Sec. 1951.004. DIRECT SUPERVISION. In this chapter, a
632-24 pesticide is applied under direct supervision if the application is
632-25 made by a person acting under the instructions and control of a
632-26 certified commercial applicator responsible for the actions of the
632-27 person and available if needed for consultation or assistance. The
633-1 certified commercial applicator is not required to be physically
633-2 present at the time and place of the pesticide application.
633-3 (V.A.C.S. Art. 135b-6, Sec. 2(b)(5).)
633-4 Sec. 1951.005. LOCAL REGULATION OF PESTICIDE SALE OR USE.
633-5 (a) Except as provided by this section, a municipality or other
633-6 political subdivision of this state may not adopt an ordinance or
633-7 rule regarding pesticide sale or use.
633-8 (b) This section does not limit the authority of a
633-9 municipality or county to:
633-10 (1) encourage locally approved and provided
633-11 educational material concerning a pesticide;
633-12 (2) zone for the sale or storage of pesticide
633-13 products;
633-14 (3) adopt fire or building regulations, including
633-15 regulations governing the storage of pesticide products or
633-16 governing fumigation and thermal insecticidal fogging operations,
633-17 as preventative measures to protect the public and emergency
633-18 services personnel from an accident or emergency involving
633-19 pesticide products;
633-20 (4) provide or designate sites for the disposal of
633-21 pesticide products;
633-22 (5) route hazardous materials; or
633-23 (6) regulate discharge to sanitary sewer systems.
633-24 (c) A municipality or other political subdivision may take
633-25 any action otherwise prohibited by this section to:
633-26 (1) comply with any federal or state requirements;
633-27 (2) avoid a federal or state penalty or fine; or
634-1 (3) attain or maintain compliance with federal or
634-2 state environmental standards, including state water quality
634-3 standards.
634-4 (d) This section does not affect Subchapter G, Chapter 76,
634-5 Agriculture Code. (V.A.C.S. Art. 135b-6, Sec. 11C.)
634-6 Sec. 1951.006. APPLICABILITY OF FEES TO GOVERNMENT
634-7 EMPLOYEES. A person employed by a governmental entity is not exempt
634-8 from a fee imposed under this chapter. (V.A.C.S. Art. 135b-6,
634-9 Secs. 7(g), (h).)
634-10 Sec. 1951.007. APPLICATION OF SUNSET ACT. The Texas
634-11 Structural Pest Control Board is subject to Chapter 325, Government
634-12 Code (Texas Sunset Act). Unless continued in existence as provided
634-13 by that chapter, the board is abolished and this chapter expires
634-14 September 1, 2003. (V.A.C.S. Art. 135b-6, Sec. 3(e).)
634-15 (Sections 1951.008-1951.050 reserved for expansion)
634-16 SUBCHAPTER B. EXEMPTIONS
634-17 Sec. 1951.051. INDIVIDUAL PERFORMING PEST CONTROL WORK ON
634-18 OWN OR EMPLOYER'S PREMISES. (a) An individual who does not hold a
634-19 license under this chapter may use insecticides, pesticides,
634-20 rodenticides, fumigants, or allied chemicals or substances or
634-21 mechanical devices designed to prevent, control, or eliminate pest
634-22 infestations unless:
634-23 (1) that use is prohibited by state law or rule;
634-24 (2) that use is prohibited by rule of the United
634-25 States Environmental Protection Agency; or
634-26 (3) the substance used is labeled as a restricted-use
634-27 pesticide or a state-limited-use pesticide.
635-1 (b) An individual may act under Subsection (a) only on
635-2 premises:
635-3 (1) owned by the individual;
635-4 (2) in which the individual owns a partnership or
635-5 joint venture interest; or
635-6 (3) of a person who employs the individual primarily
635-7 to perform services other than pest control.
635-8 (c) Subsection (b)(3) does not apply to:
635-9 (1) an apartment building;
635-10 (2) a day-care center;
635-11 (3) a hospital;
635-12 (4) a nursing home;
635-13 (5) a hotel, motel, or lodge;
635-14 (6) a warehouse;
635-15 (7) a food-processing establishment;
635-16 (8) a facility owned by the state or a political
635-17 subdivision of the state, except as provided by Section
635-18 1951.303(b)(1); or
635-19 (9) a school. (V.A.C.S. Art. 135b-6, Sec. 5(b).)
635-20 Sec. 1951.052. PERSON PERFORMING PEST CONTROL WORK ON
635-21 PERSON'S DWELLING. (a) Except as provided by Sections 1951.212 and
635-22 1951.457(c), this chapter does not apply to a person who performs
635-23 pest control work on property that the person owns or leases as the
635-24 person's dwelling.
635-25 (b) A person described by Subsection (a) is not considered
635-26 to be engaged in the business of structural pest control.
635-27 (V.A.C.S. Art. 135b-6, Sec. 11 (part).)
636-1 Sec. 1951.053. PERSON PERFORMING PEST CONTROL WORK REGULATED
636-2 BY DEPARTMENT OF AGRICULTURE. (a) Except as provided by Sections
636-3 1951.212 and 1951.457(c), this chapter does not apply to:
636-4 (1) a person who performs pest control work on growing
636-5 plants, trees, shrubs, grass, or other horticultural plants if the
636-6 person:
636-7 (A) holds a florist or nursery registration
636-8 certificate from the Department of Agriculture under Section
636-9 71.043, Agriculture Code, other than a registration certificate
636-10 that permits the sale, lease, or distribution of nursery products
636-11 or floral items only at a temporary market; and
636-12 (B) holds a commercial or noncommercial
636-13 applicator license from the Department of Agriculture that covers
636-14 the pest control work; or
636-15 (2) a person who performs pest control work on growing
636-16 plants, trees, shrubs, grass, or other horticultural plants or
636-17 rights-of-way if the person:
636-18 (A) is employed by a political subdivision or a
636-19 cemetery;
636-20 (B) is engaged in pest control work or
636-21 vegetation management for the political subdivision or cemetery;
636-22 (C) holds a commercial or noncommercial
636-23 applicator license from the Department of Agriculture that covers
636-24 pest control work or is under the direct supervision of a person
636-25 who holds a commercial or noncommercial applicator license from the
636-26 Department of Agriculture that covers pest control work; and
636-27 (D) complies with annual continuing education
637-1 required by the Department of Agriculture.
637-2 (b) A person described by Subsection (a) is not considered
637-3 to be engaged in the business of structural pest control.
637-4 (V.A.C.S. Art. 135b-6, Sec. 11 (part).)
637-5 Sec. 1951.054. PERSON PERFORMING PEST CONTROL WORK ON
637-6 AGRICULTURAL LAND. (a) Except as provided by Sections 1951.212 and
637-7 1951.457(c), this chapter does not apply to a person or the
637-8 person's employee who is engaged in the business of agriculture or
637-9 aerial application or custom application of pesticides to
637-10 agricultural lands.
637-11 (b) A person described by Subsection (a) is not considered
637-12 to be engaged in the business of structural pest control.
637-13 (V.A.C.S. Art. 135b-6, Sec. 11 (part).)
637-14 Sec. 1951.055. PERSON USING PEST CONTROL CHEMICALS FOR
637-15 HOUSEHOLD USE. (a) Except as provided by Sections 1951.212 and
637-16 1951.457(c), this chapter does not apply to a person who uses pest
637-17 control chemicals that are for household use and are available for
637-18 purchase in retail food stores, such as aerosol bombs and spray
637-19 cans, if the insecticide is used in accordance with the label
637-20 directions on the insecticide or with board rules or guidelines or
637-21 as provided by Section 1951.303 and is:
637-22 (1) used by the owner of a building or the owner's
637-23 employee or agent in an area occupied by the owner in a residential
637-24 building; or
637-25 (2) used in a place that is vacant, unused, and
637-26 unoccupied.
637-27 (b) A person described by Subsection (a) is not considered
638-1 to be engaged in the business of structural pest control.
638-2 (V.A.C.S. Art. 135b-6, Sec. 11 (part).)
638-3 Sec. 1951.056. BEEKEEPERS. (a) Except as provided by
638-4 Sections 1951.212 and 1951.457(c), this chapter does not apply to a
638-5 person acting as a beekeeper, as defined by Section 131.001,
638-6 Agriculture Code, who:
638-7 (1) is registered with the board and with the chief
638-8 apiary inspector as provided by Subchapter C, Chapter 131,
638-9 Agriculture Code;
638-10 (2) does not use pesticides or electrical devices
638-11 other than conventional bee smokers or equipment as defined by
638-12 Section 131.001, Agriculture Code; and
638-13 (3) collects, removes, or destroys honey bees not
638-14 attached to a dwelling or structure occupied by the public.
638-15 (b) A person described by Subsection (a) is not considered
638-16 to be engaged in the business of structural pest control.
638-17 (V.A.C.S. Art. 135b-6, Sec. 11 (part).)
638-18 (Sections 1951.057-1951.100 reserved for expansion)
638-19 SUBCHAPTER C. TEXAS STRUCTURAL PEST CONTROL BOARD
638-20 Sec. 1951.101. BOARD MEMBERSHIP. (a) The Texas Structural
638-21 Pest Control Board consists of nine members.
638-22 (b) Six members are appointed by the governor with the
638-23 advice and consent of the senate as follows:
638-24 (1) three members who:
638-25 (A) have been engaged in the business of
638-26 structural pest control for at least the five years preceding the
638-27 date of appointment; and
639-1 (B) are not representatives of the same business
639-2 entity; and
639-3 (2) three public members.
639-4 (c) The commissioner of agriculture, the commissioner of
639-5 public health, and the chair of the Department of Entomology at
639-6 Texas A&M University or their designated representatives are also
639-7 members of the board.
639-8 (d) Appointments to the board shall be made without regard
639-9 to the race, color, disability, sex, religion, age, or national
639-10 origin of the appointee. (V.A.C.S. Art. 135b-6, Sec. 3(a) (part).)
639-11 Sec. 1951.102. ELIGIBILITY OF PUBLIC MEMBERS. A person is
639-12 not eligible for appointment as a public member of the board if:
639-13 (1) the person is licensed under this chapter; or
639-14 (2) the person or the person's spouse:
639-15 (A) is registered, certified, or licensed by an
639-16 occupational regulatory agency in the field of pest control;
639-17 (B) is employed by or participates in the
639-18 management of a business entity or other organization regulated by
639-19 the board or receiving funds from the board;
639-20 (C) owns or controls, directly or indirectly,
639-21 more than a 10 percent interest in a business entity or other
639-22 organization regulated by the board or receiving funds from the
639-23 board; or
639-24 (D) uses or receives a substantial amount of
639-25 tangible goods, services, or funds from the board, other than
639-26 compensation or reimbursement authorized by law for board
639-27 membership, attendance, or expenses. (V.A.C.S. Art. 135b-6, Secs.
640-1 3(a) (part), (f), as amended Acts 72nd Leg., R.S., Ch. 771.)
640-2 Sec. 1951.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
640-3 this section, "Texas trade association" means a nonprofit,
640-4 cooperative, and voluntarily joined association of business or
640-5 professional competitors in this state designed to assist its
640-6 members and its industry or profession in dealing with mutual
640-7 business or professional problems and in promoting their common
640-8 interest.
640-9 (b) An officer, employee, or paid consultant of a Texas
640-10 trade association in the field of pest control may not be a member
640-11 of the board and may not be an employee of the board who is exempt
640-12 from the state's position classification plan or is compensated at
640-13 or above the amount prescribed by the General Appropriations Act
640-14 for step 1, salary group A17, of the position classification salary
640-15 schedule.
640-16 (c) A person who is the spouse of an officer, manager, or
640-17 paid consultant of a Texas trade association in the field of pest
640-18 control may not be a member of the board and may not be an employee
640-19 of the board who is exempt from the state's position classification
640-20 plan or is compensated at or above the amount prescribed by the
640-21 General Appropriations Act for step 1, salary group A17, of the
640-22 position classification salary schedule.
640-23 (d) A person may not serve as a member of the board or act
640-24 as the general counsel to the board if the person is required to
640-25 register as a lobbyist under Chapter 305, Government Code, because
640-26 of the person's activities for compensation on behalf of a
640-27 profession related to the operation of the board. (V.A.C.S.
641-1 Art. 135b-6, Sec. 3A.)
641-2 Sec. 1951.104. TERMS. Appointed members of the board serve
641-3 staggered six-year terms, with the terms of one business and one
641-4 public member expiring February 1 of each odd-numbered year.
641-5 (V.A.C.S. Art. 135b-6, Sec. 3(a) (part).)
641-6 Sec. 1951.105. PRESIDING OFFICER. The governor shall
641-7 designate a member of the board as presiding officer. The
641-8 presiding officer serves in that capacity at the pleasure of the
641-9 governor. (V.A.C.S. Art. 135b-6, Sec. 3(h).)
641-10 Sec. 1951.106. GROUNDS FOR REMOVAL. (a) It is a ground for
641-11 removal from the board that a member:
641-12 (1) does not have at the time of appointment the
641-13 qualifications required by Section 1951.101 or 1951.102, as
641-14 applicable;
641-15 (2) does not maintain during service on the board the
641-16 qualifications required by Section 1951.101 or 1951.102, as
641-17 applicable;
641-18 (3) violates a prohibition established by Section
641-19 1951.103;
641-20 (4) cannot, because of illness or disability,
641-21 discharge the member's duties for a substantial part of the
641-22 member's term; or
641-23 (5) is absent from more than half of the regularly
641-24 scheduled meetings of the board that the member is eligible to
641-25 attend during a calendar year unless that absence is excused by a
641-26 majority vote of the board.
641-27 (b) The validity of an action of the board is not affected
642-1 by the fact that it is taken when a ground for removal of a board
642-2 member exists.
642-3 (c) If the executive director has knowledge that a potential
642-4 ground for removal exists, the executive director shall notify the
642-5 presiding officer of the board of the ground. The presiding
642-6 officer shall notify the governor that a potential ground for
642-7 removal exists. (V.A.C.S. Art. 135b-6, Sec. 3B.)
642-8 Sec. 1951.107. COMPENSATION; REIMBURSEMENT. A board member
642-9 serves without compensation but is entitled to reimbursement for
642-10 actual expenses incurred in performing board functions. (V.A.C.S.
642-11 Art. 135b-6, Sec. 3(c).)
642-12 (Sections 1951.108-1951.150 reserved for expansion)
642-13 SUBCHAPTER D. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
642-14 Sec. 1951.151. EXECUTIVE DIRECTOR. (a) The board shall
642-15 appoint an executive director.
642-16 (b) The executive director shall receive a salary in an
642-17 amount determined by the board to be paid from money available to
642-18 the board. (V.A.C.S. Art. 135b-6, Sec. 3(d) (part).)
642-19 Sec. 1951.152. GENERAL DUTIES OF EXECUTIVE DIRECTOR. The
642-20 executive director shall administer this chapter and rules adopted
642-21 by the board. (V.A.C.S. Art. 135b-6, Sec. 3(d) (part).)
642-22 Sec. 1951.153. LEGAL COUNSEL. The executive director shall
642-23 employ a legal counsel who shall:
642-24 (1) report to the executive director; and
642-25 (2) enforce rules adopted under this chapter.
642-26 (V.A.C.S. Art. 135b-6, Sec. 3(m).)
642-27 Sec. 1951.154. DIVISION OF RESPONSIBILITIES. The board shall
643-1 develop and implement policies that clearly define the respective
643-2 responsibilities of the board and the staff of the board. (V.A.C.S.
643-3 Art. 135b-6, Sec. 3(i).)
643-4 Sec. 1951.155. QUALIFICATIONS AND STANDARDS OF CONDUCT
643-5 INFORMATION. The board shall provide, as often as necessary, to its
643-6 members and employees information regarding their:
643-7 (1) qualifications for office or employment under this
643-8 chapter; and
643-9 (2) responsibilities under applicable laws relating to
643-10 standards of conduct for state officers or employees. (V.A.C.S.
643-11 Art. 135b-6, Sec. 3(j).)
643-12 Sec. 1951.156. CAREER LADDER PROGRAM; PERFORMANCE
643-13 EVALUATIONS. (a) The executive director or the executive
643-14 director's designee shall develop an intra-agency career ladder
643-15 program. The program must require intra-agency postings of all
643-16 nonentry level positions concurrently with any public posting.
643-17 (b) The executive director or the executive director's
643-18 designee shall develop a system of annual performance evaluations.
643-19 All merit pay for board employees must be based on the system
643-20 established under this subsection. (V.A.C.S. Art. 135b-6, Secs.
643-21 3C(a), (b).)
643-22 Sec. 1951.157. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
643-23 (a) The executive director or the executive director's designee
643-24 shall prepare and maintain a written policy statement to ensure
643-25 implementation of an equal employment opportunity program under
643-26 which all personnel transactions are made without regard to race,
643-27 color, disability, sex, religion, age, or national origin. The
644-1 policy statement must include:
644-2 (1) personnel policies, including policies relating to
644-3 recruitment, evaluation, selection, appointment, training, and
644-4 promotion of personnel;
644-5 (2) a comprehensive analysis of the board workforce
644-6 that meets federal and state guidelines;
644-7 (3) procedures by which a determination can be made of
644-8 significant underuse in the board workforce of all persons for whom
644-9 federal or state guidelines encourage a more equitable balance; and
644-10 (4) reasonable methods to appropriately address those
644-11 areas of underuse.
644-12 (b) A policy statement prepared under Subsection (a) must:
644-13 (1) cover an annual period;
644-14 (2) be updated at least annually; and
644-15 (3) be filed with the governor.
644-16 (c) The governor shall deliver a biennial report to the
644-17 legislature based on the information received under Subsection (b).
644-18 The report may be made separately or as a part of other biennial
644-19 reports made to the legislature. (V.A.C.S. Art. 135b-6, Secs.
644-20 3C(c), (d), (e).)
644-21 Sec. 1951.158. COMPENSATION OF ADVISORY COMMITTEE MEMBERS. A
644-22 member of an advisory committee created under this chapter is not
644-23 entitled to compensation but is entitled to reimbursement for
644-24 actual and necessary expenses incurred in performing committee
644-25 functions. (V.A.C.S. Art. 135b-6, Sec. 4A(d).)
644-26 (Sections 1951.159-1951.200 reserved for expansion)
644-27 SUBCHAPTER E. BOARD POWERS AND DUTIES
645-1 Sec. 1951.201. SOLE LICENSING AUTHORITY. The board is the
645-2 sole authority in this state for licensing persons engaged in the
645-3 business of structural pest control. (V.A.C.S. Art. 135b-6, Sec.
645-4 11A.)
645-5 Sec. 1951.202. BYLAWS. The board shall adopt bylaws
645-6 governing the conduct of the board's affairs. (V.A.C.S.
645-7 Art. 135b-6, Sec. 3(b).)
645-8 Sec. 1951.203. STANDARDS AND CRITERIA FOR LICENSES. The
645-9 board shall develop standards and criteria for issuing:
645-10 (1) a structural pest control business license to a
645-11 person engaged in the business of structural pest control;
645-12 (2) a certified commercial applicator's license to an
645-13 individual engaged in the business of structural pest control;
645-14 (3) a certified noncommercial applicator's license to
645-15 an individual; and
645-16 (4) a technician license to an individual. (V.A.C.S.
645-17 Art. 135b-6, Secs. 4(a) (part), (b) (part), (c) (part); 4B(e).)
645-18 Sec. 1951.204. SUBPOENA AUTHORITY. (a) The board may
645-19 request and, if necessary, compel by subpoena:
645-20 (1) the attendance of witnesses for examination under
645-21 oath; and
645-22 (2) the production for inspection and copying of
645-23 records, documents, and other evidence relevant to the
645-24 investigation of an alleged violation of this chapter.
645-25 (b) The board, acting through the attorney general, may
645-26 bring an action to enforce a subpoena issued under Subsection (a)
645-27 against a person who fails to comply with the subpoena.
646-1 (c) Venue for an action brought under Subsection (b) is in a
646-2 district court in:
646-3 (1) Travis County; or
646-4 (2) the county in which the board may hold a hearing.
646-5 (d) The court shall order compliance with the subpoena if
646-6 the court finds that good cause exists to issue the subpoena.
646-7 (V.A.C.S. Art. 135b-6, Sec. 4(i), as added Acts 73rd Leg., R.S.,
646-8 Ch. 416.)
646-9 Sec. 1951.205. ENVIRONMENTAL RULES. (a) The board shall
646-10 adopt rules governing the methods and practices of structural pest
646-11 control that the board determines are necessary to protect the
646-12 public's health and welfare and prevent adverse effects on human
646-13 life and the environment.
646-14 (b) A rule relating to the use of economic poisons must
646-15 comply with applicable standards of the federal government and the
646-16 commissioner of agriculture governing the use of such substances.
646-17 (V.A.C.S. Art. 135b-6, Sec. 4(d).)
646-18 Sec. 1951.206. RULES RESTRICTING ADVERTISING OR COMPETITIVE
646-19 BIDDING. (a) Except as provided by Subsection (b), the board may
646-20 not adopt a rule restricting advertising or competitive bidding by
646-21 a person regulated by the board.
646-22 (b) The board may adopt rules restricting advertising or
646-23 competitive bidding to prohibit false, misleading, or deceptive
646-24 practices by a person regulated by the board. A rule adopted under
646-25 this subsection may not:
646-26 (1) restrict the use of any medium for advertising;
646-27 (2) restrict a person's personal appearance or use of
647-1 a person's voice in an advertisement;
647-2 (3) relate to the size or duration of an advertisement
647-3 by a person; or
647-4 (4) restrict a person's advertisement under a trade
647-5 name. (V.A.C.S. Art. 135b-6, Sec. 4(f).)
647-6 Sec. 1951.207. INSPECTION OF LICENSE HOLDERS. (a) The board
647-7 by rule shall adopt a policy that:
647-8 (1) requires a business holding a structural pest
647-9 control business license to be inspected by a field inspector at
647-10 least once every two years;
647-11 (2) provides for initiating inspections more
647-12 frequently than once every two years for a business or an
647-13 applicator that has violated this chapter or a rule adopted under
647-14 this chapter; and
647-15 (3) provides that the executive director may waive the
647-16 inspection requirement on a case-by-case basis if an emergency
647-17 arises or to accommodate complaint investigation schedules.
647-18 (b) The board by rule shall adopt a policy and guidelines
647-19 for conducting an investigation, including:
647-20 (1) procedures for investigating a complaint
647-21 concerning misuse of pesticides, including contamination by
647-22 pesticides and human exposure to pesticides;
647-23 (2) the circumstances in which a case should be
647-24 referred to the:
647-25 (A) Department of Agriculture;
647-26 (B) Texas Department of Health;
647-27 (C) Texas Natural Resource Conservation
648-1 Commission; or
648-2 (D) United States Environmental Protection
648-3 Agency;
648-4 (3) recommendations to consumers and applicators
648-5 regarding cleanup after a spill or misapplication; and
648-6 (4) procedures for residue sampling, including the
648-7 circumstances in which to take a residue sample and the time in
648-8 which the sample should be taken. (V.A.C.S. Art. 135b-6, Secs.
648-9 4C(a), (b).)
648-10 Sec. 1951.208. MISAPPLICATION OF PESTICIDES. (a) If an
648-11 investigation shows that a misapplication of pesticides has
648-12 occurred on the premises of a consumer, the board shall immediately
648-13 notify the consumer and the applicator of the misapplication.
648-14 (b) On a finding of misapplication, the board shall keep
648-15 records of health injuries and property damages resulting from the
648-16 misapplication reported to the board by a:
648-17 (1) certified applicator;
648-18 (2) physician;
648-19 (3) person holding a structural pest control business
648-20 license;
648-21 (4) technician;
648-22 (5) consumer; or
648-23 (6) state agency. (V.A.C.S. Art. 135b-6, Secs. 4C(c),
648-24 4D(a).)
648-25 Sec. 1951.209. AVAILABILITY OF CERTAIN INFORMATION. The
648-26 board may make available to the Texas Department of Health under
648-27 the occupational condition reporting program established under
649-1 Chapter 84, Health and Safety Code, any information the board
649-2 receives concerning an exposure to a pesticide caused by a person
649-3 licensed under this chapter that results in a medically verifiable
649-4 illness. The board and the Texas Board of Health shall adopt joint
649-5 rules for making that information available to the Texas Department
649-6 of Health. The rules must require the board to make that
649-7 information available to an institution of higher education that
649-8 conducts research in urban entomology, epidemiology, or other areas
649-9 related to structural pest control. (V.A.C.S. Art. 135b-6, Sec.
649-10 4D(b).)
649-11 Sec. 1951.210. PRETREATMENT INSPECTION SERVICE; FEES;
649-12 LIABILITY. (a) The board may provide a pretreatment inspection
649-13 service to consumers. A pretreatment inspection is limited to a
649-14 determination of whether there is an infestation of pests on the
649-15 premises inspected.
649-16 (b) On the request of a consumer, the board may make
649-17 available an inspector employed by the board to inspect the
649-18 premises of the consumer if the consumer has obtained, from at
649-19 least two pest control companies:
649-20 (1) a determination that there is an infestation of
649-21 pests on the premises; and
649-22 (2) an estimate of the cost of the treatment.
649-23 (c) The board shall charge a fee for a pretreatment
649-24 inspection in an amount sufficient to pay the cost of providing the
649-25 service.
649-26 (d) The board is not liable for any damages that may arise
649-27 as a result of an inspection made under this section that is
650-1 subsequently found to be incorrect. (V.A.C.S. Art. 135b-6, Sec.
650-2 4E.)
650-3 Sec. 1951.211. CONSULTATION WITH INTEGRATED PEST MANAGEMENT
650-4 TECHNIQUES EXPERT. The board may contract with the Department of
650-5 Agriculture or an institution of higher education for the services
650-6 of an expert in integrated pest management to consult with the
650-7 board, the board's staff, license holders, and the public regarding
650-8 integrated pest management techniques. (V.A.C.S. Art. 135b-6, Sec.
650-9 4I.)
650-10 Sec. 1951.212. INTEGRATED PEST MANAGEMENT PROGRAMS FOR
650-11 SCHOOL DISTRICTS. (a) The board shall establish standards for an
650-12 integrated pest management program for the use of pesticides,
650-13 herbicides, and other chemical agents to control pests, rodents,
650-14 insects, and weeds at the school buildings and other facilities of
650-15 school districts.
650-16 (b) The board shall use an existing advisory committee or
650-17 create a new advisory committee to assist the board in developing
650-18 the standards for the integrated pest management program. In
650-19 developing the standards, the advisory committee shall consult with
650-20 a person knowledgeable in the area of integrated pest management in
650-21 schools.
650-22 (c) The board shall include in standards adopted under this
650-23 section:
650-24 (1) a requirement to use the least toxic methods
650-25 available to control pests, rodents, insects, and weeds; and
650-26 (2) a list of products that a school district is
650-27 allowed to use in its applications.
651-1 (d) The board shall require that a pesticide may be applied
651-2 to a school building or on school grounds only when students are
651-3 not expected to be present for normal academic instruction or
651-4 organized extracurricular activities for at least 12 hours after
651-5 the application.
651-6 (e) A school district shall adopt an integrated pest
651-7 management program that incorporates the standards established by
651-8 the board under this section. (V.A.C.S. Art. 135b-6, Sec. 4J.)
651-9 (Sections 1951.213-1951.250 reserved for expansion)
651-10 SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND
651-11 COMPLAINT PROCEDURES
651-12 Sec. 1951.251. PUBLIC INTEREST INFORMATION. (a) The board
651-13 shall prepare information of public interest describing the
651-14 functions of the board and the procedures by which complaints are
651-15 filed with and resolved by the board.
651-16 (b) The board shall make the information available to the
651-17 public and appropriate state agencies. (V.A.C.S. Art. 135b-6, Sec.
651-18 4F(a).)
651-19 Sec. 1951.252. COMPLAINTS. (a) The board by rule shall
651-20 establish methods by which consumers and service recipients are
651-21 notified of the name, mailing address, and telephone number of the
651-22 board for the purpose of directing complaints to the board. The
651-23 board may provide for that notice:
651-24 (1) on each license form, application, or written
651-25 contract for services of a person regulated under this chapter;
651-26 (2) on a sign prominently displayed in the place of
651-27 business of each person regulated under this chapter; or
652-1 (3) in a bill for services provided by a person
652-2 regulated under this chapter.
652-3 (b) The board shall keep an information file about each
652-4 complaint filed with the board that the board has authority to
652-5 resolve.
652-6 (c) If a written complaint is filed with the board that the
652-7 board has authority to resolve, the board, at least quarterly and
652-8 until final disposition of the complaint, shall notify the parties
652-9 to the complaint of the status of the complaint unless the notice
652-10 would jeopardize an undercover investigation. (V.A.C.S.
652-11 Art. 135b-6, Secs. 4(g), 4F(b).)
652-12 Sec. 1951.253. PUBLIC PARTICIPATION. (a) The board shall
652-13 develop and implement policies that provide the public with a
652-14 reasonable opportunity to appear before the board and to speak on
652-15 any issue under the board's jurisdiction.
652-16 (b) The board shall prepare and maintain a written plan that
652-17 describes how a person who does not speak English or who has a
652-18 physical, mental, or developmental disability can be provided
652-19 reasonable access to the board's programs. (V.A.C.S. Art. 135b-6,
652-20 Secs. 3(k), (l).)
652-21 Sec. 1951.254. PUBLIC INFORMATION PROGRAM. (a) The board
652-22 shall establish a public information program as provided by this
652-23 section and Sections 1951.453-1951.456 to inform the public about
652-24 the practice and regulation of structural pest control.
652-25 (b) The board may create a public information program
652-26 advisory committee to assist in the development of a public
652-27 information program.
653-1 (c) The board shall make available to the public and other
653-2 appropriate state agencies the information compiled as part of the
653-3 program.
653-4 (d) The public information program must:
653-5 (1) include the adoption and distribution, in a manner
653-6 that the board considers appropriate, of a standard complaint form;
653-7 and
653-8 (2) inform prospective applicants for licensing under
653-9 this chapter about the qualifications and requirements for
653-10 licensing.
653-11 (e) The board shall develop a clear, factual, and balanced
653-12 information sheet of one or more pages containing information on:
653-13 (1) the pest control industry;
653-14 (2) chemicals used in structural pest control;
653-15 (3) general health and safety issues relating to
653-16 structural pest control;
653-17 (4) precautions to take before, during, and after
653-18 application;
653-19 (5) steps to take if a misapplication, including an
653-20 underapplication or an overapplication, is suspected; and
653-21 (6) any other matters determined by the board.
653-22 (f) The information sheet must include:
653-23 (1) the names and telephone numbers of the board, the
653-24 Department of Agriculture, and the Texas Department of Health;
653-25 (2) the telephone number of any pesticide hotline
653-26 established by a state or federal agency or by a state university;
653-27 (3) a statement of a consumer's rights under Chapter
654-1 39, Business & Commerce Code, to cancel a home solicitation
654-2 transaction; and
654-3 (4) information concerning the availability of any
654-4 pretreatment inspection service that may be provided by the board
654-5 under Section 1951.210.
654-6 (g) The board shall develop a sign to be posted in the area
654-7 of an indoor treatment that contains:
654-8 (1) the date of the planned treatment; and
654-9 (2) any other information required by the board.
654-10 (V.A.C.S. Art. 135b-6, Secs. 4F(c), (d), (e), (f), (g), (h), (i),
654-11 (j).)
654-12 (Sections 1951.255-1951.300 reserved for expansion)
654-13 SUBCHAPTER G. LICENSE REQUIREMENTS, ISSUANCE, AND RENEWAL
654-14 Sec. 1951.301. STRUCTURAL PEST CONTROL BUSINESS LICENSE
654-15 REQUIRED. (a) In this section, "branch office" means any place of
654-16 business, other than the primary office or a facility serving
654-17 solely as a telephone answering service, that has at least one
654-18 employee during normal business hours who is capable of:
654-19 (1) answering customers' normal questions;
654-20 (2) scheduling normal inspections or work; or
654-21 (3) performing structural pest control functions.
654-22 (b) A person may not engage in the business of structural
654-23 pest control unless the person:
654-24 (1) meets the standards set by the board; and
654-25 (2) holds a structural pest control business license
654-26 issued under this chapter.
654-27 (c) A structural pest control business license entitles a
655-1 person and the person's employees to engage in the business of
655-2 structural pest control under the direct supervision of a certified
655-3 commercial applicator.
655-4 (d) A person engaged in the business of structural pest
655-5 control must hold a structural pest control business license for
655-6 each place of business, including each branch office.
655-7 (e) Each structural pest control business license holder
655-8 shall employ a certified commercial applicator at all times.
655-9 (V.A.C.S. Art. 135b-6, Secs. 2(b)(6), (7) (part), 4(b) (part),
655-10 5(a).)
655-11 Sec. 1951.302. CERTIFIED COMMERCIAL APPLICATOR'S LICENSE.
655-12 The board must determine that an individual is competent to use or
655-13 supervise the use of a restricted-use pesticide or
655-14 state-limited-use pesticide covered by the individual's certified
655-15 commercial applicator's license. (V.A.C.S. Art. 135b-6, Sec.
655-16 2(b)(4) (part).)
655-17 Sec. 1951.303. CERTIFIED NONCOMMERCIAL APPLICATOR'S LICENSE.
655-18 (a) In this section, "incidental use situation" means a pesticide
655-19 application, including treating wasps in an area adjacent to a
655-20 utility meter, treating fire ants in a transformer box, or the
655-21 treating of ants by a janitor or clerical employee in a break area,
655-22 that:
655-23 (1) is on an occasional, isolated, site-specific
655-24 basis;
655-25 (2) is incidental to the performance of a primary duty
655-26 that is not pest control by an employee; and
655-27 (3) involves the use of general use pesticides after
656-1 instruction, as provided by rules adopted by the board.
656-2 (b) An individual who does not hold a certified commercial
656-3 applicator's license may not engage in the business of structural
656-4 pest control unless the individual holds a certified noncommercial
656-5 applicator's or technician license and:
656-6 (1) is employed by the state or a political
656-7 subdivision of the state and engages in the business of structural
656-8 pest control other than by applying a general use pesticide in an
656-9 incidental use situation; or
656-10 (2) engages in the business of structural pest control
656-11 as an employee of a person who owns, operates, or maintains a
656-12 building that is:
656-13 (A) an apartment building;
656-14 (B) a day-care center;
656-15 (C) a hospital;
656-16 (D) a nursing home;
656-17 (E) a hotel, motel, or lodge;
656-18 (F) a warehouse;
656-19 (G) a food-processing establishment, other than
656-20 a restaurant, retail food, or food service establishment; or
656-21 (H) a school. (V.A.C.S. Art. 135b-6, Secs.
656-22 4B(a)(2), (b).)
656-23 Sec. 1951.304. TECHNICIAN LICENSE. The board may designate
656-24 different classes or categories for technicians. (V.A.C.S.
656-25 Art. 135b-6, Sec. 4(c) (part).)
656-26 Sec. 1951.305. APPLICATION. (a) A person must apply for a
656-27 license under this chapter on a form prescribed and provided by the
657-1 board.
657-2 (b) Each applicant must provide the information the board
657-3 requires to determine the applicant's qualifications. (V.A.C.S.
657-4 Art. 135b-6, Sec. 6(a) (part).)
657-5 Sec. 1951.306. WAIVER FOR APPLICANT LICENSED IN ANOTHER
657-6 STATE. (a) The board may waive any license requirement under this
657-7 chapter for an applicant who holds a license issued by another
657-8 state that has license requirements substantially equivalent to
657-9 those of this state.
657-10 (b) The board may issue an endorsement of license to a
657-11 person who:
657-12 (1) establishes residence in this state; and
657-13 (2) has been determined by the board to meet the
657-14 qualifications of a certified applicator by taking the appropriate
657-15 examination in another state. (V.A.C.S. Art. 135b-6, Secs. 2(b)(9),
657-16 4(e).)
657-17 Sec. 1951.307. LICENSE RENEWAL. A person may renew a license
657-18 by submitting an application to the board and paying the required
657-19 renewal fees. (V.A.C.S. Art. 135b-6, Sec. 6(b) (part).)
657-20 Sec. 1951.308. LICENSE EXPIRATION. (a) The board by rule
657-21 may adopt a system under which licenses expire on various dates
657-22 during the year.
657-23 (b) For the year in which the license expiration date is
657-24 changed, license fees payable on December 31 shall be prorated on a
657-25 monthly basis so that each license holder pays only that portion of
657-26 the license fee that is allocable to the number of months during
657-27 which the license is valid. On renewal of the license on the new
658-1 expiration date, the total license renewal fee is payable.
658-2 (V.A.C.S. Art. 135b-6, Sec. 6(b) (part).)
658-3 Sec. 1951.309. FEE FOR INITIAL OR RENEWAL LICENSE. (a) An
658-4 applicant for an initial or renewal structural pest control
658-5 business license or for an initial or renewal endorsement of
658-6 license under Section 1951.306 must submit with the person's
658-7 application:
658-8 (1) a fee of not more than $180, as determined by the
658-9 board, for each license or endorsement; and
658-10 (2) a fee of not more than $84, as determined by the
658-11 board, for a license for each technician the applicant employs.
658-12 (b) An applicant for an initial or renewal certified
658-13 applicator's license must deliver with the person's application:
658-14 (1) a fee of not more than $112.50, as determined by
658-15 the board, for each license; and
658-16 (2) a fee of not more than $84, as determined by the
658-17 board, for a license for each technician the applicant employs.
658-18 (V.A.C.S. Art. 135b-6, Sec. 7(a).)
658-19 Sec. 1951.310. LATE RENEWAL OF LICENSE. (a) The board may
658-20 retroactively renew a license issued under this chapter.
658-21 (b) If the person files a renewal application with the board
658-22 not later than the 30th day after the date the person's license
658-23 expires, the person must pay a late renewal fee of $37.50.
658-24 (c) If the person files a renewal application with the board
658-25 later than the 30th day but not later than the 60th day after the
658-26 date the person's license expires, the person must pay a late
658-27 renewal fee of $75.
659-1 (d) A person who applies for a renewal license after the
659-2 60th day after the date the person's license expires must be
659-3 reexamined by the board to obtain a license. (V.A.C.S. Art. 135b-6,
659-4 Sec. 7(c).)
659-5 Sec. 1951.311. REPLACEMENT LICENSE; FEE. The board shall
659-6 issue to a license holder whose license has been lost or destroyed
659-7 or whose name has been changed a replacement license if the license
659-8 holder submits to the board:
659-9 (1) an appropriate application; and
659-10 (2) a fee of not more than $30, as determined by the
659-11 board. (V.A.C.S. Art. 135b-6, Sec. 7(b).)
659-12 Sec. 1951.312. LIABILITY INSURANCE. (a) The board may not
659-13 issue or renew a structural pest control business license until the
659-14 license applicant:
659-15 (1) files with the board a policy or contract of
659-16 insurance, approved as sufficient by the board, in an amount not
659-17 less than $200,000 for bodily injury and property damage coverage,
659-18 with a minimum total aggregate of $300,000 for all occurrences,
659-19 insuring the applicant against liability for damage to persons or
659-20 property occurring as a result of operations performed in the
659-21 course of the business of structural pest control on premises or
659-22 any other property under the applicant's care, custody, or control;
659-23 or
659-24 (2) in the case of an applicant who has an unexpired
659-25 and uncanceled insurance policy or contract on file with the board,
659-26 files with the board a certificate or other evidence from an
659-27 insurance company stating that:
660-1 (A) the policy or contract insures the applicant
660-2 against liability for acts and damage as described in Subdivision
660-3 (1); and
660-4 (B) the amount of insurance coverage is in the
660-5 amount approved by the board.
660-6 (b) A structural pest control business license holder shall
660-7 at all times maintain the insurance policy or contract in the
660-8 amount approved by the board. Failure to renew the policy or
660-9 contract or maintain it in the required amount is a ground for
660-10 suspension or revocation of the license and a violation of this
660-11 section.
660-12 (c) The board by rule may require different amounts of
660-13 insurance coverage for different classifications of operations
660-14 under this chapter.
660-15 (d) The board may adopt insurance requirements for certified
660-16 noncommercial applicators or technicians. (V.A.C.S. Art. 135b-6,
660-17 Secs. 4B(f) (part), 7A.)
660-18 Sec. 1951.313. MEMORANDUM OF AGREEMENT. The board may enter
660-19 into a memorandum of agreement with a political subdivision other
660-20 than an institution of public or private education concerning
660-21 licensing requirements. (V.A.C.S. Art. 135b-6, Sec. 4(i), as added
660-22 Acts 73rd Leg., R.S., Ch. 432.)
660-23 Sec. 1951.314. LICENSE NOT TRANSFERABLE. A license issued by
660-24 the board is not transferable. (V.A.C.S. Art. 135b-6, Sec. 6(c).)
660-25 (Sections 1951.315-1951.350 reserved for expansion)
660-26 SUBCHAPTER H. TRAINING
660-27 Sec. 1951.351. TECHNICIAN TRAINING PROGRAM. (a) The board
661-1 shall:
661-2 (1) develop or approve a training program for licensed
661-3 technicians and for applicants to become licensed technicians; and
661-4 (2) require that an applicant for a technician license
661-5 complete the training program.
661-6 (b) The board shall develop the educational and training
661-7 materials for the training program with the Texas Agricultural
661-8 Extension Service or any other institution of higher education. The
661-9 board shall publish and distribute, in conjunction with the Texas
661-10 Agricultural Extension Service, the materials developed as a part
661-11 of the training program.
661-12 (c) The training program must include instruction in:
661-13 (1) recognition of pests and pest damage;
661-14 (2) pesticide labels and label comprehension;
661-15 (3) pesticide safety;
661-16 (4) environmental protection;
661-17 (5) procedures for the immediate reporting of spills
661-18 and misapplications;
661-19 (6) application equipment and techniques;
661-20 (7) pesticide formulations and actions;
661-21 (8) emergency procedures and pesticide cleanup;
661-22 (9) state and federal law relating to structural pest
661-23 control;
661-24 (10) basic principles of mathematics, chemistry,
661-25 toxicology, and entomology;
661-26 (11) nonchemical pest control techniques, including
661-27 biological, mechanical, and prevention techniques; and
662-1 (12) any other topic the board considers necessary.
662-2 (d) The board may create a technician training program
662-3 advisory committee to assist the board in developing the training
662-4 program required by this section.
662-5 (e) The board may approve a training program that has not
662-6 been developed by the board if the program meets the standards
662-7 adopted by the board for the program. Completion of a training
662-8 program approved by the board under this subsection satisfies
662-9 Subsection (a)(2). (V.A.C.S. Art. 135b-6, Secs. 4(c) (part), 4A(a),
662-10 (b), (c), (e), (f), (g) (part).)
662-11 Sec. 1951.352. NEW DEVELOPMENTS; PROOF OF STUDY. If the
662-12 board determines that new developments in pest control have
662-13 occurred that are so significant that proper knowledge of the
662-14 developments is necessary to protect the public, the board may
662-15 require of each applicant proof of study by:
662-16 (1) attending approved training courses; or
662-17 (2) taking additional examinations on the new
662-18 developments only. (V.A.C.S. Art. 135b-6, Sec. 7(e) (part).)
662-19 Sec. 1951.353. FEES RELATED TO TRAINING PROGRAMS. (a) The
662-20 board may charge a fee to a person to purchase or borrow materials
662-21 developed for the technician training program under Section
662-22 1951.351. The board shall set the fee in an amount that will
662-23 recover the costs of the program.
662-24 (b) The board may charge a fee not to exceed $75 for each
662-25 course considered for approval under Section 1951.352. (V.A.C.S.
662-26 Art. 135b-6, Secs. 7(e) (part), (f).)
662-27 (Sections 1951.354-1951.400 reserved for expansion)
663-1 SUBCHAPTER I. EXAMINATIONS
663-2 Sec. 1951.401. EXAMINATION FOR CERTIFIED APPLICATOR'S
663-3 LICENSE. The board may require a person to qualify for a certified
663-4 applicator's license by passing an examination demonstrating the
663-5 person's competence in the field of structural pest control.
663-6 (V.A.C.S. Art. 135b-6, Sec. 4(a) (part).)
663-7 Sec. 1951.402. EXAMINATION FOR TECHNICIAN LICENSE. The board
663-8 shall require an applicant for a technician license to pass an
663-9 examination developed and administered by the board or a person
663-10 designated by the board. (V.A.C.S. Art. 135b-6, Sec. 4(c) (part).)
663-11 Sec. 1951.403. EXAMINATION FEE. Each time a person applies
663-12 to take an examination for a license, the person shall pay the
663-13 board an examination fee of not more than $50, as determined by the
663-14 board, for each category of examination to be taken. Except as
663-15 provided by board rule, an examination fee is not refundable.
663-16 (V.A.C.S. Art. 135b-6, Sec. 7(d).)
663-17 Sec. 1951.404. LIST OF STUDY MATERIALS AND SEMINARS. The
663-18 board shall make public a list of study materials and educational
663-19 seminars that are available to help applicants successfully
663-20 complete any examination administered under this chapter. (V.A.C.S.
663-21 Art. 135b-6, Sec. 6(a) (part).)
663-22 Sec. 1951.405. EXAMINATION RESULTS. (a) Not later than the
663-23 30th day after the date a licensing examination is administered
663-24 under this chapter, the board shall notify each examinee of the
663-25 results of the examination. If an examination is graded or
663-26 reviewed by a national testing service, the board shall notify each
663-27 examinee of the results of the examination not later than the 14th
664-1 day after the date the board receives the results from the testing
664-2 service.
664-3 (b) If notice of the results of an examination graded or
664-4 reviewed by a national testing service will be delayed for more
664-5 than 90 days after the examination date, the board shall notify
664-6 each examinee of the reason for the delay before the 90th day.
664-7 (c) If requested in writing by a person who fails a
664-8 licensing examination administered under this chapter, the board
664-9 shall provide to the person an analysis of the person's performance
664-10 on the examination. (V.A.C.S. Art. 135b-6, Sec. 4(a) (part).)
664-11 (Sections 1951.406-1951.450 reserved for expansion)
664-12 SUBCHAPTER J. PRACTICE BY LICENSE HOLDER
664-13 Sec. 1951.451. CONTRACT FOR PEST CONTROL SERVICES. A written
664-14 contract under which a license holder under this chapter agrees to
664-15 perform structural pest control services in this state must
664-16 include:
664-17 (1) the board's mailing address and telephone number;
664-18 and
664-19 (2) a statement that the board has jurisdiction over
664-20 individuals licensed under this chapter. (V.A.C.S. Art. 135b-6,
664-21 Sec. 4(h).)
664-22 Sec. 1951.452. RECORDS OF LICENSE HOLDER. (a) The board may
664-23 require each license holder to make records, as prescribed by the
664-24 board, of the license holder's use of pesticides.
664-25 (b) Subject to Subsection (c), a record required under
664-26 Subsection (a) shall be:
664-27 (1) maintained for at least two years on the license
665-1 holder's business premises; and
665-2 (2) made available for inspection by the board and its
665-3 authorized agents during normal business hours.
665-4 (c) A certified noncommercial applicator shall maintain
665-5 required records on the premises of the person's employer for at
665-6 least two years. The records shall be made available for
665-7 inspection by the board and its authorized agents during the
665-8 employer's normal operating hours. (V.A.C.S. Art. 135b-6, Sec.
665-9 7B.)
665-10 Sec. 1951.453. PEST CONTROL INFORMATION FOR INDOOR
665-11 TREATMENTS: RESIDENTIAL PROPERTY. (a) For an indoor treatment at a
665-12 private residence that is not rental property, a certified
665-13 applicator or technician shall:
665-14 (1) give a pest control information sheet developed
665-15 under Section 1951.254 to the owner of the residence before each
665-16 treatment begins; or
665-17 (2) if the owner is not available at the time
665-18 treatment begins, leave the information sheet in a conspicuous
665-19 place in the residence.
665-20 (b) For an indoor treatment at a residential rental property
665-21 with fewer than five rental units, a certified applicator or
665-22 technician shall leave a pest control information sheet developed
665-23 under Section 1951.254 in each unit at the time of each treatment.
665-24 (c) For an indoor treatment at a residential rental property
665-25 with five or more rental units, a certified applicator or
665-26 technician shall provide a pest control information sheet developed
665-27 under Section 1951.254 and a pest control sign developed under that
666-1 section to the owner or manager of the property. The owner or
666-2 manager or an employee or agent of the owner or manager, other than
666-3 the certified applicator or technician, shall notify residents who
666-4 live in the direct area of the treatment or in an adjacent area by:
666-5 (1) posting the sign in an area of common access at
666-6 least 48 hours before each planned treatment; or
666-7 (2) leaving the information sheet on the front door of
666-8 each unit or in a conspicuous place inside each unit at least 48
666-9 hours before each planned treatment. (V.A.C.S. Art. 135b-6, Secs.
666-10 4G(a), (b), (c), (d).)
666-11 Sec. 1951.454. PEST CONTROL INFORMATION FOR INDOOR
666-12 TREATMENTS: WORKPLACE. For an indoor treatment at a workplace, a
666-13 certified applicator or technician shall provide a pest control
666-14 information sheet developed under Section 1951.254 and a pest
666-15 control sign developed under that section to the employer or the
666-16 building manager. The employer or building manager or an employee
666-17 or agent of the owner or manager, other than the certified
666-18 applicator or technician, shall notify the persons who work at the
666-19 workplace of the date of the planned treatment by:
666-20 (1) posting the sign in an area of common access that
666-21 the persons are likely to check on a regular basis at least 48
666-22 hours before each planned treatment; and
666-23 (2) providing the information sheet to any person
666-24 working in the building on a request made by the person during
666-25 normal business hours. (V.A.C.S. Art. 135b-6, Secs. 4G(a), (e).)
666-26 Sec. 1951.455. PEST CONTROL INFORMATION FOR INDOOR
666-27 TREATMENTS: CERTAIN OTHER BUILDINGS. (a) For an indoor treatment
667-1 at a building that is a hospital, nursing home, hotel, motel,
667-2 lodge, warehouse, food-processing establishment, school, or
667-3 day-care center, a certified applicator or technician shall provide
667-4 a pest control information sheet developed under Section 1951.254
667-5 and a pest control sign developed under that section to the chief
667-6 administrator or building manager. The chief administrator or
667-7 building manager shall notify the persons who work in the building
667-8 of the treatment by:
667-9 (1) posting the sign in an area of common access that
667-10 the persons are likely to check on a regular basis at least 48
667-11 hours before each planned treatment; and
667-12 (2) providing the information sheet to a person
667-13 working in the building on request of the person.
667-14 (b) Personnel at a school or day-care center shall inform
667-15 the parent, guardian, or managing conservator of each child
667-16 attending the school or center, at the time the child is
667-17 registered, that:
667-18 (1) the school or center periodically applies
667-19 pesticides indoors; and
667-20 (2) information on the application of the pesticides
667-21 is available at the request of the parent, guardian, or managing
667-22 conservator. (V.A.C.S. Art. 135b-6, Secs. 4G(a), (f), (g).)
667-23 Sec. 1951.456. PEST CONTROL INFORMATION FOR INDOOR
667-24 TREATMENTS; RULES; EXCEPTION. (a) The board shall develop a policy
667-25 to implement and enforce Sections 1951.453-1951.455.
667-26 (b) Under rules adopted by the board, a requirement under
667-27 Sections 1951.453-1951.455 that notice of a treatment be given at
668-1 least 48 hours before the treatment may be waived for emergency
668-2 treatments.
668-3 (c) A person is not considered in violation of Section
668-4 1951.453, 1951.454, or 1951.455 or a rule adopted under this
668-5 section for not posting a pest control sign developed under Section
668-6 1951.254 if the sign is posted as required by Section 1951.453,
668-7 1951.454, or 1951.455 or a rule adopted under this section but is
668-8 removed by an unauthorized person.
668-9 (d) For the purposes of Sections 1951.453-1951.455, a
668-10 treatment is an indoor treatment even though the treatment may
668-11 include an outside perimeter treatment of the building if the
668-12 primary purpose of the treatment is to treat the inside of the
668-13 building. The board shall by rule define a perimeter treatment and
668-14 shall adopt the definitions provided in federal law.
668-15 (e) The signage, advance notice, and information sheet
668-16 requirements of Sections 1951.453-1951.455 do not apply to space
668-17 that is vacant, unused, and unoccupied as a residence, workplace,
668-18 or other use covered by Sections 1951.453-1951.455. (V.A.C.S.
668-19 Art. 135b-6, Secs. 4G(a) (part), (h), (i), (j), (k), (l).)
668-20 Sec. 1951.457. PEST CONTROL INFORMATION FOR OUTDOOR
668-21 TREATMENTS. (a) For an outdoor treatment at a private residence
668-22 that is not rental property, a certified applicator or technician
668-23 shall leave a pest control information sheet developed under
668-24 Section 1951.254 at the residence before the treatment begins.
668-25 (b) For an outdoor treatment at a residential rental
668-26 property with fewer than five rental units, a certified applicator
668-27 or technician shall leave a pest control information sheet at each
669-1 unit at the time of treatment.
669-2 (c) The board may adopt rules to require the distribution of
669-3 a pest control information sheet for an outdoor treatment other
669-4 than an outdoor treatment described by this section if the board
669-5 determines that the distribution or posting, or both, would protect
669-6 the public's health, safety, and welfare. (V.A.C.S. Art. 135b-6,
669-7 Sec. 4H.)
669-8 Sec. 1951.458. PRACTICE BY NONCOMMERCIAL APPLICATOR OR
669-9 TECHNICIAN. (a) A person who holds a certified noncommercial
669-10 applicator's or technician license may not engage in the business
669-11 of structural pest control outside the scope of the employment for
669-12 which the person is licensed as a certified noncommercial
669-13 applicator or technician unless the person becomes licensed as
669-14 otherwise provided by this chapter.
669-15 (b) A person who holds a certified noncommercial
669-16 applicator's or technician license may engage in the business of
669-17 structural pest control without association with a business that
669-18 holds a structural pest control business license. (V.A.C.S.
669-19 Art. 135b-6, Secs. 4B(c), (f) (part).)
669-20 Sec. 1951.459. PEST CONTROL SERVICES FOR CERTAIN BUILDINGS.
669-21 The owner of a building that is an apartment building, day-care
669-22 center, hospital, nursing home, hotel, motel, lodge, warehouse,
669-23 school, or food-processing establishment, other than a restaurant,
669-24 retail food, or food service establishment, may obtain pest control
669-25 services for that building from a person only by:
669-26 (1) contracting with a person who holds a license to
669-27 perform the services; or
670-1 (2) requiring a person employed by the owner who is
670-2 licensed as a certified noncommercial applicator or technician to
670-3 perform the services. (V.A.C.S. Art. 135b-6, Sec. 4B(d).)
670-4 (Sections 1951.460-1951.500 reserved for expansion)
670-5 SUBCHAPTER K. DISCIPLINARY PROCEDURES
670-6 Sec. 1951.501. DISCIPLINARY POWERS OF BOARD. (a) In this
670-7 section, "parent company" means an individual or a partnership,
670-8 corporation, or other business entity holding one or more
670-9 structural pest control business licenses.
670-10 (b) On a determination that an applicant or structural pest
670-11 control business license holder under a parent company has
670-12 substantially failed to comply with the standards and rules
670-13 established by the board, after notice and a hearing, the board may
670-14 refuse to:
670-15 (1) examine the applicant;
670-16 (2) issue a license to the applicant; or
670-17 (3) issue a business license to the parent company.
670-18 (c) On a determination that a person has violated this
670-19 chapter or a board rule, the board may:
670-20 (1) revoke the person's license;
670-21 (2) suspend the person's license;
670-22 (3) place on probation a person whose license has been
670-23 suspended; or
670-24 (4) reprimand a license holder.
670-25 (d) The board may require a person whose license suspension
670-26 is probated to:
670-27 (1) report regularly to the board on matters that are
671-1 the basis of the probation;
671-2 (2) limit practice to the areas prescribed by the
671-3 board; or
671-4 (3) continue or renew professional education until the
671-5 license holder attains a degree of skill satisfactory to the board
671-6 in those areas that are the basis of the probation. (V.A.C.S.
671-7 Art. 135b-6, Secs. 2(b)(17), 9(a), (b).)
671-8 Sec. 1951.502. RIGHT TO HEARING. (a) If the board proposes
671-9 to suspend or revoke a person's license, the person is entitled to
671-10 a hearing before the board or a hearings officer appointed by the
671-11 board.
671-12 (b) The board shall establish procedures by which a decision
671-13 to suspend or revoke a license is made by or is appealable to the
671-14 board. (V.A.C.S. Art. 135b-6, Sec. 9(c).)
671-15 Sec. 1951.503. JUDICIAL REVIEW. (a) An applicant or license
671-16 holder may appeal from an order or other action of the board by
671-17 bringing an action in a district court of Travis County.
671-18 (b) Notice of appeal must be filed not later than the 30th
671-19 day after the date the board issues the order.
671-20 (c) The hearing in district court is under the substantial
671-21 evidence rule. (V.A.C.S. Art. 135b-6, Sec. 9(d).)
671-22 Sec. 1951.504. SETTLEMENT OF CONTESTED CASES. (a) A
671-23 settlement of a contested case under Chapter 2001, Government Code,
671-24 must be approved by the board.
671-25 (b) The board by rule shall establish guidelines for the
671-26 settlement of a contested case under Chapter 2001, Government Code.
671-27 (c) The board may authorize its representatives to conduct
672-1 informal settlement negotiations between the board and a license
672-2 holder to resolve a complaint, other than a complaint involving a
672-3 misapplication, by a consumer against the license holder.
672-4 (d) An informal settlement reached under Subsection (c):
672-5 (1) may not require the license holder to:
672-6 (A) refund money to the consumer in an amount
672-7 greater than the amount provided under the original contract for
672-8 services by the license holder; or
672-9 (B) perform any services that the license holder
672-10 did not agree to perform in the original contract; and
672-11 (2) does not release the license holder from any
672-12 liability for a misapplication.
672-13 (e) The board by rule shall establish guidelines for the
672-14 informal settlement of consumer complaints as provided by
672-15 Subsections (c) and (d). (V.A.C.S. Art. 135b-6, Sec. 9A.)
672-16 Sec. 1951.505. EFFECT OF REVOCATION. (a) A license revoked
672-17 under Section 1951.501 may not be renewed.
672-18 (b) A person whose license is revoked may not apply for a
672-19 new license until the first anniversary of the effective date of
672-20 the revocation. A new license may not be issued without the
672-21 approval of the board.
672-22 (c) If the board revokes the license of a certified
672-23 applicator in one category, the board may place the applicator on
672-24 probation for any other category in which the applicator is
672-25 licensed. (V.A.C.S. Art. 135b-6, Secs. 9(e), (f), (g).)
672-26 (Sections 1951.506-1951.550 reserved for expansion)
672-27 SUBCHAPTER L. ADMINISTRATIVE PENALTY
673-1 Sec. 1951.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The
673-2 board may impose an administrative penalty on a person who violates
673-3 this chapter or a rule adopted or order issued by the board.
673-4 (V.A.C.S. Art. 135b-6, Sec. 10B(a).)
673-5 Sec. 1951.552. AMOUNT OF PENALTY. (a) The amount of an
673-6 administrative penalty may not exceed $5,000 a day for each
673-7 violation. Each day a violation continues or occurs may be
673-8 considered a separate violation for purposes of penalty assessment.
673-9 (b) In determining the amount of the penalty, the board
673-10 shall consider:
673-11 (1) the seriousness of the violation, including:
673-12 (A) the nature, circumstances, extent, and
673-13 gravity of any prohibited act; and
673-14 (B) the hazard or potential hazard created to
673-15 the health or safety of the public;
673-16 (2) the economic damage to property or the environment
673-17 caused by the violation;
673-18 (3) the history of previous violations;
673-19 (4) the amount necessary to deter future violations;
673-20 (5) efforts to correct the violation; and
673-21 (6) any other matter that justice may require.
673-22 (V.A.C.S. Art. 135b-6, Secs. 10B(b), (c).)
673-23 Sec. 1951.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
673-24 (a) If, after investigation of a possible violation and the facts
673-25 surrounding that possible violation, the executive director
673-26 determines that a violation has occurred, the executive director
673-27 may issue a violation report:
674-1 (1) stating the facts on which the conclusion that a
674-2 violation occurred is based;
674-3 (2) recommending that an administrative penalty under
674-4 this subchapter be imposed on the person charged; and
674-5 (3) recommending the amount of the proposed penalty.
674-6 (b) The executive director must base the recommended amount
674-7 of the proposed penalty on the seriousness of the violation
674-8 determined after considering the factors set forth in Section
674-9 1951.552(b).
674-10 (c) Not later than the 14th day after the date on which the
674-11 report is issued, the executive director shall give written notice
674-12 of the report to the person charged. The notice must include:
674-13 (1) a brief summary of the charges;
674-14 (2) a statement of the amount of the penalty
674-15 recommended; and
674-16 (3) a statement of the right of the person charged to
674-17 a hearing on the occurrence of the violation, the amount of the
674-18 penalty, or both. (V.A.C.S. Art. 135b-6, Secs. 10B(d), (e).)
674-19 Sec. 1951.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
674-20 Not later than the 20th day after the date the person receives the
674-21 notice, the person may:
674-22 (1) accept the executive director's determination,
674-23 including the recommended administrative penalty; or
674-24 (2) make a written request for a hearing on the
674-25 determination.
674-26 (b) If the person charged accepts the executive director's
674-27 determination, the board shall issue an order approving the
675-1 determination and ordering the payment of the recommended penalty.
675-2 (V.A.C.S. Art. 135b-6, Secs. 10B(f), (g).)
675-3 Sec. 1951.555. HEARING; DECISION BY BOARD. (a) If the
675-4 person requests a hearing or fails to respond in a timely manner to
675-5 the notice, the board shall set a hearing and give notice of the
675-6 hearing.
675-7 (b) The hearing shall be held by a hearings examiner
675-8 designated by the board. The hearings examiner shall make findings
675-9 of fact and conclusions of law and promptly issue to the board a
675-10 proposal for a decision as to the occurrence of the violation,
675-11 including a recommendation as to the amount of any proposed
675-12 administrative penalty.
675-13 (c) Based on the findings of fact, conclusions of law, and
675-14 recommendations of the hearings examiner, the board by order may:
675-15 (1) determine that a violation occurred and impose a
675-16 penalty; or
675-17 (2) determine that a violation did not occur.
675-18 (d) A proceeding under this section is subject to Chapter
675-19 2001, Government Code. (V.A.C.S. Art. 135b-6, Sec. 10B(h).)
675-20 Sec. 1951.556. NOTICE OF ORDER. The board shall give notice
675-21 of the order to the person. The notice must include:
675-22 (1) the findings of fact and conclusions of law,
675-23 separately stated;
675-24 (2) the amount of any administrative penalty imposed;
675-25 (3) a statement of the person's right to judicial
675-26 review of the board's order; and
675-27 (4) any other information required by law. (V.A.C.S.
676-1 Art. 135b-6, Sec. 10B(i).)
676-2 Sec. 1951.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
676-3 (a) Not later than the 30th day after the date the board's order
676-4 becomes final, the person shall:
676-5 (1) pay the administrative penalty; or
676-6 (2) file a petition for judicial review contesting the
676-7 fact of the violation, the amount of the penalty, or both.
676-8 (b) Within the period prescribed by Subsection (a), a person
676-9 who acts under Subsection (a)(2) may stay enforcement of the
676-10 penalty by:
676-11 (1) paying the penalty to the board for placement in
676-12 an escrow account;
676-13 (2) giving the board a supersedeas bond in a form
676-14 approved by the board that:
676-15 (A) is for the amount of the penalty; and
676-16 (B) is effective until judicial review of the
676-17 board's order is final; or
676-18 (3) filing with the board an affidavit stating that
676-19 the person is financially unable to either pay the penalty or give
676-20 the bond.
676-21 (c) A person who fails to take action as provided by this
676-22 section waives the right to judicial review of the board's order.
676-23 (V.A.C.S. Art. 135b-6, Secs. 10B(j), (k), (l) (part).)
676-24 Sec. 1951.558. COLLECTION OF PENALTY. If the person does not
676-25 pay the administrative penalty and the enforcement of the penalty
676-26 is not stayed, the board may refer the matter to the attorney
676-27 general for collection of the penalty. (V.A.C.S. Art. 135b-6, Sec.
677-1 10B(l) (part).)
677-2 Sec. 1951.559. REMITTANCE OF PENALTY AND INTEREST. (a) If,
677-3 after judicial review, the administrative penalty is reduced or is
677-4 not upheld by the court, the board shall:
677-5 (1) remit the appropriate amount, plus accrued
677-6 interest, to the person against whom the penalty is imposed, if the
677-7 person paid the penalty; or
677-8 (2) execute a release of the bond, if the person gave
677-9 a supersedeas bond.
677-10 (b) Interest accrues under Subsection (a)(1) at the rate
677-11 charged on loans to depository institutions by the New York Federal
677-12 Reserve Bank. The interest shall be paid for the period beginning
677-13 on the date the penalty is paid and ending on the date the penalty
677-14 is remitted. (V.A.C.S. Art. 135b-6, Sec. 10B(n).)
677-15 (Sections 1951.560-1951.600 reserved for expansion)
677-16 SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
677-17 Sec. 1951.601. ENFORCEMENT ACTION FOR MISAPPLICATION OF
677-18 PESTICIDES. If the board finds that an applicator has misapplied
677-19 pesticides, the board shall institute an enforcement action against
677-20 the applicator. The board by rule shall adopt a policy to
677-21 implement this section. (V.A.C.S. Art. 135b-6, Sec. 9(h).)
677-22 Sec. 1951.602. CIVIL PENALTY; INJUNCTION. (a) A person who
677-23 violates this chapter or a rule, license, or order of the board is
677-24 subject to a civil penalty of not less than $50 or more than $2,000
677-25 for each act of violation and for each day of violation.
677-26 (b) If it appears that a person has violated or is
677-27 threatening to violate this chapter or a rule, license, or order of
678-1 the board, the board, or the executive director if authorized by
678-2 the board, may have a civil action instituted in a district court
678-3 for:
678-4 (1) injunctive relief to restrain the person from
678-5 continuing the violation or threat of violation;
678-6 (2) the assessment and recovery of a civil penalty
678-7 under Subsection (a); or
678-8 (3) both injunctive relief and the civil penalty.
678-9 (c) On application for injunctive relief and a finding that
678-10 a person is violating or threatening to violate this chapter or a
678-11 rule, license, or order of the board, the district court shall
678-12 grant injunctive relief as the facts warrant.
678-13 (d) At the request of the board, or the executive director
678-14 if authorized by the board, the attorney general shall institute
678-15 and conduct an action in the name of the state for the injunctive
678-16 relief, to recover the civil penalty, or both. (V.A.C.S.
678-17 Art. 135b-6, Sec. 10.)
678-18 Sec. 1951.603. CRIMINAL PENALTY. (a) A person commits an
678-19 offense if the person:
678-20 (1) violates this chapter;
678-21 (2) violates a rule adopted under Section 1951.205 or
678-22 1951.206; or
678-23 (3) intentionally makes a false statement in an
678-24 application for a license or otherwise fraudulently obtains or
678-25 attempts to obtain a license.
678-26 (b) Each day a violation occurs is a separate offense.
678-27 (c) Except as otherwise provided by this subsection, an
679-1 offense under this section is a Class C misdemeanor. An offense
679-2 under this section is a Class B misdemeanor if the person has been
679-3 convicted previously of an offense under this section. (V.A.C.S.
679-4 Art. 135b-6, Sec. 10A.)
679-5 CHAPTER 1952. CODE ENFORCEMENT OFFICERS
679-6 SUBCHAPTER A. GENERAL PROVISIONS
679-7 Sec. 1952.001. DEFINITIONS
679-8 Sec. 1952.002. EXEMPTION FROM REGISTRATION
679-9 Sec. 1952.003. EMPLOYMENT OF REGISTERED PERSON NOT
679-10 REQUIRED
679-11 (Sections 1952.004-1952.050 reserved for expansion)
679-12 SUBCHAPTER B. BOARD POWERS AND DUTIES
679-13 Sec. 1952.051. RULES
679-14 Sec. 1952.052. FEES
679-15 Sec. 1952.053. REGISTER OF APPLICATIONS
679-16 Sec. 1952.054. RECORD OF PROCEEDINGS
679-17 (Sections 1952.055-1952.100 reserved for expansion)
679-18 SUBCHAPTER C. REGISTRATION REQUIREMENTS
679-19 Sec. 1952.101. REGISTRATION REQUIRED
679-20 Sec. 1952.102. ELIGIBILITY TO REGISTER AS CODE
679-21 ENFORCEMENT OFFICER
679-22 Sec. 1952.103. ELIGIBILITY TO REGISTER AS CODE
679-23 ENFORCEMENT OFFICER IN TRAINING
679-24 Sec. 1952.104. RECIPROCAL REGISTRATION
679-25 Sec. 1952.105. RENEWAL OR REINSTATEMENT OF CERTIFICATE
679-26 Sec. 1952.106. STATEWIDE VALIDITY OF CERTIFICATE;
679-27 NONTRANSFERABILITY
680-1 (Sections 1952.107-1952.150 reserved for expansion)
680-2 SUBCHAPTER D. CERTIFICATE DENIAL AND DISCIPLINARY ACTION
680-3 Sec. 1952.151. DENIAL OF CERTIFICATE; DISCIPLINARY
680-4 ACTION
680-5 Sec. 1952.152. PROCEDURE
680-6 (Sections 1952.153-1952.200 reserved for expansion)
680-7 SUBCHAPTER E. PENALTIES
680-8 Sec. 1952.201. CRIMINAL PENALTY
680-9 CHAPTER 1952. CODE ENFORCEMENT OFFICERS
680-10 SUBCHAPTER A. GENERAL PROVISIONS
680-11 Sec. 1952.001. DEFINITIONS. In this chapter:
680-12 (1) "Board" means the Texas Board of Health.
680-13 (2) "Code enforcement" means the inspection of public
680-14 or private premises for the purpose of:
680-15 (A) identifying environmental hazards,
680-16 including:
680-17 (i) fire or health hazards;
680-18 (ii) nuisance violations;
680-19 (iii) unsafe building conditions; and
680-20 (iv) violations of any fire, health, or
680-21 building regulation, statute, or ordinance; and
680-22 (B) improving and rehabilitating those premises
680-23 with regard to those hazards.
680-24 (3) "Code enforcement officer" means an agent of this
680-25 state or a political subdivision of this state who engages in code
680-26 enforcement.
680-27 (4) "Department" means the Texas Department of Health.
681-1 (V.A.C.S. Art. 4447bb, Sec. 2.)
681-2 Sec. 1952.002. EXEMPTION FROM REGISTRATION. A person is not
681-3 required to be registered under this chapter if the person:
681-4 (1) is required to be licensed or registered under
681-5 another law of this state; and
681-6 (2) engages in code enforcement under that license or
681-7 registration. (V.A.C.S. Art. 4447bb, Sec. 12(a).)
681-8 Sec. 1952.003. EMPLOYMENT OF REGISTERED PERSON NOT REQUIRED.
681-9 This state or a political subdivision of this state may engage in
681-10 code enforcement without employing a person registered under this
681-11 chapter. (V.A.C.S. Art. 4447bb, Sec. 12(b) (part).)
681-12 (Sections 1952.004-1952.050 reserved for expansion)
681-13 SUBCHAPTER B. BOARD POWERS AND DUTIES
681-14 Sec. 1952.051. RULES. The board by rule shall:
681-15 (1) adopt standards and education requirements
681-16 consistent with those established under Chapter 654, Government
681-17 Code, for the registration of:
681-18 (A) code enforcement officers; and
681-19 (B) code enforcement officers in training; and
681-20 (2) prescribe application forms for original and
681-21 renewal certificates of registration. (V.A.C.S. Art. 4447bb, Sec.
681-22 4(a).)
681-23 Sec. 1952.052. FEES. The board shall set application,
681-24 registration, examination, and renewal fees in amounts that are
681-25 reasonable and necessary to cover the cost of administering this
681-26 chapter, not to exceed $50 for each fee. (V.A.C.S. Art. 4447bb,
681-27 Sec. 4(b).)
682-1 Sec. 1952.053. REGISTER OF APPLICATIONS. (a) The department
682-2 shall maintain a register of each application for a certificate of
682-3 registration under this chapter.
682-4 (b) The register must include:
682-5 (1) the name, residence, date of birth, and social
682-6 security number of the applicant;
682-7 (2) the name and address of the employer or business
682-8 of the applicant;
682-9 (3) the date of the application;
682-10 (4) the education and experience qualifications of the
682-11 applicant;
682-12 (5) the action taken by the department regarding the
682-13 application and the date of the action;
682-14 (6) the serial number of any certificate of
682-15 registration issued to the applicant; and
682-16 (7) any other information required by board rule.
682-17 (V.A.C.S. Art. 4447bb, Sec. 5(b).)
682-18 Sec. 1952.054. RECORD OF PROCEEDINGS. The department shall
682-19 keep a record of proceedings under this chapter. (V.A.C.S.
682-20 Art. 4447bb, Sec. 5(a).)
682-21 (Sections 1952.055-1952.100 reserved for expansion)
682-22 SUBCHAPTER C. REGISTRATION REQUIREMENTS
682-23 Sec. 1952.101. REGISTRATION REQUIRED. Except as permitted by
682-24 Section 1952.002, a person may not claim to be a code enforcement
682-25 officer or use the title "code enforcement officer" unless the
682-26 person holds a certificate of registration under this chapter.
682-27 (V.A.C.S. Art. 4447bb, Secs. 3, 12(b) (part).)
683-1 Sec. 1952.102. ELIGIBILITY TO REGISTER AS CODE ENFORCEMENT
683-2 OFFICER. To be eligible to receive a certificate of registration as
683-3 a code enforcement officer, a person must:
683-4 (1) have at least one year of full-time experience in
683-5 the field of code enforcement;
683-6 (2) pass the examination conducted by the department
683-7 or the department's designee;
683-8 (3) pay the application, examination, and registration
683-9 fees; and
683-10 (4) meet any other requirements prescribed by this
683-11 chapter or by board rule. (V.A.C.S. Art. 4447bb, Sec. 6(a).)
683-12 Sec. 1952.103. ELIGIBILITY TO REGISTER AS CODE ENFORCEMENT
683-13 OFFICER IN TRAINING. (a) An applicant for a certificate of
683-14 registration under this chapter who has less than one year of
683-15 full-time experience in code enforcement is entitled to receive a
683-16 certificate of registration as a code enforcement officer in
683-17 training on:
683-18 (1) passing the examination described by Section
683-19 1952.102(2); and
683-20 (2) paying the required fees.
683-21 (b) A certificate issued under this section expires on the
683-22 first anniversary of the date of issuance.
683-23 (c) A code enforcement officer in training may engage in
683-24 code enforcement under the supervision of a registered code
683-25 enforcement officer. (V.A.C.S. Art. 4447bb, Sec. 6(d).)
683-26 Sec. 1952.104. RECIPROCAL REGISTRATION. On proper
683-27 application, the department shall issue a certificate of
684-1 registration to a license holder or registrant of another state
684-2 that has requirements for the licensing or registration of a code
684-3 enforcement officer that are at least equivalent to those of this
684-4 state. (V.A.C.S. Art. 4447bb, Sec. 11.)
684-5 Sec. 1952.105. RENEWAL OR REINSTATEMENT OF CERTIFICATE. (a)
684-6 A certificate of registration issued under this chapter expires on
684-7 the first anniversary of the date of issuance and may be renewed
684-8 annually on payment of the required renewal fee.
684-9 (b) The department may reinstate as provided by board rule a
684-10 certificate of registration that was revoked for failure to pay the
684-11 renewal fee. (V.A.C.S. Art. 4447bb, Sec. 7.)
684-12 Sec. 1952.106. STATEWIDE VALIDITY OF CERTIFICATE;
684-13 NONTRANSFERABILITY. (a) A certificate of registration issued
684-14 under this chapter is valid throughout this state.
684-15 (b) A certificate of registration issued under this chapter
684-16 is not assignable or transferable. (V.A.C.S. Art. 4447bb, Secs.
684-17 6(b), (c).)
684-18 (Sections 1952.107-1952.150 reserved for expansion)
684-19 SUBCHAPTER D. CERTIFICATE DENIAL AND DISCIPLINARY ACTION
684-20 Sec. 1952.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION.
684-21 (a) The department may deny a person's application for a
684-22 certificate of registration if the person's certificate or license
684-23 to engage in code enforcement or a related profession has been
684-24 revoked by another licensing entity in this state or another state
684-25 for:
684-26 (1) unprofessional conduct;
684-27 (2) fraud, deceit, or negligence; or
685-1 (3) misconduct in the practice of code enforcement or
685-2 a related profession.
685-3 (b) The department shall suspend or revoke a certificate of
685-4 registration issued under this chapter if the department determines
685-5 that the certificate holder:
685-6 (1) engaged in fraud or deceit in obtaining a
685-7 certificate; or
685-8 (2) is grossly negligent, incompetent, or guilty of
685-9 misconduct in the practice of code enforcement. (V.A.C.S.
685-10 Art. 4447bb, Secs. 8(a), (b).)
685-11 Sec. 1952.152. PROCEDURE. The denial, suspension, or
685-12 revocation of a certificate of registration under this chapter is
685-13 governed by:
685-14 (1) the board's rules for a contested case hearing;
685-15 and
685-16 (2) Chapter 2001, Government Code. (V.A.C.S.
685-17 Art. 4447bb, Sec. 8(c).)
685-18 (Sections 1952.153-1952.200 reserved for expansion)
685-19 SUBCHAPTER E. PENALTIES
685-20 Sec. 1952.201. CRIMINAL PENALTY. (a) A person commits an
685-21 offense if the person violates Section 1952.101.
685-22 (b) An offense under this section is a Class C misdemeanor.
685-23 (V.A.C.S. Art. 4447bb, Sec. 13.)
685-24 CHAPTER 1953. SANITARIANS
685-25 SUBCHAPTER A. GENERAL PROVISIONS
685-26 Sec. 1953.001. DEFINITIONS
685-27 Sec. 1953.002. EMPLOYMENT OF SANITARIAN
686-1 Sec. 1953.003. EXEMPTIONS
686-2 (Sections 1953.004-1953.050 reserved for expansion)
686-3 SUBCHAPTER B. BOARD POWERS AND DUTIES
686-4 Sec. 1953.051. GENERAL DUTIES OF BOARD
686-5 Sec. 1953.052. FEES; PAYMENT OF ADMINISTRATIVE COSTS
686-6 Sec. 1953.053. REGISTER OF APPLICATIONS
686-7 Sec. 1953.054. RECORD OF PROCEEDINGS
686-8 Sec. 1953.055. REPORTS
686-9 (Sections 1953.056-1953.100 reserved for expansion)
686-10 SUBCHAPTER C. CERTIFICATE OF REGISTRATION
686-11 Sec. 1953.101. REGISTRATION REQUIRED
686-12 Sec. 1953.102. ELIGIBILITY REQUIREMENTS
686-13 Sec. 1953.103. RECIPROCAL REGISTRATION
686-14 Sec. 1953.104. ISSUANCE OF CERTIFICATE: PROFESSIONAL
686-15 SANITARIAN
686-16 Sec. 1953.105. ISSUANCE OF CERTIFICATE: SANITARIAN IN
686-17 TRAINING
686-18 Sec. 1953.106. RENEWAL OR REINSTATEMENT OF CERTIFICATE
686-19 (Sections 1953.107-1953.150 reserved for expansion)
686-20 SUBCHAPTER D. EXAMINATION
686-21 Sec. 1953.151. EXAMINATION
686-22 Sec. 1953.152. EXAMINATION RESULTS
686-23 (Sections 1953.153-1953.200 reserved for expansion)
686-24 SUBCHAPTER E. CERTIFICATE DENIAL AND
686-25 DISCIPLINARY PROCEDURES
686-26 Sec. 1953.201. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION
686-27 Sec. 1953.202. HEARING
687-1 (Sections 1953.203-1953.250 reserved for expansion)
687-2 SUBCHAPTER F. PENALTIES
687-3 Sec. 1953.251. CRIMINAL PENALTY
687-4 CHAPTER 1953. SANITARIANS
687-5 SUBCHAPTER A. GENERAL PROVISIONS
687-6 Sec. 1953.001. DEFINITIONS. In this chapter:
687-7 (1) "Board" means the Texas Board of Health.
687-8 (2) "Sanitarian" means a person trained in sanitary
687-9 science to perform duties relating to education and inspections in
687-10 environmental sanitation.
687-11 (3) "Sanitation" means the study, art, and technique
687-12 of applying scientific knowledge to improve the human environment
687-13 for the purpose of promoting public health and welfare. (V.A.C.S.
687-14 Art. 4477-3, Sec. 2.)
687-15 Sec. 1953.002. EMPLOYMENT OF SANITARIAN. This chapter does
687-16 not require a person, including a municipality or governmental
687-17 agency, to employ a sanitarian. (V.A.C.S. Art. 4477-3, Sec. 12a.)
687-18 Sec. 1953.003. EXEMPTIONS. This chapter does not apply to a
687-19 person, including a physician, dentist, engineer, or veterinarian,
687-20 who is licensed by an agency of this state other than the board and
687-21 who, by nature of the person's employment or duties, might be
687-22 construed as being subject to this chapter. (V.A.C.S. Art. 4477-3,
687-23 Sec. 11.)
687-24 (Sections 1953.004-1953.050 reserved for expansion)
687-25 SUBCHAPTER B. BOARD POWERS AND DUTIES
687-26 Sec. 1953.051. GENERAL DUTIES OF BOARD. The board shall:
687-27 (1) adopt rules to administer and enforce this
688-1 chapter;
688-2 (2) administer continuing education requirements; and
688-3 (3) prescribe necessary forms. (V.A.C.S. Art. 4477-3,
688-4 Sec. 8(a) (part).)
688-5 Sec. 1953.052. FEES; PAYMENT OF ADMINISTRATIVE COSTS. (a)
688-6 The board shall prescribe fees under this chapter.
688-7 (b) General revenue of the state may not be used to pay the
688-8 costs of administering this chapter in an amount that exceeds the
688-9 amount of fees received under this chapter.
688-10 (c) If the fees are inadequate to pay the costs of
688-11 administering this chapter, the board may increase the fees to an
688-12 amount sufficient to pay those costs. (V.A.C.S. Art. 4477-3, Secs.
688-13 8(a) (part), (c) (part).)
688-14 Sec. 1953.053. REGISTER OF APPLICATIONS. (a) The board
688-15 shall keep a register of each application for a certificate of
688-16 registration under this chapter.
688-17 (b) The register must include:
688-18 (1) the name, age, and place of residence of the
688-19 applicant;
688-20 (2) the name and address of the employer or business
688-21 connection of the applicant;
688-22 (3) the date of the application;
688-23 (4) complete information regarding the applicant's
688-24 education and experience qualifications;
688-25 (5) the date the board reviewed and acted on the
688-26 application;
688-27 (6) a description of the board's action on the
689-1 application;
689-2 (7) the serial number of any certificate of
689-3 registration issued to the applicant; and
689-4 (8) any other information the board determines
689-5 necessary. (V.A.C.S. Art. 4477-3, Sec. 4 (part).)
689-6 Sec. 1953.054. RECORD OF PROCEEDINGS. The board shall keep a
689-7 record of proceedings under this chapter. (V.A.C.S. Art. 4477-3,
689-8 Sec. 4 (part).)
689-9 Sec. 1953.055. REPORTS. The board shall maintain a copy of
689-10 each annual report and each report prepared by the state auditor
689-11 issued in connection with this chapter. (V.A.C.S. Art. 4477-3,
689-12 Sec. 3 (part).)
689-13 (Sections 1953.056-1953.100 reserved for expansion)
689-14 SUBCHAPTER C. CERTIFICATE OF REGISTRATION
689-15 Sec. 1953.101. REGISTRATION REQUIRED. A person who engages
689-16 or offers to engage in work in sanitation may not represent that
689-17 the person is a sanitarian or use a title containing the word
689-18 "sanitarian" unless the person holds a certificate of registration
689-19 under this chapter. (V.A.C.S. Art. 4477-3, Sec. 12(a).)
689-20 Sec. 1953.102. ELIGIBILITY REQUIREMENTS. (a) To be eligible
689-21 to receive a certificate of registration as a professional
689-22 sanitarian, a person must:
689-23 (1) hold at least a bachelor's degree from an
689-24 accredited college or university that includes at least 30 semester
689-25 hours in basic or applied science;
689-26 (2) complete any additional training in the basic
689-27 sciences or public health the board determines necessary to
690-1 effectively serve as a professional sanitarian; and
690-2 (3) have at least two years of full-time experience in
690-3 sanitation.
690-4 (b) The board by rule may establish other qualifications for
690-5 registration. (V.A.C.S. Art. 4477-3, Sec. 5(b) (part).)
690-6 Sec. 1953.103. RECIPROCAL REGISTRATION. The board under
690-7 rules adopted by the board may enter into an agreement with another
690-8 state to provide for reciprocal registration if the other state
690-9 provides by statute for the registration of sanitarians. (V.A.C.S.
690-10 Art. 4477-3, Sec. 10.)
690-11 Sec. 1953.104. ISSUANCE OF CERTIFICATE: PROFESSIONAL
690-12 SANITARIAN. The board shall issue a certificate of registration as
690-13 a professional sanitarian to a person who:
690-14 (1) applies on the form prescribed by the board;
690-15 (2) pays the registration fee set by the board;
690-16 (3) meets the eligibility requirements prescribed by
690-17 Section 1953.102; and
690-18 (4) passes an examination under Subchapter D.
690-19 (V.A.C.S. Art. 4477-3, Sec. 5(a) (part).)
690-20 Sec. 1953.105. ISSUANCE OF CERTIFICATE: SANITARIAN IN
690-21 TRAINING. (a) On approval by the board, the board shall issue a
690-22 certificate of registration as a sanitarian in training to a person
690-23 who:
690-24 (1) is employed in sanitation;
690-25 (2) meets the eligibility requirements prescribed by
690-26 Section 1953.102, other than the requirements relating to
690-27 experience;
691-1 (3) pays a registration fee prescribed by the board
691-2 for a sanitarian in training; and
691-3 (4) passes an examination under Subchapter D.
691-4 (b) A certificate issued under this section is valid for a
691-5 period not to exceed two years after the date of issuance.
691-6 (V.A.C.S. Art. 4477-3, Sec. 5(b) (part).)
691-7 Sec. 1953.106. RENEWAL OR REINSTATEMENT OF CERTIFICATE. (a)
691-8 To renew a certificate of registration under this chapter, a
691-9 professional sanitarian must:
691-10 (1) pay to the board a renewal fee prescribed by the
691-11 board; and
691-12 (2) provide proof of completion of continuing
691-13 education contact hours as prescribed by the board.
691-14 (b) The board may reinstate a certificate of registration as
691-15 provided by board rules that was revoked for failure to pay the
691-16 renewal fee. (V.A.C.S. Art. 4477-3, Sec. 6.)
691-17 (Sections 1953.107-1953.150 reserved for expansion)
691-18 SUBCHAPTER D. EXAMINATION
691-19 Sec. 1953.151. EXAMINATION. (a) To obtain a certificate of
691-20 registration under this chapter, an applicant must pass a written
691-21 examination prescribed by the board that provides evidence
691-22 satisfactory to the board that the applicant is qualified for
691-23 registration under this chapter.
691-24 (b) An applicant for a certificate of registration may not
691-25 take the examination unless the applicant pays the examination fee
691-26 prescribed by the board.
691-27 (c) In evaluating an applicant's performance on the
692-1 examination, the board shall carefully consider the applicant's
692-2 knowledge and understanding of the principles of sanitation and the
692-3 physical, biological, and social sciences. (V.A.C.S. Art. 4477-3,
692-4 Secs. 5(a) (part), (b) (part), (e).)
692-5 Sec. 1953.152. EXAMINATION RESULTS. (a) Not later than the
692-6 30th day after the examination date, the board shall notify each
692-7 examinee of the results of the examination. If an examination is
692-8 graded or reviewed by a national testing service, the board shall
692-9 notify each examinee of the results of the examination not later
692-10 than the 14th day after the date the board receives the results
692-11 from the testing service.
692-12 (b) If the notice of the results of an examination graded or
692-13 reviewed by a national testing service will not be given before the
692-14 91st day after the examination date, the board shall notify each
692-15 examinee of the reason for the delay before the 90th day.
692-16 (c) If requested in writing by a person who fails the
692-17 examination, the board shall provide to the person an analysis of
692-18 the person's performance on the examination. (V.A.C.S.
692-19 Art. 4477-3, Secs. 5(c), (d).)
692-20 (Sections 1953.153-1953.200 reserved for expansion)
692-21 SUBCHAPTER E. CERTIFICATE DENIAL AND DISCIPLINARY PROCEDURES
692-22 Sec. 1953.201. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION.
692-23 (a) The board may deny a person's application for a certificate of
692-24 registration if:
692-25 (1) the person's certificate or license to engage in a
692-26 profession in this state or elsewhere has been revoked for
692-27 unprofessional conduct, fraud, deceit, negligence, or misconduct in
693-1 the practice of the profession; or
693-2 (2) satisfactory proof is presented to the board
693-3 establishing that the person has been found guilty of
693-4 unprofessional conduct, fraud, deceit, negligence, or misconduct in
693-5 the practice of a profession.
693-6 (b) The board may suspend or revoke a certificate of
693-7 registration if the certificate holder:
693-8 (1) practiced fraud or deceit in obtaining the
693-9 certificate; or
693-10 (2) acted in a manner constituting gross negligence,
693-11 incompetency, or misconduct in the practice of sanitation.
693-12 (V.A.C.S. Art. 4477-3, Sec. 7 (part).)
693-13 Sec. 1953.202. HEARING. The board may not deny an
693-14 application for a certificate of registration or suspend or revoke
693-15 a person's certificate until a hearing is held and the person is
693-16 given the opportunity to answer any charges filed with the board.
693-17 (V.A.C.S. Art. 4477-3, Sec. 7 (part).)
693-18 (Sections 1953.203-1953.250 reserved for expansion)
693-19 SUBCHAPTER F. PENALTIES
693-20 Sec. 1953.251. CRIMINAL PENALTY. (a) A person commits an
693-21 offense if the person violates Section 1953.101.
693-22 (b) An offense under this section is a Class C misdemeanor.
693-23 (V.A.C.S. Art. 4477-3, Secs. 12(b), (c).)
693-24 CHAPTER 1954. ASBESTOS HEALTH PROTECTION
693-25 SUBCHAPTER A. GENERAL PROVISIONS
693-26 Sec. 1954.001. SHORT TITLE
693-27 Sec. 1954.002. DEFINITIONS
694-1 (Sections 1954.003-1954.050 reserved for expansion)
694-2 SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
694-3 Sec. 1954.051. GENERAL RULEMAKING AUTHORITY
694-4 Sec. 1954.052. RULES REGARDING ASBESTOS CONCENTRATION
694-5 LEVELS
694-6 Sec. 1954.053. RULES REGARDING PERFORMANCE STANDARDS
694-7 AND WORK PRACTICES
694-8 Sec. 1954.054. RULES RESTRICTING ADVERTISING OR
694-9 COMPETITIVE BIDDING
694-10 Sec. 1954.055. RECIPROCITY AGREEMENT
694-11 Sec. 1954.056. FEES
694-12 Sec. 1954.057. GENERAL INVESTIGATIVE AUTHORITY
694-13 Sec. 1954.058. AUTHORITY TO CONTRACT FOR INSPECTIONS
694-14 Sec. 1954.059. ASBESTOS SITE INSPECTIONS
694-15 Sec. 1954.060. DEMOLITION AND RENOVATION ACTIVITIES;
694-16 INSPECTIONS
694-17 Sec. 1954.061. MEMORANDUM OF UNDERSTANDING REGARDING
694-18 CERTAIN SOLID WASTE FACILITIES
694-19 Sec. 1954.062. DISSEMINATION OF INFORMATION; EDUCATIONAL
694-20 PROGRAMS OR EXHIBITS
694-21 Sec. 1954.063. COMPLAINTS; RAPID RESPONSE TASK FORCE
694-22 (Sections 1954.064-1954.100 reserved for expansion)
694-23 SUBCHAPTER C. LICENSE AND REGISTRATION REQUIREMENTS
694-24 Sec. 1954.101. LICENSE REQUIRED FOR CERTAIN ACTIVITIES
694-25 Sec. 1954.102. LICENSE CLASSIFICATIONS
694-26 Sec. 1954.103. REGISTRATION REQUIRED FOR CERTAIN
694-27 ACTIVITIES
695-1 Sec. 1954.104. RESILIENT FLOOR-COVERING MATERIAL;
695-2 CIVIL PENALTY
695-3 Sec. 1954.105. APPLICATION FOR LICENSE
695-4 Sec. 1954.106. ELIGIBILITY FOR LICENSE
695-5 Sec. 1954.107. RESTRICTED LICENSE FOR CERTAIN
695-6 APPLICANTS
695-7 Sec. 1954.108. APPLICATION FOR REGISTRATION OR RENEWAL;
695-8 ELIGIBILITY
695-9 Sec. 1954.109. EXAMINATIONS
695-10 Sec. 1954.110. EXAMINATION RESULTS
695-11 Sec. 1954.111. TERMS OF LICENSE OR REGISTRATION;
695-12 NONASSIGNABILITY
695-13 Sec. 1954.112. REPLACEMENT LICENSE
695-14 (Sections 1954.113-1954.150 reserved for expansion)
695-15 SUBCHAPTER D. PROVISIONAL LICENSE OR REGISTRATION
695-16 Sec. 1954.151. PROVISIONAL LICENSE OR REGISTRATION
695-17 Sec. 1954.152. TERM OF LICENSE OR REGISTRATION
695-18 Sec. 1954.153. ELIGIBILITY FOR LICENSE OR
695-19 REGISTRATION
695-20 Sec. 1954.154. DECISION ON APPLICATION
695-21 (Sections 1954.155-1954.200 reserved for expansion)
695-22 SUBCHAPTER E. LICENSE OR REGISTRATION EXPIRATION
695-23 AND RENEWAL
695-24 Sec. 1954.201. ANNUAL LICENSE RENEWAL REQUIRED
695-25 Sec. 1954.202. NOTICE OF LICENSE EXPIRATION
695-26 Sec. 1954.203. PROCEDURE FOR LICENSE RENEWAL
695-27 Sec. 1954.204. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
696-1 PRACTITIONER
696-2 Sec. 1954.205. TERM OF REGISTRATION; PROCEDURE FOR
696-3 REGISTRATION RENEWAL
696-4 (Sections 1954.206-1954.250 reserved for expansion)
696-5 SUBCHAPTER F. PRACTICE BY HOLDER OF LICENSE OR REGISTRATION
696-6 Sec. 1954.251. RECORDS
696-7 Sec. 1954.252. NOTICE OF ASBESTOS REMOVAL, ENCAPSULATION,
696-8 OR ENCLOSURE
696-9 Sec. 1954.253. SUPERVISION BY ASBESTOS ABATEMENT
696-10 SUPERVISOR
696-11 Sec. 1954.254. CONFLICT OF INTEREST FOR CERTAIN LICENSE
696-12 HOLDERS
696-13 Sec. 1954.255. CONFLICT OF INTEREST FOR INDEPENDENT THIRD-PARTY
696-14 MONITOR
696-15 Sec. 1954.256. APPROVAL OF ASBESTOS TRAINING; RECORD
696-16 OF ATTENDEES
696-17 Sec. 1954.257. DUTIES REGARDING EMPLOYEE OR AGENT
696-18 Sec. 1954.258. COMPLIANCE WITH BOARD STANDARDS NOT A
696-19 DEFENSE TO CIVIL LIABILITY
696-20 (Sections 1954.259-1954.300 reserved for expansion)
696-21 SUBCHAPTER G. PROHIBITED PRACTICES
696-22 AND DISCIPLINARY PROCEDURES
696-23 Sec. 1954.301. DISCIPLINARY POWERS OF DEPARTMENT
696-24 Sec. 1954.302. GROUNDS FOR DISCIPLINE OF LICENSE
696-25 HOLDER
696-26 Sec. 1954.303. GROUNDS FOR DISCIPLINE OF REGISTERED
696-27 PERSON
697-1 Sec. 1954.304. ACTION BASED ON COMPLAINTS AGAINST ASBESTOS
697-2 ABATEMENT SUPERVISOR
697-3 Sec. 1954.305. PROCEDURE FOR EMERGENCY SUSPENSION
697-4 Sec. 1954.306. ADMINISTRATIVE PROCEDURE
697-5 Sec. 1954.307. REAPPLICATION FOLLOWING LICENSE REVOCATION
697-6 OR SUSPENSION
697-7 (Sections 1954.308-1954.350 reserved for expansion)
697-8 SUBCHAPTER H. ADMINISTRATIVE PENALTY
697-9 Sec. 1954.351. IMPOSITION OF ADMINISTRATIVE PENALTY
697-10 Sec. 1954.352. AMOUNT OF PENALTY
697-11 Sec. 1954.353. OPPORTUNITY FOR HEARING; ORDER
697-12 Sec. 1954.354. OPTIONS FOLLOWING DECISION: PAY OR
697-13 APPEAL
697-14 Sec. 1954.355. COLLECTION OF PENALTY
697-15 Sec. 1954.356. JUDICIAL REVIEW
697-16 Sec. 1954.357. REMITTANCE OF PENALTY AND INTEREST OR
697-17 RELEASE OF BOND
697-18 (Sections 1954.358-1954.400 reserved for expansion)
697-19 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
697-20 Sec. 1954.401. INJUNCTIVE RELIEF; CIVIL PENALTY
697-21 Sec. 1954.402. CRIMINAL PENALTY
697-22 CHAPTER 1954. ASBESTOS HEALTH PROTECTION
697-23 SUBCHAPTER A. GENERAL PROVISIONS
697-24 Sec. 1954.001. SHORT TITLE. This chapter may be cited as the
697-25 Texas Asbestos Health Protection Act. (V.A.C.S. Art. 4477-3a, Sec.
697-26 1.)
697-27 Sec. 1954.002. DEFINITIONS. In this chapter:
698-1 (1) "Air monitoring" means the collection of airborne
698-2 samples for analysis of asbestos fibers.
698-3 (2) "Asbestos" means:
698-4 (A) an asbestiform variety of chrysotile,
698-5 amosite, crocidolite, tremolite, anthophyllite, or actinolite; or
698-6 (B) a material that contains one percent or more
698-7 of a substance described by Paragraph A.
698-8 (3) "Asbestos abatement" means a removal,
698-9 encapsulation, or enclosure of asbestos to reduce or eliminate or
698-10 that has the effect of reducing or eliminating:
698-11 (A) a concentration of asbestos fibers; or
698-12 (B) an asbestos-containing material.
698-13 (4) "Asbestos-related activity" means:
698-14 (A) the removal, encapsulation, or enclosure of
698-15 asbestos;
698-16 (B) the performance of an asbestos survey;
698-17 (C) the development of an asbestos management
698-18 plan or response action;
698-19 (D) the collection or analysis of an asbestos
698-20 sample; or
698-21 (E) the performance of another activity for
698-22 which a license is required under this chapter.
698-23 (5) "Asbestos removal" means an action that disturbs,
698-24 dislodges, strips, or otherwise takes away asbestos fibers.
698-25 (6) "Board" means the Texas Board of Health.
698-26 (7) "Commissioner" means the commissioner of public
698-27 health.
699-1 (8) "Department" means the Texas Department of Health.
699-2 (9) "Encapsulation" means a method of control of
699-3 asbestos fibers in which the surface of an asbestos-containing
699-4 material is penetrated by or covered with a coating prepared for
699-5 that purpose.
699-6 (10) "Enclosure" means the construction of an airtight
699-7 wall and ceiling around an asbestos-containing material.
699-8 (11) "Public building" means a building used or to be
699-9 used for a purpose that involves public access or occupancy and
699-10 includes a building that is vacant at any time, including during
699-11 preparation for actual demolition. The term does not include:
699-12 (A) an industrial facility to which access is
699-13 limited principally to employees of the facility because of a
699-14 process or function that is hazardous to human health or safety;
699-15 (B) a federal building or installation;
699-16 (C) a private residence;
699-17 (D) an apartment building that has not more than
699-18 four dwelling units; or
699-19 (E) a manufacturing facility or building that is
699-20 part of a facility to which access is limited to workers and
699-21 invited guests under controlled conditions. (V.A.C.S.
699-22 Art. 4477-3a, Secs. 2(1), (2), (3), (4), (5), (6), (7), (8), (9),
699-23 (11), (12).)
699-24 (Sections 1954.003-1954.050 reserved for expansion)
699-25 SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND DEPARTMENT
699-26 Sec. 1954.051. GENERAL RULEMAKING AUTHORITY. The board shall
699-27 adopt substantive and procedural rules as necessary or desirable
700-1 for the board, the department, and the commissioner to discharge
700-2 their powers and duties under this chapter. (V.A.C.S.
700-3 Art. 4477-3a, Sec. 12(a).)
700-4 Sec. 1954.052. RULES REGARDING ASBESTOS CONCENTRATION
700-5 LEVELS. (a) The board may adopt rules defining the maximum
700-6 airborne asbestos concentrations that are:
700-7 (1) permissible outside of a regulated containment
700-8 area during an abatement activity; and
700-9 (2) acceptable for final clearance.
700-10 (b) The board may not identify any level of asbestos
700-11 concentration as a safe exposure level because any exposure to
700-12 airborne asbestos is considered to involve some risk. (V.A.C.S.
700-13 Art. 4477-3a, Sec. 12(b).)
700-14 Sec. 1954.053. RULES REGARDING PERFORMANCE STANDARDS AND
700-15 WORK PRACTICES. The board may adopt rules specifying:
700-16 (1) performance standards at least as stringent as
700-17 applicable federal standards; and
700-18 (2) work practices that affect asbestos removal or
700-19 encapsulation in a public building. (V.A.C.S. Art. 4477-3a, Sec.
700-20 12(c).)
700-21 Sec. 1954.054. RULES RESTRICTING ADVERTISING OR COMPETITIVE
700-22 BIDDING. (a) The board may not adopt a rule restricting
700-23 advertising or competitive bidding by a person licensed or
700-24 registered under this chapter except to prohibit a false,
700-25 misleading, or deceptive practice.
700-26 (b) In its rules to prohibit a false, misleading, or
700-27 deceptive practice, the board may not include a rule that:
701-1 (1) restricts the use of any medium for advertising;
701-2 (2) restricts the use of the personal appearance or
701-3 voice of the person in an advertisement;
701-4 (3) relates to the size or duration of an
701-5 advertisement by the person; or
701-6 (4) restricts the person's advertisement under a trade
701-7 name. (V.A.C.S. Art. 4477-3a, Sec. 12A.)
701-8 Sec. 1954.055. RECIPROCITY AGREEMENT. The department may
701-9 adopt rules under this chapter to effect reciprocity agreements
701-10 with other states. (V.A.C.S. Art. 4477-3a, Sec. 12(j).)
701-11 Sec. 1954.056. FEES. (a) The board shall adopt a schedule
701-12 of the fees that are provided by this chapter and any other fee
701-13 that is reasonable and necessary.
701-14 (b) A license fee may not exceed:
701-15 (1) $100 for a license as an air monitoring
701-16 technician;
701-17 (2) $200 for a license as an inspector;
701-18 (3) $250 for a restricted license as an asbestos
701-19 abatement supervisor;
701-20 (4) $300 for a license as an asbestos abatement
701-21 supervisor;
701-22 (5) $300 for a license as an asbestos laboratory;
701-23 (6) $500 for a license as an asbestos abatement
701-24 contractor;
701-25 (7) $500 for a license as a management planner;
701-26 (8) $500 for a license as a consultant;
701-27 (9) $500 for a license as a training sponsor; or
702-1 (10) $500 for a license as a transporter.
702-2 (c) A registration fee for an asbestos abatement worker may
702-3 not exceed $50.
702-4 (d) The department may set a fee for a provisional license
702-5 or registration in an amount reasonable and necessary to cover the
702-6 cost of issuing the license or registration.
702-7 (e) The fees collected by the department under this chapter
702-8 shall be deposited to the credit of the asbestos removal licensure
702-9 fund account in the general revenue fund. The fees may be used
702-10 only by the department for the purposes of this chapter. Not more
702-11 than 25 percent of the fees collected may be applied for
702-12 administrative costs necessary to implement this chapter. The
702-13 remainder shall be used for enforcement personnel necessary to
702-14 investigate compliance with this chapter. (V.A.C.S. Art. 4477-3a,
702-15 Secs. 4B(a) (part), (b) (part), (c) (part), (d) (part), (e) (part),
702-16 (f) (part), (g) (part), (h) (part), (i) (part), (j) (part), (k)
702-17 (part), (l) (part); 5A(e); 12(d).)
702-18 Sec. 1954.057. GENERAL INVESTIGATIVE AUTHORITY. (a) The
702-19 department may conduct any inspection or cause the production of
702-20 any documentary or other evidence that the department considers
702-21 necessary to determine whether a license should be:
702-22 (1) issued, delayed, or denied; or
702-23 (2) modified, suspended, or revoked.
702-24 (b) The department may require additional written
702-25 information and assurances from the applicant or license holder at
702-26 any time after the filing of an application for a license and
702-27 before the expiration of the license. (V.A.C.S. Art. 4477-3a, Sec.
703-1 5(c).)
703-2 Sec. 1954.058. AUTHORITY TO CONTRACT FOR INSPECTIONS. The
703-3 department may contract with any person to perform inspections
703-4 necessary to enforce this chapter. (V.A.C.S. Art. 4477-3a, Sec.
703-5 12(n).)
703-6 Sec. 1954.059. ASBESTOS SITE INSPECTIONS. (a) The
703-7 department shall inspect:
703-8 (1) an asbestos abatement contractor during an
703-9 abatement project at least annually; and
703-10 (2) other licensed organizations in accordance with
703-11 board rules.
703-12 (b) The department shall require a building or facility
703-13 owner or the owner's authorized representative to complete an
703-14 immediate inspection for asbestos if the department determines
703-15 after an asbestos site inspection that there appears to be a danger
703-16 or potential danger to:
703-17 (1) the occupants of the building;
703-18 (2) workers in the building or facility; or
703-19 (3) the public. (V.A.C.S. Art. 4477-3a, Secs. 12(f)
703-20 (part), (g).)
703-21 Sec. 1954.060. DEMOLITION AND RENOVATION ACTIVITIES;
703-22 INSPECTIONS. (a) The board may adopt and the department may
703-23 enforce rules regarding demolition and renovation activities to
703-24 protect the public from asbestos emissions. At a minimum, the
703-25 rules must be sufficient to permit the department to obtain
703-26 authority from the United States Environmental Protection Agency to
703-27 implement and enforce in this state the provisions of 40 C.F.R.
704-1 Part 61, Subpart M, that establish the requirements applicable to
704-2 the demolition and renovation of a facility, including the disposal
704-3 of asbestos-containing waste materials.
704-4 (b) An employee or agent of the department may enter a
704-5 facility, as that term is defined by 40 C.F.R. Section 61.141, to
704-6 inspect and investigate conditions to determine compliance with the
704-7 rules adopted under Subsection (a). (V.A.C.S. Art. 4477-3a, Secs.
704-8 12(k), (l).)
704-9 Sec. 1954.061. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN
704-10 SOLID WASTE FACILITIES. The board and the Texas Natural Resource
704-11 Conservation Commission by rule shall adopt a joint memorandum of
704-12 understanding regarding the inspection of solid waste facilities
704-13 that receive asbestos. (V.A.C.S. Art. 4477-3a, Sec. 12(m).)
704-14 Sec. 1954.062. DISSEMINATION OF INFORMATION; EDUCATIONAL
704-15 PROGRAMS OR EXHIBITS. (a) The department may:
704-16 (1) develop and distribute to the public information
704-17 regarding asbestos;
704-18 (2) conduct educational programs regarding asbestos;
704-19 and
704-20 (3) assemble or sponsor informational or educational
704-21 exhibits regarding asbestos.
704-22 (b) The department may respond to a request for information
704-23 or assistance relating to asbestos control and abatement from a
704-24 federal facility or another facility not included within the scope
704-25 of this chapter. The department may collect fees for those
704-26 services in the manner provided by Subchapter D, Chapter 12, Health
704-27 and Safety Code, for public health services. (V.A.C.S.
705-1 Art. 4477-3a, Secs. 12(h), (i) (part).)
705-2 Sec. 1954.063. COMPLAINTS; RAPID RESPONSE TASK FORCE. (a)
705-3 The department shall investigate any complaint involving the
705-4 control and abatement of asbestos.
705-5 (b) The department shall maintain a rapid response task
705-6 force to investigate each complaint received by the department
705-7 regarding:
705-8 (1) possible health hazards to workers or the public;
705-9 or
705-10 (2) contamination of the environment.
705-11 (c) The rapid response task force shall investigate a
705-12 complaint not later than 48 hours after the time of the complaint
705-13 to the department. (V.A.C.S. Art. 4477-3a, Secs. 12(e), (f)
705-14 (part).)
705-15 (Sections 1954.064-1954.100 reserved for expansion)
705-16 SUBCHAPTER C. LICENSE AND REGISTRATION REQUIREMENTS
705-17 Sec. 1954.101. LICENSE REQUIRED FOR CERTAIN ACTIVITIES. (a)
705-18 Unless a person is licensed under this chapter, the person may not:
705-19 (1) remove asbestos from or encapsulate or enclose
705-20 asbestos in a public building or supervise that removal,
705-21 encapsulation, or enclosure;
705-22 (2) perform or supervise maintenance, repair,
705-23 installation, renovation, or cleaning that dislodges, breaks, cuts,
705-24 abrades, or impinges on asbestos materials in a public building;
705-25 (3) perform an asbestos survey or inspection of a
705-26 public building, including the sampling and assessment of exposure;
705-27 (4) provide plans, instructions, or schedules for the
706-1 management of asbestos in a public building;
706-2 (5) provide monitoring services for airborne asbestos
706-3 dust using:
706-4 (A) transmission electron microscopy;
706-5 (B) phase contrast microscopy; or
706-6 (C) another analytical method approved by the
706-7 department;
706-8 (6) provide an analysis of:
706-9 (A) a bulk material sample for asbestos content
706-10 or asbestos concentration; or
706-11 (B) an airborne sample using:
706-12 (i) transmission electron microscopy;
706-13 (ii) phase contrast microscopy;
706-14 (iii) polarized light microscopy;
706-15 (iv) scanning electron microscopy; or
706-16 (v) another analytical method approved by
706-17 the department;
706-18 (7) design and prepare abatement project plans and
706-19 specifications for asbestos abatement in a public building;
706-20 (8) handle an asbestos abatement contract on behalf of
706-21 another person;
706-22 (9) transport an asbestos-containing material from a
706-23 facility for disposal; or
706-24 (10) sponsor or certify an initial or refresher
706-25 training course required for licensing or registration under this
706-26 chapter.
706-27 (b) In accordance with a schedule established by board
707-1 rules, a person may not sponsor or certify an asbestos training
707-2 course required for licensing or registration under this chapter
707-3 unless the person is licensed as a training sponsor.
707-4 (c) The department may waive the requirement for a license
707-5 on receipt of notice of an emergency that results from a sudden
707-6 unexpected event that is not a planned renovation or demolition.
707-7 (V.A.C.S. Art. 4477-3a, Secs. 3(a), (c); 10(c).)
707-8 Sec. 1954.102. LICENSE CLASSIFICATIONS. (a) The board shall
707-9 determine and specify the scope, purpose, eligibility,
707-10 qualifications, and compliance requirements for each class of
707-11 license and any other license necessary for the board to carry out
707-12 its duties under this chapter.
707-13 (b) A person must be licensed as:
707-14 (1) an asbestos abatement supervisor, if the person is
707-15 an individual who:
707-16 (A) supervises the removal, encapsulation, or
707-17 enclosure of asbestos; and
707-18 (B) is designated as the competent person, as
707-19 that term is defined by 29 C.F.R. Section 1926.1101;
707-20 (2) an asbestos abatement contractor, if the person is
707-21 designated as the contractor for a project:
707-22 (A) in which asbestos abatement, encapsulation,
707-23 or enclosure will be conducted; and
707-24 (B) that is not designated as a small-scale,
707-25 short-duration activity;
707-26 (3) an inspector, if the person is an individual who
707-27 performs an asbestos survey of a facility;
708-1 (4) a management planner, if the person develops a
708-2 management plan or an inspection or survey report;
708-3 (5) an air-monitoring technician, if the person is a
708-4 technician who performs air monitoring for an asbestos abatement
708-5 project or related activity;
708-6 (6) a consultant, if the person designs specifications
708-7 for an asbestos abatement project;
708-8 (7) a transporter, if the person engages in the
708-9 transportation of asbestos-containing materials from a facility in
708-10 this state; or
708-11 (8) a training sponsor, if the person sponsors or
708-12 certifies an asbestos training or refresher course.
708-13 (c) A laboratory may be licensed as an asbestos laboratory
708-14 only if the laboratory:
708-15 (1) is accredited by the National Voluntary Laboratory
708-16 and Analytical Proficiency Accreditation or is enrolled in the EPA
708-17 Proficiency Analytical Testing rounds, as appropriate; or
708-18 (2) has similar qualifications as required by the
708-19 board. (V.A.C.S. Art. 4477-3a, Secs. 3(b); 4B(b) (part), (c)
708-20 (part), (e) (part), (f) (part), (g) (part), (h) (part), (i) (part),
708-21 (j) (part), (k) (part); 9(a) (part); 10(c) (part).)
708-22 Sec. 1954.103. REGISTRATION REQUIRED FOR CERTAIN ACTIVITIES.
708-23 An individual must be registered as an asbestos abatement worker if
708-24 the individual:
708-25 (1) removes, encapsulates, encloses, loads, or unloads
708-26 asbestos in the scope of employment; or
708-27 (2) performs maintenance, repair, installation,
709-1 renovation, or cleaning activities that may dislodge, break, cut,
709-2 abrade, or impinge on asbestos-containing materials. (V.A.C.S.
709-3 Art. 4477-3a, Secs. 4B(a) (part), (d) (part); 9(a) (part).)
709-4 Sec. 1954.104. RESILIENT FLOOR-COVERING MATERIAL; CIVIL
709-5 PENALTY. (a) For purposes of this section, "resilient
709-6 floor-covering material" includes sheet vinyl flooring, resilient
709-7 tile such as vinyl composition tile, asphalt tile, rubber tile, and
709-8 associated adhesives.
709-9 (b) The licensing and registration requirements of this
709-10 chapter do not apply to an activity that involves resilient
709-11 floor-covering material if the removal of the material is performed
709-12 consistently with:
709-13 (1) work practices published by the resilient
709-14 floor-covering industry; or
709-15 (2) other methods determined by the commissioner to
709-16 provide comparable protection from asbestos exposure.
709-17 (c) A person who removes resilient floor-covering material
709-18 must have completed a training course on the work practices
709-19 described by Subsection (b) for a period not to exceed eight hours.
709-20 (d) A person who intentionally violates this section is
709-21 liable for a civil penalty in an amount not to exceed $5,000.
709-22 (V.A.C.S. Art. 4477-3a, Sec. 15A.)
709-23 Sec. 1954.105. APPLICATION FOR LICENSE. (a) An applicant
709-24 for a license to engage in asbestos abatement or in another
709-25 asbestos-related activity for which a license is required under
709-26 this chapter must:
709-27 (1) submit an application to the department on a form
710-1 prescribed by the department; and
710-2 (2) pay to the department a nonrefundable application
710-3 fee in the amount set by the board.
710-4 (b) An application for a license must be signed by the
710-5 applicant and must include, as applicable:
710-6 (1) the applicant's business name and address;
710-7 (2) a written respiratory protection plan;
710-8 (3) a list of the asbestos-related activities that the
710-9 applicant has performed during the preceding 12 months; and
710-10 (4) additional information the department requires.
710-11 (c) To be issued a license, an applicant must also provide
710-12 to the department, as applicable:
710-13 (1) a certificate of good standing issued by the
710-14 secretary of state, if the applicant is a corporation or other
710-15 business entity;
710-16 (2) a certificate from the secretary of state
710-17 authorizing the applicant to conduct business in this state, if the
710-18 applicant is a foreign corporation;
710-19 (3) a state sales tax number; and
710-20 (4) a certificate of insurance, issued for the purpose
710-21 of licensing under this chapter, that demonstrates:
710-22 (A) asbestos abatement liability coverage for an
710-23 asbestos abatement contractor performing work for hire;
710-24 (B) professional liability insurance coverage
710-25 for errors and omissions for a consultant, inspector, or asbestos
710-26 laboratory performing work for hire;
710-27 (C) liability insurance to transport for hire
711-1 asbestos-containing materials for purposes of disposal; and
711-2 (D) if workers' compensation insurance is
711-3 required by the owner of the public building or by the
711-4 specifications for the asbestos-related activity, either:
711-5 (i) proof of workers' compensation
711-6 insurance issued by a company licensed to issue workers'
711-7 compensation insurance in this state and written in this state on
711-8 the Texas form; or
711-9 (ii) evidence of self-insurance. (V.A.C.S.
711-10 Art. 4477-3a, Secs. 4A; 5(a), (b).)
711-11 Sec. 1954.106. ELIGIBILITY FOR LICENSE. (a) To qualify for
711-12 a license under this chapter, an applicant must meet the
711-13 requirements of this section and any other requirements established
711-14 by the board, including asbestos-related education or experience
711-15 requirements.
711-16 (b) A person engaged in removing, encapsulating, or
711-17 enclosing asbestos must demonstrate to the department that the
711-18 person:
711-19 (1) completed in the preceding 12 months:
711-20 (A) a thorough and detailed training course on
711-21 asbestos removal, encapsulation, and enclosure approved by the
711-22 United States Environmental Protection Agency or the department;
711-23 and
711-24 (B) a physical examination that meets the
711-25 requirements stated in the asbestos regulations of the United
711-26 States Environmental Protection Agency or the United States
711-27 Occupational Safety and Health Administration;
712-1 (2) is capable of complying with all applicable
712-2 standards of the department, the United States Environmental
712-3 Protection Agency, the United States Occupational Safety and Health
712-4 Administration, and any other state or federal agency authorized to
712-5 regulate activities affecting the control and abatement of
712-6 asbestos; and
712-7 (3) has access to at least one appropriate disposal
712-8 site for deposit of any asbestos waste the person generates during
712-9 the term of the license. (V.A.C.S. Art. 4477-3a, Secs. 4(a), (c).)
712-10 Sec. 1954.107. RESTRICTED LICENSE FOR CERTAIN APPLICANTS.
712-11 (a) An individual may apply for a restricted license as an
712-12 asbestos abatement supervisor without the experience the board by
712-13 rule may require to be licensed as an asbestos abatement supervisor
712-14 if the individual:
712-15 (1) is an employee of a building owner or manager; and
712-16 (2) meets all other qualifications or requirements for
712-17 a license.
712-18 (b) The authority granted by a license issued under this
712-19 section is restricted to supervising those practices and procedures
712-20 described by 40 C.F.R. Part 763, Subpart E, Appendix B, relating to
712-21 small-scale, short-duration operations, maintenance, and repair
712-22 activities involving asbestos-containing materials, for buildings
712-23 under the control of the license holder's employer. (V.A.C.S.
712-24 Art. 4477-3a, Sec. 4B(l) (part).)
712-25 Sec. 1954.108. APPLICATION FOR REGISTRATION OR RENEWAL;
712-26 ELIGIBILITY. (a) An application for registration or the renewal of
712-27 registration as an asbestos abatement worker must be made on a form
713-1 provided by the department. An application for registration must
713-2 be accompanied by a nonrefundable fee set by the board in an amount
713-3 not to exceed $50.
713-4 (b) The board shall determine the criteria for registration
713-5 or the renewal of registration as an asbestos abatement worker.
713-6 (c) A physical examination for an asbestos abatement worker
713-7 must be conducted in accordance with the physical examination
713-8 requirements described by Section 1954.106(b)(1)(B). (V.A.C.S.
713-9 Art. 4477-3a, Secs. 9(b), (c) (part), (d).)
713-10 Sec. 1954.109. EXAMINATIONS. The board may:
713-11 (1) require or authorize the use of standardized
713-12 examinations for licensing or registration under this chapter; and
713-13 (2) set fees in amounts not to exceed $200 for the
713-14 administration of the examinations. (V.A.C.S. Art. 4477-3a, Sec.
713-15 10(h).)
713-16 Sec. 1954.110. EXAMINATION RESULTS. (a) The department
713-17 shall notify each person who takes a licensing or registration
713-18 examination under this chapter of the results of the examination
713-19 not later than the 30th day after the date the examination is
713-20 administered. If an examination is graded or reviewed by a testing
713-21 service, the department shall notify the person of the results of
713-22 the examination not later than the 14th day after the date the
713-23 department receives the results from the testing service.
713-24 (b) If the notice of the results of an examination graded or
713-25 reviewed by a testing service will be delayed for more than 90 days
713-26 after the examination date, the department shall notify the person
713-27 of the reason for the delay before the 90th day.
714-1 (c) The department may require a testing service to notify a
714-2 person of the results of the person's examination.
714-3 (d) If requested in writing by a person who fails a
714-4 licensing or registration examination, the department shall provide
714-5 to the person an analysis of the person's performance on the
714-6 examination. (V.A.C.S. Art. 4477-3a, Sec. 10A.)
714-7 Sec. 1954.111. TERMS OF LICENSE OR REGISTRATION;
714-8 NONASSIGNABILITY. (a) The terms of a license or registration are
714-9 subject to amendment or modification by a rule adopted or order
714-10 issued under this chapter.
714-11 (b) A license or registration may not be assigned to another
714-12 person. (V.A.C.S. Art. 4477-3a, Secs. 6(d), (e); 9(f), (g).)
714-13 Sec. 1954.112. REPLACEMENT LICENSE. A license holder may
714-14 request a replacement license certificate by completing an
714-15 appropriate application. (V.A.C.S. Art. 4477-3a, Sec. 6(f).)
714-16 (Sections 1954.113-1954.150 reserved for expansion)
714-17 SUBCHAPTER D. PROVISIONAL LICENSE OR REGISTRATION
714-18 Sec. 1954.151. PROVISIONAL LICENSE OR REGISTRATION. (a) The
714-19 department may grant a provisional license or registration to an
714-20 applicant for a license or registration in this state who:
714-21 (1) has been licensed or registered in good standing
714-22 to perform the relevant asbestos-related activity for at least two
714-23 years in another jurisdiction, including a foreign country, that
714-24 has licensing or registration requirements substantially equivalent
714-25 to the requirements of this chapter;
714-26 (2) is currently licensed or registered in that
714-27 jurisdiction;
715-1 (3) has passed a national or other examination
715-2 recognized by the board relating to the relevant asbestos-related
715-3 activity, if the board requires an examination under Section
715-4 1954.109 to obtain the license or registration required to perform
715-5 that activity; and
715-6 (4) is sponsored by a person licensed under this
715-7 chapter with whom the provisional license or registration holder
715-8 will practice during the time the person holds the provisional
715-9 license or registration.
715-10 (b) The department may waive the requirement of Subsection
715-11 (a)(4) if the department determines that compliance with the
715-12 requirement would be a hardship to the applicant. (V.A.C.S.
715-13 Art. 4477-3a, Secs. 5A(a), (b).)
715-14 Sec. 1954.152. TERM OF LICENSE OR REGISTRATION. A
715-15 provisional license or registration is valid until the date the
715-16 department approves or denies the provisional license or
715-17 registration holder's application for a license or registration
715-18 under Subchapter C. (V.A.C.S. Art. 4477-3a, Sec. 5A(c) (part).)
715-19 Sec. 1954.153. ELIGIBILITY FOR LICENSE OR REGISTRATION. The
715-20 department shall issue a license or registration under Subchapter C
715-21 to a provisional license or registration holder who is eligible to
715-22 be licensed or registered under rules adopted under Section
715-23 1954.055 or who:
715-24 (1) passes the part of the examination under Section
715-25 1954.109 that relates to the applicant's knowledge and
715-26 understanding of the laws and rules relating to the performance of
715-27 the relevant asbestos-related activity in this state, if the board
716-1 requires an examination under Section 1954.109 to obtain the
716-2 license or registration required to perform that activity;
716-3 (2) meets the relevant academic and experience
716-4 requirements for the license or registration, as verified by the
716-5 department; and
716-6 (3) satisfies any other applicable license or
716-7 registration requirement under this chapter. (V.A.C.S.
716-8 Art. 4477-3a, Sec. 5A(c) (part).)
716-9 Sec. 1954.154. DECISION ON APPLICATION. (a) The department
716-10 shall approve or deny a provisional license or registration
716-11 holder's application for a license or registration not later than
716-12 the 180th day after the date the provisional license or
716-13 registration is issued.
716-14 (b) The department may extend the 180-day period if the
716-15 department has not received the results of an examination before
716-16 the end of that period. (V.A.C.S. Art. 4477-3a, Sec. 5A(d).)
716-17 (Sections 1954.155-1954.200 reserved for expansion)
716-18 SUBCHAPTER E. LICENSE OR REGISTRATION EXPIRATION
716-19 AND RENEWAL
716-20 Sec. 1954.201. ANNUAL LICENSE RENEWAL REQUIRED. (a) A
716-21 license issued under this chapter expires on the first anniversary
716-22 of its effective date, unless the license is renewed for a one-year
716-23 term as provided by this subchapter. A person whose license has
716-24 expired may not engage in an activity for which a license is
716-25 required until the license is renewed.
716-26 (b) The board by rule may adopt a system under which
716-27 licenses expire on various dates during the year. For a year in
717-1 which the license expiration date is changed, the department shall
717-2 prorate license fees on a monthly basis so that each license holder
717-3 pays only that portion of the license fee that is allocable to the
717-4 number of months during which the license is valid. On renewal of
717-5 the license on the new expiration date, the total renewal fee is
717-6 payable. (V.A.C.S. Art. 4477-3a, Secs. 6(a), (g).)
717-7 Sec. 1954.202. NOTICE OF LICENSE EXPIRATION. At least one
717-8 month before a license issued under this chapter expires, the
717-9 department shall send by first-class mail to the license holder at
717-10 the license holder's last known address a notice that states:
717-11 (1) the date on which the license expires;
717-12 (2) the date by which the renewal application must be
717-13 received by the department for the renewal to be issued and mailed
717-14 before the license expires; and
717-15 (3) the amount of the renewal fee. (V.A.C.S.
717-16 Art. 4477-3a, Sec. 6(b).)
717-17 Sec. 1954.203. PROCEDURE FOR LICENSE RENEWAL. (a) A person
717-18 may renew an unexpired license for an additional one-year term if
717-19 the person:
717-20 (1) is otherwise entitled to be licensed;
717-21 (2) submits to the department a renewal application on
717-22 the form required by the department;
717-23 (3) pays to the department a nonrefundable renewal fee
717-24 in an amount not to exceed the amount of the application fee
717-25 required under Section 1954.105(a);
717-26 (4) has successfully completed:
717-27 (A) the requirements for renewal; and
718-1 (B) a current physical examination; and
718-2 (5) has complied with any final order resulting from a
718-3 violation of this chapter.
718-4 (b) A person whose license has been expired for 90 days or
718-5 less may renew the license by paying to the department a renewal
718-6 fee that is equal to 1-1/2 times the normally required renewal fee.
718-7 (c) A person whose license has been expired for more than 90
718-8 days but less than one year may renew the license by paying to the
718-9 department a renewal fee that is equal to two times the normally
718-10 required renewal fee.
718-11 (d) A person whose license has been expired for one year or
718-12 more may not renew the license. The person may obtain a new
718-13 license by complying with the requirements and procedures,
718-14 including any examination requirements, for obtaining an original
718-15 license. (V.A.C.S. Art. 4477-3a, Secs. 6(c), (h), (i), (j).)
718-16 Sec. 1954.204. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
718-17 PRACTITIONER. (a) The department may renew without reexamination
718-18 an expired license of a person who was licensed in this state,
718-19 moved to another state, and is currently licensed and has been in
718-20 practice in the other state for the two years preceding the date of
718-21 application.
718-22 (b) The person must pay to the department a fee that is
718-23 equal to two times the normally required renewal fee for the
718-24 license. (V.A.C.S. Art. 4477-3a, Sec. 6(k).)
718-25 Sec. 1954.205. TERM OF REGISTRATION; PROCEDURE FOR
718-26 REGISTRATION RENEWAL. (a) The board shall set the term of
718-27 registration of an asbestos abatement worker.
719-1 (b) The procedures provided by this subchapter for the
719-2 renewal of a license apply to the renewal of an asbestos abatement
719-3 worker registration.
719-4 (c) An asbestos abatement worker who is required to complete
719-5 periodic retraining must submit evidence of that retraining with
719-6 the worker's application for renewal. (V.A.C.S. Art. 4477-3a,
719-7 Secs. 9(c) (part), (e).)
719-8 (Sections 1954.206-1954.250 reserved for expansion)
719-9 SUBCHAPTER F. PRACTICE BY HOLDER OF LICENSE OR REGISTRATION
719-10 Sec. 1954.251. RECORDS. (a) A license holder shall keep an
719-11 appropriate record of each asbestos-related activity the license
719-12 holder performs in a public building. The record must include, as
719-13 applicable:
719-14 (1) the name and address of each individual who
719-15 supervised the asbestos-related activity;
719-16 (2) the location and a description of the project and
719-17 the approximate amount of asbestos material that was removed or
719-18 encapsulated;
719-19 (3) the date on which the asbestos-related activity
719-20 began and the date on which it was completed;
719-21 (4) a summary of the procedures used to comply with
719-22 all applicable standards;
719-23 (5) the name and address of each disposal site where
719-24 the asbestos-containing waste was deposited; and
719-25 (6) any other information the department requires.
719-26 (b) The license holder shall keep the records required by
719-27 this section for at least 30 years, or as long as required by
720-1 federal law or regulation.
720-2 (c) The license holder shall make the records available to
720-3 the department at any reasonable time. (V.A.C.S. Art. 4477-3a,
720-4 Sec. 7.)
720-5 Sec. 1954.252. NOTICE OF ASBESTOS REMOVAL, ENCAPSULATION, OR
720-6 ENCLOSURE. (a) A person engaged in removing asbestos from or
720-7 encapsulating or enclosing asbestos in a public building shall
720-8 notify the department in writing at least 10 days before the date
720-9 the person begins the removal, encapsulation, or enclosure project
720-10 according to applicable laws.
720-11 (b) Notwithstanding Subsection (a), a person may give the
720-12 required notice orally if the removal, encapsulation, or enclosure
720-13 project is of an emergency nature. (V.A.C.S. Art. 4477-3a, Sec.
720-14 3(e).)
720-15 Sec. 1954.253. SUPERVISION BY ASBESTOS ABATEMENT SUPERVISOR.
720-16 The removal of asbestos from or the encapsulation or enclosure of
720-17 asbestos in a public building must be supervised by an individual
720-18 licensed as an asbestos abatement supervisor. (V.A.C.S.
720-19 Art. 4477-3a, Sec. 3(d).)
720-20 Sec. 1954.254. CONFLICT OF INTEREST FOR CERTAIN LICENSE
720-21 HOLDERS. A person licensed under this chapter to perform asbestos
720-22 inspections or surveys, write management plans, or design abatement
720-23 specifications for an asbestos abatement project may also engage in
720-24 the removal of asbestos from the building or facility at which an
720-25 asbestos abatement project takes place only if the person is
720-26 retained to remove the asbestos by a municipality. (V.A.C.S.
720-27 Art. 4477-3a, Sec. 4C.)
721-1 Sec. 1954.255. CONFLICT OF INTEREST FOR INDEPENDENT
721-2 THIRD-PARTY MONITOR. (a) In this section, "independent third-party
721-3 monitor" means a person retained to collect area air samples for
721-4 analysis by and for the owner of the building or facility being
721-5 abated.
721-6 (b) An independent third-party monitor may not be employed
721-7 by the asbestos abatement contractor to analyze an area sample
721-8 collected during the abatement project. (V.A.C.S. Art. 4477-3a,
721-9 Sec. 2(13).)
721-10 Sec. 1954.256. APPROVAL OF ASBESTOS TRAINING; RECORD OF
721-11 ATTENDEES. (a) The board shall adopt an asbestos training approval
721-12 plan to approve the training required for a person to be licensed
721-13 or registered under this chapter. In adopting the plan, the board
721-14 shall adopt by reference the Model Accreditation Plan developed by
721-15 the United States Environmental Protection Agency.
721-16 (b) The board may establish other requirements or change the
721-17 number, design, or content of the plan adopted under Subsection (a)
721-18 as the board determines desirable, provided that the plan is at
721-19 least as comprehensive and stringent as the Model Accreditation
721-20 Plan.
721-21 (c) A licensed training sponsor may sponsor an asbestos
721-22 training course only if the course is approved by the department
721-23 for that purpose.
721-24 (d) A licensed training sponsor shall provide to the
721-25 department in accordance with board rules a record of the persons
721-26 who attend an asbestos training course for licensing or
721-27 registration under this chapter. (V.A.C.S. Art. 4477-3a, Secs.
722-1 10(a), (b), (d), (e).)
722-2 Sec. 1954.257. DUTIES REGARDING EMPLOYEE OR AGENT. A person
722-3 engaged in an asbestos-related activity shall ensure that each
722-4 employee or agent who will come in contact with asbestos or who
722-5 will be responsible for the activity:
722-6 (1) is familiar with federal, state, and local
722-7 standards for asbestos removal, encapsulation, and enclosure;
722-8 (2) has completed the applicable training course
722-9 relating to asbestos control and abatement developed and approved
722-10 by the United States Environmental Protection Agency or the
722-11 department under Section 1954.256; and
722-12 (3) is supplied with approved equipment in good
722-13 working order for the protection of the person, the public, and the
722-14 environment. (V.A.C.S. Art. 4477-3a, Sec. 4(b).)
722-15 Sec. 1954.258. COMPLIANCE WITH BOARD STANDARDS NOT A DEFENSE
722-16 TO CIVIL LIABILITY. Compliance with any minimum standards adopted
722-17 by the board under this chapter does not constitute a defense to a
722-18 civil action for damages arising from a work activity affecting
722-19 asbestos. (V.A.C.S. Art. 4477-3a, Sec. 14.)
722-20 (Sections 1954.259-1954.300 reserved for expansion)
722-21 SUBCHAPTER G. PROHIBITED PRACTICES
722-22 AND DISCIPLINARY PROCEDURES
722-23 Sec. 1954.301. DISCIPLINARY POWERS OF DEPARTMENT. (a) If an
722-24 act or omission of a person licensed under this chapter constitutes
722-25 grounds prescribed for disciplinary action under Section 1954.302,
722-26 the department, after providing the person with notice and an
722-27 opportunity for a hearing, shall:
723-1 (1) revoke or suspend the person's license;
723-2 (2) suspend the license on an emergency basis;
723-3 (3) modify the license; or
723-4 (4) reprimand the person.
723-5 (b) If an act or omission of a person registered under this
723-6 chapter constitutes grounds for disciplinary action under Section
723-7 1954.303, the department, after providing the person with notice
723-8 and an opportunity for a hearing, shall:
723-9 (1) refuse to renew the person's registration;
723-10 (2) revoke or suspend the registration;
723-11 (3) suspend the registration on an emergency basis; or
723-12 (4) reprimand the person.
723-13 (c) After providing the sponsor of an asbestos training
723-14 course with notice and an opportunity for a hearing, the department
723-15 may:
723-16 (1) revoke or suspend the approval of the course; or
723-17 (2) suspend the approval of the course on an emergency
723-18 basis.
723-19 (d) The department may place on probation a person whose
723-20 license or registration is suspended. If a suspension is probated,
723-21 the department may require the person to:
723-22 (1) report regularly to the department on matters that
723-23 are the basis of the probation;
723-24 (2) limit practice to the areas prescribed by the
723-25 board; or
723-26 (3) continue or review professional education until
723-27 the person attains a degree of skill satisfactory to the board in
724-1 those areas that are the basis of the probation. (V.A.C.S.
724-2 Art. 4477-3a, Secs. 8(a), (g); 9(h) (part), (j); 10(f).)
724-3 Sec. 1954.302. GROUNDS FOR DISCIPLINE OF LICENSE HOLDER. The
724-4 board by rule shall adopt the criteria for the department to take
724-5 disciplinary action against a license holder under Section
724-6 1954.301. At a minimum, the criteria must require disciplinary
724-7 action against a license holder who:
724-8 (1) commits fraud or deception in obtaining or
724-9 attempting to obtain a license or a contract to perform an
724-10 asbestos-related activity;
724-11 (2) fails at any time to meet the qualifications for a
724-12 license;
724-13 (3) violates a rule adopted under this chapter;
724-14 (4) violates an applicable federal or state standard
724-15 for asbestos-related activities; or
724-16 (5) falsifies or fails to maintain a record of an
724-17 asbestos-related activity required by a federal agency or by the
724-18 department. (V.A.C.S. Art. 4477-3a, Sec. 8(c).)
724-19 Sec. 1954.303. GROUNDS FOR DISCIPLINE OF REGISTERED PERSON.
724-20 The department shall take disciplinary action under Section
724-21 1954.301 against a person registered under this chapter who:
724-22 (1) fraudulently or deceptively assigns, obtains, or
724-23 attempts to assign or obtain a registration or the renewal of a
724-24 registration; or
724-25 (2) violates:
724-26 (A) a federal, state, or local asbestos law or
724-27 rule; or
725-1 (B) an order issued by the board or department.
725-2 (V.A.C.S. Art. 4477-3a, Sec. 9(h) (part).)
725-3 Sec. 1954.304. ACTION BASED ON COMPLAINTS AGAINST ASBESTOS
725-4 ABATEMENT SUPERVISOR. (a) If the department receives three
725-5 validated complaints against an asbestos abatement supervisor
725-6 regarding noncompliance with this chapter, the department shall:
725-7 (1) revoke the supervisor's license; and
725-8 (2) issue to the supervisor a registration.
725-9 (b) A registration issued under this section expires six
725-10 months from the date of issuance. The asbestos abatement
725-11 supervisor may reapply for a license after the registration
725-12 expires. (V.A.C.S. Art. 4477-3a, Sec. 8(e).)
725-13 Sec. 1954.305. PROCEDURE FOR EMERGENCY SUSPENSION. (a) The
725-14 suspension on an emergency basis of a license or registration or of
725-15 the approval of an asbestos training course is effective
725-16 immediately.
725-17 (b) The department shall provide to the person whose
725-18 license, registration, or asbestos training course approval is
725-19 suspended on an emergency basis an opportunity for a hearing not
725-20 later than the 20th day after the date of the suspension.
725-21 (V.A.C.S. Art. 4477-3a, Secs. 8(b); 9(i); 10(g).)
725-22 Sec. 1954.306. ADMINISTRATIVE PROCEDURE. A notice and
725-23 hearing required under this subchapter and judicial review of a
725-24 final administrative decision issued under this subchapter are
725-25 governed by Chapter 2001, Government Code, and the board rules for
725-26 contested case hearings. (V.A.C.S. Art. 4477-3a, Secs. 8(f); 9(h)
725-27 (part); 10(i); 11.)
726-1 Sec. 1954.307. REAPPLICATION FOLLOWING LICENSE REVOCATION OR
726-2 SUSPENSION. A person whose license is revoked or suspended may not
726-3 reapply for a license until after the period stated in a schedule
726-4 established by board rule. (V.A.C.S. Art. 4477-3a, Sec. 8(d).)
726-5 (Sections 1954.308-1954.350 reserved for expansion)
726-6 SUBCHAPTER H. ADMINISTRATIVE PENALTY
726-7 Sec. 1954.351. IMPOSITION OF ADMINISTRATIVE PENALTY. The
726-8 commissioner may impose an administrative penalty on a person who
726-9 violates this chapter or a rule adopted or order issued under this
726-10 chapter. (V.A.C.S. Art. 4477-3a, Sec. 16(a).)
726-11 Sec. 1954.352. AMOUNT OF PENALTY. (a) The amount of an
726-12 administrative penalty may not exceed $10,000 a day for each
726-13 violation. Each day a violation continues may be considered a
726-14 separate violation for purposes of imposing a penalty.
726-15 (b) In determining the amount of the penalty, the
726-16 commissioner shall consider:
726-17 (1) the seriousness of the violation;
726-18 (2) any hazard created to the health and safety of the
726-19 public;
726-20 (3) the person's history of previous violations; and
726-21 (4) any other matter that justice may require.
726-22 (V.A.C.S. Art. 4477-3a, Secs. 16(b), (c).)
726-23 Sec. 1954.353. OPPORTUNITY FOR HEARING; ORDER. (a) The
726-24 commissioner may impose an administrative penalty under this
726-25 subchapter only after the person charged with a violation is given
726-26 the opportunity for a hearing.
726-27 (b) If a hearing is held, the commissioner shall make
727-1 findings of fact and issue a written decision as to:
727-2 (1) the occurrence of the violation; and
727-3 (2) the amount of any penalty that is warranted.
727-4 (c) If the person charged with a violation fails to exercise
727-5 the opportunity for a hearing, the commissioner, after determining
727-6 that a violation occurred and the amount of the penalty that is
727-7 warranted, may impose a penalty and shall issue an order requiring
727-8 the person to pay any penalty imposed.
727-9 (d) Not later than the 30th day after the date an order is
727-10 issued after determining that a violation occurred, the
727-11 commissioner shall inform the person charged with the violation of
727-12 the amount of any penalty imposed.
727-13 (e) The commissioner may consolidate a hearing under this
727-14 section with another proceeding. (V.A.C.S. Art. 4477-3a, Secs.
727-15 16(d), (e), (f), (g), (h), (i).)
727-16 Sec. 1954.354. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
727-17 (a) Not later than the 30th day after the date the commissioner's
727-18 decision or order becomes final as provided by Section 2001.144,
727-19 Government Code, the person shall:
727-20 (1) pay the administrative penalty; or
727-21 (2) file a petition for judicial review contesting the
727-22 fact of the violation, the amount of the penalty, or both.
727-23 (b) Within the 30-day period, a person who acts under
727-24 Subsection (a)(2) may stay enforcement of the penalty by:
727-25 (1) paying the penalty to the commissioner for
727-26 placement in an escrow account; or
727-27 (2) giving the commissioner a bond in a form approved
728-1 by the commissioner that:
728-2 (A) is for the amount of the penalty; and
728-3 (B) is effective until judicial review of the
728-4 commissioner's decision or order is final. (V.A.C.S. Art. 4477-3a,
728-5 Sec. 16(j).)
728-6 Sec. 1954.355. COLLECTION OF PENALTY. At the request of the
728-7 commissioner, the attorney general may bring a civil action to
728-8 recover an administrative penalty imposed under this subchapter.
728-9 (V.A.C.S. Art. 4477-3a, Sec. 16(n).)
728-10 Sec. 1954.356. JUDICIAL REVIEW. Judicial review of a
728-11 decision or order of the commissioner imposing a penalty under this
728-12 subchapter is instituted by filing a petition with a district court
728-13 in Travis County and is under the substantial evidence rule as
728-14 provided by Subchapter G, Chapter 2001, Government Code. (V.A.C.S.
728-15 Art. 4477-3a, Sec. 16(m).)
728-16 Sec. 1954.357. REMITTANCE OF PENALTY AND INTEREST OR RELEASE
728-17 OF BOND. If after judicial review the administrative penalty is
728-18 reduced or is not upheld by the court, the commissioner shall:
728-19 (1) remit the appropriate amount, plus accrued
728-20 interest, to the person not later than the 30th day after the date
728-21 of the determination, if the person paid the penalty; or
728-22 (2) execute a release of the bond, if the person gave
728-23 a bond. (V.A.C.S. Art. 4477-3a, Sec. 16(k).)
728-24 (Sections 1954.358-1954.400 reserved for expansion)
728-25 SUBCHAPTER I. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
728-26 Sec. 1954.401. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
728-27 commissioner may request the attorney general or the district,
729-1 county, or city attorney having jurisdiction to bring a civil suit
729-2 for injunctive relief, the assessment and recovery of a civil
729-3 penalty, or both, against a person who:
729-4 (1) appears to have violated, is violating, or is
729-5 threatening to violate this chapter or a rule adopted or order
729-6 issued under this chapter; or
729-7 (2) owns a public building or is the owner's agent and
729-8 has contracted with or otherwise permitted a person who is not
729-9 licensed or registered under this chapter to perform in the
729-10 building an activity for which a license or registration is
729-11 required.
729-12 (b) A civil penalty may not exceed $10,000 a day for each
729-13 violation. Each day a violation occurs or continues to occur is a
729-14 separate violation for purposes of imposing a penalty.
729-15 (c) In determining the amount of a civil penalty, the court
729-16 shall consider:
729-17 (1) the seriousness of the violation;
729-18 (2) any hazard created to the health and safety of the
729-19 public;
729-20 (3) the person's history of previous violations; and
729-21 (4) the demonstrated good faith of the person charged
729-22 with the violation.
729-23 (d) A civil penalty recovered in a suit instituted by the
729-24 attorney general under this chapter shall be deposited in the state
729-25 treasury. A civil penalty recovered in a suit instituted by a
729-26 local government under this chapter shall be paid to the local
729-27 government. (V.A.C.S. Art. 4477-3a, Sec. 15.)
730-1 Sec. 1954.402. CRIMINAL PENALTY. (a) A person required to
730-2 be licensed under this chapter commits an offense if the person:
730-3 (1) removes asbestos from a public building or
730-4 encapsulates the asbestos without a license after having been
730-5 previously assessed a civil or administrative penalty for removing
730-6 or encapsulating asbestos without a license; or
730-7 (2) fails to keep records as required by Section
730-8 1954.251 after having been previously assessed a civil or
730-9 administrative penalty for failing to keep records.
730-10 (b) An offense under this section is a misdemeanor
730-11 punishable by a fine not to exceed $20,000, unless the defendant
730-12 has been previously convicted under this section, in which event
730-13 the offense is punishable by:
730-14 (1) a fine not to exceed $25,000;
730-15 (2) confinement in jail for not more than two years;
730-16 or
730-17 (3) both the fine and confinement. (V.A.C.S.
730-18 Art. 4477-3a, Sec. 17.)
730-19 CHAPTER 1955. LEAD-BASED PAINT ABATEMENT
730-20 SUBCHAPTER A. GENERAL PROVISIONS
730-21 Sec. 1955.001. DEFINITIONS
730-22 Sec. 1955.002. RULES RESTRICTING ADVERTISING OR
730-23 COMPETITIVE BIDDING
730-24 (Sections 1955.003-1955.050 reserved for expansion)
730-25 SUBCHAPTER B. CERTIFICATION AND ACCREDITATION
730-26 Sec. 1955.051. CERTIFICATION AND ACCREDITATION PROGRAM
730-27 Sec. 1955.052. CERTIFICATION REQUIREMENT
731-1 Sec. 1955.053. FEES
731-2 Sec. 1955.054. EXAMINATION RESULTS
731-3 Sec. 1955.055. CERTIFICATION OR ACCREDITATION EXPIRATION
731-4 Sec. 1955.056. NOTICE OF EXPIRATION
731-5 Sec. 1955.057. CERTIFICATION OR ACCREDITATION
731-6 RENEWAL
731-7 Sec. 1955.058. RENEWAL BY OUT-OF-STATE PRACTITIONER
731-8 (Sections 1955.059-1955.100 reserved for expansion)
731-9 SUBCHAPTER C. PENALTIES AND ENFORCEMENT PROVISIONS
731-10 Sec. 1955.101. DISCIPLINARY ACTION BY DEPARTMENT
731-11 Sec. 1955.102. PROBATION
731-12 Sec. 1955.103. ADMINISTRATIVE PENALTY
731-13 Sec. 1955.104. INJUNCTIVE RELIEF; CIVIL PENALTY
731-14 Sec. 1955.105. CRIMINAL PENALTY
731-15 CHAPTER 1955. LEAD-BASED PAINT ABATEMENT
731-16 SUBCHAPTER A. GENERAL PROVISIONS
731-17 Sec. 1955.001. DEFINITIONS. In this chapter:
731-18 (1) "Board" means the Texas Board of Health.
731-19 (2) "Child-occupied facility" means a building or part
731-20 of a building constructed before 1978, including a day-care center,
731-21 preschool, or kindergarten classroom, that is visited regularly by
731-22 the same child, six years of age or younger, at least two days in
731-23 any calendar week if the visits are for at least:
731-24 (A) three hours each day; and
731-25 (B) 60 hours each year.
731-26 (3) "Department" means the Texas Department of Health.
731-27 (4) "Federal law and rules" means:
732-1 (A) Title IV, Toxic Substances Control Act (15
732-2 U.S.C. Section 2681 et seq.), and the rules adopted by the United
732-3 States Environmental Protection Agency under that law for
732-4 authorization of state programs;
732-5 (B) any regulations or requirements adopted by
732-6 the United States Department of Housing and Urban Development
732-7 regarding eligibility for grants to states and local governments;
732-8 and
732-9 (C) any other requirements adopted by a federal
732-10 agency with jurisdiction over lead hazards.
732-11 (5) "Lead-based paint activity" means inspection,
732-12 testing, risk assessment, risk reduction, lead abatement project
732-13 design or planning, abatement or removal, or creation of lead-based
732-14 paint hazards.
732-15 (6) "Person" means an individual, corporation,
732-16 company, contractor, association, firm, partnership, joint stock
732-17 company, foundation, institution, trust, society, union, or any
732-18 other association of individuals.
732-19 (7) "Target housing" means any housing constructed
732-20 before 1978, other than:
732-21 (A) housing for the elderly or persons with
732-22 disabilities, unless a child six years of age or younger resides or
732-23 is expected to reside in the housing; or
732-24 (B) a dwelling without bedrooms. (V.A.C.S.
732-25 Art. 9029, Sec. 2; New.)
732-26 Sec. 1955.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE
732-27 BIDDING. (a) The board may not adopt rules restricting advertising
733-1 or competitive bidding by a certified or accredited person except
733-2 to prohibit false, misleading, or deceptive practices.
733-3 (b) The board may not include in its rules to prohibit
733-4 false, misleading, or deceptive practices a rule that:
733-5 (1) restricts the use of any advertising medium;
733-6 (2) restricts the use of a certified or accredited
733-7 person's personal appearance or voice in an advertisement;
733-8 (3) relates to the size or duration of an
733-9 advertisement by the certified or accredited person; or
733-10 (4) restricts the certified or accredited person's
733-11 advertisement under a trade name. (V.A.C.S. Art. 9029, Sec. 3B.)
733-12 (Sections 1955.003-1955.050 reserved for expansion)
733-13 SUBCHAPTER B. CERTIFICATION AND ACCREDITATION
733-14 Sec. 1955.051. CERTIFICATION AND ACCREDITATION PROGRAM. (a)
733-15 The department shall establish a program in compliance with federal
733-16 law and rules for:
733-17 (1) certification of a person involved in a lead-based
733-18 paint activity in target housing or in a child-occupied facility;
733-19 and
733-20 (2) accreditation of a training provider.
733-21 (b) The program may not exceed the minimum requirements of
733-22 federal law and rules for authorization of a state program and
733-23 receipt of federal funding by a state or local government.
733-24 (c) The department shall make any changes to the program
733-25 that are:
733-26 (1) consistent with this chapter; and
733-27 (2) necessary to comply with federal law and rules.
734-1 (d) Rules adopted under this section must:
734-2 (1) set minimum training requirements for use by
734-3 accredited training providers;
734-4 (2) set standards for the reliability, effectiveness,
734-5 and safety of lead-based paint activities in target housing;
734-6 (3) set standards for accrediting training providers;
734-7 (4) require the use of certified and accredited
734-8 personnel in a lead-based paint activity in target housing or in a
734-9 child-occupied facility;
734-10 (5) be revised as necessary to:
734-11 (A) comply with federal law and rules; and
734-12 (B) maintain eligibility for federal funding;
734-13 (6) facilitate reciprocity and communication with
734-14 other states having a certification and accreditation program;
734-15 (7) provide for the revocation of the certification or
734-16 accreditation of a person certified or accredited by the
734-17 department; and
734-18 (8) provide for financial assurance for a person
734-19 certified or accredited by the department. (V.A.C.S. Art. 9029,
734-20 Secs. 3(a), (b), (c).)
734-21 Sec. 1955.052. CERTIFICATION REQUIREMENT. (a) The board by
734-22 rule may require a person involved in a lead-based paint activity
734-23 in target housing or a public area that the department determines
734-24 creates a public health hazard to be certified. The department
734-25 shall delay implementation of the certification requirement for six
734-26 months after the date the rule is adopted.
734-27 (b) A rule adopted under this section must be consistent
735-1 with federal law and rules. (V.A.C.S. Art. 9029, Sec. 3(e).)
735-2 Sec. 1955.053. FEES. The department may impose a fee to
735-3 cover the cost of administering the program. (V.A.C.S. Art. 9029,
735-4 Sec. 3(d).)
735-5 Sec. 1955.054. EXAMINATION RESULTS. (a) Not later than the
735-6 30th day after the date a person takes any certification or
735-7 accreditation examination under this chapter, the department shall
735-8 notify the person of the examination results. If an examination is
735-9 graded or reviewed by a testing service, the department shall
735-10 notify the person of the examination results not later than the
735-11 14th day after the date the department receives the results from
735-12 the testing service.
735-13 (b) If notice of the results of an examination graded or
735-14 reviewed by a testing service will be delayed for more than 90 days
735-15 after the examination date, the department shall notify the person
735-16 of the reason for the delay before the 90th day.
735-17 (c) The department may require a testing service to notify a
735-18 person of the person's examination results.
735-19 (d) If requested in writing by a person who fails an
735-20 examination, the department shall provide to the person an analysis
735-21 of the person's performance on the examination. (V.A.C.S.
735-22 Art. 9029, Sec. 3A.)
735-23 Sec. 1955.055. CERTIFICATION OR ACCREDITATION EXPIRATION.
735-24 (a) The board by rule may adopt a system under which
735-25 certifications or accreditations expire on various dates during the
735-26 year. For the year in which the expiration date is changed, the
735-27 department shall prorate certification or accreditation fees on a
736-1 monthly basis so that each certified or accredited person pays only
736-2 that portion of the certification or accreditation fee that is
736-3 allocable to the number of months during which the certification or
736-4 accreditation is valid. On renewal of the certification or
736-5 accreditation on the new expiration date, the total certification
736-6 or accreditation renewal fee is payable.
736-7 (b) A person whose certification or accreditation has
736-8 expired may not engage in activities that require certification or
736-9 accreditation until the certification or accreditation has been
736-10 renewed. (V.A.C.S. Art. 9029, Secs. 6A, 6B(a) (part).)
736-11 Sec. 1955.056. NOTICE OF EXPIRATION. Not later than the 30th
736-12 day before the expiration date of a person's certification or
736-13 accreditation, the department shall send written notice of the
736-14 impending expiration to the person at the person's last known
736-15 address according to department records. (V.A.C.S. Art. 9029, Sec.
736-16 6B(f).)
736-17 Sec. 1955.057. CERTIFICATION OR ACCREDITATION RENEWAL. (a)
736-18 A person who is otherwise eligible to renew a certification or
736-19 accreditation may renew an unexpired certification or accreditation
736-20 by paying the required renewal fee to the department before the
736-21 expiration date of the certification or accreditation.
736-22 (b) A person whose certification or accreditation has been
736-23 expired for 90 days or less may renew the certification or
736-24 accreditation by paying to the department a renewal fee that is
736-25 equal to 1-1/2 times the normally required renewal fee.
736-26 (c) A person whose certification or accreditation has been
736-27 expired for more than 90 days but less than one year may renew the
737-1 certification or accreditation by paying to the department a
737-2 renewal fee that is equal to two times the normally required
737-3 renewal fee.
737-4 (d) A person whose certification or accreditation has been
737-5 expired for one year or more may not renew the certification or
737-6 accreditation. The person may be recertified or reaccredited by
737-7 complying with the requirements and procedures, including any
737-8 examination requirements, for obtaining an original certification
737-9 or accreditation. (V.A.C.S. Art. 9029, Secs. 6B(a) (part), (b),
737-10 (c), (d).)
737-11 Sec. 1955.058. RENEWAL BY OUT-OF-STATE PRACTITIONER. (a)
737-12 The department may renew without reexamination an expired
737-13 certification or accreditation of a person who was certified or
737-14 accredited in this state, moved to another state, and is currently
737-15 certified or accredited and has been in practice in the other state
737-16 for the two years preceding the date the person applies for
737-17 renewal.
737-18 (b) The person must pay to the department a fee that is
737-19 equal to two times the normally required renewal fee. (V.A.C.S.
737-20 Art. 9029, Sec. 6B(e).)
737-21 (Sections 1955.059-1955.100 reserved for expansion)
737-22 SUBCHAPTER C. PENALTIES AND ENFORCEMENT PROVISIONS
737-23 Sec. 1955.101. DISCIPLINARY ACTION BY DEPARTMENT. The
737-24 department shall revoke, suspend, or refuse to renew a
737-25 certification or accreditation or shall reprimand a certified or
737-26 accredited person for a violation of this chapter or a board rule.
737-27 (V.A.C.S. Art. 9029, Sec. 6C(a).)
738-1 Sec. 1955.102. PROBATION. (a) The board may place on
738-2 probation a person whose certification or accreditation is
738-3 suspended.
738-4 (b) The board may require a person whose certification or
738-5 accreditation suspension is probated to:
738-6 (1) report regularly to the department on matters that
738-7 are the basis of the probation;
738-8 (2) limit practice to the areas prescribed by the
738-9 board; or
738-10 (3) continue or review professional education until
738-11 the person attains a degree of skill satisfactory to the board in
738-12 those areas that are the basis of the probation. (V.A.C.S.
738-13 Art. 9029, Sec. 6C(b).)
738-14 Sec. 1955.103. ADMINISTRATIVE PENALTY. (a) The department
738-15 may impose an administrative penalty on a person who violates this
738-16 chapter or a rule adopted under this chapter. The amount of the
738-17 penalty may not exceed $5,000 for each day of the violation.
738-18 (b) The board shall adopt rules relating to the imposition
738-19 and collection of an administrative penalty. (V.A.C.S. Art. 9029,
738-20 Sec. 6.)
738-21 Sec. 1955.104. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) If it
738-22 appears that a person has violated, is violating, or is threatening
738-23 to violate this chapter or a rule adopted or certification issued
738-24 under this chapter, the state may bring an action in the manner
738-25 prescribed by Section 7.105(a), Water Code, for injunctive relief,
738-26 to recover a civil penalty, or for both injunctive relief and a
738-27 civil penalty.
739-1 (b) Venue for an action brought under this section is in the
739-2 county prescribed by Section 7.105(c), Water Code.
739-3 (c) The amount of a civil penalty imposed under this section
739-4 may not exceed:
739-5 (1) $2,000 for the first violation; or
739-6 (2) $10,000 for a subsequent violation. (V.A.C.S.
739-7 Art. 9029, Sec. 4.)
739-8 Sec. 1955.105. CRIMINAL PENALTY. (a) A person commits an
739-9 offense if:
739-10 (1) the person knowingly violates this chapter or a
739-11 rule adopted or certification issued under this chapter; and
739-12 (2) the violation endangers the public health and
739-13 safety.
739-14 (b) An offense under this section is a misdemeanor
739-15 punishable by:
739-16 (1) a fine not to exceed $10,000;
739-17 (2) confinement for a term not to exceed six months;
739-18 or
739-19 (3) both the fine and the confinement. (V.A.C.S.
739-20 Art. 9029, Secs. 5(a), (b).)
739-21 CHAPTER 1956. SALES TO METAL DEALERS AND
739-22 METAL RECYCLING ENTITIES
739-23 SUBCHAPTER A. SALE OF ALUMINUM, BRONZE, OR COPPER OR BRASS
739-24 MATERIAL TO SECONDHAND METAL DEALERS
739-25 Sec. 1956.001. DEFINITIONS
739-26 Sec. 1956.002. EXCEPTION
739-27 Sec. 1956.003. NOTICE TO SELLERS
740-1 Sec. 1956.004. INFORMATION PROVIDED BY SELLER
740-2 Sec. 1956.005. RECORD OF PURCHASE
740-3 Sec. 1956.006. PRESERVATION OF RECORDS
740-4 Sec. 1956.007. INSPECTION OF RECORDS BY PEACE OFFICER
740-5 Sec. 1956.008. FURNISHING OF REPORT TO DEPARTMENT
740-6 Sec. 1956.009. PLACEMENT OF ITEMS ON HOLD
740-7 Sec. 1956.010. PROHIBITED ACTS
740-8 Sec. 1956.011. CRIMINAL PENALTY
740-9 (Sections 1956.012-1956.050 reserved for expansion)
740-10 SUBCHAPTER B. SALE OF CRAFTED PRECIOUS METAL TO DEALERS
740-11 Sec. 1956.051. DEFINITIONS
740-12 Sec. 1956.052. APPLICABILITY OF SUBCHAPTER
740-13 Sec. 1956.053. EXCEPTION: PRECIOUS METAL EXTRACTED,
740-14 RECOVERED, OR SALVAGED FROM INDUSTRIAL
740-15 BY-PRODUCTS OR INDUSTRIAL WASTE PRODUCTS
740-16 Sec. 1956.054. EXCEPTION: DENTAL, PHARMACEUTICAL, OR
740-17 MEDICAL APPLICATION OF CRAFTED PRECIOUS
740-18 METAL
740-19 Sec. 1956.055. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
740-20 FROM ANOTHER DEALER WHO PREVIOUSLY MADE
740-21 REQUIRED REPORTS
740-22 Sec. 1956.056. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
740-23 IN DISSOLUTION OR LIQUIDATION SALE
740-24 Sec. 1956.057. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
740-25 IN JUDICIAL SALE
740-26 Sec. 1956.058. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
740-27 AS PAYMENT FOR OTHER CRAFTED PRECIOUS METAL
741-1 BY PERSON IN BUSINESS OF SELLING TO
741-2 CONSUMERS
741-3 Sec. 1956.059. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
741-4 FROM OR REPORTED TO GOVERNMENTAL AGENCY
741-5 Sec. 1956.060. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED BY
741-6 PERSON LICENSED UNDER TEXAS PAWNSHOP ACT
741-7 Sec. 1956.061. EFFECT ON OTHER LAWS AND ORDINANCES
741-8 Sec. 1956.062. REPORT OF PURCHASE REQUIRED
741-9 Sec. 1956.063. FORM OF REPORT; FILING
741-10 Sec. 1956.064. REQUIRED RETENTION OF CRAFTED PRECIOUS
741-11 METAL
741-12 Sec. 1956.065. INSPECTION OF CRAFTED PRECIOUS METAL BY PEACE
741-13 OFFICER
741-14 Sec. 1956.066. PURCHASE FROM MINOR
741-15 Sec. 1956.067. PURCHASE AT TEMPORARY LOCATION OF DEALER
741-16 Sec. 1956.068. PURCHASE OF MELTED ITEMS
741-17 Sec. 1956.069. CRIMINAL PENALTY
741-18 (Sections 1956.070-1956.100 reserved for expansion)
741-19 SUBCHAPTER C. SALE OF CERTAIN ITEMS TO METAL RECYCLING
741-20 ENTITIES
741-21 Sec. 1956.101. DEFINITIONS
741-22 Sec. 1956.102. EXCEPTION
741-23 Sec. 1956.103. RESTRICTIONS ON TRANSFER OF CERTAIN
741-24 PROPERTY
741-25 Sec. 1956.104. NOTICE OF RESTRICTIONS
741-26 Sec. 1956.105. CRIMINAL PENALTY
741-27 CHAPTER 1956. SALES TO METAL DEALERS AND METAL
742-1 RECYCLING ENTITIES
742-2 SUBCHAPTER A. SALE OF ALUMINUM, BRONZE, OR COPPER OR BRASS
742-3 MATERIAL TO SECONDHAND METAL DEALERS
742-4 Sec. 1956.001. DEFINITIONS. In this subchapter:
742-5 (1) "Aluminum material" means a product made from
742-6 aluminum, an aluminum alloy, or an aluminum by-product. The term
742-7 includes an aluminum beer keg but does not include another type of
742-8 aluminum can used to contain a food or beverage.
742-9 (2) "Bronze material" means:
742-10 (A) a cemetery vase, receptacle, or memorial
742-11 made from bronze;
742-12 (B) bronze statuary; or
742-13 (C) material readily identifiable as bronze.
742-14 (3) "Copper or brass material" means:
742-15 (A) insulated or noninsulated copper wire or
742-16 cable of the type used by a public utility or common carrier that
742-17 consists of at least 50 percent copper; or
742-18 (B) a copper or brass item of a type commonly
742-19 used in construction or by a public utility.
742-20 (4) "Department" means the Texas Department of Public
742-21 Safety.
742-22 (5) "Personal identification document" means:
742-23 (A) a driver's license;
742-24 (B) a military identification card;
742-25 (C) a passport issued by the United States or by
742-26 another country and recognized by the United States; or
742-27 (D) a personal identification certificate issued
743-1 by the department under Section 521.101, Transportation Code, or a
743-2 corresponding card or certificate issued by another state.
743-3 (6) "Regulated material" means:
743-4 (A) aluminum material;
743-5 (B) bronze material; or
743-6 (C) copper or brass material.
743-7 (7) "Secondhand metal dealer" means:
743-8 (A) an auto wrecker, a scrap metal processor, or
743-9 another person or organization that purchases, collects, or
743-10 solicits regulated material; or
743-11 (B) a person who operates or maintains a scrap
743-12 metal yard or other place in which scrap metal or cast-off
743-13 regulated material is collected or kept for shipment, sale, or
743-14 transfer. (V.A.C.S. Art. 9009, Sec. 1; New.)
743-15 Sec. 1956.002. EXCEPTION. This subchapter does not apply to
743-16 a purchase of regulated material from a manufacturing, industrial,
743-17 or other commercial vendor that sells regulated material in the
743-18 ordinary course of the vendor's business. (V.A.C.S. Art. 9009,
743-19 Sec. 8.)
743-20 Sec. 1956.003. NOTICE TO SELLERS. (a) A secondhand metal
743-21 dealer shall at all times maintain in a prominent place in the
743-22 dealer's place of business, in open view to a seller of regulated
743-23 material, a notice in two-inch lettering that:
743-24 (1) includes the following language:
743-25 "A PERSON ATTEMPTING TO SELL ANY REGULATED MATERIAL MUST PRESENT
743-26 SUFFICIENT IDENTIFICATION REQUIRED BY STATE LAW."
743-27 "WARNING: STATE LAW PROVIDES A CRIMINAL PENALTY FOR A PERSON WHO
744-1 INTENTIONALLY PROVIDES A FALSE DOCUMENT OF IDENTIFICATION OR OTHER
744-2 FALSE INFORMATION TO A SECONDHAND METAL DEALER WHILE ATTEMPTING TO
744-3 SELL ANY REGULATED MATERIAL.";
744-4 and
744-5 (2) states the secondhand metal dealer's usual
744-6 business hours.
744-7 (b) The notice required by this section may be contained on
744-8 a sign that contains another notice if the secondhand metal dealer
744-9 is required to display another notice under applicable law.
744-10 (V.A.C.S. Art. 9009, Sec. 6.)
744-11 Sec. 1956.004. INFORMATION PROVIDED BY SELLER. (a) A
744-12 person attempting to sell regulated material to a secondhand metal
744-13 dealer shall:
744-14 (1) display to the secondhand metal dealer the
744-15 person's personal identification document or sign a statement that
744-16 the person does not possess such a document; and
744-17 (2) sign a written statement provided by the
744-18 secondhand metal dealer that the person is the legal owner of or is
744-19 lawfully entitled to sell the regulated material offered for sale.
744-20 (b) A person required by a municipality to prepare a signed
744-21 statement consisting of the information required by Subsection
744-22 (a)(1) or (2) may use the statement required by the municipality to
744-23 comply with Subsection (a)(1) or (2).
744-24 (c) The secondhand metal dealer or the dealer's agent shall
744-25 visually verify the accuracy of the identification presented by the
744-26 seller at the time of the purchase of regulated material.
744-27 (V.A.C.S. Art. 9009, Secs. 2(c), (d), (e).)
745-1 Sec. 1956.005. RECORD OF PURCHASE. (a) A secondhand metal
745-2 dealer in this state shall keep an accurate and legible written
745-3 record of each purchase made in the course of the dealer's business
745-4 from an individual of:
745-5 (1) copper or brass material in excess of 50 pounds;
745-6 (2) bronze material; or
745-7 (3) aluminum material in excess of 40 pounds.
745-8 (b) The record must be in English and include:
745-9 (1) the place and date of the purchase;
745-10 (2) the name and address of each individual from whom
745-11 the regulated material is purchased or obtained;
745-12 (3) the identifying number of the seller's personal
745-13 identification document;
745-14 (4) a description made in accordance with the custom
745-15 of the trade of the type and quantity of regulated material
745-16 purchased; and
745-17 (5) the statement required by Section 1956.004(a)(2).
745-18 (V.A.C.S. Art. 9009, Secs. 2(a), (b).)
745-19 Sec. 1956.006. PRESERVATION OF RECORDS. A secondhand metal
745-20 dealer shall preserve each record required by Section 1956.005
745-21 until the third anniversary of the date the record was made.
745-22 (V.A.C.S. Art. 9009, Sec. 3.)
745-23 Sec. 1956.007. INSPECTION OF RECORDS BY PEACE OFFICER. (a)
745-24 On request, a secondhand metal dealer shall permit a peace officer
745-25 of this state to inspect, during the dealer's usual business hours:
745-26 (1) a record required by Section 1956.005; or
745-27 (2) regulated material in the dealer's possession.
746-1 (b) The inspecting officer shall inform the dealer of the
746-2 officer's status as a peace officer. (V.A.C.S. Art. 9009, Sec.
746-3 4(a).)
746-4 Sec. 1956.008. FURNISHING OF REPORT TO DEPARTMENT. (a)
746-5 Except as provided by Subsection (b), not later than the seventh
746-6 day after the date of the purchase or other acquisition of material
746-7 for which a record is required under Section 1956.005, a secondhand
746-8 metal dealer shall mail to or file with the department a report
746-9 containing the information required to be recorded under that
746-10 section.
746-11 (b) If a secondhand metal dealer purchases bronze material
746-12 that is a cemetery vase, receptacle, memorial, or statuary or a
746-13 pipe that can reasonably be identified as aluminum irrigation pipe,
746-14 the dealer shall:
746-15 (1) not later than the close of business on the
746-16 dealer's first working day after the purchase date, orally notify
746-17 the department; and
746-18 (2) not later than the fifth day after the purchase
746-19 date, mail to or file with the department a report containing the
746-20 information required to be recorded under Section 1956.005.
746-21 (c) Subsection (b) does not apply to a purchase from:
746-22 (1) the manufacturer or fabricator of the material or
746-23 pipe;
746-24 (2) a seller bearing a bill of sale for the material
746-25 or pipe; or
746-26 (3) the owner of the material or pipe. (V.A.C.S.
746-27 Art. 9009, Secs. 4(b), (c).)
747-1 Sec. 1956.009. PLACEMENT OF ITEMS ON HOLD. (a) A peace
747-2 officer who has reasonable suspicion to believe that an item of
747-3 regulated material in the possession of a secondhand metal dealer
747-4 is stolen may place the item on hold by issuing to the dealer a
747-5 written notice that:
747-6 (1) specifically identifies the item alleged to be
747-7 stolen and subject to the hold; and
747-8 (2) informs the dealer of the requirements of
747-9 Subsection (b).
747-10 (b) On receiving the notice, the dealer may not process or
747-11 remove from the dealer's premises the identified item before the
747-12 11th day after the date the notice is issued unless the hold is
747-13 released at an earlier time in writing by a peace officer of this
747-14 state or a court order.
747-15 (c) After the holding period expires, the dealer may dispose
747-16 of the item unless disposition violates a court order. (V.A.C.S.
747-17 Art. 9009, Sec. 5.)
747-18 Sec. 1956.010. PROHIBITED ACTS. A person may not, with the
747-19 intent to deceive:
747-20 (1) display to a secondhand metal dealer a false or
747-21 invalid personal identification document in connection with the
747-22 person's attempted sale of regulated material; or
747-23 (2) make a false, material statement or representation
747-24 to a secondhand metal dealer in connection with:
747-25 (A) that person's execution of a written
747-26 statement required by Section 1956.004(a)(1) or (2); or
747-27 (B) the dealer's efforts to obtain the
748-1 information required under Section 1956.005(b). (V.A.C.S.
748-2 Art. 9009, Sec. 2(f).)
748-3 Sec. 1956.011. CRIMINAL PENALTY. (a) A person commits an
748-4 offense if the person knowingly violates this subchapter.
748-5 (b) Except as provided by Subsection (c), an offense under
748-6 this section is a Class B misdemeanor.
748-7 (c) An offense under this section is a Class A misdemeanor
748-8 if the person has been convicted of a violation of this subchapter
748-9 within the 36 months preceding the date of the offense.
748-10 (d) On the conviction of a secondhand metal dealer for an
748-11 offense punishable under Subsection (c), a court, in addition to
748-12 imposing any other applicable penalty, may order that the dealer
748-13 cease doing business as a secondhand metal dealer for a period not
748-14 to exceed 30 days from the date of the order for each violation
748-15 that forms the basis of the conviction. (V.A.C.S. Art. 9009, Sec.
748-16 7.)
748-17 (Sections 1956.012-1956.050 reserved for expansion)
748-18 SUBCHAPTER B. SALE OF CRAFTED PRECIOUS METAL TO DEALERS
748-19 Sec. 1956.051. DEFINITIONS. In this subchapter:
748-20 (1) "Crafted precious metal" means jewelry,
748-21 silverware, an art object, or another object, other than a coin or
748-22 commemorative medallion, made in whole or in part from precious
748-23 metal.
748-24 (2) "Dealer" means a person who engages in the
748-25 business of purchasing and selling crafted precious metal.
748-26 (3) "Department" means the Texas Department of Public
748-27 Safety.
749-1 (4) "Precious metal" means gold, silver, platinum,
749-2 palladium, iridium, rhodium, osmium, ruthenium, or an alloy of
749-3 those metals. (V.A.C.S. Art. 9009a, Secs. 1(1), (2), (3); New.)
749-4 Sec. 1956.052. APPLICABILITY OF SUBCHAPTER. This subchapter
749-5 applies only to crafted precious metal that has been sold or used
749-6 primarily for personal, family, or household purposes. (V.A.C.S.
749-7 Art. 9009a, Sec. 10(a) (part).)
749-8 Sec. 1956.053. EXCEPTION: PRECIOUS METAL EXTRACTED,
749-9 RECOVERED, OR SALVAGED FROM INDUSTRIAL BY-PRODUCTS OR INDUSTRIAL
749-10 WASTE PRODUCTS. This subchapter does not apply to a person whose
749-11 purchase or sale of precious metal or a product made of precious
749-12 metal is merely incidental to the person's business of extracting,
749-13 recovering, or salvaging precious metal from industrial by-products
749-14 or industrial waste products. (V.A.C.S. Art. 9009a, Sec. 10(a)
749-15 (part).)
749-16 Sec. 1956.054. EXCEPTION: DENTAL, PHARMACEUTICAL, OR
749-17 MEDICAL APPLICATION OF CRAFTED PRECIOUS METAL. This subchapter does
749-18 not apply to a dental, pharmaceutical, or medical application of
749-19 crafted precious metal. (V.A.C.S. Art. 9009a, Sec. 10(a) (part).)
749-20 Sec. 1956.055. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
749-21 FROM ANOTHER DEALER WHO PREVIOUSLY MADE REQUIRED REPORTS. This
749-22 subchapter does not apply to crafted precious metal acquired in
749-23 good faith in a transaction involving the stock-in-trade of another
749-24 dealer who previously made the reports concerning that metal as
749-25 required by this subchapter if:
749-26 (1) the selling dealer delivers to the acquiring
749-27 dealer a written document stating that the reports have been made;
750-1 (2) the acquiring dealer submits a copy of the
750-2 statement to the chief of police of the municipality or the sheriff
750-3 of the county in which the selling dealer is located; and
750-4 (3) each dealer involved in the transaction retains a
750-5 copy of the statement until the third anniversary of the date of
750-6 the transaction. (V.A.C.S. Art. 9009a, Sec. 10(b) (part).)
750-7 Sec. 1956.056. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
750-8 IN DISSOLUTION OR LIQUIDATION SALE. This subchapter does not apply
750-9 to crafted precious metal acquired in a nonjudicial sale, transfer,
750-10 assignment, assignment for the benefit of creditors, or consignment
750-11 of the assets or stock-in-trade, in bulk, or a substantial part of
750-12 those assets, of an industrial or commercial enterprise, other than
750-13 a dealer, for the voluntary dissolution or liquidation of the
750-14 seller's business, or for disposing of an excessive quantity of
750-15 personal property, or property that has been acquired in a
750-16 nonjudicial sale or transfer from an owner other than a dealer, the
750-17 seller's entire household of personal property, or a substantial
750-18 part of that property, if the dealer:
750-19 (1) gives written notice to the chief of police of the
750-20 municipality or the sheriff of the county in which the dealer's
750-21 business is located that a reporting exemption is being claimed
750-22 under this section;
750-23 (2) retains in the dealer's place of business, until
750-24 the third anniversary of the date of the transaction, a copy of the
750-25 bill of sale, receipt, inventory list, or other transfer document;
750-26 and
750-27 (3) makes the record retained available for inspection
751-1 by a peace officer. (V.A.C.S. Art. 9009a, Sec. 10(b) (part).)
751-2 Sec. 1956.057. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
751-3 IN JUDICIAL SALE. This subchapter does not apply to crafted
751-4 precious metal acquired in a sale made:
751-5 (1) by any public officer in the officer's official
751-6 capacity as a trustee in bankruptcy, executor, administrator,
751-7 receiver, or public official acting under judicial process or
751-8 authority; or
751-9 (2) on the execution of, or by virtue of, any process
751-10 issued by a court. (V.A.C.S. Art. 9009a, Sec. 10(b) (part).)
751-11 Sec. 1956.058. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
751-12 AS PAYMENT FOR OTHER CRAFTED PRECIOUS METAL BY PERSON IN BUSINESS
751-13 OF SELLING TO CONSUMERS. This subchapter does not apply to crafted
751-14 precious metal acquired in good faith as part or complete payment
751-15 for other crafted precious metal by a person whose principal
751-16 business is primarily that of selling directly to the consumer
751-17 crafted precious metal that has not been subject to a prior sale.
751-18 (V.A.C.S. Art. 9009a, Sec. 10(b) (part).)
751-19 Sec. 1956.059. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
751-20 FROM OR REPORTED TO GOVERNMENTAL AGENCY. This subchapter does not
751-21 apply to crafted precious metal:
751-22 (1) acquired as surplus property from the United
751-23 States, a state, a subdivision of a state, or a municipal
751-24 corporation; or
751-25 (2) reported by a dealer as an acquisition or a
751-26 purchase, or reported as destroyed or otherwise disposed of, to:
751-27 (A) a state agency under another law of this
752-1 state; or
752-2 (B) a municipal or county office or agency under
752-3 another law of this state or a municipal ordinance. (V.A.C.S.
752-4 Art. 9009a, Sec. 10(b) (part).)
752-5 Sec. 1956.060. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
752-6 BY PERSON LICENSED UNDER TEXAS PAWNSHOP ACT. This subchapter does
752-7 not apply to crafted precious metal acquired by a person licensed
752-8 under Chapter 371, Finance Code. (V.A.C.S. Art. 9009a, Sec. 10(b)
752-9 (part).)
752-10 Sec. 1956.061. EFFECT ON OTHER LAWS AND ORDINANCES. This
752-11 subchapter does not:
752-12 (1) excuse noncompliance with another state law or
752-13 municipal ordinance covering the reporting, holding, or releasing
752-14 of crafted precious metal;
752-15 (2) prohibit a municipality from enacting, amending,
752-16 or enforcing an ordinance relating to a dealer; or
752-17 (3) supersede a municipal ordinance except to the
752-18 extent the ordinance does not require reporting for transactions
752-19 involving crafted precious metal. (V.A.C.S. Art. 9009a, Secs. 8,
752-20 9.)
752-21 Sec. 1956.062. REPORT OF PURCHASE REQUIRED. (a) A dealer
752-22 shall, as required by Section 1956.063, report all identifiable
752-23 crafted precious metal that the dealer purchases, takes in trade,
752-24 accepts for sale on consignment, or accepts for auction.
752-25 (b) Before crafted precious metal is offered for sale or
752-26 exchange, a dealer must notify each person intending to sell or
752-27 exchange the metal that, before the dealer may accept any of the
753-1 person's property, the person must file with the dealer a list
753-2 describing all of the person's crafted precious metal to be
753-3 accepted by the dealer. The list must contain:
753-4 (1) the proposed seller's name and address;
753-5 (2) a complete and accurate description of the crafted
753-6 precious metal; and
753-7 (3) the proposed seller's certification that the
753-8 information is true and complete.
753-9 (c) The dealer shall record the proposed seller's driver's
753-10 license number or department personal identification certificate
753-11 number on physical presentation of the license or personal
753-12 identification certificate by the seller. The record must
753-13 accompany the list.
753-14 (d) The dealer shall:
753-15 (1) provide to a peace officer, on demand, the list
753-16 required by Subsection (b); and
753-17 (2) mail or deliver a complete copy of the list to the
753-18 chief of police or the sheriff as provided by Section 1956.063 not
753-19 later than 48 hours after the list is filed with the dealer.
753-20 (V.A.C.S. Art. 9009a, Secs. 3(a), (b), (c).)
753-21 Sec. 1956.063. FORM OF REPORT; FILING. (a) A report
753-22 required by this subchapter must comply with this section unless a
753-23 similar report is required by another state law or a municipal
753-24 ordinance, in which event the required report must comply with the
753-25 applicable law or ordinance.
753-26 (b) If a transaction regulated by this subchapter occurs in
753-27 a municipality that maintains a police department, the original and
754-1 a copy of the report required by this subchapter shall be submitted
754-2 to the municipality's chief of police. If the transaction does not
754-3 occur in such a municipality, the original and a copy of the report
754-4 shall be submitted to the sheriff of the county in which the
754-5 transaction occurs.
754-6 (c) The dealer shall submit the report on a form prescribed
754-7 by the district attorney or person performing the duties of
754-8 district attorney of the county in which the transaction occurs.
754-9 (d) The dealer shall retain a copy of the report until the
754-10 third anniversary of the date the report is filed. (V.A.C.S.
754-11 Art. 9009a, Secs. 4(a), (b), (c), (d).)
754-12 Sec. 1956.064. REQUIRED RETENTION OF CRAFTED PRECIOUS METAL.
754-13 (a) A dealer may not melt, deface, alter, or dispose of crafted
754-14 precious metal that is the subject of a report required by this
754-15 subchapter before the 11th day after the date the report is filed
754-16 unless:
754-17 (1) the peace officer to whom the report is submitted,
754-18 for good cause, authorizes disposition of the metal;
754-19 (2) the dealer obtains the name, address, and
754-20 description of the buyer and retains a record of that information;
754-21 or
754-22 (3) the dealer is a pawnbroker and the disposition is
754-23 the redemption of pledged property by the pledgor.
754-24 (b) A dealer who retains information under Subsection (a)(2)
754-25 shall make that information available for inspection by any peace
754-26 officer. (V.A.C.S. Art. 9009a, Sec. 4A(a).)
754-27 Sec. 1956.065. INSPECTION OF CRAFTED PRECIOUS METAL BY PEACE
755-1 OFFICER. (a) A dealer shall make crafted precious metal purchased
755-2 by the dealer available for inspection by a peace officer during
755-3 regular business hours while in the dealer's possession.
755-4 (b) Information obtained under this section is confidential
755-5 except for use in a criminal investigation or prosecution or a
755-6 civil court proceeding. (V.A.C.S. Art. 9009a, Sec. 5.)
755-7 Sec. 1956.066. PURCHASE FROM MINOR. (a) A dealer may not
755-8 purchase crafted precious metal from a person younger than 18 years
755-9 of age unless the seller delivers to the dealer before the purchase
755-10 a written statement from the seller's parent or legal guardian
755-11 consenting to the transaction.
755-12 (b) The dealer shall retain the statement with the records
755-13 required to be kept under this subchapter. The dealer may destroy
755-14 the statement after the later of:
755-15 (1) the date the item is sold; or
755-16 (2) the first anniversary of the date the dealer
755-17 purchased the item. (V.A.C.S. Art. 9009a, Sec. 2(a).)
755-18 Sec. 1956.067. PURCHASE AT TEMPORARY LOCATION OF DEALER.
755-19 (a) A dealer who conducts business at a temporary location for a
755-20 period of less than 90 days may not engage in the business of
755-21 buying precious metal or used items made of precious metal unless,
755-22 within a 12-month period at least 30 days before the date on which
755-23 each purchase is made, the person has filed:
755-24 (1) a registration statement with the department; and
755-25 (2) a copy of the registration statement with the
755-26 local law enforcement agency of:
755-27 (A) the municipality in which the temporary
756-1 location is located; or
756-2 (B) if the temporary location is not located in
756-3 a municipality, the county in which the temporary location is
756-4 located.
756-5 (b) The registration statement must contain:
756-6 (1) the name and address of the dealer;
756-7 (2) the location where business is to be conducted;
756-8 (3) if the dealer is an association, the name and
756-9 address of each member of the association;
756-10 (4) if the dealer is a corporation, the name and
756-11 address of each officer and director of the corporation; and
756-12 (5) other relevant information required by the
756-13 department. (V.A.C.S. Art. 9009a, Secs. 1(5), 6(a), (b).)
756-14 Sec. 1956.068. PURCHASE OF MELTED ITEMS. A dealer, in the
756-15 course of business, may not purchase from a person other than a
756-16 manufacturer of or a regular dealer in crafted precious metal an
756-17 object formed as the result of the melting of crafted precious
756-18 metal. (V.A.C.S. Art. 9009a, Sec. 7(a).)
756-19 Sec. 1956.069. CRIMINAL PENALTY. (a) A dealer commits an
756-20 offense if the dealer:
756-21 (1) fails to make or permit inspection of a report as
756-22 required by Section 1956.062 or 1956.063;
756-23 (2) disposes of crafted precious metal or fails to
756-24 make a record available for inspection by a peace officer as
756-25 required by Section 1956.064;
756-26 (3) fails to obtain or retain a statement as required
756-27 by Section 1956.066;
757-1 (4) fails to file a registration statement as required
757-2 by Section 1956.067; or
757-3 (5) purchases an object in violation of Section
757-4 1956.068.
757-5 (b) An offense under this section is a Class B misdemeanor.
757-6 (V.A.C.S. Art. 9009a, Secs. 2(b), 3(d), 4(e), 4A(b), 6(c), 7(b).)
757-7 (Sections 1956.070-1956.100 reserved for expansion)
757-8 SUBCHAPTER C. SALE OF CERTAIN ITEMS TO METAL RECYCLING
757-9 ENTITIES
757-10 Sec. 1956.101. DEFINITIONS. In this subchapter:
757-11 (1) "Metal recycling entity" means a business that is
757-12 predominantly engaged in:
757-13 (A) performing the manufacturing process by
757-14 which scrap, used, or obsolete ferrous or nonferrous metal is
757-15 converted into raw material products consisting of prepared grades
757-16 and having an existing or potential economic value, by a method
757-17 other than the exclusive use of hand tools, including processing,
757-18 sorting, cutting, classifying, cleaning, baling, wrapping,
757-19 shredding, shearing, or changing the physical form of that metal;
757-20 or
757-21 (B) the use of those raw material products in
757-22 the manufacture of producer or consumer goods.
757-23 (2) "Motor vehicle" has the meaning assigned by
757-24 Section 541.201, Transportation Code.
757-25 (3) "PCB-containing capacitor" means a capacitor that
757-26 contains polychlorinated biphenyls and is regulated under the
757-27 federal Toxic Substances Control Act (15 U.S.C. Section 2601 et
758-1 seq.).
758-2 (4) "Person" means an individual, corporation,
758-3 partnership, sole proprietorship, or other business entity.
758-4 (V.A.C.S. Art. 9009b, Sec. 1.)
758-5 Sec. 1956.102. EXCEPTION. This subchapter does not apply to
758-6 a sale or transfer by or on behalf of a metal recycling entity.
758-7 (V.A.C.S. Art. 9009b, Sec. 3 (part).)
758-8 Sec. 1956.103. RESTRICTIONS ON TRANSFER OF CERTAIN PROPERTY.
758-9 (a) A person may not sell or otherwise transfer to a metal
758-10 recycling entity:
758-11 (1) a lead-acid battery, fuel tank, or PCB-containing
758-12 capacitor that is included with another type of scrap, used, or
758-13 obsolete metal without first obtaining from the metal recycling
758-14 entity a written and signed acknowledgment that the scrap, used, or
758-15 obsolete metal includes one or more lead-acid batteries, fuel
758-16 tanks, or PCB-containing capacitors;
758-17 (2) any of the following items that contain or enclose
758-18 a lead-acid battery, fuel tank, or PCB-containing capacitor or of
758-19 which a lead-acid battery, fuel tank, or PCB-containing capacitor
758-20 is a part:
758-21 (A) a motor vehicle;
758-22 (B) a motor vehicle that has been junked,
758-23 flattened, dismantled, or changed so that it has lost its character
758-24 as a motor vehicle;
758-25 (C) an appliance; or
758-26 (D) any other item of scrap, used, or obsolete
758-27 metal; or
759-1 (3) a motor vehicle or a motor vehicle that has been
759-2 junked, flattened, dismantled, or changed so that it has lost its
759-3 character as a motor vehicle if the motor vehicle includes,
759-4 contains, or encloses a tire or scrap tire.
759-5 (b) Subsection (a)(3) does not apply to the sale or other
759-6 transfer of a motor vehicle or a junked, flattened, dismantled, or
759-7 changed motor vehicle from another state. (V.A.C.S. Art. 9009b,
759-8 Sec. 2.)
759-9 Sec. 1956.104. NOTICE OF RESTRICTIONS. A metal recycling
759-10 entity shall post in a conspicuous location a notice that:
759-11 (1) is readily visible to a person selling material to
759-12 the metal recycling entity;
759-13 (2) is at least 24 inches horizontally by 18 inches
759-14 vertically; and
759-15 (3) contains the following language:
759-16 TEXAS LAW PROHIBITS:
759-17 1. THE SALE OF A WHOLE, FLATTENED, OR JUNKED MOTOR VEHICLE,
759-18 AN APPLIANCE, OR ANY OTHER SCRAP METAL ITEM CONTAINING A LEAD-ACID
759-19 BATTERY, FUEL TANK, OR PCB-CONTAINING CAPACITOR; AND
759-20 2. THE SALE OF LEAD-ACID BATTERIES, FUEL TANKS, OR
759-21 PCB-CONTAINING CAPACITORS INCLUDED WITH OTHER SCRAP METALS WITHOUT
759-22 OUR PRIOR WRITTEN ACKNOWLEDGMENT.
759-23 VIOLATION OF THIS LAW IS A MISDEMEANOR.
759-24 (V.A.C.S. Art. 9009b, Sec. 4.)
759-25 Sec. 1956.105. CRIMINAL PENALTY. (a) A person commits an
759-26 offense if the person violates this subchapter.
759-27 (b) An offense under this section is a misdemeanor
760-1 punishable by:
760-2 (1) a fine of not more than $1,000;
760-3 (2) confinement in the county jail for not more than
760-4 60 days; or
760-5 (3) both the fine and the confinement. (V.A.C.S.
760-6 Art. 9009b, Sec. 5.)
760-7 CHAPTER 1957. INDUSTRIAL HYGIENISTS
760-8 Sec. 1957.001. SHORT TITLE
760-9 Sec. 1957.002. INDUSTRIAL HYGIENE CERTIFICATION ORGANIZATION
760-10 Sec. 1957.003. CERTIFICATION REQUIRED
760-11 Sec. 1957.004. CIVIL PENALTY
760-12 CHAPTER 1957. INDUSTRIAL HYGIENISTS
760-13 Sec. 1957.001. SHORT TITLE. This chapter may be cited as
760-14 the Industrial Hygiene Title Recognition Act. (V.A.C.S. Art. 9034,
760-15 Sec. 1, as added Acts 76th Leg., R.S., Ch. 981.)
760-16 Sec. 1957.002. INDUSTRIAL HYGIENE CERTIFICATION
760-17 ORGANIZATION. (a) In this chapter, "industrial hygiene
760-18 certification organization" means a nonprofit corporation
760-19 established to improve the practice and educational standards of
760-20 the profession of industrial hygiene by certifying individuals who
760-21 meet its education, experience, and examination requirements.
760-22 (b) The organization must maintain criteria at least as
760-23 stringent as those adopted by the American Board of Industrial
760-24 Hygiene. (V.A.C.S. Art. 9034, Sec. 3(3), as added Acts 76th Leg.,
760-25 R.S., Ch. 981.)
760-26 Sec. 1957.003. CERTIFICATION REQUIRED. (a) A person may
760-27 not use the title of or represent to the public that the person is
761-1 a "certified industrial hygienist" or use the initials "CIH" unless
761-2 the person is certified by the American Board of Industrial Hygiene
761-3 as a certified industrial hygienist.
761-4 (b) A person may not use the title of or represent to the
761-5 public that the person is an "industrial hygienist in training" or
761-6 use the initials "IHIT" unless the person is certified by the
761-7 American Board of Industrial Hygiene as an industrial hygienist in
761-8 training. (V.A.C.S. Art. 9034, Secs. 3(2), (4), 4, as added Acts
761-9 76th Leg., R.S., Ch. 981.)
761-10 Sec. 1957.004. CIVIL PENALTY. (a) A person who violates
761-11 Section 1957.003 is subject to a civil penalty of not more than
761-12 $1,000 for each violation.
761-13 (b) The attorney general may bring an action to recover the
761-14 civil penalty.
761-15 (c) A penalty recovered under this section shall be
761-16 deposited to the credit of the general revenue fund. (V.A.C.S.
761-17 Art. 9034, Sec. 5, as added Acts 76th Leg., R.S., Ch. 981.)
761-18 SECTION 5. ADOPTION OF MOTOR VEHICLES AND TRANSPORTATION
761-19 TITLE. The Occupations Code is amended by adding Title 14 to read
761-20 as follows:
761-21 TITLE 14. REGULATION OF MOTOR VEHICLES AND TRANSPORTATION
761-22 SUBTITLE A. REGULATIONS RELATED TO MOTOR VEHICLES
761-23 CHAPTER 2301. SALE OR LEASE OF MOTOR VEHICLES
761-24 CHAPTER 2302. SALVAGE VEHICLE DEALERS
761-25 CHAPTER 2303. VEHICLE STORAGE FACILITIES
761-26 CHAPTER 2304. NONMECHANICAL REPAIRS TO MOTOR VEHICLES
761-27 CHAPTER 2305. RECORDS OF CERTAIN VEHICLE REPAIRS,
762-1 SALES, AND PURCHASES
762-2 (Chapters 2306-2350 reserved for expansion)
762-3 SUBTITLE B. REGULATIONS RELATED TO VESSELS
762-4 CHAPTER 2351. STEVEDORES
762-5 CHAPTER 2352. BOAT MANUFACTURERS, DISTRIBUTORS, AND DEALERS
762-6 (Chapters 2353-2400 reserved for expansion)
762-7 SUBTITLE C. REGULATION OF TRANSPORTATION SERVICES
762-8 CHAPTER 2401. TRANSPORTATION SERVICE PROVIDERS
762-9 TITLE 14. REGULATION OF MOTOR VEHICLES AND TRANSPORTATION
762-10 SUBTITLE A. REGULATIONS RELATED TO MOTOR VEHICLES
762-11 CHAPTER 2301. SALE OR LEASE OF MOTOR VEHICLES
762-12 SUBCHAPTER A. GENERAL PROVISIONS
762-13 Sec. 2301.001. CONSTRUCTION; PURPOSE
762-14 Sec. 2301.002. DEFINITIONS
762-15 Sec. 2301.003. EFFECT ON AGREEMENTS
762-16 Sec. 2301.004. CHAPTER EXCLUSIVE
762-17 Sec. 2301.005. TITLE CHANGES
762-18 Sec. 2301.006. BROKERS PROHIBITED
762-19 Sec. 2301.007. TOWING VEHICLE BY LICENSE HOLDER
762-20 (Sections 2301.008-2301.050 reserved for expansion)
762-21 SUBCHAPTER B. MOTOR VEHICLE BOARD
762-22 Sec. 2301.051. BOARD MEMBERSHIP; BOARD AS INDEPENDENT
762-23 ENTITY
762-24 Sec. 2301.052. MEMBER ELIGIBILITY: AUTOMATIC VACANCY
762-25 Sec. 2301.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS
762-26 Sec. 2301.054. TERMS; VACANCY
762-27 Sec. 2301.055. FILING OF OATH
763-1 Sec. 2301.056. GROUNDS FOR REMOVAL
763-2 Sec. 2301.057. PER DIEM; REIMBURSEMENT
763-3 Sec. 2301.058. OFFICERS; MEETINGS
763-4 Sec. 2301.059. PROHIBITION ON VOTING
763-5 Sec. 2301.060. TRAINING
763-6 (Sections 2301.061-2301.100 reserved for expansion)
763-7 SUBCHAPTER C. DIRECTOR AND OTHER DIVISION PERSONNEL
763-8 Sec. 2301.101. DIRECTOR
763-9 Sec. 2301.102. POWERS AND DUTIES OF DIRECTOR
763-10 Sec. 2301.103. PERSONNEL
763-11 Sec. 2301.104. QUALIFICATIONS AND STANDARDS OF CONDUCT
763-12 Sec. 2301.105. CAREER LADDER PROGRAM; PERFORMANCE
763-13 EVALUATIONS
763-14 Sec. 2301.106. EQUAL OPPORTUNITY POLICY; REPORT
763-15 (Sections 2301.107-2301.150 reserved for expansion)
763-16 SUBCHAPTER D. BOARD POWERS AND DUTIES
763-17 Sec. 2301.151. GENERAL JURISDICTION OF BOARD
763-18 Sec. 2301.152. GENERAL DUTIES OF BOARD
763-19 Sec. 2301.153. GENERAL POWERS OF BOARD
763-20 Sec. 2301.154. DELEGATION OF POWERS
763-21 Sec. 2301.155. RULES
763-22 Sec. 2301.156. DEPOSIT OF REVENUE
763-23 Sec. 2301.157. IMMUNITY FROM LIABILITY
763-24 Sec. 2301.158. INTERACTION WITH TEXAS DEPARTMENT OF
763-25 TRANSPORTATION
763-26 Sec. 2301.159. SEAL
763-27 (Sections 2301.160-2301.200 reserved for expansion)
764-1 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
764-2 PROCEDURES
764-3 Sec. 2301.201. PUBLIC INTEREST INFORMATION
764-4 Sec. 2301.202. COMPLAINTS; RECORDS
764-5 Sec. 2301.203. COMPLAINT INVESTIGATION AND DISPOSITION
764-6 Sec. 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT
764-7 Sec. 2301.205. NOTICE OF COMPLAINT PROCEDURE
764-8 Sec. 2301.206. PUBLIC PARTICIPATION
764-9 (Sections 2301.207-2301.250 reserved for expansion)
764-10 SUBCHAPTER F. LICENSE REQUIREMENTS
764-11 Sec. 2301.251. LICENSE REQUIRED: GENERALLY
764-12 Sec. 2301.252. LICENSE REQUIRED: SALE OF NEW MOTOR
764-13 VEHICLES
764-14 Sec. 2301.253. LICENSE REQUIRED: VEHICLE LEASE
764-15 FACILITATORS
764-16 Sec. 2301.254. LICENSE NOT REQUIRED FOR CERTAIN VEHICLE
764-17 LESSORS OR VEHICLE LEASE FACILITATORS
764-18 Sec. 2301.255. NONFRANCHISED DEALERS; GENERAL DISTINGUISHING
764-19 NUMBER
764-20 Sec. 2301.256. REVIEW OF NEW APPLICATIONS
764-21 Sec. 2301.257. APPLICATION FOR DEALER'S LICENSE
764-22 Sec. 2301.258. GENERAL REQUIREMENTS FOR APPLICATION FOR
764-23 MANUFACTURER'S, DISTRIBUTOR'S, CONVERTER'S,
764-24 OR REPRESENTATIVE'S LICENSE
764-25 Sec. 2301.259. APPLICATION FOR MANUFACTURER'S LICENSE
764-26 Sec. 2301.260. APPLICATION FOR DISTRIBUTOR'S LICENSE
764-27 Sec. 2301.261. APPLICATION FOR VEHICLE LESSOR'S LICENSE
765-1 Sec. 2301.262. APPLICATION FOR VEHICLE LEASE FACILITATOR
765-2 LICENSE
765-3 Sec. 2301.263. LICENSE ISSUED SUBJECT TO NEW LAW AND
765-4 RULES
765-5 Sec. 2301.264. LICENSE FEES
765-6 Sec. 2301.265. SERVICE OF PROCESS ON LICENSE HOLDER
765-7 (Sections 2301.266-2301.300 reserved for expansion)
765-8 SUBCHAPTER G. LICENSE EXPIRATION AND RENEWAL
765-9 Sec. 2301.301. ANNUAL RENEWAL REQUIRED
765-10 Sec. 2301.302. NOTICE OF LICENSE EXPIRATION
765-11 Sec. 2301.303. RENEWAL OF DEALER'S LICENSE
765-12 Sec. 2301.304. PROCEDURE FOR RENEWAL OF CERTAIN LICENSES
765-13 (Sections 2301.305-2301.350 reserved for expansion)
765-14 SUBCHAPTER H. DEALERS
765-15 Sec. 2301.351. GENERAL PROHIBITION
765-16 Sec. 2301.352. PROHIBITION: REQUIRING ADDITIONAL EQUIPMENT
765-17 AFTER RETAIL SALE
765-18 Sec. 2301.353. PROHIBITION: PERFORMANCE OF OBLIGATION UNDER
765-19 AGREEMENT WITH MANUFACTURER
765-20 Sec. 2301.354. USE OF SIGNS
765-21 Sec. 2301.355. USE OF MULTIPLE LOCATIONS
765-22 Sec. 2301.356. NOTICE OF CERTAIN PROPOSED CHANGES
765-23 Sec. 2301.357. PROHIBITED FEE
765-24 Sec. 2301.358. VEHICLE SHOW OR EXHIBITION
765-25 Sec. 2301.359. TRANSFER OF OWNERSHIP BY DEALER
765-26 Sec. 2301.360. REVIEW BY BOARD FOLLOWING DENIAL OF
765-27 TRANSFER
766-1 (Sections 2301.361-2301.400 reserved for expansion)
766-2 SUBCHAPTER I. WARRANTIES: REIMBURSEMENT OF DEALER
766-3 Sec. 2301.401. FILING REQUIREMENTS
766-4 Sec. 2301.402. RATE OF COMPENSATION
766-5 Sec. 2301.403. ADJUSTMENT OF WARRANTY LABOR RATE
766-6 Sec. 2301.404. TIME FOR PAYMENT
766-7 Sec. 2301.405. CHARGE BACK TO DEALER
766-8 Sec. 2301.406. PROHIBITED REQUIREMENTS FOR PAYMENT
766-9 (Sections 2301.407-2301.450 reserved for expansion)
766-10 SUBCHAPTER J. MANUFACTURERS, DISTRIBUTORS,
766-11 AND REPRESENTATIVES
766-12 Sec. 2301.451. PROHIBITION: ITEMS NOT ORDERED
766-13 Sec. 2301.452. DELIVERY OF MOTOR VEHICLE OR PART
766-14 Sec. 2301.453. TERMINATION OR DISCONTINUANCE OF FRANCHISE
766-15 Sec. 2301.454. MODIFICATION OR REPLACEMENT OF FRANCHISE
766-16 Sec. 2301.455. DETERMINATION OF GOOD CAUSE FOR TERMINATION,
766-17 DISCONTINUANCE, MODIFICATION, OR REPLACEMENT
766-18 Sec. 2301.456. USE OF ADVERTISING
766-19 Sec. 2301.457. PROHIBITION: CHANGE OF FRANCHISED DEALER'S
766-20 CAPITAL STRUCTURE
766-21 Sec. 2301.458. PROHIBITION: CHANGE IN DEALER OWNERSHIP
766-22 Sec. 2301.459. PROHIBITION: USE OF PROMISSORY NOTE, SECURITY
766-23 AGREEMENT, OR INSURANCE POLICY
766-24 Sec. 2301.460. WARRANTY, PREPARATION, OR DELIVERY
766-25 AGREEMENT OBLIGATIONS
766-26 Sec. 2301.461. LIABILITY OF FRANCHISED DEALER
766-27 Sec. 2301.462. SUCCESSION FOLLOWING DEATH OF FRANCHISED
767-1 DEALER
767-2 Sec. 2301.463. PROHIBITION: PAYMENT OF REBATE BY FRANCHISED
767-3 DEALER
767-4 Sec. 2301.464. RELOCATION OF FRANCHISE
767-5 Sec. 2301.465. PAYMENT TO FRANCHISED DEALER FOLLOWING
767-6 TERMINATION OF FRANCHISE
767-7 Sec. 2301.466. ARBITRATION
767-8 Sec. 2301.467. PROHIBITIONS: SALES STANDARDS, PURCHASE OF
767-9 EQUIPMENT
767-10 Sec. 2301.468. DISCRIMINATION AMONG DEALERS OR FRANCHISEES
767-11 Sec. 2301.469. COSTS OF PRODUCT RECALL
767-12 Sec. 2301.470. PROHIBITION: CONDITIONS FOR FINANCING MOTOR
767-13 VEHICLE
767-14 Sec. 2301.471. USE OF FINANCING SUBSIDIARY
767-15 Sec. 2301.472. ADDITION OF LINE-MAKE
767-16 Sec. 2301.473. MODELS WITHIN LINE-MAKE
767-17 Sec. 2301.474. PAYMENT OF COSTS FOR ADMINISTRATIVE OR CIVIL
767-18 PROCEEDING
767-19 Sec. 2301.475. MANUFACTURER OR DISTRIBUTOR INCENTIVE
767-20 PROGRAMS
767-21 Sec. 2301.476. MANUFACTURER OR DISTRIBUTOR OWNERSHIP,
767-22 OPERATION, OR CONTROL OF DEALERSHIP
767-23 Sec. 2301.477. MANUFACTURER DOING BUSINESS IN THIS STATE
767-24 Sec. 2301.478. ACTION ON FRANCHISE
767-25 (Sections 2301.479-2301.520 reserved for expansion)
767-26 SUBCHAPTER K. MEDIATION BETWEEN DEALER AND
767-27 MANUFACTURER OR DISTRIBUTOR
768-1 Sec. 2301.521. DEFINITION
768-2 Sec. 2301.522. MEDIATION APPLICABLE
768-3 Sec. 2301.523. MEDIATOR
768-4 Sec. 2301.524. LOCATION AND SCHEDULE OF MEDIATION
768-5 Sec. 2301.525. LAW APPLICABLE; CONFLICT OF LAWS
768-6 Sec. 2301.526. COSTS OF MEDIATION
768-7 Sec. 2301.527. JURISDICTION OF BOARD
768-8 Sec. 2301.528. EFFECT OF MEDIATION ON CHAPTER
768-9 Sec. 2301.529. OUTCOME OF MEDIATION
768-10 (Sections 2301.530-2301.550 reserved for expansion)
768-11 SUBCHAPTER L. VEHICLE LESSORS AND VEHICLE LEASE FACILITATORS
768-12 Sec. 2301.551. ACCEPTANCE AND PAYMENT OF FEES BY VEHICLE
768-13 LESSOR
768-14 Sec. 2301.552. APPOINTMENT OF VEHICLE LEASE FACILITATOR
768-15 Sec. 2301.553. DISCLOSURE OF FEE REQUIRED
768-16 Sec. 2301.554. TERMS OF LEASE: FOREIGN COUNTRIES
768-17 Sec. 2301.555. LIMITATIONS ON VEHICLE LEASE
768-18 FACILITATOR
768-19 Sec. 2301.556. USE OF CERTAIN TERMS
768-20 (Sections 2301.557-2301.600 reserved for expansion)
768-21 SUBCHAPTER M. WARRANTIES: RIGHTS
768-22 OF VEHICLE OWNERS
768-23 Sec. 2301.601. DEFINITIONS
768-24 Sec. 2301.602. DUTY OF BOARD
768-25 Sec. 2301.603. CONFORMANCE WITH WARRANTY REQUIRED
768-26 Sec. 2301.604. REPLACEMENT OF OR REFUND FOR VEHICLE
768-27 Sec. 2301.605. REBUTTABLE PRESUMPTION--REASONABLE NUMBER OF
769-1 ATTEMPTS
769-2 Sec. 2301.606. CONDUCT OF PROCEEDINGS
769-3 Sec. 2301.607. EXHAUSTION OF ADMINISTRATIVE REMEDIES; RIGHT
769-4 TO SUE
769-5 Sec. 2301.608. ASSESSMENT OF COSTS FOR REPLACEMENT OR
769-6 REFUND
769-7 Sec. 2301.609. JUDICIAL REVIEW
769-8 Sec. 2301.610. DISCLOSURE STATEMENT
769-9 Sec. 2301.611. ANNUAL REPORT ON REPURCHASED OR REPLACED
769-10 VEHICLES
769-11 Sec. 2301.612. OPEN RECORDS EXCEPTION
769-12 Sec. 2301.613. NOTICE TO BUYER
769-13 (Sections 2301.614-2301.650 reserved for expansion)
769-14 SUBCHAPTER N. DENIAL, REVOCATION, OR SUSPENSION OF LICENSE
769-15 Sec. 2301.651. DENIAL, REVOCATION, OR SUSPENSION GENERALLY
769-16 Sec. 2301.652. DENIAL OF LICENSE APPLICATION: DEALERSHIP
769-17 Sec. 2301.653. REVOCATION OR SUSPENSION OF MANUFACTURER'S
769-18 OR DISTRIBUTOR'S LICENSE
769-19 Sec. 2301.654. PROBATION
769-20 (Sections 2301.655-2301.700 reserved for expansion)
769-21 SUBCHAPTER O. HEARINGS PROCEDURES
769-22 Sec. 2301.701. DEFINITION
769-23 Sec. 2301.702. CONFLICT WITH OTHER LAW
769-24 Sec. 2301.703. HEARING REQUIRED IN CONTESTED CASE
769-25 Sec. 2301.704. HEARINGS EXAMINER
769-26 Sec. 2301.705. NOTICE OF CONTESTED CASE HEARING
769-27 Sec. 2301.706. NOTICE OF RULEMAKING HEARING
770-1 Sec. 2301.707. CONTENTS OF HEARING NOTICE
770-2 Sec. 2301.708. CONDUCT OF HEARING
770-3 Sec. 2301.709. PROPOSED DECISION; REVIEW BY BOARD
770-4 Sec. 2301.710. DISMISSAL OF COMPLAINT
770-5 Sec. 2301.711. ORDERS AND DECISIONS
770-6 Sec. 2301.712. FILING FEE
770-7 Sec. 2301.713. REHEARING
770-8 (Sections 2301.714-2301.750 reserved for expansion)
770-9 SUBCHAPTER P. JUDICIAL REVIEW
770-10 Sec. 2301.751. JUDICIAL REVIEW GENERALLY
770-11 Sec. 2301.752. TIME FOR FILING; CITATION
770-12 Sec. 2301.753. ADDITIONAL EVIDENCE
770-13 Sec. 2301.754. DISMISSAL FOR FAILURE TO PROSECUTE
770-14 Sec. 2301.755. EFFECT OF APPEAL ON ORDER
770-15 Sec. 2301.756. REVIEW OF INTERLOCUTORY ORDER
770-16 (Sections 2301.757-2301.800 reserved for expansion)
770-17 SUBCHAPTER Q. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
770-18 Sec. 2301.801. CIVIL PENALTY
770-19 Sec. 2301.802. CEASE AND DESIST ORDER
770-20 Sec. 2301.803. STATUTORY STAY
770-21 Sec. 2301.804. SUIT FOR INJUNCTIVE RELIEF OR CIVIL
770-22 PENALTY
770-23 Sec. 2301.805. RELIEF UNDER OTHER LAW
770-24 CHAPTER 2301. SALE OR LEASE OF MOTOR VEHICLES
770-25 SUBCHAPTER A. GENERAL PROVISIONS
770-26 Sec. 2301.001. CONSTRUCTION; PURPOSE. The distribution and
770-27 sale of motor vehicles in this state vitally affects the general
771-1 economy of the state and the public interest and welfare of its
771-2 citizens. This chapter shall be liberally construed to accomplish
771-3 its purposes, including the exercise of the state's police power to
771-4 ensure a sound system of distributing and selling motor vehicles
771-5 through:
771-6 (1) licensing and regulating manufacturers,
771-7 distributors, converters, and dealers of motor vehicles; and
771-8 (2) enforcing this chapter as to other persons to
771-9 provide for compliance with manufacturer's warranties and to
771-10 prevent fraud, unfair practices, discrimination, impositions, or
771-11 other abuse of the people of this state. (V.A.C.S. Art. 4413(36),
771-12 Secs. 1.02, 1.04 (part).)
771-13 Sec. 2301.002. DEFINITIONS. In this chapter:
771-14 (1) "Ambulance" means a vehicle that is used
771-15 exclusively to transport or to provide emergency medical care to an
771-16 injured or ill person and that includes:
771-17 (A) a driver's compartment;
771-18 (B) a compartment to accommodate an emergency
771-19 medical care technician or paramedic and two injured or ill persons
771-20 in a position that permits one of the injured or ill persons to be
771-21 given intensive life-support during transit;
771-22 (C) equipment and supplies for emergency care of
771-23 an injured or ill person at the location of the person or at the
771-24 scene of an injury-producing incident as well as in transit;
771-25 (D) two-way radio communication capability; and
771-26 (E) equipment for light rescue or extrication
771-27 procedures.
772-1 (2) "Board" means the Motor Vehicle Board of the Texas
772-2 Department of Transportation.
772-3 (3) "Broker" means a person who, for a fee,
772-4 commission, or other valuable consideration, arranges or offers to
772-5 arrange a transaction involving the sale of a new motor vehicle,
772-6 other than a person who is:
772-7 (A) a franchised dealer or a bona fide employee
772-8 of a franchised dealer acting for the franchised dealer;
772-9 (B) a representative or a bona fide employee of
772-10 a representative acting for the representative;
772-11 (C) a distributor or a bona fide employee of a
772-12 distributor acting for the distributor; or
772-13 (D) the owner of the vehicle at any point in the
772-14 transaction.
772-15 (4) "Chassis manufacturer" means a person who
772-16 manufactures and produces the frame on which the body of a motor
772-17 vehicle is mounted.
772-18 (5) "Conversion" means a motor vehicle, other than a
772-19 motor home, ambulance, or fire-fighting vehicle, that:
772-20 (A) has been substantially modified by a person
772-21 other than the manufacturer or distributor of the chassis of the
772-22 motor vehicle; and
772-23 (B) has not been the subject of a retail sale.
772-24 (6) "Converter" means a person who before the retail
772-25 sale of a motor vehicle:
772-26 (A) assembles, installs, or affixes a body, cab,
772-27 or special equipment to a chassis; or
773-1 (B) substantially adds, subtracts from, or
773-2 modifies a previously assembled or manufactured motor vehicle.
773-3 (7) "Dealer" means a person who holds a general
773-4 distinguishing number issued by the board under Chapter 503,
773-5 Transportation Code.
773-6 (8) "Dealership" means the physical premises and
773-7 business facilities on which a franchised dealer operates the
773-8 dealer's business, including the sale and repair of motor vehicles.
773-9 The term includes premises or facilities at which a person engages
773-10 only in the repair of a motor vehicle if the repair is performed
773-11 under a franchise and a motor vehicle manufacturer's warranty.
773-12 (9) "Department" means the Texas Department of
773-13 Transportation.
773-14 (10) "Director" means the director of the board and of
773-15 the division.
773-16 (11) "Distributor" means a person, other than a
773-17 manufacturer, who distributes or sells new motor vehicles to a
773-18 franchised dealer.
773-19 (12) "Division" means the Motor Vehicle Division of
773-20 the department.
773-21 (13) "Executive director" means the executive director
773-22 of the department.
773-23 (14) "Fire-fighting vehicle" means a motor vehicle the
773-24 only purposes of which are to transport firefighters to the scene
773-25 of a fire and to provide equipment to fight the fire, and that is
773-26 built on a truck chassis with a gross carrying capacity of at least
773-27 10,000 pounds, to which the following have been permanently affixed
774-1 or mounted:
774-2 (A) a water tank with a combined capacity of at
774-3 least 500 gallons; and
774-4 (B) a centrifugal water pump with a capacity of
774-5 at least 750 gallons per minute at 150 pounds per square inch net
774-6 pump pressure.
774-7 (15) "Franchise" means one or more contracts between a
774-8 franchised dealer as franchisee and a manufacturer or a distributor
774-9 as franchisor, including a written communication from a franchisor
774-10 to a franchisee in which a duty is imposed on the franchisee,
774-11 under which:
774-12 (A) the franchisee is granted the right to sell
774-13 and service new motor vehicles manufactured or distributed by the
774-14 franchisor or only to service motor vehicles under the contract and
774-15 a manufacturer's warranty;
774-16 (B) the franchisee is a component of the
774-17 franchisor's distribution system as an independent business;
774-18 (C) the franchisee is substantially associated
774-19 with the franchisor's trademark, tradename, and commercial symbol;
774-20 (D) the franchisee's business substantially
774-21 relies on the franchisor for a continued supply of motor vehicles,
774-22 parts, and accessories; or
774-23 (E) any right, duty, or obligation granted or
774-24 imposed by this chapter is affected.
774-25 (16) "Franchised dealer" means a person who:
774-26 (A) holds a franchised motor vehicle dealer's
774-27 general distinguishing number issued by the board under Chapter
775-1 503, Transportation Code; and
775-2 (B) is engaged in the business of buying,
775-3 selling, or exchanging new motor vehicles and servicing or
775-4 repairing motor vehicles under a manufacturer's warranty at an
775-5 established and permanent place of business under a franchise in
775-6 effect with a manufacturer or distributor.
775-7 (17) "General distinguishing number" means a dealer
775-8 license issued by the board under Chapter 503, Transportation Code.
775-9 (18) "License holder" means a person who holds a
775-10 license or general distinguishing number issued by the board under
775-11 this chapter or Chapter 503, Transportation Code.
775-12 (19) "Manufacturer" means a person who manufactures or
775-13 assembles new motor vehicles.
775-14 (20) "Manufacturer's statement of origin" means a
775-15 certificate on a form prescribed by the department showing the
775-16 original transfer of a new motor vehicle from the manufacturer to
775-17 the original purchaser.
775-18 (21) "Motor home" means a motor vehicle that is
775-19 designed to provide temporary living quarters and that:
775-20 (A) is built on a motor vehicle chassis as an
775-21 integral part of or a permanent attachment to the chassis; and
775-22 (B) contains at least four of the following
775-23 independent life support systems that are permanently installed and
775-24 designed to be removed only for repair or replacement and that meet
775-25 the standards of the American National Standards Institute,
775-26 Standards for Recreational Vehicles:
775-27 (i) a cooking facility with an on-board
776-1 fuel source;
776-2 (ii) a gas or electric refrigerator;
776-3 (iii) a toilet with exterior evacuation;
776-4 (iv) a heating or air conditioning system
776-5 with an on-board power or fuel source separate from the vehicle
776-6 engine;
776-7 (v) a potable water supply system that
776-8 includes at least a sink, a faucet, and a water tank with an
776-9 exterior service supply connection; or
776-10 (vi) a 110-125 volt electric power supply.
776-11 (22) "Motor home manufacturer" means a person other
776-12 than the manufacturer of a motor vehicle chassis who, before the
776-13 retail sale of the motor vehicle, performs modifications on the
776-14 chassis that result in the finished product being classified as a
776-15 motor home.
776-16 (23) "Motor vehicle" means:
776-17 (A) a fully self-propelled vehicle having two or
776-18 more wheels that has as its primary purpose the transport of a
776-19 person or persons, or property, on a public highway;
776-20 (B) a fully self-propelled vehicle having two or
776-21 more wheels that:
776-22 (i) has as its primary purpose the
776-23 transport of persons or property;
776-24 (ii) is not manufactured for use on public
776-25 streets, roads, or highways; and
776-26 (iii) has been issued a certificate of
776-27 title;
777-1 (C) an engine, transmission, or rear axle,
777-2 regardless of whether attached to a vehicle chassis, manufactured
777-3 for installation in a vehicle that has:
777-4 (i) the transport of persons or property
777-5 on a public highway as its primary purpose; and
777-6 (ii) a gross vehicle weight rating of more
777-7 than 16,000 pounds; or
777-8 (D) a towable recreational vehicle.
777-9 (24) "New motor vehicle" means a motor vehicle that
777-10 has not been the subject of a retail sale regardless of the mileage
777-11 of the vehicle.
777-12 (25) "Nonfranchised dealer" means a person who holds
777-13 an independent motor vehicle dealer's general distinguishing number
777-14 or a wholesale motor vehicle dealer's general distinguishing number
777-15 issued by the board under Chapter 503, Transportation Code.
777-16 (26) "Party" means a person or agency named or
777-17 admitted as a party and whose legal rights, duties, or privileges
777-18 are to be determined by the board after an opportunity for
777-19 adjudicative hearing.
777-20 (27) "Person" means a natural person, partnership,
777-21 corporation, association, trust, estate, or any other legal entity.
777-22 (28) "Relocate" means to transfer an existing
777-23 dealership operation to facilities at a different location,
777-24 including a transfer that results in a consolidation or dualing of
777-25 an existing dealer's operation.
777-26 (29) "Representative" means a person who:
777-27 (A) is or acts as an agent or employee for a
778-1 manufacturer, distributor, or converter; and
778-2 (B) performs any duty in this state relating to
778-3 promoting the distribution or sale of new motor vehicles or
778-4 contacts dealers in this state on behalf of a manufacturer,
778-5 distributor, or converter.
778-6 (30) "Retail sale" means any sale of a motor vehicle
778-7 other than:
778-8 (A) a sale in which the purchaser acquires a
778-9 vehicle for resale; or
778-10 (B) a sale of a vehicle that is operated in
778-11 accordance with Section 503.061, Transportation Code.
778-12 (31) "Rule":
778-13 (A) means a statement by the board of general
778-14 applicability that:
778-15 (i) implements, interprets, or prescribes
778-16 law or policy; or
778-17 (ii) describes the procedure or practice
778-18 requirements of the board;
778-19 (B) includes the amendment or repeal of a prior
778-20 rule; and
778-21 (C) does not include a statement regarding only
778-22 the internal management or organization of the board and not
778-23 affecting the rights of a person not connected with the board.
778-24 (32) "Towable recreational vehicle" means a
778-25 nonmotorized vehicle that:
778-26 (A) was originally designed and manufactured
778-27 primarily to provide temporary human habitation in conjunction with
779-1 recreational, camping, or seasonal use;
779-2 (B) is titled and registered with the department
779-3 as a travel trailer through a county tax assessor-collector;
779-4 (C) is permanently built on a single chassis;
779-5 (D) contains at least one life support system;
779-6 and
779-7 (E) is designed to be towable by a motor
779-8 vehicle.
779-9 (33) "Transportation commission" means the Texas
779-10 Transportation Commission of the department.
779-11 (34) "Vehicle lease" means a transfer of the right to
779-12 possess and use a motor vehicle for a term of more than 180 days in
779-13 return for consideration.
779-14 (35) "Vehicle lease facilitator" means a person, other
779-15 than a franchised dealer, a vehicle lessor, or a bona fide employee
779-16 of a franchised dealer or vehicle lessor, who:
779-17 (A) holds the person out to any other person as
779-18 a "motor vehicle leasing company" or "motor vehicle leasing agent,"
779-19 or uses a similar title, to solicit or procure another person to
779-20 enter into an agreement to become the lessee of a motor vehicle
779-21 that is not, and will not be, titled in the name of or registered
779-22 to the facilitator;
779-23 (B) otherwise solicits another person to enter
779-24 into an agreement to become a lessee of a motor vehicle that is
779-25 not, and will not be, titled in the name of or registered to the
779-26 facilitator; or
779-27 (C) is otherwise engaged in the business of
780-1 securing lessees or prospective lessees of a motor vehicle that is
780-2 not, and will not be, titled in the name of or registered to the
780-3 facilitator.
780-4 (36) "Vehicle lessor" means a person who, under a
780-5 lease, transfers to another person the right to possession and use
780-6 of a motor vehicle titled in the name of the lessor.
780-7 (37) "Warranty work" means parts, labor, and any other
780-8 expenses incurred by a franchised dealer in complying with the
780-9 terms of a manufacturer's or distributor's warranty. (V.A.C.S.
780-10 Art. 4413(36), Sec. 1.03; V.A.C.S. Art. 4413(36a), Sec. 1A.01.)
780-11 Sec. 2301.003. EFFECT ON AGREEMENTS. (a) The terms and
780-12 conditions of a franchise are subject to this chapter.
780-13 (b) An agreement to waive the terms of this chapter is void
780-14 and unenforceable. A term or condition of a franchise inconsistent
780-15 with this chapter is unenforceable. (V.A.C.S. Art. 4413(36), Secs.
780-16 1.04 (part), 4.03(e).)
780-17 Sec. 2301.004. CHAPTER EXCLUSIVE. Unless otherwise
780-18 specifically provided by law not in conflict with this chapter, all
780-19 aspects of the distribution and sale of motor vehicles are governed
780-20 exclusively by this chapter. (V.A.C.S. Art. 4413(36), Sec.
780-21 3.01(b).)
780-22 Sec. 2301.005. TITLE CHANGES. (a) A reference in law,
780-23 including a rule, to the Texas Motor Vehicle Commission means the
780-24 board.
780-25 (b) A reference in law, including a rule, to the executive
780-26 director of the Texas Motor Vehicle Commission means the director.
780-27 (c) A reference in law, including a rule, to the Texas Motor
781-1 Vehicle Commission Code means this chapter.
781-2 (d) A reference in law other than this chapter to a dealer
781-3 licensed by the Texas Motor Vehicle Commission or a dealer licensed
781-4 by the Motor Vehicle Board of the Texas Department of
781-5 Transportation means a franchised dealer. (V.A.C.S. Art. 4413(36),
781-6 Secs. 2.01(b), (c), (d), 6.06(f).)
781-7 Sec. 2301.006. BROKERS PROHIBITED. A person may not act as,
781-8 offer to act as, or claim to be a broker. (V.A.C.S. Art. 4413(36),
781-9 Sec. 5.03.)
781-10 Sec. 2301.007. TOWING VEHICLE BY LICENSE HOLDER.
781-11 Notwithstanding any other law, a person licensed under this chapter
781-12 does not commit an offense by employing a person to tow a disabled
781-13 vehicle to or from the premises for which the person is licensed
781-14 regardless of whether the person employed to tow the vehicle:
781-15 (1) holds a certificate issued by a state agency
781-16 authorizing the person to engage in the business of towing vehicles
781-17 for hire; or
781-18 (2) commits an offense by towing the vehicle.
781-19 (V.A.C.S. Art. 4413(36), Sec. 6.06(c) (part).)
781-20 (Sections 2301.008-2301.050 reserved for expansion)
781-21 SUBCHAPTER B. MOTOR VEHICLE BOARD
781-22 Sec. 2301.051. BOARD MEMBERSHIP; BOARD AS INDEPENDENT
781-23 ENTITY. (a) The Motor Vehicle Board of the Texas Department of
781-24 Transportation consists of nine members appointed by the governor
781-25 with the advice and consent of the senate.
781-26 (b) The membership of the board includes:
781-27 (1) two dealers licensed under this chapter, at least
782-1 one of whom is a franchised dealer; and
782-2 (2) one representative of a manufacturer or
782-3 distributor licensed under this chapter.
782-4 (c) Appointments to the board shall be made without regard
782-5 to race, color, disability, sex, religion, or national origin of
782-6 the appointee.
782-7 (d) Except as otherwise provided by this chapter, in
782-8 carrying out its policy-making and regulatory powers and duties
782-9 under this chapter, the board is an independent entity within the
782-10 department and is not an advisory body to the department.
782-11 (V.A.C.S. Art. 4413(36), Secs. 2.01(a), 2.02(a), (b), 2.02A;
782-12 V.A.C.S. Art. 4413(36a), Sec. 1A.02(a) (part).)
782-13 Sec. 2301.052. MEMBER ELIGIBILITY: AUTOMATIC VACANCY. (a)
782-14 A person is eligible to be appointed to the board if the person:
782-15 (1) is a citizen of the United States and a resident
782-16 of this state; and
782-17 (2) does not have any interest in a business that
782-18 manufactures, distributes, converts, leases, or sells motor
782-19 vehicles, unless the person is appointed under Section
782-20 2301.051(b)(1).
782-21 (b) A person is eligible for appointment under Section
782-22 2301.051(b)(1) only if:
782-23 (1) the person is a natural person who is a dealer or
782-24 the owner of at least 20 percent of an entity that is a dealer; and
782-25 (2) the person's status as dealer is not derived from
782-26 a dealer or dealership in which a manufacturer or distributor owns
782-27 an interest.
783-1 (c) Except as provided by Subsection (d), a member's office
783-2 is vacated if the member or a person related to the member within
783-3 the first degree by consanguinity or affinity, as determined under
783-4 Chapter 573, Government Code:
783-5 (1) becomes a license holder under this chapter;
783-6 (2) acquires an interest in a business that
783-7 manufactures, distributes, converts, leases, or sells motor
783-8 vehicles; or
783-9 (3) becomes an officer, employee, or paid consultant
783-10 of a trade association in the motor vehicle industry.
783-11 (d) The office of a member appointed under Section
783-12 2301.051(b)(1) is not vacated because the member or a person
783-13 related to the member within the first degree by consanguinity or
783-14 affinity, as determined under Chapter 573, Government Code,
783-15 subsequently acquires an interest in a dealership. (V.A.C.S.
783-16 Art. 4413(36), Secs. 2.02(c), 2.03(a), (b), (c).)
783-17 Sec. 2301.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
783-18 this section, "Texas trade association" means a nonprofit,
783-19 cooperative, and voluntarily joined association of business or
783-20 professional competitors in this state designed to assist its
783-21 members and its industry or profession in dealing with mutual
783-22 business or professional problems and in promoting their common
783-23 interest.
783-24 (b) An officer, employee, or paid consultant of a Texas
783-25 trade association in a business or industry regulated by the board
783-26 may not be a member of the board or an employee of the division who
783-27 is exempt from the state's position classification plan or is
784-1 compensated at or above the amount prescribed by the General
784-2 Appropriations Act for step 1, salary group A17, of the position
784-3 classification salary schedule.
784-4 (c) A person who is the spouse of an officer, manager, or
784-5 paid consultant of a Texas trade association in a business or
784-6 industry regulated by the board may not be a board member and may
784-7 not be an employee who is exempt from the state's position
784-8 classification plan or is compensated at or above the amount
784-9 prescribed by the General Appropriations Act for step 1, salary
784-10 group A17, of the position classification salary schedule.
784-11 (d) A person may not serve as a member of the board or act
784-12 as the general counsel to the board if the person is required to
784-13 register as a lobbyist under Chapter 305, Government Code, because
784-14 of the person's activities for compensation on behalf of a business
784-15 or industry related to the operation of the board. (V.A.C.S.
784-16 Art. 4413(36), Secs. 2.09B(a), (b), (c), (d).)
784-17 Sec. 2301.054. TERMS; VACANCY. (a) Members of the board
784-18 hold office for staggered six-year terms, with the terms of three
784-19 members expiring on January 31 of each odd-numbered year.
784-20 (b) A person may not serve two consecutive full six-year
784-21 terms as a member of the board.
784-22 (c) If a vacancy occurs during a member's term, the governor
784-23 shall appoint a person to serve the unexpired part of the term.
784-24 (V.A.C.S. Art. 4413(36), Secs. 2.03(b) (part), 2.04, 2.05.)
784-25 Sec. 2301.055. FILING OF OATH. (a) A member of the board
784-26 qualifies by taking the constitutional oath of office and filing
784-27 the oath, with the certificate of appointment, with the secretary
785-1 of state.
785-2 (b) On the filing of the documents described by Subsection
785-3 (a), the secretary of state shall issue a commission as evidence of
785-4 the authority of a member to act. (V.A.C.S. Art. 4413(36), Sec.
785-5 2.06.)
785-6 Sec. 2301.056. GROUNDS FOR REMOVAL. (a) It is a ground for
785-7 removal from the board that a member:
785-8 (1) does not have at the time of appointment the
785-9 qualifications required by Section 2301.052;
785-10 (2) does not maintain during service on the board the
785-11 qualifications required by Section 2301.052;
785-12 (3) violates a prohibition established by Section
785-13 2301.053 or 2301.059(a);
785-14 (4) cannot, because of illness or disability,
785-15 discharge the member's duties for a substantial part of the
785-16 member's term; or
785-17 (5) is absent from more than half of the regularly
785-18 scheduled meetings of the board that the member is eligible to
785-19 attend during a calendar year unless the absence is excused by
785-20 majority vote of the board.
785-21 (b) The validity of an action of the board is not affected
785-22 by the fact that it is taken when a ground for removal of a board
785-23 member exists.
785-24 (c) If the director has knowledge that a potential ground
785-25 for removal exists, the director shall notify the presiding officer
785-26 of the board of the ground. The presiding officer shall then
785-27 notify the governor and the attorney general that a potential
786-1 ground for removal exists. If the potential ground for removal
786-2 relates to the presiding officer, the director shall notify the
786-3 assistant presiding officer of the board, who shall notify the
786-4 governor and the attorney general that a potential ground for
786-5 removal exists. (V.A.C.S. Art. 4413(36), Sec. 2.08A.)
786-6 Sec. 2301.057. PER DIEM; REIMBURSEMENT. A member of the
786-7 board is entitled to receive:
786-8 (1) $50 for each day the member is engaged in the
786-9 duties of office, including time spent in necessary travel to and
786-10 from meetings and on other duties; and
786-11 (2) reimbursement for all travel and other necessary
786-12 expenses incurred while performing official duties. (V.A.C.S.
786-13 Art. 4413(36), Sec. 2.07.)
786-14 Sec. 2301.058. OFFICERS; MEETINGS. (a) The governor shall
786-15 designate one member of the board, other than a member appointed
786-16 under Section 2301.051(b), as presiding officer. The presiding
786-17 officer serves in that capacity at the will of the governor.
786-18 (b) The board shall hold a regular meeting in September of
786-19 each year and elect an assistant presiding officer to serve for the
786-20 following year.
786-21 (c) The board shall hold regular meetings as determined by a
786-22 majority of the board members. The board shall hold a meeting at
786-23 the request of:
786-24 (1) the presiding officer;
786-25 (2) any two members; or
786-26 (3) the director.
786-27 (d) The board shall adopt rules that provide for reasonable
787-1 notice of each board meeting.
787-2 (e) The presiding officer presides at all meetings of the
787-3 board except that:
787-4 (1) in the absence of the presiding officer, the
787-5 assistant presiding officer presides; and
787-6 (2) in the absence of both the presiding officer and
787-7 the assistant presiding officer, the members present shall select a
787-8 member to preside at the meeting. (V.A.C.S. Art. 4413(36), Sec.
787-9 2.08(a) (part).)
787-10 Sec. 2301.059. PROHIBITION ON VOTING. (a) A member of the
787-11 board may not vote on an issue before the board for determination
787-12 that directly affects the member or an entity in which the member
787-13 has a financial interest.
787-14 (b) A member of the board appointed under Section
787-15 2301.051(b)(1) may not vote on an issue involving a dispute in
787-16 which a dealer and a manufacturer are parties.
787-17 (c) A member of the board appointed under Section
787-18 2301.051(b) is not counted in determining a quorum on an issue on
787-19 which the member is prohibited from voting. (V.A.C.S.
787-20 Art. 4413(36), Secs. 2.08(a) (part), (d), 2.09B(e).)
787-21 Sec. 2301.060. TRAINING. (a) To be eligible to take office
787-22 as a member of the board, a person appointed to the board must
787-23 complete at least one course of a training program that complies
787-24 with this section.
787-25 (b) The training program must provide information to the
787-26 person regarding:
787-27 (1) this chapter;
788-1 (2) the programs operated by the division;
788-2 (3) the role and functions of the division;
788-3 (4) the rules of the division with an emphasis on the
788-4 rules that relate to disciplinary and investigatory authority;
788-5 (5) the current budget for the division;
788-6 (6) the results of the most recent formal audit of the
788-7 division;
788-8 (7) the requirements of Chapters 551, 552, and 2001,
788-9 Government Code;
788-10 (8) the requirements of the conflict of interest laws
788-11 and other laws relating to public officials; and
788-12 (9) any applicable ethics policies adopted by the
788-13 board or the Texas Ethics Commission.
788-14 (c) A person appointed to the board is entitled to
788-15 reimbursement for travel expenses incurred in attending the
788-16 training program under this section, as provided by the General
788-17 Appropriations Act, as if the person were a member of the board.
788-18 (V.A.C.S. Art. 4413(36), Sec. 2.03A.)
788-19 (Sections 2301.061-2301.100 reserved for expansion)
788-20 SUBCHAPTER C. DIRECTOR AND OTHER DIVISION PERSONNEL
788-21 Sec. 2301.101. DIRECTOR. (a) The director is the division's
788-22 chief executive and administrative officer and shall administer and
788-23 enforce this chapter.
788-24 (b) The director must be licensed to practice law in this
788-25 state.
788-26 (c) The director serves at the will of the board. (V.A.C.S.
788-27 Art. 4413(36), Sec. 2.09(a).)
789-1 Sec. 2301.102. POWERS AND DUTIES OF DIRECTOR. (a) The
789-2 director or the director's designee shall:
789-3 (1) meet with the board in an advisory capacity
789-4 without a vote in each of the board's proceedings;
789-5 (2) maintain all minutes of the board's proceedings;
789-6 and
789-7 (3) serve as the custodian of the board's files and
789-8 records.
789-9 (b) The director or the director's designee, on behalf of
789-10 the board, may negotiate with and, with the consent of a majority
789-11 of the board, enter into contracts or other agreements with any
789-12 entity to carry out the powers, duties, and responsibilities of the
789-13 board.
789-14 (c) The director shall submit reports to the board as
789-15 required by this chapter or board rule.
789-16 (d) Unless otherwise provided by this chapter or board rule,
789-17 each application, petition, or other document requiring action by
789-18 the board shall be directed to the director. (V.A.C.S.
789-19 Art. 4413(36), Secs. 2.09(b), (c), (d), (h).)
789-20 Sec. 2301.103. PERSONNEL. (a) The director shall appoint
789-21 and employ personnel necessary to carry out the duties and
789-22 functions of the director and the board under this chapter.
789-23 (b) A division employee is an employee of the department
789-24 and is subject to the human resource rules and policies of the
789-25 department and the transportation commission, except that, as
789-26 applied to a division employee, any powers granted to the executive
789-27 director by those rules and policies shall be exercised by the
790-1 director.
790-2 (c) A division employee is subject to dismissal if the
790-3 employee has an interest in or is related within the first degree
790-4 by consanguinity or affinity, as determined under Chapter 573,
790-5 Government Code, to a person who has an interest in a business that
790-6 manufactures, distributes, converts, sells, or leases motor
790-7 vehicles. (V.A.C.S. Art. 4413(36), Secs. 2.09(e), (f); V.A.C.S.
790-8 Art. 4413(36a), Sec. 1A.02(b).)
790-9 Sec. 2301.104. QUALIFICATIONS AND STANDARDS OF CONDUCT. The
790-10 board shall provide, as often as necessary, to its members and
790-11 employees information regarding their:
790-12 (1) qualifications for office or employment under this
790-13 chapter; and
790-14 (2) responsibilities under applicable laws relating to
790-15 standards of conduct for state officers or employees. (V.A.C.S.
790-16 Art. 4413(36), Sec. 2.09(i).)
790-17 Sec. 2301.105. CAREER LADDER PROGRAM; PERFORMANCE
790-18 EVALUATIONS. (a) The director or the director's designee shall
790-19 develop an intra-agency career ladder program that addresses
790-20 opportunities for mobility and advancement of employees in the
790-21 division. The program must require intra-agency postings of all
790-22 positions concurrently with any public posting.
790-23 (b) The director or the director's designee shall develop a
790-24 system of annual performance evaluations based on documented
790-25 employee performance. All merit pay for employees of the division
790-26 must be based on the system established under this subsection.
790-27 (V.A.C.S. Art. 4413(36), Secs. 2.13(a), (b).)
791-1 Sec. 2301.106. EQUAL OPPORTUNITY POLICY; REPORT. (a) The
791-2 director or the director's designee shall prepare and maintain a
791-3 written policy statement to ensure implementation of an equal
791-4 employment opportunity program under which all personnel
791-5 transactions are made without regard to race, color, disability,
791-6 sex, religion, age, or national origin. The policy statement must
791-7 include:
791-8 (1) personnel policies, including policies relating to
791-9 recruitment, evaluation, selection, appointment, training, and
791-10 promotion of personnel that comply with Chapter 21, Labor Code;
791-11 (2) a comprehensive analysis of the division workforce
791-12 that meets federal and state laws, rules, and regulations and
791-13 instructions adopted directly under those laws, rules, or
791-14 regulations;
791-15 (3) procedures by which a determination can be made of
791-16 significant underuse in the division workforce of all persons for
791-17 whom federal or state laws, rules, and regulations and instructions
791-18 adopted directly under those laws, rules, or regulations encourage
791-19 a more equitable balance; and
791-20 (4) reasonable methods to appropriately address those
791-21 areas of significant underuse.
791-22 (b) A policy statement prepared under Subsection (a) must
791-23 be:
791-24 (1) prepared to cover an annual period;
791-25 (2) updated at least annually;
791-26 (3) reviewed by the Commission on Human Rights for
791-27 compliance with Subsection (a)(1); and
792-1 (4) filed with the governor.
792-2 (c) The governor shall deliver a biennial report to the
792-3 legislature based on the information received under Subsection (b).
792-4 The report may be made separately or as a part of other biennial
792-5 reports made to the legislature. (V.A.C.S. Art. 4413(36), Sec.
792-6 2.13(d).)
792-7 (Sections 2301.107-2301.150 reserved for expansion)
792-8 SUBCHAPTER D. BOARD POWERS AND DUTIES
792-9 Sec. 2301.151. GENERAL JURISDICTION OF BOARD. (a) The board
792-10 has the general and original power and jurisdiction to regulate all
792-11 aspects of the distribution, sale, or lease of motor vehicles,
792-12 including the original jurisdiction to determine its own
792-13 jurisdiction.
792-14 (b) The board may take any action that is specifically
792-15 designated or implied under this chapter or that is necessary or
792-16 convenient to the exercise of the power and jurisdiction granted
792-17 under Subsection (a). (V.A.C.S. Art. 4413(36), Sec. 3.01(a)
792-18 (part).)
792-19 Sec. 2301.152. GENERAL DUTIES OF BOARD. (a) In accordance
792-20 with this chapter, the board shall:
792-21 (1) administer this chapter;
792-22 (2) establish the qualifications of license holders;
792-23 (3) ensure that the distribution, sale, and lease of
792-24 motor vehicles is conducted as required by this chapter and board
792-25 rules;
792-26 (4) provide for compliance with warranties; and
792-27 (5) prevent fraud, unfair practices, discrimination,
793-1 impositions, and other abuses in connection with the distribution
793-2 and sale of motor vehicles.
793-3 (b) In addition to the duties delegated to the board under
793-4 this chapter, the board shall enforce and administer Chapter 503,
793-5 Transportation Code. (V.A.C.S. Art. 4413(36), Secs. 3.01(a)
793-6 (part), 3.02(a).)
793-7 Sec. 2301.153. GENERAL POWERS OF BOARD. (a) Notwithstanding
793-8 any other provision of law, the board has all powers necessary,
793-9 incidental, or convenient to perform a power or duty expressly
793-10 granted under this chapter, including the power to:
793-11 (1) initiate and conduct proceedings, investigations,
793-12 or hearings;
793-13 (2) administer oaths;
793-14 (3) receive evidence and pleadings;
793-15 (4) issue subpoenas to compel the attendance of any
793-16 person;
793-17 (5) order the production of any tangible property,
793-18 including papers, records, or other documents;
793-19 (6) make findings of fact on all factual issues
793-20 arising out of a proceeding initiated under this chapter;
793-21 (7) specify and govern appearance, practice, and
793-22 procedures before the board;
793-23 (8) adopt rules and issue conclusions of law and
793-24 decisions, including declaratory decisions or orders;
793-25 (9) enter into contracts;
793-26 (10) execute instruments;
793-27 (11) retain counsel;
794-1 (12) use the services of the attorney general and
794-2 institute and direct the conduct of legal proceedings in any forum;
794-3 (13) obtain other professional services as necessary
794-4 and convenient;
794-5 (14) impose a sanction for contempt;
794-6 (15) assess and collect fees and costs, including
794-7 attorney's fees;
794-8 (16) issue, suspend, or revoke licenses;
794-9 (17) prohibit and regulate acts and practices in
794-10 connection with the distribution and sale of motor vehicles or
794-11 warranty performance obligations;
794-12 (18) issue cease and desist orders in the nature of
794-13 temporary or permanent injunctions; and
794-14 (19) impose a civil penalty.
794-15 (b) The board may inspect the books and records of a license
794-16 holder in connection with the performance of its duties under this
794-17 chapter. (V.A.C.S. Art. 4413(36), Secs. 3.03(a), 4.06(g) (part).)
794-18 Sec. 2301.154. DELEGATION OF POWERS. The board may delegate
794-19 any of its powers to:
794-20 (1) one or more of its members;
794-21 (2) the director; or
794-22 (3) one or more of its employees. (V.A.C.S.
794-23 Art. 4413(36), Sec. 3.04.)
794-24 Sec. 2301.155. RULES. The authority to adopt rules under
794-25 this chapter is vested in the board. In accordance with this
794-26 chapter and the rules, decisions, and orders of the board, the
794-27 board shall adopt rules as necessary or convenient to administer
795-1 this chapter and to govern practice and procedure before the board.
795-2 (V.A.C.S. Art. 4413(36), Secs. 3.06, 4.02(e).)
795-3 Sec. 2301.156. DEPOSIT OF REVENUE. Notwithstanding any other
795-4 law to the contrary, all money collected by the board under this
795-5 chapter shall be deposited in the state treasury to the credit of
795-6 the state highway fund. (V.A.C.S. Art. 4413(36), Sec. 2.10(a).)
795-7 Sec. 2301.157. IMMUNITY FROM LIABILITY. (a) Notwithstanding
795-8 any other law, the director or a board member, hearings examiner,
795-9 or division employee is not personally liable for damages resulting
795-10 from an official act or omission unless the act or omission
795-11 constitutes intentional or malicious malfeasance.
795-12 (b) The attorney general shall defend a person described by
795-13 Subsection (a) in an action brought in connection with the act or
795-14 omission by the person regardless of whether the person serves the
795-15 board or division in any capacity at the time the action is
795-16 brought.
795-17 (c) The state shall indemnify a person for a judgment in an
795-18 action described by Subsection (a), but the state may seek
795-19 contribution from the person if liability is otherwise permitted by
795-20 this section. (V.A.C.S. Art. 4413(36), Sec. 2.09(g).)
795-21 Sec. 2301.158. INTERACTION WITH TEXAS DEPARTMENT OF
795-22 TRANSPORTATION. (a) The board shall advise, through the director,
795-23 the department on:
795-24 (1) the board's and division's budgetary, equipment,
795-25 and data processing needs; and
795-26 (2) the purchase or other acquisition of facilities
795-27 and property for the board and division.
796-1 (b) The executive director shall, through the offices of the
796-2 department, provide equipment, facilities, property, and services
796-3 necessary to carry out the division's purposes, powers, and duties.
796-4 The executive director shall allocate department resources as the
796-5 executive director determines necessary and appropriate to meet the
796-6 needs of the division and the other offices of the department.
796-7 (V.A.C.S. Art. 4413(36a), Secs. 1A.02(a) (part), (c).)
796-8 Sec. 2301.159. SEAL. The board shall adopt a seal to
796-9 authenticate its records and orders. (V.A.C.S. Art. 4413(36), Sec.
796-10 2.11.)
796-11 (Sections 2301.160-2301.200 reserved for expansion)
796-12 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT
796-13 PROCEDURES
796-14 Sec. 2301.201. PUBLIC INTEREST INFORMATION. (a) The
796-15 director or the director's designee shall prepare information
796-16 describing the functions of the board and the procedures by which
796-17 complaints or protests are filed with and resolved by the board.
796-18 (b) The board shall make the information available to the
796-19 public and appropriate state agencies. (V.A.C.S. Art. 4413(36),
796-20 Sec. 2.13(c).)
796-21 Sec. 2301.202. COMPLAINTS; RECORDS. (a) The board shall
796-22 provide to a person who files a complaint, and to each person that
796-23 is the subject of the complaint, information about the board's
796-24 policies and procedures relating to complaint investigation and
796-25 resolution.
796-26 (b) The board shall keep an information file about each
796-27 complaint filed with the board that the board has authority to
797-1 resolve. The file must contain a record for each complaint of:
797-2 (1) the date the complaint is filed;
797-3 (2) the name of the person filing the complaint;
797-4 (3) the subject matter of the complaint;
797-5 (4) each person contacted in relation to the
797-6 complaint;
797-7 (5) a summary of the results of the review or
797-8 investigation of the complaint; and
797-9 (6) if the board does not take action on the
797-10 complaint, an explanation of the reasons that action was not taken.
797-11 (c) If a written complaint is filed with the board that the
797-12 board has authority to resolve, the board, at least quarterly and
797-13 until final disposition of the complaint, shall notify the parties
797-14 to the complaint of the status of the complaint unless the notice
797-15 would jeopardize an ongoing board investigation. (V.A.C.S.
797-16 Art. 4413(36), Sec. 2.12.)
797-17 Sec. 2301.203. COMPLAINT INVESTIGATION AND DISPOSITION. (a)
797-18 If the board has reason to believe, through receipt of a complaint
797-19 or otherwise, that a violation of this chapter or a rule, order,
797-20 or decision of the board has occurred or is likely to occur, the
797-21 board shall conduct an investigation unless it determines that the
797-22 complaint is frivolous or for the purpose of harassment.
797-23 (b) If the investigation establishes that a violation of
797-24 this chapter or a rule, order, or decision of the board has
797-25 occurred or is likely to occur, the board shall initiate
797-26 proceedings as it determines appropriate to enforce this chapter or
797-27 its rules, orders, and decisions.
798-1 (c) The board may not file a complaint alleging a violation
798-2 of this chapter or a board rule relating to advertising until the
798-3 board has notified the license holder involved of the alleged
798-4 violation and given the license holder an opportunity to cure the
798-5 violation without further proceedings or liability. (V.A.C.S.
798-6 Art. 4413(36), Sec. 3.05.)
798-7 Sec. 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT. (a) The
798-8 owner of a motor vehicle or the owner's designated agent may make a
798-9 complaint concerning a defect in a motor vehicle that is covered by
798-10 a manufacturer's, converter's, or distributor's warranty agreement
798-11 applicable to the vehicle.
798-12 (b) The complaint must be made in writing to the applicable
798-13 dealer, manufacturer, converter, or distributor and must specify
798-14 each defect in the vehicle that is covered by the warranty.
798-15 (c) The owner may also invoke the board's jurisdiction by
798-16 sending a copy of the complaint to the board.
798-17 (d) A hearing may be scheduled on any complaint made under
798-18 this section that is not privately resolved between the owner and
798-19 the dealer, manufacturer, converter, or distributor. (V.A.C.S.
798-20 Art. 4413(36), Sec. 3.08(i).)
798-21 Sec. 2301.205. NOTICE OF COMPLAINT PROCEDURE. (a) A
798-22 franchised dealer shall provide notice of the complaint procedures
798-23 provided by Section 2301.204 and Subchapter M to each person to
798-24 whom the dealer sells a new motor vehicle.
798-25 (b) The board may require its approval of the contents of
798-26 the notice required by Subsection (a) or may prescribe the contents
798-27 of the notice.
799-1 (c) The failure to provide notice as required by this
799-2 section is a violation of this chapter. (V.A.C.S. Art. 4413(36),
799-3 Secs. 4.07(a), (b) (part), (c).)
799-4 Sec. 2301.206. PUBLIC PARTICIPATION. (a) The board shall
799-5 develop and implement policies that provide the public with a
799-6 reasonable opportunity to appear before the board and to speak on
799-7 any issue under the board's jurisdiction.
799-8 (b) The board shall prepare and maintain a written plan that
799-9 describes how a person who does not speak English or who has a
799-10 physical, mental, or developmental disability may be provided
799-11 reasonable access to the board's programs. (V.A.C.S.
799-12 Art. 4413(36), Secs. 2.08(c), 3.02(b).)
799-13 (Sections 2301.207-2301.250 reserved for expansion)
799-14 SUBCHAPTER F. LICENSE REQUIREMENTS
799-15 Sec. 2301.251. LICENSE REQUIRED: GENERALLY. (a) Unless a
799-16 person holds a license issued under this chapter authorizing the
799-17 activity, the person may not:
799-18 (1) engage in business as, serve in the capacity of,
799-19 or act as a dealer, manufacturer, distributor, converter,
799-20 representative, vehicle lessor, or vehicle lease facilitator in
799-21 this state; or
799-22 (2) perform or offer to perform repair services on a
799-23 motor vehicle under a franchise and a motor vehicle manufacturer's
799-24 warranty, regardless of whether the person sells or offers to sell
799-25 motor vehicles at the same location.
799-26 (b) A franchised dealer must have both a franchised motor
799-27 vehicle dealer's general distinguishing number issued under Chapter
800-1 503, Transportation Code, and a license issued under this chapter.
800-2 (c) A manufacturer or distributor that directly or
800-3 indirectly reimburses another person to perform warranty repair
800-4 services on a vehicle is engaged in business in this state
800-5 regardless of whether the manufacturer sells or offers for sale new
800-6 motor vehicles in this state. (V.A.C.S. Art. 4413(36), Secs.
800-7 4.01(a) (part), (b) (part), (d), 5.02(b) (part).)
800-8 Sec. 2301.252. LICENSE REQUIRED: SALE OF NEW MOTOR
800-9 VEHICLES. (a) A person may not engage in the business of buying,
800-10 selling, or exchanging new motor vehicles unless the person:
800-11 (1) holds a franchised dealer's license issued under
800-12 this chapter for the make of new motor vehicle being bought, sold,
800-13 or exchanged; or
800-14 (2) is a bona fide employee of the holder of a
800-15 franchised dealer's license.
800-16 (b) For purposes of this section:
800-17 (1) the make of a conversion is that of the chassis
800-18 manufacturer; and
800-19 (2) the make of a motor home is that of the motor home
800-20 manufacturer. (V.A.C.S. Art. 4413(36), Sec. 5.04.)
800-21 Sec. 2301.253. LICENSE REQUIRED: VEHICLE LEASE FACILITATORS.
800-22 Unless a person holds a vehicle lease facilitator license and
800-23 complies with this chapter, the person may not:
800-24 (1) act in the capacity of or engage in the business
800-25 of a vehicle lease facilitator;
800-26 (2) hold the person out to any other person as a
800-27 "leasing company," "leasing agent," "lease facilitator," or similar
801-1 title, directly or indirectly engaged in the business of a vehicle
801-2 lease facilitator; or
801-3 (3) otherwise engage in the solicitation or
801-4 procurement of a prospective lessee for a motor vehicle that is not
801-5 titled in the name of and registered to the person. (V.A.C.S.
801-6 Art. 4413(36), Secs. 5.03B(a), (b) (part).)
801-7 Sec. 2301.254. LICENSE NOT REQUIRED FOR CERTAIN VEHICLE
801-8 LESSORS OR VEHICLE LEASE FACILITATORS. (a) A person is not
801-9 required to obtain a license to act as a vehicle lessor or a
801-10 vehicle lease facilitator if the person is:
801-11 (1) a state or federally chartered financial
801-12 institution or a regulated subsidiary of the financial institution;
801-13 or
801-14 (2) a trust or other entity that owns an interest in a
801-15 vehicle lease and the vehicle that is the subject of the lease, if
801-16 the lease covering the vehicle is initiated, managed, serviced, and
801-17 administered by a licensed vehicle lessor.
801-18 (b) A franchised dealer is not required to have a vehicle
801-19 lessor or vehicle lease facilitator license to engage in any
801-20 capacity in the business of leasing a motor vehicle that the dealer
801-21 owns and is licensed under this chapter to sell. (V.A.C.S.
801-22 Art. 4413(36), Secs. 4.01(a) (part), (c).)
801-23 Sec. 2301.255. NONFRANCHISED DEALERS; GENERAL DISTINGUISHING
801-24 NUMBER. (a) A nonfranchised dealer may not operate as a dealer
801-25 unless the person holds a general distinguishing number. A
801-26 nonfranchised dealer is not required to obtain an additional
801-27 license under this chapter.
802-1 (b) For purposes of a nonfranchised dealer, a reference to a
802-2 license in this chapter means a general distinguishing number.
802-3 (V.A.C.S. Art. 4413(36), Sec. 4.01(b) (part).)
802-4 Sec. 2301.256. REVIEW OF NEW APPLICATIONS. A new application
802-5 for a license under this chapter shall be reviewed and may be
802-6 investigated to determine compliance with this chapter. (V.A.C.S.
802-7 Art. 4413(36), Sec. 4.01(a) (part).)
802-8 Sec. 2301.257. APPLICATION FOR DEALER'S LICENSE. (a) An
802-9 application for a dealer's license must be on a form prescribed by
802-10 the board. The application must include:
802-11 (1) the information required by Chapter 503,
802-12 Transportation Code; and
802-13 (2) information relating to the applicant's financial
802-14 resources, business integrity, business ability and experience,
802-15 franchise if applicable, physical facilities, vehicle inventory,
802-16 and other factors the board considers necessary to determine the
802-17 applicant's qualifications to adequately serve the public.
802-18 (b) If a material change occurs in the information included
802-19 in an application for a dealer's license, the dealer shall notify
802-20 the board of the change within a reasonable time but not later than
802-21 the next annual renewal. The board shall prescribe a form for the
802-22 disclosure of the change.
802-23 (c) A franchised dealer must apply for a separate license
802-24 under this section for each separate and distinct dealership as
802-25 determined by the board. Before changing a location, a dealer must
802-26 obtain a new license for that location. (V.A.C.S. Art. 4413(36),
802-27 Secs. 4.02(a), (b) (part), (c) (part), (f).)
803-1 Sec. 2301.258. GENERAL REQUIREMENTS FOR APPLICATION FOR
803-2 MANUFACTURER'S, DISTRIBUTOR'S, CONVERTER'S, OR REPRESENTATIVE'S
803-3 LICENSE. An application for a manufacturer's, distributor's,
803-4 converter's, or representative's license must be on a form
803-5 prescribed by the board. The application must include information
803-6 the board determines necessary to fully determine the
803-7 qualifications of an applicant, including financial resources,
803-8 business integrity and experience, facilities and personnel for
803-9 serving franchised dealers, and other information the board
803-10 determines pertinent to safeguard the public interest and welfare.
803-11 (V.A.C.S. Art. 4413(36), Sec. 4.03(a).)
803-12 Sec. 2301.259. APPLICATION FOR MANUFACTURER'S LICENSE.
803-13 (a) An applicant for a manufacturer's license must provide a list
803-14 of each distributor or representative acting for the applicant and
803-15 each dealer franchised to sell the applicant's products in this
803-16 state and their respective locations. An applicant for or holder
803-17 of a manufacturer's license must inform the board of a change to
803-18 the list not later than the 15th day after the date of the change.
803-19 Information submitted under this subsection becomes a part of the
803-20 application.
803-21 (b) An application for a manufacturer's license must include
803-22 a document stating the terms and conditions of each warranty
803-23 agreement in effect at the time of the application on a product the
803-24 manufacturer sells in this state so that the board may determine:
803-25 (1) the protection provided a retail purchaser of the
803-26 manufacturer's products;
803-27 (2) the obligation of a franchised dealer under the
804-1 agreement; and
804-2 (3) the basis for compensating a franchised dealer for
804-3 labor, parts, or other expenses under the agreement.
804-4 (c) An application for a manufacturer's license must include
804-5 a statement regarding the manufacturer's compliance with Sections
804-6 2301.451-2301.474.
804-7 (d) An application for a manufacturer's license must
804-8 specify:
804-9 (1) the preparation and delivery obligations of the
804-10 manufacturer's franchised dealers before delivery of a new motor
804-11 vehicle to a retail purchaser; and
804-12 (2) the schedule of compensation to be paid to a
804-13 franchised dealer for the work and service performed under
804-14 Subdivision (1). (V.A.C.S. Art. 4413(36), Secs. 4.03(b), (c).)
804-15 Sec. 2301.260. APPLICATION FOR DISTRIBUTOR'S LICENSE.
804-16 (a) An application for a distributor's license must disclose:
804-17 (1) the manufacturer for whom the distributor will
804-18 act;
804-19 (2) whether the manufacturer is licensed in this
804-20 state;
804-21 (3) the warranty covering the motor vehicles to be
804-22 sold;
804-23 (4) the persons in this state who will be responsible
804-24 for compliance with the warranty;
804-25 (5) the terms of the contract under which the
804-26 distributor will act for the manufacturer; and
804-27 (6) the franchised dealers with whom the distributor
805-1 will do business.
805-2 (b) An applicant for a distributor's license that has a
805-3 responsibility under a warranty agreement must provide the same
805-4 information relating to the agreement as is provided by an
805-5 applicant for a manufacturer's license under Section 2301.259.
805-6 (c) An applicant for or holder of a distributor's license
805-7 must inform the board of a change in the information provided under
805-8 this section not later than the 15th day after the date of the
805-9 change. Information submitted under this subsection becomes a part
805-10 of the application. (V.A.C.S. Art. 4413(36), Sec. 4.03(d).)
805-11 Sec. 2301.261. APPLICATION FOR VEHICLE LESSOR'S LICENSE.
805-12 (a) An application for a vehicle lessor's license must:
805-13 (1) be on a form prescribed by the board;
805-14 (2) contain evidence of compliance with Chapter 503,
805-15 Transportation Code, if applicable; and
805-16 (3) state other information required by the board.
805-17 (b) This chapter does not require a separate license for
805-18 each employee of a vehicle lessor. (V.A.C.S. Art. 4413(36), Sec.
805-19 4.03A.)
805-20 Sec. 2301.262. APPLICATION FOR VEHICLE LEASE FACILITATOR
805-21 LICENSE. (a) An application for a vehicle lease facilitator
805-22 license must be on a form prescribed by the board and contain the
805-23 information required by the board.
805-24 (b) This chapter does not require a separate license for
805-25 each employee of a vehicle lease facilitator. (V.A.C.S.
805-26 Art. 4413(36), Sec. 4.03B.)
805-27 Sec. 2301.263. LICENSE ISSUED SUBJECT TO NEW LAW AND RULES.
806-1 A license issued under this chapter is subject to each provision of
806-2 this chapter and board rule in effect on the date the license is
806-3 issued and each provision of this chapter and board rule that takes
806-4 effect during the term of the license. (V.A.C.S. Art. 4413(36),
806-5 Sec. 4.01(a) (part).)
806-6 Sec. 2301.264. LICENSE FEES. (a) The annual fees for a
806-7 license issued under this chapter are:
806-8 (1) $900 for a manufacturer or distributor, plus $20
806-9 for each dealer franchised by the manufacturer or distributor;
806-10 (2) for a franchised dealer:
806-11 (A) $175, if the dealer sold fewer than 201 new
806-12 motor vehicles during the preceding calendar year;
806-13 (B) $275, if the dealer sold more than 200 but
806-14 fewer than 401 new motor vehicles during the preceding calendar
806-15 year;
806-16 (C) $400, if the dealer sold more than 400 but
806-17 fewer than 801 new motor vehicles during the preceding calendar
806-18 year;
806-19 (D) $500, if the dealer sold more than 800 but
806-20 fewer than 1,201 new motor vehicles during the preceding calendar
806-21 year;
806-22 (E) $625, if the dealer sold more than 1,200 but
806-23 fewer than 1,601 new motor vehicles during the preceding calendar
806-24 year;
806-25 (F) $750, if the dealer sold more than 1,600 new
806-26 motor vehicles during the preceding calendar year; and
806-27 (G) $100 for each location separate from the
807-1 dealership at which the dealer does not offer motor vehicles for
807-2 sale but performs warranty service work on vehicles the dealer is
807-3 franchised and licensed to sell;
807-4 (3) $25 for an amendment to a dealer license;
807-5 (4) $100 for a representative;
807-6 (5) $375 for a converter;
807-7 (6) for a vehicle lessor:
807-8 (A) $175, if the lessor leased 200 or fewer
807-9 motor vehicles during the preceding calendar year;
807-10 (B) $275, if the lessor leased more than 200 but
807-11 fewer than 401 motor vehicles during the preceding calendar year;
807-12 (C) $400, if the lessor leased more than 400 but
807-13 fewer than 801 motor vehicles during the preceding calendar year;
807-14 (D) $500, if the lessor leased more than 800 but
807-15 fewer than 1,201 motor vehicles during the preceding calendar year;
807-16 (E) $625, if the lessor leased more than 1,200
807-17 but fewer than 1,601 motor vehicles during the preceding calendar
807-18 year; and
807-19 (F) $750, if the lessor leased more than 1,600
807-20 motor vehicles during the preceding calendar year; and
807-21 (7) $375 for a vehicle lease facilitator.
807-22 (b) A person who fails to apply for a license required under
807-23 this chapter or fails to pay a fee within the required time must
807-24 pay a penalty equal to 50 percent of the amount of the fee for each
807-25 30 days after the date the license is required or the fee is due.
807-26 (c) The board may prorate the fee for a representative's
807-27 license to allow the representative's license and the license of
808-1 the manufacturer or distributor who employs the representative to
808-2 expire on the same day.
808-3 (d) The board may refund from funds appropriated to the
808-4 board for that purpose a fee collected under this chapter that is
808-5 not due or that exceeds the amount due. (V.A.C.S. Art. 4413(36),
808-6 Secs. 4.05(a), (b), (c), (d).)
808-7 Sec. 2301.265. SERVICE OF PROCESS ON LICENSE HOLDER.
808-8 Obtaining a license under this chapter constitutes doing business
808-9 in this state. A license holder who fails to designate an agent
808-10 for service of process is considered to have designated the
808-11 secretary of state as the agent for receipt of service of process.
808-12 (V.A.C.S. Art. 4413(36), Sec. 4.04(a).)
808-13 (Sections 2301.266-2301.300 reserved for expansion)
808-14 SUBCHAPTER G. LICENSE EXPIRATION AND RENEWAL
808-15 Sec. 2301.301. ANNUAL RENEWAL REQUIRED. (a) A license
808-16 issued under this chapter expires on the first anniversary of the
808-17 date the license is issued.
808-18 (b) The board may issue a license for a term of less than
808-19 one year to coordinate the expiration dates of licenses held by a
808-20 person that is required to obtain more than one license to perform
808-21 activities under this chapter.
808-22 (c) The board by rule may implement a system under which
808-23 licenses expire on various dates during the year. For a year in
808-24 which a license expiration date is changed, the fee for the license
808-25 shall be prorated so that the license holder pays only that portion
808-26 of the fee that is allocable to the number of months during which
808-27 the license is valid. On renewal of the license on the new
809-1 expiration date, the entire license renewal fee is payable.
809-2 (d) A license renewal may be administratively granted unless
809-3 a protest is made to the board. (V.A.C.S. Art. 4413(36), Secs.
809-4 4.01(a) (part); 4.01B(a), (c).)
809-5 Sec. 2301.302. NOTICE OF LICENSE EXPIRATION. The board shall
809-6 notify each person licensed under this chapter of the date of
809-7 license expiration and the amount of the fee required for license
809-8 renewal. The notice shall be mailed at least 30 days before the
809-9 date of license expiration. (V.A.C.S. Art. 4413(36), Sec.
809-10 4.01B(b).)
809-11 Sec. 2301.303. RENEWAL OF DEALER'S LICENSE. A dealer shall
809-12 renew the dealer's license annually on an application prescribed by
809-13 the board. The board shall include in the renewal application a
809-14 request for disclosure of material changes described by Section
809-15 2301.257. (V.A.C.S. Art. 4413(36), Sec. 4.02(b) (part).)
809-16 Sec. 2301.304. PROCEDURE FOR RENEWAL OF CERTAIN LICENSES.
809-17 The holder of a manufacturer's, distributor's, converter's, or
809-18 representative's license may apply for a renewal of the license by
809-19 complying with the application process specified by this chapter
809-20 and board rule. (V.A.C.S. Art. 4413(36), Sec. 4.03(f).)
809-21 (Sections 2301.305-2301.350 reserved for expansion)
809-22 SUBCHAPTER H. DEALERS
809-23 Sec. 2301.351. GENERAL PROHIBITION. A dealer may not:
809-24 (1) violate a board rule;
809-25 (2) aid or abet a person who violates this chapter; or
809-26 (3) use false, deceptive, or misleading advertising.
809-27 (V.A.C.S. Art. 4413(36), Sec. 5.01A.)
810-1 Sec. 2301.352. PROHIBITION: REQUIRING ADDITIONAL EQUIPMENT
810-2 AFTER RETAIL SALE. A franchised dealer may not require as a
810-3 condition of the sale and delivery of a new motor vehicle a retail
810-4 purchaser of the vehicle to purchase special features, equipment,
810-5 parts, or accessories that the purchaser did not order or desire
810-6 and that were not already installed on the vehicle at the time of
810-7 sale. (V.A.C.S. Art. 4413(36), Sec. 5.01 (part).)
810-8 Sec. 2301.353. PROHIBITION: PERFORMANCE OF OBLIGATION UNDER
810-9 AGREEMENT WITH MANUFACTURER. A franchised dealer may not fail to
810-10 perform an obligation placed on:
810-11 (1) the selling dealer in connection with the
810-12 preparation and delivery of a new motor vehicle for retail sale as
810-13 provided in the manufacturer's preparation and delivery agreements
810-14 on file with the board that are applicable to the vehicle; or
810-15 (2) the dealer in connection with the manufacturer's
810-16 warranty agreements on file with the board. (V.A.C.S.
810-17 Art. 4413(36), Sec. 5.01 (part).)
810-18 Sec. 2301.354. USE OF SIGNS. (a) A franchised dealer may
810-19 not operate without appropriate signs that:
810-20 (1) are readily and easily visible to the public; and
810-21 (2) identify the dealer's place of business and the
810-22 products the dealer offers for sale.
810-23 (b) To the extent of a conflict between this section and
810-24 another law, including an ordinance, this section prevails.
810-25 (c) If a dispute arises under this section:
810-26 (1) the board has exclusive jurisdiction to determine
810-27 whether a sign complies with this section; and
811-1 (2) the board shall uphold an ordinance of a home-rule
811-2 municipality and protect a franchised dealer from retribution by a
811-3 manufacturer or distributor for complying with the ordinance.
811-4 (V.A.C.S. Art. 4413(36), Sec. 5.01 (part).)
811-5 Sec. 2301.355. USE OF MULTIPLE LOCATIONS. (a) A franchised
811-6 dealer may conduct business at more than one location, except that
811-7 the dealer may establish and maintain a separate location for the
811-8 display and sale of new motor vehicles only if expressly authorized
811-9 by the dealer's franchise and license.
811-10 (b) A franchised dealer must hold a separate license for
811-11 each separate and distinct dealership as required by Section
811-12 2301.257. (V.A.C.S. Art. 4413(36), Sec. 4.02(c) (part).)
811-13 Sec. 2301.356. NOTICE OF CERTAIN PROPOSED CHANGES. A
811-14 licensed dealer shall promptly notify the board of any proposed
811-15 change in its ownership, location, franchise, or any other matter
811-16 the board by rule may require. (V.A.C.S. Art. 4413(36), Sec.
811-17 4.02(f) (part).)
811-18 Sec. 2301.357. PROHIBITED FEE. (a) A franchised dealer may
811-19 not directly or indirectly pay a fee to a vehicle lessor or a
811-20 vehicle lease facilitator.
811-21 (b) For purposes of Subsection (a), an adjustment in the
811-22 purchase price paid for the lease or leased vehicle is not a fee.
811-23 This subsection does not authorize a fee for referring leases or
811-24 prospective lessees. (V.A.C.S. Art. 4413(36), Secs. 5.01 (part),
811-25 5.03A(f) (part).)
811-26 Sec. 2301.358. VEHICLE SHOW OR EXHIBITION. (a) A person who
811-27 holds a license issued under this chapter may not participate in a
812-1 new motor vehicle show or exhibition unless:
812-2 (1) the person provides the board with written notice
812-3 at least 30 days before the date the show or exhibition opens; and
812-4 (2) the board grants written approval.
812-5 (b) A person who holds a license issued under this chapter
812-6 may not sell or offer for sale a new motor vehicle at a show or
812-7 exhibition, but dealership personnel may be present to aid in
812-8 showing and exhibiting new motor vehicles.
812-9 (c) This section does not prohibit the sale of a towable
812-10 recreational vehicle, motor home, ambulance, or fire-fighting
812-11 vehicle at a show or exhibition if:
812-12 (1) the show or exhibition is approved by the board;
812-13 and
812-14 (2) the sale is not otherwise prohibited by law.
812-15 (d) A rule adopted by the board regulating the off-site
812-16 display or sale of towable recreational vehicles must include a
812-17 provision that authorizes the display and sale of towable
812-18 recreational vehicles at a private event in a trade area that would
812-19 not otherwise qualify for the private event under the application
812-20 of general participation requirements for organized dealer shows
812-21 and exhibitions. (V.A.C.S. Art. 4413(36), Sec. 4.02(d).)
812-22 Sec. 2301.359. TRANSFER OF OWNERSHIP BY DEALER. (a) A
812-23 dealer must notify the manufacturer or distributor of a vehicle the
812-24 dealer is franchised to sell of the dealer's decision to assign,
812-25 sell, or otherwise transfer a franchise or a controlling interest
812-26 in the dealership to another person. The notice is the application
812-27 by the dealer for approval by the manufacturer or distibutor of the
813-1 transfer.
813-2 (b) Notice under Subsection (a) must:
813-3 (1) be in writing and include the prospective
813-4 transferee's name, address, financial qualifications, and business
813-5 experience; and
813-6 (2) be sent by certified mail, return receipt
813-7 requested.
813-8 (c) The notice must be accompanied by:
813-9 (1) a copy of pertinent agreements regarding the
813-10 proposed assignment, sale, or transfer;
813-11 (2) completed application forms and related
813-12 information generally used by the manufacturer or distributor in
813-13 reviewing prospective dealers, if the forms are on file with the
813-14 board; and
813-15 (3) the prospective transferee's written agreement to
813-16 comply with the franchise to the extent that the franchise is not
813-17 in conflict with this chapter.
813-18 (d) Not later than the 60th day after the date of receipt of
813-19 a notice and application under this section, a manufacturer or
813-20 distributor shall determine whether a dealer's prospective
813-21 transferee is qualified and shall send a letter by certified mail,
813-22 return receipt requested, informing the dealer of the approval or
813-23 the unacceptability of the prospective transferee. If the
813-24 prospective transferee is not acceptable, the manufacturer or
813-25 distributor shall include a statement setting forth the material
813-26 reasons for the rejection.
813-27 (e) A manufacturer or distributor may not unreasonably
814-1 withhold approval of an application filed under Subsection (a). It
814-2 is unreasonable for a manufacturer or distributor to reject a
814-3 prospective transferee who is of good moral character and who meets
814-4 the written, reasonable, and uniformly applied standards or
814-5 qualifications, if any, of the manufacturer or distributor relating
814-6 to the prospective transferee's business experience and financial
814-7 qualifications.
814-8 (f) An application filed under this section is approved
814-9 unless rejected by the manufacturer or distributor in the manner
814-10 provided by this section. (V.A.C.S. Art. 4413(36), Secs. 5.01B(a),
814-11 (b), (c).)
814-12 Sec. 2301.360. REVIEW BY BOARD FOLLOWING DENIAL OF TRANSFER.
814-13 (a) A dealer whose application is rejected under Section 2301.359
814-14 may file a protest with the board. A protest filed under this
814-15 section is a contested case.
814-16 (b) In a protest under this section, the board must
814-17 determine whether the prospective transferee is qualified. The
814-18 burden is on the manufacturer or distributor to prove that the
814-19 prospective transferee is not qualified. The board shall enter an
814-20 order holding that the prospective transferee either is qualified
814-21 or is not qualified.
814-22 (c) If the board's order is that the prospective transferee
814-23 is qualified, the dealer's franchise is amended to reflect the
814-24 change in franchisee, and the manufacturer or distributor shall
814-25 accept the transfer for all purposes.
814-26 (d) If the board's order is that the prospective transferee
814-27 is not qualified, the board may include in the order:
815-1 (1) specific reasons why the prospective transferee is
815-2 not qualified; and
815-3 (2) specific conditions under which the prospective
815-4 transferee would be qualified.
815-5 (e) If the board's order that a prospective transferee is
815-6 not qualified includes specific conditions under which the
815-7 prospective transferee would be qualified, the board may retain
815-8 jurisdiction of the dispute for a time certain to allow the dealer
815-9 and prospective transferee to meet the conditions. (V.A.C.S.
815-10 Art. 4413(36), Secs. 5.01B(d), (e), (f).)
815-11 (Sections 2301.361-2301.400 reserved for expansion)
815-12 SUBCHAPTER I. WARRANTIES: REIMBURSEMENT OF DEALER
815-13 Sec. 2301.401. FILING REQUIREMENTS. (a) A manufacturer or
815-14 distributor shall file with the board a copy of the current
815-15 requirements the manufacturer or distributor imposes on its dealers
815-16 with respect to the dealer's:
815-17 (1) duties under the manufacturer's or distributor's
815-18 warranty; and
815-19 (2) vehicle preparation and delivery obligations.
815-20 (b) Warranty or preparation and delivery requirements placed
815-21 on a dealer by a manufacturer are not enforceable unless the
815-22 requirements are reasonable and are disclosed and filed as required
815-23 by Subsection (a). (V.A.C.S. Art. 4413(36), Secs. 5.02A(a), (b).)
815-24 Sec. 2301.402. RATE OF COMPENSATION. (a) A manufacturer or
815-25 distributor shall fairly and adequately compensate its dealers for
815-26 warranty work.
815-27 (b) A manufacturer or distributor may not pay or reimburse a
816-1 dealer an amount of money for warranty work that is less than the
816-2 amount the dealer charges a retail customer for similar nonwarranty
816-3 work.
816-4 (c) In computing the amount of money a dealer charges a
816-5 retail customer under Subsection (b), the manufacturer or
816-6 distributor shall use the greater of:
816-7 (1) the average labor rate charged during the
816-8 preceding six months by the dealer on 100 sequential nonwarranty
816-9 repair orders, exclusive of routine maintenance; or
816-10 (2) the average labor rate charged for 90 consecutive
816-11 days during the preceding six months by the dealer for nonwarranty
816-12 repairs, exclusive of routine maintenance. (V.A.C.S. Art. 4413(36),
816-13 Secs. 5.02A(c), (d).)
816-14 Sec. 2301.403. ADJUSTMENT OF WARRANTY LABOR RATE. (a) A
816-15 dealer may request an adjustment in the dealer's warranty labor
816-16 rate. The request must be sent to the manufacturer or distributor
816-17 by certified mail, return receipt requested, and must state the
816-18 requested rate and include information reasonably necessary to
816-19 enable the manufacturer or distributor to adequately evaluate the
816-20 request.
816-21 (b) Not later than the 60th day after the date of receipt of
816-22 a request under this section, the manufacturer or distributor shall
816-23 provide written notice to the requesting dealer of the approval or
816-24 disapproval of the request. If the request is disapproved, the
816-25 manufacturer or distributor shall state the reasons for the
816-26 disapproval.
816-27 (c) A requesting dealer may file a protest with the board if
817-1 the manufacturer or distributor:
817-2 (1) disapproves the request; or
817-3 (2) fails to respond within the time required by this
817-4 section.
817-5 (d) After a protest is filed, the board may uphold the
817-6 manufacturer's or distributor's decision only if the manufacturer
817-7 or distributor proves by a preponderance of the evidence that the
817-8 disapproval of the request or failure to respond was reasonable.
817-9 (e) If the board does not determine that the disapproval of
817-10 the request or failure to respond was reasonable, the board shall
817-11 order the requested rate into effect as of the 60th day after the
817-12 receipt of the request by the manufacturer or distributor.
817-13 (f) Except by agreement of the parties, a warranty labor
817-14 rate established under this subchapter may not be adjusted more
817-15 often than once a year. (V.A.C.S. Art. 4413(36), Secs. 5.02A(e),
817-16 (f), (g).)
817-17 Sec. 2301.404. TIME FOR PAYMENT. (a) A manufacturer or
817-18 distributor shall pay a dealer's claim for reimbursement for
817-19 warranty work or dealer preparation and delivery work not later
817-20 than the 30th day after the date of approval of the claim.
817-21 (b) A claim that is not disapproved before the 31st day
817-22 after the date of receipt is considered approved.
817-23 (c) If a claim is disapproved, the manufacturer or
817-24 distributor shall provide the dealer written notice of the reasons
817-25 for the disapproval. (V.A.C.S. Art. 4413(36), Sec. 5.02A(h).)
817-26 Sec. 2301.405. CHARGE BACK TO DEALER. (a) A manufacturer or
817-27 distributor may not charge back to a dealer money paid by the
818-1 manufacturer or distributor to satisfy a claim approved and paid
818-2 under this subchapter unless the manufacturer or distributor shows
818-3 that:
818-4 (1) the claim was false or fraudulent;
818-5 (2) repair work was not properly performed or was
818-6 unnecessary to correct a defective condition; or
818-7 (3) the dealer who made the claim failed to
818-8 substantiate the claim as provided by the manufacturer's or
818-9 distributor's requirements that were enforceable under Section
818-10 2301.401 at the time the claim was filed.
818-11 (b) A manufacturer or distributor may not audit a claim
818-12 filed under this subchapter after the first anniversary of the date
818-13 the claim is submitted unless the manufacturer or distributor has
818-14 reasonable grounds to suspect that the claim was fraudulent.
818-15 (V.A.C.S. Art. 4413(36), Secs. 5.02A(i), (j) (part).)
818-16 Sec. 2301.406. PROHIBITED REQUIREMENTS FOR PAYMENT. A
818-17 manufacturer or distributor may not require, as a prerequisite to
818-18 the payment of a claim for reimbursement, that a dealer file a
818-19 statement of actual time spent in performance of labor, unless
818-20 actual time is the basis for reimbursement. (V.A.C.S.
818-21 Art. 4413(36), Sec. 5.02A(j) (part).)
818-22 (Sections 2301.407-2301.450 reserved for expansion)
818-23 SUBCHAPTER J. MANUFACTURERS, DISTRIBUTORS,
818-24 AND REPRESENTATIVES
818-25 Sec. 2301.451. PROHIBITION: ITEMS NOT ORDERED. A
818-26 manufacturer, distributor, or representative may not require or
818-27 attempt to require a franchised dealer to order, accept delivery
819-1 of, or pay anything of value, directly or indirectly, for a motor
819-2 vehicle or an appliance, part, accessory, or any other commodity
819-3 unless the dealer voluntarily ordered or contracted for the item.
819-4 (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
819-5 Sec. 2301.452. DELIVERY OF MOTOR VEHICLE OR PART. (a) A
819-6 manufacturer, distributor, or representative shall deliver in a
819-7 reasonable quantity and within a reasonable time to a franchised
819-8 dealer who holds a franchise for a motor vehicle sold or
819-9 distributed by the manufacturer, distributor, or representative any
819-10 new motor vehicle or part or accessory for a new motor vehicle as
819-11 covered by the franchise if the vehicle, part, or accessory is
819-12 publicly advertised as being available for delivery or is actually
819-13 being delivered.
819-14 (b) This section does not apply to a delivery prevented by:
819-15 (1) an act of God;
819-16 (2) a work stoppage or delay because of a strike or
819-17 labor dispute;
819-18 (3) a freight embargo; or
819-19 (4) another cause beyond the control of the
819-20 manufacturer, distributor, or representative. (V.A.C.S.
819-21 Art. 4413(36), Sec. 5.02(b) (part).)
819-22 Sec. 2301.453. TERMINATION OR DISCONTINUANCE OF FRANCHISE.
819-23 (a) Notwithstanding the terms of any franchise, a manufacturer,
819-24 distributor, or representative may not terminate or discontinue a
819-25 franchise with a franchised dealer or directly or indirectly force
819-26 or attempt to force a franchised dealer to relocate or discontinue
819-27 a line-make or parts or products related to that line-make unless
820-1 the manufacturer, distributor, or representative provides notice of
820-2 the termination or discontinuance as required by this section and:
820-3 (1) the manufacturer, distributor, or representative
820-4 receives the dealer's informed written consent;
820-5 (2) the appropriate time for the dealer to file a
820-6 protest under this section has expired; or
820-7 (3) the board makes a determination of good cause
820-8 under this section.
820-9 (b) A termination or discontinuance to which this section
820-10 applies includes a termination or discontinuance of a franchise
820-11 that results from a change by a manufacturer, distributor, or
820-12 representative of its:
820-13 (1) distributor;
820-14 (2) method of distribution of its products in this
820-15 state; or
820-16 (3) business structure or ownership.
820-17 (c) Except as provided by Subsection (d), the manufacturer,
820-18 distributor, or representative must provide written notice by
820-19 registered or certified mail to the dealer and the board stating
820-20 the specific grounds for the termination or discontinuance. The
820-21 notice must:
820-22 (1) be received not later than the 60th day before the
820-23 effective date of the termination or discontinuance; and
820-24 (2) contain on its first page a conspicuous statement
820-25 that reads: "NOTICE TO DEALER: YOU MAY BE ENTITLED TO FILE A
820-26 PROTEST WITH THE TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS, AND
820-27 HAVE A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR
821-1 DISCONTINUANCE OF YOUR FRANCHISE UNDER THE TERMS OF CHAPTER 2301,
821-2 OCCUPATIONS CODE, IF YOU OPPOSE THIS ACTION."
821-3 (d) Notice may be provided not later than the 15th day
821-4 before the effective date of termination or discontinuance if a
821-5 licensed dealer fails to conduct its customary sales and service
821-6 operations during its customary business hours for seven
821-7 consecutive business days. This subsection does not apply if the
821-8 failure is caused by:
821-9 (1) an act of God;
821-10 (2) a work stoppage or delay because of a strike or
821-11 labor dispute;
821-12 (3) an order of the board; or
821-13 (4) another cause beyond the control of the dealer.
821-14 (e) A franchised dealer may file a protest with the board of
821-15 the termination or discontinuance not later than the latter of:
821-16 (1) the 60th day after the date of the receipt of the
821-17 notice of termination or discontinuance; or
821-18 (2) the time specified in the notice.
821-19 (f) After a protest is filed under Subsection (e), the board
821-20 shall notify the party seeking the termination or discontinuance
821-21 that:
821-22 (1) a timely protest has been filed;
821-23 (2) a hearing is required under this chapter; and
821-24 (3) the party may not terminate or discontinue the
821-25 franchise until the board issues its final order or decision.
821-26 (g) After a hearing, the board shall determine whether the
821-27 party seeking the termination or discontinuance has established by
822-1 a preponderance of the evidence that there is good cause for the
822-2 proposed termination or discontinuance.
822-3 (h) If a franchise is terminated or discontinued, the
822-4 manufacturer, distributor, or representative shall establish
822-5 another franchise in the same line-make within a reasonable time
822-6 unless it is shown to the board by a preponderance of the evidence
822-7 that the community or trade area cannot reasonably support such a
822-8 dealership. If this showing is made, a license may not be issued
822-9 for a franchised dealer in the same area until a change in
822-10 circumstances is established.
822-11 (i) A manufacturer that changes its distributor or the
822-12 method of distribution of its products in this state in a manner
822-13 that results in unlawful termination or discontinuance of a
822-14 franchise without good cause may not directly or indirectly
822-15 distribute its products in this state. (V.A.C.S. Art. 4413(36),
822-16 Secs. 4.04(b) (part), 5.02(b) (part).)
822-17 Sec. 2301.454. MODIFICATION OR REPLACEMENT OF FRANCHISE. (a)
822-18 Notwithstanding the terms of any franchise, a manufacturer,
822-19 distributor, or representative may not modify or replace a
822-20 franchise if the modification or replacement would adversely affect
822-21 to a substantial degree the dealer's sales, investment, or
822-22 obligations to provide service to the public.
822-23 (b) Subsection (a) does not apply to a modification or
822-24 replacement of a franchise for which:
822-25 (1) the manufacturer, distributor, or representative
822-26 provides written notice by registered or certified mail to each
822-27 affected dealer and the board of the modification or replacement;
823-1 and
823-2 (2) if a protest is filed under this section, the
823-3 board approves the modification or replacement.
823-4 (c) The notice required by Subsection (b)(1) must:
823-5 (1) be given not later than the 60th day before the
823-6 date of the modification or replacement; and
823-7 (2) contain on its first page a conspicuous statement
823-8 that reads: "NOTICE TO DEALER: YOU MAY BE ENTITLED TO FILE A
823-9 PROTEST WITH THE TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS, AND
823-10 HAVE A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED MODIFICATION
823-11 OR REPLACEMENT OF YOUR FRANCHISE UNDER THE TERMS OF CHAPTER 2301,
823-12 OCCUPATIONS CODE, IF YOU OPPOSE THIS ACTION."
823-13 (d) A franchised dealer may file a protest with the board of
823-14 the modification or replacement not later than the latter of:
823-15 (1) the 60th day after the date of the receipt of the
823-16 notice; or
823-17 (2) the time specified in the notice.
823-18 (e) After a protest is filed, the board shall determine
823-19 whether the manufacturer, distributor, or representative has
823-20 established by a preponderance of the evidence that there is good
823-21 cause for the proposed modification or replacement. The franchise
823-22 continues in effect until the board resolves the protest.
823-23 (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
823-24 Sec. 2301.455. DETERMINATION OF GOOD CAUSE FOR TERMINATION,
823-25 DISCONTINUANCE, MODIFICATION, OR REPLACEMENT. (a) Notwithstanding
823-26 the terms of any franchise, in determining whether good cause has
823-27 been established under Section 2301.453 or 2301.454, the board
824-1 shall consider all existing circumstances, including:
824-2 (1) the dealer's sales in relation to the sales in the
824-3 market;
824-4 (2) the dealer's investment and obligations;
824-5 (3) injury or benefit to the public;
824-6 (4) the adequacy of the dealer's service facilities,
824-7 equipment, parts, and personnel in relation to those of other
824-8 dealers of new motor vehicles of the same line-make;
824-9 (5) whether warranties are being honored by the
824-10 dealer;
824-11 (6) the parties' compliance with the franchise, except
824-12 to the extent that the franchise conflicts with this chapter; and
824-13 (7) the enforceability of the franchise from a public
824-14 policy standpoint, including issues of the reasonableness of the
824-15 franchise's terms, oppression, adhesion, and the parties' relative
824-16 bargaining power.
824-17 (b) The desire of a manufacturer, distributor, or
824-18 representative for market penetration does not by itself constitute
824-19 good cause. (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
824-20 Sec. 2301.456. USE OF ADVERTISING. A manufacturer,
824-21 distributor, or representative may not:
824-22 (1) use any false, deceptive, or misleading
824-23 advertising; or
824-24 (2) notwithstanding the terms of any franchise,
824-25 require that a franchised dealer join, contribute to, or affiliate
824-26 with, directly or indirectly, any advertising association.
824-27 (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
825-1 Sec. 2301.457. PROHIBITION: CHANGE OF FRANCHISED DEALER'S
825-2 CAPITAL STRUCTURE. Notwithstanding the terms of any franchise, a
825-3 manufacturer, distributor, or representative may not prevent a
825-4 franchised dealer who meets reasonable capital requirements from
825-5 reasonably changing:
825-6 (1) the capital structure of the dealership; or
825-7 (2) the means by or through which the dealer finances
825-8 the operation of the dealership. (V.A.C.S. Art. 4413(36), Sec.
825-9 5.02(b) (part).)
825-10 Sec. 2301.458. PROHIBITION: CHANGE IN DEALER OWNERSHIP.
825-11 Notwithstanding the terms of any franchise, except as provided by
825-12 Section 2301.359 or 2301.360, a manufacturer, distributor, or
825-13 representative may not fail to give effect to or attempt to prevent
825-14 the sale or transfer of:
825-15 (1) a dealer, dealership, or franchise;
825-16 (2) an interest in a dealer, dealership, or franchise;
825-17 or
825-18 (3) the management of a dealer, dealership, or
825-19 franchise. (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
825-20 Sec. 2301.459. PROHIBITION: USE OF PROMISSORY NOTE, SECURITY
825-21 AGREEMENT, OR INSURANCE POLICY. Notwithstanding the terms of any
825-22 franchise, a manufacturer, distributor, or representative may not
825-23 require or attempt to require that a franchised dealer assign to or
825-24 act as an agent for a manufacturer, distributor, or representative
825-25 to secure:
825-26 (1) a promissory note or security agreement given in
825-27 connection with the sale or purchase of a new motor vehicle; or
826-1 (2) an insurance policy on or having to do with the
826-2 operation of a vehicle that is sold. (V.A.C.S. Art. 4413(36), Sec.
826-3 5.02(b) (part).)
826-4 Sec. 2301.460. WARRANTY, PREPARATION, OR DELIVERY AGREEMENT
826-5 OBLIGATIONS. Notwithstanding the terms of any franchise, a
826-6 manufacturer, distributor, or representative may not, after a
826-7 complaint and a hearing, fail or refuse to perform an obligation
826-8 placed on the manufacturer in connection with the preparation,
826-9 delivery, or warranty of a new motor vehicle as provided in the
826-10 manufacturer's warranty, preparation, or delivery agreements on
826-11 file with the board. (V.A.C.S. Art. 4413(36), Sec. 5.02(b)
826-12 (part).)
826-13 Sec. 2301.461. LIABILITY OF FRANCHISED DEALER. (a)
826-14 Notwithstanding the terms of any franchise or any other law, a
826-15 franchised dealer's preparation, delivery, and warranty obligations
826-16 as filed with the board are the dealer's sole responsibility for
826-17 product liability as between the dealer and a manufacturer or
826-18 distributor.
826-19 (b) A manufacturer or distributor shall reimburse the dealer
826-20 for any loss incurred by the dealer, including legal fees, court
826-21 costs, and damages, as a result of the dealer having been named a
826-22 party in a product liability action.
826-23 (c) Subsection (b) does not apply to a loss caused by the
826-24 dealer's:
826-25 (1) failure to comply with an obligation described by
826-26 Subsection (a);
826-27 (2) negligence or intentional misconduct; or
827-1 (3) modification of a product without the
827-2 authorization of the manufacturer or distributor.
827-3 (d) To the extent of any conflict between this section and
827-4 another law, this section prevails. (V.A.C.S. Art. 4413(36), Sec.
827-5 5.02(b) (part).)
827-6 Sec. 2301.462. SUCCESSION FOLLOWING DEATH OF FRANCHISED
827-7 DEALER. (a) Notwithstanding the terms of any franchise, except as
827-8 provided by Subsection (b), a manufacturer, distributor, or
827-9 representative shall honor the succession to a dealership by a
827-10 legal heir or devisee under:
827-11 (1) the will of a franchised dealer; or
827-12 (2) the laws of descent and distribution of this
827-13 state.
827-14 (b) A manufacturer, distributor, or representative may
827-15 refuse to honor a succession under Subsection (a) if, after notice
827-16 and hearing, it is shown to the board that the result of the
827-17 succession will be detrimental to the public interest and to the
827-18 representation of the manufacturer or distributor.
827-19 (c) This section does not prevent a franchised dealer,
827-20 during the dealer's lifetime, from designating any person as a
827-21 successor dealer by a written instrument filed with the
827-22 manufacturer or distributor. (V.A.C.S. Art. 4413(36), Sec. 5.02(b)
827-23 (part).)
827-24 Sec. 2301.463. PROHIBITION: PAYMENT OF REBATE BY FRANCHISED
827-25 DEALER. Notwithstanding the terms of any franchise, a manufacturer,
827-26 distributor, or representative may not require a franchised dealer
827-27 to directly or indirectly pay or assume any part of a refund,
828-1 rebate, discount, or other financial adjustment made by the
828-2 manufacturer, distributor, or representative to, or in favor of, a
828-3 customer of the dealer, unless the dealer voluntarily agrees.
828-4 (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
828-5 Sec. 2301.464. RELOCATION OF FRANCHISE. (a) Notwithstanding
828-6 the terms of any franchise, a manufacturer, distributor, or
828-7 representative may not deny or withhold approval of a written
828-8 application to relocate a franchise unless:
828-9 (1) the applicant receives written notice of the
828-10 denial or withholding of approval not later than the 60th day after
828-11 the date the application is received; and
828-12 (2) if the applicant files a protest with the board,
828-13 the board makes a determination of reasonable grounds under this
828-14 section.
828-15 (b) An application to relocate a franchise must contain
828-16 information reasonably necessary to enable a manufacturer or
828-17 distributor to adequately evaluate the application.
828-18 (c) If the applicant files a protest, the board shall hold a
828-19 hearing. After the hearing, the board shall determine whether the
828-20 manufacturer or distributor has established by a preponderance of
828-21 the evidence that the grounds for the denial or withholding of
828-22 approval of the relocation are reasonable. (V.A.C.S.
828-23 Art. 4413(36), Sec. 5.02(b) (part).)
828-24 Sec. 2301.465. PAYMENT TO FRANCHISED DEALER FOLLOWING
828-25 TERMINATION OF FRANCHISE. (a) In this section:
828-26 (1) "Net cost" means the franchised dealer cost for a
828-27 new, unsold, undamaged, and complete motor vehicle of the current
829-1 model year or the previous model year in a dealer's inventory:
829-2 (A) plus any charges by the manufacturer,
829-3 distributor, or representative for distribution, delivery, and
829-4 taxes; and
829-5 (B) less all allowances paid to the franchised
829-6 dealer by the manufacturer, distributor, or representative.
829-7 (2) "Net discount value" is the net cost multiplied by
829-8 the total mileage divided by 100,000.
829-9 (b) Notwithstanding the terms of any franchise, after the
829-10 termination of a franchise, a manufacturer, distributor, or
829-11 representative shall pay to a franchised dealer or any lienholder,
829-12 in accordance with the interest of each, the following amounts:
829-13 (1) the dealer cost of each new motor vehicle in the
829-14 dealer's inventory with mileage of 6,000 miles or less, reduced by
829-15 the net discount value of each vehicle, except that if a vehicle
829-16 cannot be reduced by the net discount value, the manufacturer or
829-17 distributor shall pay the dealer the net cost of the vehicle;
829-18 (2) the dealer cost of each new, unused, undamaged,
829-19 and unsold part or accessory that:
829-20 (A) is in the current parts catalogue and is
829-21 still in the original, resalable merchandising package and in an
829-22 unbroken lot, except in the case of sheet metal, a comparable
829-23 substitute for the original package may be used; and
829-24 (B) was purchased by the dealer either directly
829-25 from the manufacturer or distributor or from an outgoing authorized
829-26 dealer as a part of the dealer's initial inventory;
829-27 (3) the fair market value of each undamaged sign owned
830-1 by the dealer that bears a trademark or tradename used or claimed
830-2 by the manufacturer, distributor, or representative and that was
830-3 purchased from or at the request of the manufacturer, distributor,
830-4 or representative;
830-5 (4) the fair market value of all special tools, data
830-6 processing equipment, and automotive service equipment owned by the
830-7 dealer that:
830-8 (A) were recommended in writing and designated
830-9 as special tools and equipment;
830-10 (B) were purchased from or at the request of the
830-11 manufacturer, distributor, or representative; and
830-12 (C) are in usable and good condition except for
830-13 reasonable wear and tear; and
830-14 (5) the cost of transporting, handling, packing,
830-15 storing, and loading any property subject to repurchase under this
830-16 section.
830-17 (c) An amount described by Subsection (b) is due:
830-18 (1) for property described by Subsection (b)(1), not
830-19 later than the 60th day after the date a franchise is terminated;
830-20 and
830-21 (2) for all other property described by Subsection
830-22 (b), not later than the 90th day after the date a franchise is
830-23 terminated.
830-24 (d) As a condition of payment, a franchised dealer must
830-25 comply with reasonable requirements provided by the franchise
830-26 regarding the return of inventory.
830-27 (e) A manufacturer or distributor shall reimburse a
831-1 franchised dealer for the dealer's cost for storing any property
831-2 covered by this section:
831-3 (1) beginning on the 91st day after the date the
831-4 franchise is terminated; or
831-5 (2) before the date described by Subdivision (1) if
831-6 the dealer notifies the manufacturer or distributor of the
831-7 commencement of storage charges within that period.
831-8 (f) On receipt of notice under Subsection (e)(2), a
831-9 manufacturer or distributor may immediately take possession of the
831-10 property by repurchase under this section.
831-11 (g) A manufacturer, distributor, or representative who fails
831-12 to pay an amount within the time required by this section or at the
831-13 time the dealer and any lienholder proffer good title before the
831-14 time required for payment, is liable to the dealer for:
831-15 (1) the dealer cost, fair market value, or current
831-16 price of the inventory, whichever amount is highest;
831-17 (2) interest on the amount due computed at the rate
831-18 applicable to a judgment of a court; and
831-19 (3) reasonable attorney's fees and costs. (V.A.C.S.
831-20 Art. 4413(36), Sec. 5.02(b) (part).)
831-21 Sec. 2301.466. ARBITRATION. (a) Notwithstanding the terms
831-22 of any franchise, a manufacturer, distributor, or representative
831-23 may not require a franchised dealer to submit to arbitration on any
831-24 issue unless the dealer and the manufacturer, distributor, or
831-25 representative and their respective counsel agree to the
831-26 arbitration after a controversy arises.
831-27 (b) An arbitrator shall apply this chapter in resolving a
832-1 controversy. Either party may appeal to the board a decision of an
832-2 arbitrator on the ground that the arbitrator failed to apply this
832-3 chapter. (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
832-4 Sec. 2301.467. PROHIBITIONS: SALES STANDARDS, PURCHASE OF
832-5 EQUIPMENT. Notwithstanding the terms of any franchise, a
832-6 manufacturer, distributor, or representative may not:
832-7 (1) require adherence to unreasonable sales or service
832-8 standards; or
832-9 (2) unreasonably require a franchised dealer to
832-10 purchase special tools or equipment. (V.A.C.S. Art. 4413(36), Sec.
832-11 5.02(b) (part).)
832-12 Sec. 2301.468. DISCRIMINATION AMONG DEALERS OR FRANCHISEES.
832-13 A manufacturer, distributor, or representative may not:
832-14 (1) notwithstanding the terms of any franchise,
832-15 directly or indirectly discriminate against a franchised dealer or
832-16 otherwise treat franchised dealers differently as a result of a
832-17 formula or other computation or process intended to gauge the
832-18 performance of a dealership; or
832-19 (2) discriminate unreasonably between or among
832-20 franchisees in the sale of a motor vehicle owned by the
832-21 manufacturer or distributor. (V.A.C.S. Art. 4413(36), Sec. 5.02(b)
832-22 (part).)
832-23 Sec. 2301.469. COSTS OF PRODUCT RECALL. Notwithstanding the
832-24 terms of any franchise, a manufacturer, distributor, or
832-25 representative shall compensate a franchised dealer for all costs
832-26 incurred by the dealer as required by the manufacturer in complying
832-27 with a product recall by the manufacturer or distributor, including
833-1 any costs incurred by the dealer in notifying vehicle owners of the
833-2 existence of the recall. (V.A.C.S. Art. 4413(36), Sec. 5.02(b)
833-3 (part).)
833-4 Sec. 2301.470. PROHIBITION: CONDITIONS FOR FINANCING MOTOR
833-5 VEHICLE. A manufacturer, distributor, or representative may not
833-6 directly or indirectly, or through a subsidiary or agent, require
833-7 as a condition for obtaining financing for a motor vehicle that:
833-8 (1) the purchaser of the vehicle purchase any product
833-9 other than the motor vehicle from the manufacturer, the
833-10 distributor, or an entity owned or controlled by the manufacturer
833-11 or distributor; or
833-12 (2) an insurance policy or service contract bought by
833-13 the purchaser be from a specific source. (V.A.C.S. Art. 4413(36),
833-14 Sec. 5.02(b) (part).)
833-15 Sec. 2301.471. USE OF FINANCING SUBSIDIARY. (a) A
833-16 manufacturer, distributor, or representative may not:
833-17 (1) compel a franchised dealer through a financing
833-18 subsidiary of the manufacturer or distributor to agree to
833-19 unreasonable operating requirements; or
833-20 (2) directly or indirectly terminate a franchise
833-21 through the actions of a financing subsidiary of the manufacturer
833-22 or distributor.
833-23 (b) This section does not limit the right of a financing
833-24 entity to engage in business practices in accordance with the usage
833-25 of trade in retail and wholesale motor vehicle financing. (V.A.C.S.
833-26 Art. 4413(36), Sec. 5.02(b) (part).)
833-27 Sec. 2301.472. ADDITION OF LINE-MAKE. (a) Notwithstanding
834-1 the terms of any franchise, a manufacturer, distributor, or
834-2 representative may not deny or withhold approval of a franchised
834-3 dealer's application to add a line-make or parts or products
834-4 related to that line-make unless:
834-5 (1) the manufacturer or distributor provides written
834-6 notice of the denial or withholding of approval to the applicant
834-7 not later than the 60th day after the date the application is
834-8 received; and
834-9 (2) if the applicant files a protest under this
834-10 section, the board upholds the denial or withholding of approval.
834-11 (b) After receiving notice under Subsection (a)(1), a dealer
834-12 may file a protest with the board.
834-13 (c) If the dealer files a protest, the board may uphold the
834-14 manufacturer's or distributor's decision to deny or withhold
834-15 approval of the addition of the line-make only if the manufacturer
834-16 or distributor establishes by a preponderance of the evidence that
834-17 the denial or withholding of approval was reasonable.
834-18 (d) In determining whether a manufacturer or distributor has
834-19 established that the denial or withholding of approval is
834-20 reasonable, the board shall consider all existing circumstances,
834-21 including:
834-22 (1) the dealer's sales in relation to the sales in the
834-23 market;
834-24 (2) the dealer's investment and obligations;
834-25 (3) injury or benefit to the public;
834-26 (4) the adequacy of the dealer's sales and service
834-27 facilities, equipment, parts, and personnel in relation to those of
835-1 other dealers of new motor vehicles of the same line-make;
835-2 (5) whether warranties are being honored by the dealer
835-3 agreement;
835-4 (6) the parties' compliance with the franchise, except
835-5 to the extent that the franchise conflicts with this chapter;
835-6 (7) the enforceability of the franchise from a public
835-7 policy standpoint, including issues of the reasonableness of the
835-8 franchise's terms, oppression, adhesion, and the parties' relative
835-9 bargaining power;
835-10 (8) whether the dealer complies with reasonable
835-11 capitalization requirements or will be able to comply with
835-12 reasonable capitalization requirements within a reasonable time;
835-13 (9) any harm to the manufacturer if the denial or
835-14 withholding of approval is not upheld; and
835-15 (10) any harm to the dealer if the denial or
835-16 withholding of approval is upheld. (V.A.C.S. Art. 4413(36), Sec.
835-17 5.02(b) (part).)
835-18 Sec. 2301.473. MODELS WITHIN LINE-MAKE. A manufacturer,
835-19 distributor, or representative may not:
835-20 (1) fail or refuse to offer to its same line-make
835-21 franchised dealers all models manufactured for that line-make; or
835-22 (2) require as a prerequisite to receiving a model or
835-23 series of vehicles that a franchised dealer:
835-24 (A) pay an extra fee;
835-25 (B) purchase unreasonable advertising displays
835-26 or other materials; or
835-27 (C) remodel, renovate, or recondition the
836-1 dealer's existing facilities. (V.A.C.S. Art. 4413(36), Sec.
836-2 5.02(b) (part).)
836-3 Sec. 2301.474. PAYMENT OF COSTS FOR ADMINISTRATIVE OR CIVIL
836-4 PROCEEDING. (a) A manufacturer, distributor, or representative may
836-5 not require a franchised dealer to compensate the manufacturer or
836-6 distributor for any court costs, attorney's fees, or other expenses
836-7 incurred in an administrative or civil proceeding arising under
836-8 this chapter.
836-9 (b) This section does not prohibit a manufacturer and a
836-10 franchised dealer from entering into an agreement to share costs in
836-11 a proceeding in which the dealer and manufacturer have the same or
836-12 similar interests. (V.A.C.S. Art. 4413(36), Sec. 5.02(b) (part).)
836-13 Sec. 2301.475. MANUFACTURER OR DISTRIBUTOR INCENTIVE
836-14 PROGRAMS. (a) Except as provided by Subsection (b), after the
836-15 first anniversary of the ending date of a manufacturer or
836-16 distributor incentive program, a manufacturer or distributor may
836-17 not:
836-18 (1) charge back to a dealer money paid by the
836-19 manufacturer or distributor as a result of the incentive program;
836-20 (2) charge back to a dealer the cash value of a prize
836-21 or other thing of value awarded to the dealer as a result of the
836-22 incentive program; or
836-23 (3) audit the records of a dealer to determine
836-24 compliance with the terms of the incentive program, unless the
836-25 manufacturer or distributor has reasonable grounds to believe the
836-26 dealer committed fraud with respect to the incentive program.
836-27 (b) A manufacturer or distributor may make charge-backs to a
837-1 dealer if, after an audit, the manufacturer or distributor has
837-2 reasonable grounds to conclude that the dealer committed fraud with
837-3 respect to the incentive program. (V.A.C.S. Art. 4413(36), Sec.
837-4 5.02B.)
837-5 Sec. 2301.476. MANUFACTURER OR DISTRIBUTOR OWNERSHIP,
837-6 OPERATION, OR CONTROL OF DEALERSHIP. (a) In this section,
837-7 "manufacturer" includes:
837-8 (1) a representative; or
837-9 (2) a person who:
837-10 (A) is affiliated with a manufacturer or
837-11 representative; or
837-12 (B) directly or indirectly through an
837-13 intermediary, is controlled by, or is under common control with, a
837-14 manufacturer.
837-15 (b) For purposes of Subsection (a)(2)(B), a person is
837-16 controlled by a manufacturer if the manufacturer is directly or
837-17 indirectly authorized, by law or by agreement of the parties, to
837-18 direct or influence the person's management and policies.
837-19 (c) Except as provided by this section, a manufacturer or
837-20 distributor may not directly or indirectly:
837-21 (1) own an interest in a dealer or dealership;
837-22 (2) operate or control a dealer or dealership; or
837-23 (3) act in the capacity of a dealer.
837-24 (d) A manufacturer or distributor may own an interest in a
837-25 franchised dealer, or otherwise control a dealership, for a period
837-26 not to exceed 12 months from the date the manufacturer or
837-27 distributor acquires the dealership if:
838-1 (1) the person from whom the manufacturer or
838-2 distributor acquired the dealership was a franchised dealer; and
838-3 (2) the dealership is for sale by the manufacturer or
838-4 distributor at a reasonable price and on reasonable terms and
838-5 conditions.
838-6 (e) On a showing of good cause by a manufacturer or
838-7 distributor, the board may extend the time limit imposed under
838-8 Subsection (d) for a period not to exceed an additional 12 months.
838-9 An application for an extension after the first extension is
838-10 granted is subject to protest by a dealer of the same line-make
838-11 whose dealership is located in the same county as, or within 15
838-12 miles of, the dealership owned or controlled by the manufacturer or
838-13 distributor.
838-14 (f) For the purpose of broadening the diversity of its
838-15 dealer body and enhancing opportunities for qualified persons who
838-16 are part of a group that has been historically underrepresented in
838-17 its dealer body, or other qualified persons who lack the resources
838-18 to purchase a dealership outright, but for no other purpose, a
838-19 manufacturer or distributor may temporarily own an interest in a
838-20 dealership if the manufacturer's or distributor's participation in
838-21 the dealership is in a bona fide relationship with a franchised
838-22 dealer who:
838-23 (1) has made a significant investment in the
838-24 dealership, subject to loss;
838-25 (2) has an ownership interest in the dealership; and
838-26 (3) operates the dealership under a plan to acquire
838-27 full ownership of the dealership within a reasonable time and under
839-1 reasonable terms.
839-2 (g) A person who on June 7, 1995, held both a motor home
839-3 manufacturer's license and a motor home dealer's license issued
839-4 under this chapter may:
839-5 (1) continue to hold both licenses; and
839-6 (2) operate as both a manufacturer and dealer of motor
839-7 homes but of no other type of vehicle. (V.A.C.S. Art. 4413(36),
839-8 Sec. 5.02C.)
839-9 Sec. 2301.477. MANUFACTURER DOING BUSINESS IN THIS STATE. A
839-10 manufacturer whose products are offered for sale in this state
839-11 under a franchise entered into between its distributor or
839-12 representative and a dealer is bound by the terms of the franchise
839-13 and this chapter as if the manufacturer had executed the franchise.
839-14 (V.A.C.S. Art. 4413(36), Sec. 4.04(b) (part).)
839-15 Sec. 2301.478. ACTION ON FRANCHISE. (a) Notwithstanding the
839-16 terms of any franchise or any other law, an action or proceeding
839-17 brought by a manufacturer, representative, converter, or
839-18 distributor against a dealer must be brought in an appropriate
839-19 forum in this state only, and the law of this state applies to the
839-20 action or proceeding.
839-21 (b) Each party to a franchise owes to the other party a duty
839-22 of good faith and fair dealing that is actionable in tort.
839-23 (V.A.C.S. Art. 4413(36), Secs. 6.06(d), (e).)
839-24 (Sections 2301.479-2301.520 reserved for expansion)
839-25 SUBCHAPTER K. MEDIATION BETWEEN DEALER AND
839-26 MANUFACTURER OR DISTRIBUTOR
839-27 Sec. 2301.521. DEFINITION. In this subchapter, "mediation"
840-1 means a nonbinding forum in which an impartial mediator facilitates
840-2 communication between parties to promote reconciliation,
840-3 settlement, or understanding between the parties. (V.A.C.S.
840-4 Art. 4413(36), Sec. 3.07A(a) (part).)
840-5 Sec. 2301.522. MEDIATION APPLICABLE. (a) In an action
840-6 brought against a manufacturer or distributor under Sections
840-7 2301.451-2301.474 by a franchised dealer whose franchise provides
840-8 for arbitration in compliance with this chapter, the board shall
840-9 order the parties to submit the dispute to mediation in the manner
840-10 provided by this subchapter.
840-11 (b) Subsection (a) applies only if the dealer's franchise
840-12 does not contain an arbitration provision in conflict with this
840-13 chapter. In a dispute concerning whether Subsection (a) applies,
840-14 the board shall enter an order either that the franchise contains a
840-15 provision in conflict with this chapter or that it does not. If
840-16 the board determines that the franchise does not contain an
840-17 arbitration provision that conflicts with this chapter, the board
840-18 shall order the parties to proceed to mediation as provided by this
840-19 subchapter.
840-20 (c) An order issued under Subsection (b) is not appealable.
840-21 (d) This subchapter does not apply to an action brought by
840-22 the board to enforce this chapter. (V.A.C.S. Art. 4413(36), Secs.
840-23 3.07A(b), (c), (l).)
840-24 Sec. 2301.523. MEDIATOR. (a) By agreement, the parties
840-25 shall select and compensate a mediator who is qualified to serve
840-26 under Section 154.052(a), Civil Practice and Remedies Code.
840-27 (b) Sections 154.053 and 154.055, Civil Practice and
841-1 Remedies Code, apply to a mediator under this subchapter.
841-2 (c) A mediator may not impose the mediator's own judgment on
841-3 the issues for that of the parties. (V.A.C.S. Art. 4413(36), Secs.
841-4 3.07A(a) (part), (e), (h) (part).)
841-5 Sec. 2301.524. LOCATION AND SCHEDULE OF MEDIATION. (a) The
841-6 parties by agreement shall select a venue and schedule for
841-7 mediation under this subchapter. If the parties are unable to
841-8 agree on a venue and schedule, the mediator shall select a venue
841-9 and schedule.
841-10 (b) Except by written agreement of all parties, mediation
841-11 must be held in this state.
841-12 (c) Mediation must be completed not later than the 60th day
841-13 after the date the board orders the parties to mediate. The
841-14 deadline may be extended by the board at the request of all
841-15 parties. (V.A.C.S. Art. 4413(36), Secs. 3.07A(d), (f).)
841-16 Sec. 2301.525. LAW APPLICABLE; CONFLICT OF LAWS. (a) Except
841-17 as provided by Subsection (b) of this section, Section 154.073,
841-18 Civil Practice and Remedies Code, applies to mediation under this
841-19 subchapter.
841-20 (b) If Section 154.073, Civil Practice and Remedies Code,
841-21 conflicts with another legal requirement for disclosure of
841-22 communications or materials, the issue of confidentiality may be
841-23 presented to the board to determine, in camera, whether the facts,
841-24 circumstances, and context of the communications or materials
841-25 sought to be disclosed warrant a protective order of the board or
841-26 whether the communications or materials are subject to disclosure.
841-27 (c) This subchapter controls over any other law relating to
842-1 or requiring mediation between or among license holders. (V.A.C.S.
842-2 Art. 4413(36), Secs. 3.07A(g), (m).)
842-3 Sec. 2301.526. COSTS OF MEDIATION. (a) The board is not
842-4 liable for the compensation paid or to be paid to a mediator
842-5 employed under this subchapter.
842-6 (b) Without regard to the outcome of mediation or subsequent
842-7 regulatory or judicial proceedings, costs incurred by a party in
842-8 mediation required by this subchapter may not be imposed on the
842-9 opposing party. (V.A.C.S. Art. 4413(36), Sec. 3.07A(h) (part).)
842-10 Sec. 2301.527. JURISDICTION OF BOARD. The board retains
842-11 jurisdiction of the subject matter of and parties to a dispute
842-12 during mediation and may, on the motion of a party or on its own
842-13 motion, enter appropriate orders. (V.A.C.S. Art. 4413(36), Sec.
842-14 3.07A(i).)
842-15 Sec. 2301.528. EFFECT OF MEDIATION ON CHAPTER. (a) Except as
842-16 provided by this subchapter, mediation under this subchapter does
842-17 not affect a procedural right or duty conferred by this chapter or
842-18 by board rule.
842-19 (b) Procedural time limits imposed by this chapter or under
842-20 the authority of this chapter are tolled during mediation.
842-21 (c) Mediation does not affect any right of a person who is
842-22 not a party to the mediation.
842-23 (d) The board shall stay proceedings involving the parties
842-24 in mediation until the board receives the mediator's certification
842-25 that mediation has concluded. (V.A.C.S. Art. 4413(36), Sec.
842-26 3.07A(j).)
842-27 Sec. 2301.529. OUTCOME OF MEDIATION. (a) If mediation
843-1 resolves the dispute, the board shall enter an order incorporating
843-2 the terms of the agreement reached in mediation.
843-3 (b) If mediation does not resolve the dispute, the board
843-4 shall proceed to a contested case hearing or other appropriate
843-5 exercise of its jurisdiction. (V.A.C.S. Art. 4413(36), Sec.
843-6 3.07A(k).)
843-7 (Sections 2301.530-2301.550 reserved for expansion)
843-8 SUBCHAPTER L. VEHICLE LESSORS AND
843-9 VEHICLE LEASE FACILITATORS
843-10 Sec. 2301.551. ACCEPTANCE AND PAYMENT OF FEES BY VEHICLE
843-11 LESSOR. (a) A vehicle lessor may not directly or indirectly accept
843-12 a fee from a dealer. For purposes of this subsection, "fee" does
843-13 not include an adjustment in the purchase price paid for the lease
843-14 or leased vehicle. This subsection does not authorize a fee for
843-15 referring vehicle leases or prospective lessees.
843-16 (b) A vehicle lessor may not pay a fee to any person in
843-17 return for the solicitation, procurement, or production by the
843-18 person of a prospective lessee of a motor vehicle unless the
843-19 person:
843-20 (1) holds a vehicle lease facilitator license issued
843-21 under this chapter; and
843-22 (2) has an appointment from the lessor as provided by
843-23 Section 2301.552.
843-24 (c) The fees prohibited by this section do not include money
843-25 paid to:
843-26 (1) a franchised dealer as a part of the consideration
843-27 for the sale or assignment of a lease or leased vehicle; or
844-1 (2) a franchised dealer who transfers title of the
844-2 vehicle or assigns the lease contract to the lessor of the motor
844-3 vehicle. (V.A.C.S. Art. 4413(36), Secs. 5.03A(a), (b), (f)
844-4 (part).)
844-5 Sec. 2301.552. APPOINTMENT OF VEHICLE LEASE FACILITATOR. (a)
844-6 A vehicle lessor may appoint one or more vehicle lease facilitators
844-7 licensed under this chapter to represent the lessor in obtaining
844-8 prospective vehicle lessees.
844-9 (b) An appointment must:
844-10 (1) be in writing;
844-11 (2) disclose its terms; and
844-12 (3) comply with board rules. (V.A.C.S. Art. 4413(36),
844-13 Sec. 5.03A(c).)
844-14 Sec. 2301.553. DISCLOSURE OF FEE REQUIRED. (a) In a vehicle
844-15 lease solicited, procured, or produced by a vehicle lease
844-16 facilitator, the vehicle lessor shall disclose to the lessee that a
844-17 fee was paid or will be paid to the vehicle lease facilitator for
844-18 the solicitation, procurement, or production of the lessee or the
844-19 lease.
844-20 (b) The vehicle lessor shall include the disclosure in a
844-21 prominent position either:
844-22 (1) on the face of the written memorandum of the
844-23 vehicle lease; or
844-24 (2) on a separate instrument signed by the lessee at
844-25 the same time as the signing of the vehicle lease. (V.A.C.S.
844-26 Art. 4413(36), Sec. 5.03A(d).)
844-27 Sec. 2301.554. TERMS OF LEASE: FOREIGN COUNTRIES. (a)
845-1 Except as provided by Subsection (b) or by federal law, including a
845-2 federal agency rule, a vehicle lessor may not, and the vehicle
845-3 lease may not, prohibit the lessee from taking the vehicle that is
845-4 the subject of the lease into a specific foreign country unless the
845-5 lease prohibits the lessee from taking the vehicle into any foreign
845-6 country.
845-7 (b) In the interests of justice and giving deference to
845-8 standard national business practices, the board may adopt a rule by
845-9 which a lease may prohibit the lessee from taking the vehicle into
845-10 a specific foreign country regardless of whether the lease
845-11 prohibits the lessee from taking the vehicle into another foreign
845-12 country. In adopting a rule under this subsection the board shall
845-13 give consideration to the proximity of international borders to
845-14 prospective Texas lessees. (V.A.C.S. Art. 4413(36), Sec.
845-15 5.03A(e).)
845-16 Sec. 2301.555. LIMITATIONS ON VEHICLE LEASE FACILITATOR. (a)
845-17 A vehicle lease facilitator may not:
845-18 (1) sell or offer to sell a new motor vehicle;
845-19 (2) accept a fee from a dealer;
845-20 (3) sign a motor vehicle manufacturer's statement of
845-21 origin to a vehicle, accept an assignment of a manufacturer's
845-22 statement of origin to a vehicle, or otherwise assume any element
845-23 of title to a new motor vehicle;
845-24 (4) procure or solicit a prospective vehicle lessee
845-25 for or on behalf of any person other than a vehicle lessor; or
845-26 (5) act in the capacity of or engage in the business
845-27 of a vehicle lease facilitator without having an appointment from a
846-1 vehicle lessor as provided by Section 2301.552.
846-2 (b) Except as provided by Subsection (a)(2), a vehicle lease
846-3 facilitator may accept a fee for procuring a vehicle lessee or
846-4 prospective vehicle lessee for or on behalf of a lessor.
846-5 (c) This section does not:
846-6 (1) limit the ability of a vehicle lease facilitator
846-7 to accept an appointment from more than one vehicle lessor; or
846-8 (2) prohibit a vehicle lease facilitator from
846-9 representing a vehicle lessor or lessee in acquiring a motor
846-10 vehicle to lease the vehicle to another person. (V.A.C.S.
846-11 Art. 4413(36), Secs. 5.03B(b) (part), (c), (d), (e).)
846-12 Sec. 2301.556. USE OF CERTAIN TERMS. With respect to the
846-13 regulation of motor vehicle distribution under this chapter, a
846-14 person may not use the word "lease" or "leasing," or any variation
846-15 of those words, in the person's name or in the name of an entity
846-16 owned by the person unless the person is:
846-17 (1) licensed under this chapter as a vehicle lessor or
846-18 vehicle lease facilitator; or
846-19 (2) exempt under Section 2301.254 from the requirement
846-20 to obtain a license. (V.A.C.S. Art. 4413(36), Sec. 5.05.)
846-21 (Sections 2301.557-2301.600 reserved for expansion)
846-22 SUBCHAPTER M. WARRANTIES: RIGHTS OF VEHICLE OWNER
846-23 Sec. 2301.601. DEFINITIONS. In this subchapter:
846-24 (1) "Impairment of market value" means a substantial
846-25 loss in market value caused by a defect specific to a motor
846-26 vehicle.
846-27 (2) "Owner" means a person who:
847-1 (A) purchased a motor vehicle at retail from a
847-2 license holder and is entitled to enforce a manufacturer's warranty
847-3 with respect to the vehicle;
847-4 (B) is a lessor or lessee, other than a
847-5 sublessee, who purchased or leased the vehicle from a license
847-6 holder; or
847-7 (C) is the transferee or assignee of a person
847-8 described by Paragraph (A) or (B), a resident of this state, and
847-9 entitled to enforce the manufacturer's warranty.
847-10 (3) "Reasonable allowance for use" means the amount
847-11 directly attributable to use of a motor vehicle when the vehicle is
847-12 not out of service for repair.
847-13 (4) "Serious safety hazard" means a life-threatening
847-14 malfunction or nonconformity that:
847-15 (A) substantially impedes a person's ability to
847-16 control or operate a motor vehicle for ordinary use or intended
847-17 purposes; or
847-18 (B) creates a substantial risk of fire or
847-19 explosion. (V.A.C.S. Art. 4413(36), Secs. 6.07(a) (part), (c)
847-20 (part).)
847-21 Sec. 2301.602. DUTY OF BOARD. (a) The board shall cause a
847-22 manufacturer, converter, or distributor to perform an obligation
847-23 imposed by this subchapter.
847-24 (b) The board shall adopt rules for the enforcement and
847-25 implementation of this subchapter. (V.A.C.S. Art. 4413(36), Secs.
847-26 6.07(a) (part), (e)(1).)
847-27 Sec. 2301.603. CONFORMANCE WITH WARRANTY REQUIRED. (a) A
848-1 manufacturer, converter, or distributor shall make repairs
848-2 necessary to conform a new motor vehicle to an applicable
848-3 manufacturer's, converter's, or distributor's express warranty.
848-4 (b) Subsection (a) applies after the expiration date of a
848-5 warranty if:
848-6 (1) during the term of the warranty, the owner or the
848-7 owner's agent reported the nonconformity to the manufacturer,
848-8 converter, or distributor, or to a designated agent or franchised
848-9 dealer of the manufacturer, converter, or distributor; or
848-10 (2) a rebuttable presumption relating to the vehicle
848-11 is created under Section 2301.605.
848-12 (c) This subchapter does not limit a remedy available to an
848-13 owner under a new motor vehicle warranty that extends beyond the
848-14 provisions of this subchapter. (V.A.C.S. Art. 4413(36), Sec.
848-15 6.07(b).)
848-16 Sec. 2301.604. REPLACEMENT OF OR REFUND FOR VEHICLE. (a) A
848-17 manufacturer, converter, or distributor that is unable to conform a
848-18 motor vehicle to an applicable express warranty by repairing or
848-19 correcting a defect or condition that creates a serious safety
848-20 hazard or substantially impairs the use or market value of the
848-21 motor vehicle after a reasonable number of attempts shall reimburse
848-22 the owner for reasonable incidental costs resulting from loss of
848-23 use of the motor vehicle because of the nonconformity or defect
848-24 and:
848-25 (1) replace the motor vehicle with a comparable motor
848-26 vehicle; or
848-27 (2) accept return of the vehicle from the owner and
849-1 refund to the owner the full purchase price, less a reasonable
849-2 allowance for the owner's use of the vehicle, and any other
849-3 allowances or refunds payable to the owner.
849-4 (b) A refund made for a vehicle for which there is a
849-5 lienholder shall be made to the owner and lienholder in proportion
849-6 to each person's interest in the vehicle.
849-7 (c) As necessary to promote the public interest, the board
849-8 by rule:
849-9 (1) shall define the incidental costs that are
849-10 eligible for reimbursement;
849-11 (2) shall specify other requirements necessary to
849-12 determine an eligible cost; and
849-13 (3) may set a maximum amount that is eligible for
849-14 reimbursement, either by type of eligible cost or by a total for
849-15 all costs. (V.A.C.S. Art. 4413(36), Sec. 6.07(c) (part).)
849-16 Sec. 2301.605. REBUTTABLE PRESUMPTION--REASONABLE NUMBER OF
849-17 ATTEMPTS. (a) A rebuttable presumption that a reasonable number of
849-18 attempts have been undertaken to conform a motor vehicle to an
849-19 applicable express warranty is established if:
849-20 (1) the same nonconformity continues to exist after
849-21 being subject to repair four or more times by the manufacturer,
849-22 converter, or distributor or an authorized agent or franchised
849-23 dealer of a manufacturer, converter, or distributor and:
849-24 (A) two of the repair attempts were made in the
849-25 12 months or 12,000 miles, whichever occurs first, following the
849-26 date of original delivery to the owner; and
849-27 (B) the other two repair attempts were made in
850-1 the 12 months or 12,000 miles, whichever occurs first, immediately
850-2 following the date of the second repair attempt;
850-3 (2) the same nonconformity creates a serious safety
850-4 hazard and continues to exist after causing the vehicle to have
850-5 been subject to repair two or more times by the manufacturer,
850-6 converter, or distributor or an authorized agent or franchised
850-7 dealer of a manufacturer, converter, or distributor and:
850-8 (A) at least one attempt to repair the
850-9 nonconformity was made in the 12 months or 12,000 miles, whichever
850-10 occurs first, following the date of original delivery to the owner;
850-11 and
850-12 (B) at least one other attempt to repair the
850-13 nonconformity was made in the 12 months or 12,000 miles, whichever
850-14 occurs first, immediately following the date of the first repair
850-15 attempt; or
850-16 (3) a nonconformity still exists that substantially
850-17 impairs the vehicle's use or market value and:
850-18 (A) the vehicle is out of service for repair for
850-19 a cumulative total of 30 or more days in the 24 months or 24,000
850-20 miles, whichever occurs first, following the date of original
850-21 delivery to the owner; and
850-22 (B) at least two repair attempts were made in
850-23 the 12 months or 12,000 miles following the date of original
850-24 delivery to an owner.
850-25 (b) A period or a number of days or miles described by
850-26 Subsection (a) is extended for any period that repair services are
850-27 not available to the owner because of:
851-1 (1) a war, invasion, or strike; or
851-2 (2) a fire, flood, or other natural disaster.
851-3 (c) The 30 days described by Subsection (a)(3)(A) do not
851-4 include any period during which the manufacturer or distributor
851-5 lends the owner a comparable motor vehicle while the owner's
851-6 vehicle is being repaired by a franchised dealer. (V.A.C.S.
851-7 Art. 4413(36), Sec. 6.07(d).)
851-8 Sec. 2301.606. CONDUCT OF PROCEEDINGS. (a) The director
851-9 under board rules shall conduct hearings and issue final orders for
851-10 the implementation and enforcement of this subchapter. An order
851-11 issued by the director under this subchapter is considered a final
851-12 order of the board.
851-13 (b) In a hearing before the director under this subchapter,
851-14 a manufacturer, converter, or distributor may plead and prove as an
851-15 affirmative defense to a remedy under this subchapter that a
851-16 nonconformity:
851-17 (1) is the result of abuse, neglect, or unauthorized
851-18 modification or alteration of the motor vehicle; or
851-19 (2) does not substantially impair the use or market
851-20 value of the motor vehicle.
851-21 (c) The director may not issue an order requiring a
851-22 manufacturer, converter, or distributor to make a refund or to
851-23 replace a motor vehicle unless:
851-24 (1) the owner or a person on behalf of the owner has
851-25 mailed written notice of the alleged defect or nonconformity to the
851-26 manufacturer, converter, or distributor; and
851-27 (2) the manufacturer, converter, or distributor has
852-1 been given an opportunity to cure the alleged defect or
852-2 nonconformity.
852-3 (d) A proceeding under this subchapter must be commenced not
852-4 later than six months after the earliest of:
852-5 (1) the expiration date of the express warranty term;
852-6 or
852-7 (2) the dates on which 24 months or 24,000 miles have
852-8 passed since the date of original delivery of the motor vehicle to
852-9 an owner. (V.A.C.S. Art. 4413(36), Secs. 6.07(c) (part), (e)(2),
852-10 (h).)
852-11 Sec. 2301.607. EXHAUSTION OF ADMINISTRATIVE REMEDIES; RIGHT
852-12 TO SUE. (a) A refund or replacement under this subchapter because
852-13 a motor vehicle is alleged to not conform to an express warranty is
852-14 not available to the owner of the vehicle unless the owner has
852-15 exhausted the administrative remedies provided by this subchapter.
852-16 (b) A refund or replacement under this subchapter is not
852-17 available to a party in an action against a seller under Chapter 2
852-18 or 17, Business & Commerce Code, but is available in an action
852-19 against a manufacturer, converter, or distributor brought under
852-20 Chapter 17, Business & Commerce Code, after the owner has exhausted
852-21 the administrative remedies provided by this subchapter.
852-22 (c) If the hearing examiner does not issue a proposal for
852-23 decision and recommend to the director a final order before the
852-24 151st day after the date a complaint is filed under this
852-25 subchapter, the director shall provide written notice by certified
852-26 mail to the complainant and to the manufacturer, converter, or
852-27 distributor of the expiration of the 150-day period and of the
853-1 complainant's right to file a civil action. The board shall extend
853-2 the 150-day period if a delay is requested or caused by the person
853-3 who filed the complaint.
853-4 (d) Notwithstanding a requirement of this section that
853-5 administrative remedies be exhausted, a person who receives notice
853-6 under Subsection (c) may file a civil action against any person
853-7 named in the complaint.
853-8 (e) The failure to issue notice under Subsection (c) does
853-9 not affect a person's right to bring an action under this chapter.
853-10 (f) This subchapter does not limit a right or remedy
853-11 otherwise available to an owner under another law.
853-12 (g) A contractual provision that excludes or modifies a
853-13 remedy provided by this subchapter is prohibited and is void as
853-14 against public policy unless the exclusion or modification is made
853-15 under a settlement agreement between the owner and the
853-16 manufacturer, converter, or distributor. (V.A.C.S. Art. 4413(36),
853-17 Secs. 6.07(e)(3)-(8), (f), (i).)
853-18 Sec. 2301.608. ASSESSMENT OF COSTS FOR REPLACEMENT OR
853-19 REFUND. (a) In an order issued under this subchapter, the director
853-20 shall name the person responsible for paying the cost of any refund
853-21 or replacement. A manufacturer, converter, or distributor may not
853-22 cause a franchised dealer to directly or indirectly pay any money
853-23 not specifically ordered by the director.
853-24 (b) If the director orders a manufacturer, converter, or
853-25 distributor to make a refund or replace a motor vehicle under this
853-26 subchapter, the director may order the franchised dealer to
853-27 reimburse the owner, lienholder, manufacturer, converter, or
854-1 distributor only for an item or option added to the vehicle by the
854-2 dealer to the extent that the item or option contributed to the
854-3 defect that served as the basis for the order.
854-4 (c) In a case involving a leased vehicle, the director may
854-5 terminate the lease and apportion allowances or refunds, including
854-6 the reasonable allowance for use, between the lessee and lessor of
854-7 the vehicle. (V.A.C.S. Art. 4413(36), Sec. 6.07(g).)
854-8 Sec. 2301.609. JUDICIAL REVIEW. (a) A party to a proceeding
854-9 before the director under this subchapter that is affected by a
854-10 final order of the director is entitled to judicial review of the
854-11 order under the substantial evidence rule in a district court of
854-12 Travis County.
854-13 (b) Judicial review is subject to Chapter 2001, Government
854-14 Code, to the extent that chapter is not inconsistent with this
854-15 chapter. (V.A.C.S. Art. 4413(36), Sec. 6.07(e)(9).)
854-16 Sec. 2301.610. DISCLOSURE STATEMENT. (a) A manufacturer,
854-17 distributor, or converter that has been ordered to repurchase or
854-18 replace a vehicle shall, through its franchised dealer, issue a
854-19 disclosure statement stating that the vehicle was repurchased or
854-20 replaced by the manufacturer, distributor, or converter under this
854-21 subchapter. The statement must accompany the vehicle through the
854-22 first retail purchase following the issuance of the statement and
854-23 must include the board's toll-free telephone number that will
854-24 enable the purchaser to obtain information about the condition or
854-25 defect that was the basis of the order for repurchase or
854-26 replacement.
854-27 (b) The manufacturer, distributor, or converter must restore
855-1 the cause of the repurchase or replacement to factory
855-2 specifications and issue a new 12-month, 12,000-mile warranty on
855-3 the vehicle.
855-4 (c) The board shall adopt rules for the enforcement of this
855-5 section.
855-6 (d) The board shall maintain a toll-free telephone number to
855-7 provide information to a person who requests information about a
855-8 condition or defect that was the basis for repurchase or
855-9 replacement by an order of the director. The board shall maintain
855-10 an effective method of providing information to a person who makes
855-11 a request. (V.A.C.S. Art. 4413(36), Sec. 6.07(j).)
855-12 Sec. 2301.611. ANNUAL REPORT ON REPURCHASED OR REPLACED
855-13 VEHICLES. (a) The board shall publish an annual report on the
855-14 motor vehicles ordered repurchased or replaced under this
855-15 subchapter.
855-16 (b) The report must list the number of vehicles by brand
855-17 name and model and include a brief description of the conditions or
855-18 defects that caused the repurchase or replacement.
855-19 (c) The board shall make the report available to the public
855-20 and may charge a reasonable fee to cover the cost of the report.
855-21 (V.A.C.S. Art. 4413(36), Sec. 6.07(k).)
855-22 Sec. 2301.612. OPEN RECORDS EXCEPTION. Information filed
855-23 with the board under this subchapter is not a public record and is
855-24 not subject to release under Chapter 552, Government Code, until
855-25 the complaint is finally resolved by order of the board. (V.A.C.S.
855-26 Art. 4413(36), Sec. 6.07(l).)
855-27 Sec. 2301.613. NOTICE TO BUYER. (a) The board shall
856-1 prepare, publish, and distribute information concerning an owner's
856-2 rights under this subchapter. The retail seller of a new motor
856-3 vehicle shall conspicuously post a copy of the information in the
856-4 area where its customers usually pay for repairs.
856-5 (b) The failure to provide notice as required by this
856-6 section is a violation of this chapter. (V.A.C.S. Art. 4413(36),
856-7 Secs. 4.07(b) (part), (c) (part).)
856-8 (Sections 2301.614-2301.650 reserved for expansion)
856-9 SUBCHAPTER N. DENIAL, REVOCATION, OR SUSPENSION OF LICENSE
856-10 Sec. 2301.651. DENIAL, REVOCATION, OR SUSPENSION GENERALLY.
856-11 (a) The board may deny an application for a license, revoke or
856-12 suspend a license, place on probation a person whose license has
856-13 been suspended, or reprimand a license holder if the applicant or
856-14 license holder:
856-15 (1) is unfit under standards described in this chapter
856-16 or board rules;
856-17 (2) makes a material misrepresentation in any
856-18 application or other information filed under this chapter or board
856-19 rules;
856-20 (3) violates this chapter or a board rule or order;
856-21 (4) violates any law relating to the sale,
856-22 distribution, financing, or insuring of motor vehicles;
856-23 (5) fails to maintain the qualifications for a
856-24 license;
856-25 (6) wilfully defrauds a retail purchaser; or
856-26 (7) fails to fulfill a written agreement with a retail
856-27 purchaser of a motor vehicle.
857-1 (b) The board may take action under Subsection (a) against
857-2 an applicant or license holder for an act or omission by an
857-3 officer, director, partner, trustee, or other person acting in a
857-4 representative capacity for the applicant or license holder that
857-5 would be cause for denying, revoking, or suspending an individual's
857-6 license.
857-7 (c) The revocation of a license previously held under this
857-8 chapter may be grounds for denying a subsequent application for a
857-9 license.
857-10 (d) A license may not be denied, revoked, or suspended, and
857-11 disciplinary action may not be taken under this subchapter, except
857-12 on order of the board after a hearing. (V.A.C.S. Art. 4413(36),
857-13 Secs. 4.06(a), (b), (g) (part).)
857-14 Sec. 2301.652. DENIAL OF LICENSE APPLICATION: DEALERSHIP.
857-15 (a) The board may deny an application for a license to establish a
857-16 dealership if, following a protest, the applicant fails to
857-17 establish good cause for establishing the dealership. In
857-18 determining good cause, the board shall consider:
857-19 (1) whether the manufacturer or distributor of the
857-20 same line-make of new motor vehicle is being adequately represented
857-21 as to sales and service;
857-22 (2) whether the protesting franchised dealer
857-23 representing the same line-make of new motor vehicle is in
857-24 substantial compliance with the dealer's franchise, to the extent
857-25 that the franchise is not in conflict with this chapter;
857-26 (3) the desirability of a competitive marketplace;
857-27 (4) any harm to the protesting franchised dealer; and
858-1 (5) the public interest.
858-2 (b) Except as provided by Subsection (c), a person has
858-3 standing under this section to protest an application to establish
858-4 or relocate a dealership if the person filing the protest is a
858-5 franchised dealer of the same line-make whose dealership is
858-6 located:
858-7 (1) in the county in which the proposed dealership is
858-8 to be located; or
858-9 (2) within a 15-mile radius of the proposed
858-10 dealership.
858-11 (c) A franchised dealer may not protest an application to
858-12 relocate a dealership under this section if the proposed relocation
858-13 site is not:
858-14 (1) more than one mile from the site where the
858-15 dealership is currently located; or
858-16 (2) closer to the franchised dealer than the site from
858-17 which the dealership is being relocated. (V.A.C.S. Art. 4413(36),
858-18 Secs. 4.06(c), (d), (e).)
858-19 Sec. 2301.653. REVOCATION OR SUSPENSION OF MANUFACTURER'S OR
858-20 DISTRIBUTOR'S LICENSE. The revocation or suspension of a
858-21 manufacturer's or distributor's license may be:
858-22 (1) limited to one or more municipalities or counties
858-23 or any other defined area; or
858-24 (2) limited in a defined area only as to:
858-25 (A) certain aspects of the manufacturer's or
858-26 distributor's business; or
858-27 (B) specified franchised dealers. (V.A.C.S.
859-1 Art. 4413(36), Sec. 4.06(f).)
859-2 Sec. 2301.654. PROBATION. If a suspension of a license is
859-3 probated, the board may:
859-4 (1) require the license holder to report regularly to
859-5 the board on matters that are the basis of the probation; or
859-6 (2) limit activities to those prescribed by the board.
859-7 (V.A.C.S. Art. 4413(36), Sec. 4.06(h).)
859-8 (Sections 2301.655-2301.700 reserved for expansion)
859-9 SUBCHAPTER O. HEARINGS PROCEDURES
859-10 Sec. 2301.701. DEFINITION. In this subchapter, "contested
859-11 case" has the meaning assigned by Section 2001.003, Government
859-12 Code. (V.A.C.S. Art. 4413(36), Sec. 3.08(a) (part).)
859-13 Sec. 2301.702. CONFLICT WITH OTHER LAW. To the extent of a
859-14 conflict between this chapter and Chapter 2001, Government Code,
859-15 this chapter controls. (V.A.C.S. Art. 4413(36), Secs. 3.08(a)
859-16 (part), 3.09.)
859-17 Sec. 2301.703. HEARING REQUIRED IN CONTESTED CASE. (a) A
859-18 hearing shall be conducted in any contested case arising under this
859-19 chapter or a board rule. The hearing must be conducted in
859-20 accordance with this chapter, any order, decision, or rule of the
859-21 board, and Chapter 2001, Government Code.
859-22 (b) A hearing may be informally disposed of in accordance
859-23 with Chapter 2001, Government Code. (V.A.C.S. Art. 4413(36), Sec.
859-24 3.08(a) (part).)
859-25 Sec. 2301.704. HEARINGS EXAMINER. (a) A hearing under this
859-26 subchapter must be held by the director or a hearings examiner. A
859-27 reference in this chapter to a hearings examiner includes the
860-1 director if the director is conducting the hearing.
860-2 (b) A hearings examiner must be licensed to practice law in
860-3 this state.
860-4 (c) A hearings examiner has all of the board's power and
860-5 authority under this chapter to conduct hearings, including the
860-6 power to:
860-7 (1) hold a hearing;
860-8 (2) administer an oath;
860-9 (3) receive pleadings and evidence;
860-10 (4) issue a subpoena to compel the attendance of a
860-11 witness;
860-12 (5) compel the production of papers and documents;
860-13 (6) issue an interlocutory order, including a cease
860-14 and desist order in the nature of a temporary restraining order or
860-15 a temporary injunction;
860-16 (7) make findings of fact and conclusions of law; and
860-17 (8) issue a proposal for decision and recommend a
860-18 final order. (V.A.C.S. Art. 4413(36), Secs. 2.09A, 3.08(a)
860-19 (part).)
860-20 Sec. 2301.705. NOTICE OF CONTESTED CASE HEARING. (a) Notice
860-21 of a contested case hearing involving a license holder must be
860-22 given in accordance with this chapter and board rules.
860-23 (b) Notice must be given by certified mail, return receipt
860-24 requested.
860-25 (c) Notice may be given to a person's officer, agent,
860-26 employee, attorney, or other legal representative.
860-27 (d) Notice is considered to have been received by a person
861-1 known to have legal rights, duties, or privileges that may be
861-2 determined at the hearing if the notice is mailed to the last known
861-3 address of the person not later than the 10th day before the date
861-4 of the hearing.
861-5 (e) A person may waive notice of a hearing. (V.A.C.S.
861-6 Art. 4413(36), Secs. 3.08(c) (part), (d).)
861-7 Sec. 2301.706. NOTICE OF RULEMAKING HEARING. Notice of a
861-8 rulemaking hearing must be given in accordance with Chapter 2001,
861-9 Government Code, and board rules before the 30th day preceding the
861-10 date of the hearing. (V.A.C.S. Art. 4413(36), Sec. 3.08(c)
861-11 (part).)
861-12 Sec. 2301.707. CONTENTS OF HEARING NOTICE. Notice of a
861-13 hearing shall describe in summary form the purpose of the hearing
861-14 and the date, time, and place of the hearing. (V.A.C.S.
861-15 Art. 4413(36), Sec. 3.08(b).)
861-16 Sec. 2301.708. CONDUCT OF HEARING. (a) A hearing must be
861-17 convened at the time and place stated in the notice.
861-18 (b) A hearing may be recessed until a time and place
861-19 certain:
861-20 (1) by giving advance notice as required by Section
861-21 2001.057, Government Code; or
861-22 (2) without advance notice if the time and place is
861-23 announced openly before the recess.
861-24 (c) Except as otherwise provided by this chapter, a person
861-25 whose legal rights, duties, or privileges are to be determined at a
861-26 hearing is entitled to:
861-27 (1) appear personally or by counsel;
862-1 (2) cross-examine adverse witnesses; and
862-2 (3) produce evidence and witnesses in the person's own
862-3 behalf. (V.A.C.S. Art. 4413(36), Secs. 3.08(e), (f).)
862-4 Sec. 2301.709. PROPOSED DECISION; REVIEW BY BOARD. (a) In a
862-5 contested case, the hearings examiner shall serve on each party a
862-6 copy of the examiner's proposal for decision and recommended order
862-7 containing findings of fact and conclusions of law. A party may
862-8 file exceptions and replies to the board.
862-9 (b) In reviewing the case, the board may consider only
862-10 materials that are submitted timely.
862-11 (c) The board may hear such oral argument from any party as
862-12 the board may allow.
862-13 (d) The board shall take any further action conducive to the
862-14 issuance of a final order and shall issue a written final decision
862-15 or order. A majority vote of a quorum of the board is required to
862-16 adopt a final decision or order of the board. (V.A.C.S.
862-17 Art. 4413(36), Sec. 3.08(g).)
862-18 Sec. 2301.710. DISMISSAL OF COMPLAINT. On the motion of any
862-19 party, the board, without holding a contested case hearing, may
862-20 issue a final order dismissing a complaint, protest, or response in
862-21 accordance with the terms and procedures set forth in Rule 166a,
862-22 Texas Rules of Civil Procedure, or its successor. (V.A.C.S.
862-23 Art. 4413(36), Sec. 3.08(j).)
862-24 Sec. 2301.711. ORDERS AND DECISIONS. (a) An order or
862-25 decision of the board must:
862-26 (1) include a separate finding of fact with respect to
862-27 each specific issue the board is required by law to consider in
863-1 reaching a decision;
863-2 (2) set forth additional findings of fact and
863-3 conclusions of law on which the order or decision is based; and
863-4 (3) give the reasons for the particular actions taken.
863-5 (b) Except as provided by Subchapter M, the order or
863-6 decision must:
863-7 (1) be signed by the presiding officer or assistant
863-8 presiding officer for the board;
863-9 (2) be attested to by the director; and
863-10 (3) have the seal affixed to it. (V.A.C.S.
863-11 Art. 4413(36), Sec. 3.07.)
863-12 Sec. 2301.712. FILING FEE. (a) The filing fee for a
863-13 contested case or a protest that involves a hearing is:
863-14 (1) $35 for a complaint filed under Subchapter M; and
863-15 (2) $200 for any other complaint or protest.
863-16 (b) If a person who brings a complaint under Subchapter M
863-17 prevails in the case, the board shall order the nonprevailing party
863-18 in the case to reimburse the amount of the filing fee for the case.
863-19 (V.A.C.S. Art. 4413(36), Secs. 4.05(e), (f).)
863-20 Sec. 2301.713. REHEARING. A party who seeks a rehearing of
863-21 an order shall seek the rehearing in accordance with Chapter 2001,
863-22 Government Code. (V.A.C.S. Art. 4413(36), Sec. 3.08(h).)
863-23 (Sections 2301.714-2301.750 reserved for expansion)
863-24 SUBCHAPTER P. JUDICIAL REVIEW
863-25 Sec. 2301.751. JUDICIAL REVIEW GENERALLY. (a) A party to a
863-26 proceeding affected by a final order, rule, or decision or other
863-27 final action of the board or director under this chapter or under
864-1 another law with respect to a matter arising under this chapter may
864-2 seek judicial review of the action under the substantial evidence
864-3 rule in:
864-4 (1) a district court in Travis County; or
864-5 (2) the court of appeals for the Third Court of
864-6 Appeals District.
864-7 (b) Except as otherwise provided by this chapter, an appeal
864-8 brought in a district court may be removed to the court of appeals
864-9 by any party before trial in the district court on the filing of
864-10 notice of removal with the district court.
864-11 (c) Judicial review by a court, to the extent not in
864-12 conflict with this chapter, is in the manner provided by Chapter
864-13 2001, Government Code. Judicial review in the court of appeals:
864-14 (1) is initiated under Chapter 2001, Government Code,
864-15 in the manner review is initiated for a proceeding in a district
864-16 court; and
864-17 (2) is governed by the applicable rules of appellate
864-18 procedure. (V.A.C.S. Art. 4413(36), Secs. 7.01(a), (b) (part).)
864-19 Sec. 2301.752. TIME FOR FILING; CITATION. (a) A petition
864-20 for judicial review under this chapter must be filed not later than
864-21 the 30th day after the date on which the action, ruling, order, or
864-22 decision becomes final and appealable.
864-23 (b) Citation for an appeal must be served on the director
864-24 and each party of record in the matter. For an appeal initiated in
864-25 the court of appeals, the court shall cause the citation to be
864-26 issued. (V.A.C.S. Art. 4413(36), Secs. 7.01(b) (part), (c).)
864-27 Sec. 2301.753. ADDITIONAL EVIDENCE. An appeal in which
865-1 evidence outside the record of the board is to be taken under
865-2 Chapter 2001, Government Code, or otherwise, shall be brought in a
865-3 district court in Travis County or in the court of appeals. An
865-4 appeal brought in the court of appeals is subject to remand to a
865-5 district court in Travis County for proceedings under instructions
865-6 from the court of appeals. (V.A.C.S. Art. 4413(36), Sec. 7.01(d).)
865-7 Sec. 2301.754. DISMISSAL FOR FAILURE TO PROSECUTE. (a) A
865-8 person filing an appeal under this subchapter shall pursue the
865-9 appeal with reasonable diligence.
865-10 (b) If the person fails to prosecute the appeal within six
865-11 months after the date the appeal is filed, the court shall presume
865-12 that the appeal has been abandoned. On the motion of the attorney
865-13 general or a party in the case, the court shall dismiss the appeal
865-14 after notifying the person who filed the appeal, unless the person
865-15 shows good cause for the delay. (V.A.C.S. Art. 4413(36), Sec.
865-16 7.01(e).)
865-17 Sec. 2301.755. EFFECT OF APPEAL ON ORDER. An appeal under
865-18 this subchapter does not affect the enforcement of a final board
865-19 order unless:
865-20 (1) the enforcement of the order is enjoinable under
865-21 Chapter 65, Civil Practice and Remedies Code, and under principles
865-22 of primary jurisdiction; or
865-23 (2) the board, in the interest of justice, suspends
865-24 the enforcement of the order pending final determination of the
865-25 appeal. (V.A.C.S. Art. 4413(36), Sec. 7.01(f).)
865-26 Sec. 2301.756. REVIEW OF INTERLOCUTORY ORDER. (a) A writ of
865-27 error is allowed from the supreme court for an appeal of an
866-1 interlocutory order described by Section 51.014(a)(3) or (6), Civil
866-2 Practice and Remedies Code, in a civil action involving a license
866-3 holder.
866-4 (b) The supreme court shall give precedence to a writ of
866-5 error under this section over other writs of error.
866-6 (c) The right to appeal by writ of error is without
866-7 prejudice to the right of any party to seek relief by an
866-8 application for leave to file a petition for writ of mandamus with
866-9 respect to the order. (V.A.C.S. Art. 4413(36), Sec. 6.06(g).)
866-10 (Sections 2301.757-2301.800 reserved for expansion)
866-11 SUBCHAPTER Q. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
866-12 Sec. 2301.801. CIVIL PENALTY. (a) If, after a proceeding
866-13 under this chapter and board rules, the board determines that a
866-14 person is violating or has violated this chapter, a rule adopted or
866-15 order issued under this chapter, or Section 503.038(a),
866-16 Transportation Code, the board may impose a civil penalty. The
866-17 amount of the penalty may not exceed $10,000 for each violation.
866-18 Each act of violation and each day a violation continues is a
866-19 separate violation.
866-20 (b) In determining the amount of the penalty, the board
866-21 shall consider:
866-22 (1) the seriousness of the violation, including the
866-23 nature, circumstances, extent, and gravity of any prohibited act,
866-24 and the harm or potential harm to the safety of the public;
866-25 (2) the economic damage to the public caused by the
866-26 violation;
866-27 (3) the history of previous violations;
867-1 (4) the amount necessary to deter a future violation;
867-2 (5) efforts to correct the violation; and
867-3 (6) any other matter that justice may require.
867-4 (c) Notwithstanding any other law to the contrary, a civil
867-5 penalty recovered under this chapter shall be deposited in the
867-6 state treasury to the credit of the state highway fund. (V.A.C.S.
867-7 Art. 4413(36), Sec. 6.01.)
867-8 Sec. 2301.802. CEASE AND DESIST ORDER. (a) If it appears to
867-9 the board that a person is violating this chapter or a board rule
867-10 or order, the board after notice may require the person engaged in
867-11 the conduct to appear and show cause why a cease and desist order
867-12 should not be issued prohibiting the conduct described in the
867-13 notice.
867-14 (b) An interlocutory cease and desist order may be granted
867-15 with or without bond or other undertaking if:
867-16 (1) the order is necessary to the performance of the
867-17 duties delegated to the board by this chapter;
867-18 (2) the order is necessary or convenient to
867-19 maintaining the status quo between two or more adverse parties
867-20 before the board;
867-21 (3) a party before the board is entitled to relief
867-22 demanded of the board and all or part of the relief requires the
867-23 restraint of some act prejudicial to the party;
867-24 (4) a person is performing, about to perform, or
867-25 procuring or allowing the performance of an act:
867-26 (A) relating to the subject of a contested case
867-27 pending before the board, in violation of the rights of a party
868-1 before the board; and
868-2 (B) that would tend to render the board's order
868-3 in the case ineffectual; or
868-4 (5) substantial injury to the rights of a person
868-5 subject to the board's jurisdiction is threatened regardless of any
868-6 remedy available at law.
868-7 (c) A proceeding under this section is governed by:
868-8 (1) this chapter and the board's rules; and
868-9 (2) Chapter 2001, Government Code, relating to a
868-10 contested case, to the extent that chapter is not in conflict with
868-11 Subdivision (1).
868-12 (d) An interlocutory cease and desist order remains in
868-13 effect until vacated or incorporated in a final order of the board.
868-14 An appeal of an interlocutory cease and desist order must be made
868-15 to the board before seeking judicial review as provided by this
868-16 chapter.
868-17 (e) A permanent cease and desist order may be issued
868-18 regardless of the requirements of Subsection (b) but only under the
868-19 procedures for a final order by the board under this chapter. An
868-20 appeal of a permanent cease and desist order is made in the same
868-21 manner as an appeal of a final order under this chapter. (V.A.C.S.
868-22 Art. 4413(36), Sec. 6.01A.)
868-23 Sec. 2301.803. STATUTORY STAY. (a) On the initiation of a
868-24 board proceeding, whether by complaint, protest, or otherwise, a
868-25 person who receives notice from the board of a statutory stay
868-26 imposed by this chapter may not allow or commit any act or omission
868-27 that would:
869-1 (1) violate this chapter or any rule, order, or
869-2 decision of the board;
869-3 (2) affect a legal right, duty, or privilege of any
869-4 party before the board; or
869-5 (3) tend to render ineffectual a board order in a
869-6 pending proceeding.
869-7 (b) A statutory stay imposed by this chapter remains in
869-8 effect until vacated or until the proceeding is concluded by a
869-9 final order or decision.
869-10 (c) A person affected by a statutory stay imposed by this
869-11 chapter may initiate a proceeding before the board to modify,
869-12 vacate, or clarify the extent and application of the statutory
869-13 stay. (V.A.C.S. Art. 4413(36), Sec. 3.08A.)
869-14 Sec. 2301.804. SUIT FOR INJUNCTIVE RELIEF OR CIVIL PENALTY.
869-15 (a) If it appears that a person has violated, is violating, or is
869-16 threatening to violate this chapter or a board rule or order, the
869-17 board or the director, if authorized by the board, may cause a suit
869-18 to be instituted in a court for:
869-19 (1) injunctive relief to restrain the person from
869-20 committing the violation or threat of violation;
869-21 (2) imposition of a civil penalty; or
869-22 (3) both injunctive relief and a civil penalty.
869-23 (b) At the request of the board or the director, if
869-24 authorized by the board, the attorney general shall bring in the
869-25 name of the state a suit for an injunction or a civil penalty as
869-26 described by Subsection (a).
869-27 (c) In a suit for injunctive relief under this chapter, the
870-1 court shall grant, without bond or other undertaking, any
870-2 prohibitory or mandatory injunction the facts warrant, including a
870-3 temporary restraining order, temporary injunction, or permanent
870-4 injunction. (V.A.C.S. Art. 4413(36), Secs. 6.02, 6.03, 6.05.)
870-5 Sec. 2301.805. RELIEF UNDER OTHER LAW. (a) Notwithstanding
870-6 any other law, including Subchapter E, Chapter 17, Business &
870-7 Commerce Code, in addition to the other remedies provided by this
870-8 subchapter, a person may institute an action under Subchapter E,
870-9 Chapter 17, Business & Commerce Code, or any successor statute to
870-10 that subchapter, and is entitled to any procedure or remedy under
870-11 that subchapter, if the person:
870-12 (1) has sustained damages as a result of a violation
870-13 of Sections 2301.351-2301.354 or Section 2301.357; or
870-14 (2) is a franchised dealer who has sustained damages
870-15 as a result of a violation of:
870-16 (A) Sections 2301.451-2301.474; or
870-17 (B) Subchapter E, Chapter 17, Business &
870-18 Commerce Code.
870-19 (b) In an action brought under this section, and in the
870-20 interest of judicial economy and efficiency, a judgment entered in
870-21 the action must give deference to the findings of fact and
870-22 conclusions of law of the board contained in any final order that
870-23 is the basis of the action.
870-24 (c) In an action brought against a license holder under this
870-25 section, or for any other type of conduct for which an action may
870-26 be brought under Subchapter E, Chapter 17, Business & Commerce
870-27 Code, the $1,000 limitation contained in Section 17.50(b)(1),
871-1 Business & Commerce Code, as that provision existed on September 1,
871-2 1979, shall be adjusted to reflect a change in the consumer price
871-3 index after that date. The limitation shall be increased or
871-4 decreased, as applicable, by an amount equal to 1,000 multiplied by
871-5 the percentage of increase or decrease in the consumer price index
871-6 between September 1, 1979, and the time the damages are awarded by
871-7 final judgment or settlement. In this subsection, "consumer price
871-8 index" means the National Consumer Price Index For All Urban
871-9 Consumers, or a substantially similar successor. A court may take
871-10 judicial notice of that index. (V.A.C.S. Art. 4413(36), Secs.
871-11 6.06(a), (b).)
871-12 CHAPTER 2302. SALVAGE VEHICLE DEALERS
871-13 SUBCHAPTER A. GENERAL PROVISIONS
871-14 Sec. 2302.001. DEFINITIONS
871-15 Sec. 2302.002. CLASSIFICATION OF VEHICLES
871-16 Sec. 2302.003. CLASSIFICATION AS METAL RECYCLER
871-17 Sec. 2302.004. SALE OF CERTAIN WATER-DAMAGED VEHICLES
871-18 Sec. 2302.005. APPLICABILITY OF CERTAIN MUNICIPAL
871-19 ORDINANCES, LICENSES, AND PERMITS
871-20 Sec. 2302.006. APPLICATION OF SUBCHAPTERS B-E TO METAL
871-21 RECYCLERS
871-22 Sec. 2302.007. APPLICATION OF SUBCHAPTERS B-E TO
871-23 INSURANCE COMPANIES
871-24 (Sections 2302.008-2302.050 reserved for expansion)
871-25 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
871-26 Sec. 2302.051. RULES AND ENFORCEMENT POWERS
871-27 Sec. 2302.052. DUTY TO SET FEES
872-1 Sec. 2302.053. RULES RESTRICTING ADVERTISING OR
872-2 COMPETITIVE BIDDING
872-3 (Sections 2302.054-2302.100 reserved for expansion)
872-4 SUBCHAPTER C. LICENSE REQUIREMENTS
872-5 Sec. 2302.101. LICENSE REQUIRED FOR SALVAGE VEHICLE
872-6 DEALER
872-7 Sec. 2302.102. SALVAGE VEHICLE DEALER LICENSE
872-8 CLASSIFICATION
872-9 Sec. 2302.103. APPLICATION FOR SALVAGE VEHICLE DEALER
872-10 LICENSE
872-11 Sec. 2302.104. CONTENTS OF APPLICATION
872-12 Sec. 2302.105. DEPARTMENT INVESTIGATION
872-13 Sec. 2302.106. LICENSE ISSUANCE
872-14 Sec. 2302.107. SALVAGE VEHICLE AGENT LICENSE
872-15 Sec. 2302.108. DISCIPLINARY ACTION
872-16 (Sections 2302.109-2302.150 reserved for expansion)
872-17 SUBCHAPTER D. LICENSE EXPIRATION AND RENEWAL
872-18 Sec. 2302.151. LICENSE EXPIRATION
872-19 Sec. 2302.152. NOTICE OF EXPIRATION
872-20 Sec. 2302.153. PROCEDURES FOR RENEWAL
872-21 (Sections 2302.154-2302.200 reserved for expansion)
872-22 SUBCHAPTER E. CONDUCTING BUSINESS
872-23 Sec. 2302.201. DUTIES ON ACQUISITION OF SALVAGE MOTOR
872-24 VEHICLE
872-25 Sec. 2302.202. RECORDS OF PURCHASES
872-26 Sec. 2302.203. REGISTRATION OF NEW BUSINESS LOCATION
872-27 Sec. 2302.204. CASUAL SALES
873-1 Sec. 2302.205. DUTY OF METAL RECYCLER
873-2 (Sections 2302.206-2302.250 reserved for expansion)
873-3 SUBCHAPTER F. ADDITIONAL DUTIES OF SALVAGE VEHICLE DEALER
873-4 IN CONNECTION WITH MOTOR VEHICLE COMPONENT PARTS
873-5 Sec. 2302.251. DEFINITIONS
873-6 Sec. 2302.252. REMOVAL OF LICENSE PLATES; INVENTORY
873-7 Sec. 2302.253. RECEIPT OF MOTOR VEHICLE BY HOLDER OF
873-8 ENDORSEMENT AS USED VEHICLE PARTS DEALER
873-9 Sec. 2302.254. RECORD OF PURCHASE; INVENTORY OF PARTS
873-10 Sec. 2302.255. ASSIGNMENT OF INVENTORY NUMBER
873-11 Sec. 2302.256. MAINTENANCE OF RECORDS
873-12 Sec. 2302.257. SURRENDER OF CERTAIN DOCUMENTS OR LICENSE
873-13 PLATES
873-14 Sec. 2302.258. INSPECTION OF RECORDS
873-15 (Sections 2302.259-2302.300 reserved for expansion)
873-16 SUBCHAPTER G. MOTOR VEHICLE SALVAGE YARDS IN CERTAIN COUNTIES
873-17 Sec. 2302.301. APPLICATION OF SUBCHAPTER
873-18 Sec. 2302.302. LIMITS ON OPERATION OF HEAVY MACHINERY
873-19 (Sections 2302.303-2302.350 reserved for expansion)
873-20 SUBCHAPTER H. PENALTIES AND ENFORCEMENT
873-21 Sec. 2302.351. INJUNCTIONS
873-22 Sec. 2302.352. SEIZURE OF VEHICLE OR PART
873-23 Sec. 2302.353. OFFENSES
873-24 CHAPTER 2302. SALVAGE VEHICLE DEALERS
873-25 SUBCHAPTER A. GENERAL PROVISIONS
873-26 Sec. 2302.001. DEFINITIONS. In this chapter:
873-27 (1) "Actual cash value" has the meaning assigned by
874-1 Section 501.0911, Transportation Code.
874-2 (2) "Casual sale" has the meaning assigned by Section
874-3 501.0911, Transportation Code.
874-4 (3) "Commission" means the Texas Transportation
874-5 Commission.
874-6 (4) "Department" means the Texas Department of
874-7 Transportation.
874-8 (5) "Federal safety certificate" means the label or
874-9 tag required under 49 U.S.C. Section 30115 that certifies that a
874-10 vehicle or equipment complies with applicable federal motor vehicle
874-11 safety standards.
874-12 (6) "Late model motor vehicle" has the meaning
874-13 assigned by Section 501.0911, Transportation Code.
874-14 (7) "Major component part" has the meaning assigned by
874-15 Section 501.0911, Transportation Code.
874-16 (8) "Motor vehicle" has the meaning assigned by
874-17 Section 541.201, Transportation Code.
874-18 (9) "Nonrepairable motor vehicle certificate of title"
874-19 has the meaning assigned by Section 501.0911, Transportation Code.
874-20 (10) "Out-of-state buyer" has the meaning assigned by
874-21 Section 501.0911, Transportation Code.
874-22 (11) "Person" means an individual, partnership,
874-23 corporation, trust, association, or other private legal entity.
874-24 (12) "Salvage motor vehicle certificate of title" has
874-25 the meaning assigned by Section 501.0911, Transportation Code.
874-26 (13) "Salvage part" means a major component part of a
874-27 salvage motor vehicle that is serviceable to the extent that it can
875-1 be reused.
875-2 (14) "Salvage pool operator" means a person who
875-3 engages in the business of selling nonrepairable motor vehicles or
875-4 salvage motor vehicles at auction, including wholesale auction, or
875-5 otherwise.
875-6 (15) "Salvage vehicle agent" means a person employed
875-7 by a salvage vehicle dealer to acquire, sell, or deal in salvage
875-8 motor vehicles or salvage parts in this state.
875-9 (16) "Salvage vehicle dealer" means a person licensed
875-10 under this chapter who engages in the business of acquiring,
875-11 selling, dismantling, repairing, or dealing in salvage motor
875-12 vehicles or vehicle parts of a type required to be covered by a
875-13 salvage motor vehicle certificate of title or nonrepairable motor
875-14 vehicle certificate of title. (V.A.C.S. Art. 6687-1a, Secs.
875-15 1.01(1), (3), (4), (5), (6), (7), (8), (10), (11), (12), (13),
875-16 (15), (16), (17), (18); Art. 6687-2, Secs. (a)(1), (5), (8);
875-17 Art. 6687-2b, Sec. (f).)
875-18 Sec. 2302.002. CLASSIFICATION OF VEHICLES. For purposes of
875-19 this chapter:
875-20 (1) a vehicle is a late model salvage motor vehicle or
875-21 a salvage motor vehicle if the vehicle:
875-22 (A) is a late model motor vehicle with a major
875-23 component part that is damaged or missing to the extent that the
875-24 total estimated cost of repairs to rebuild or reconstruct the
875-25 vehicle, including parts and labor and excluding the cost to repair
875-26 hail damage, is equal to or greater than an amount equal to 75
875-27 percent of the actual cash value of the vehicle in its predamaged
876-1 condition; or
876-2 (B) is a damaged vehicle that comes into this
876-3 state under a salvage motor vehicle certificate of title or other
876-4 comparable certificate of title; and
876-5 (2) a vehicle is a nonrepairable motor vehicle if the
876-6 vehicle:
876-7 (A) conforms to the definition of that term in
876-8 Section 501.0911, Transportation Code; or
876-9 (B) is a vehicle that comes into this state with
876-10 a nonrepairable motor vehicle certificate of title or other
876-11 comparable certificate of title. (V.A.C.S. Art. 6687-1a, Secs.
876-12 1.01(9), (14).)
876-13 Sec. 2302.003. CLASSIFICATION AS METAL RECYCLER. For
876-14 purposes of this chapter, a person is a metal recycler if the
876-15 person:
876-16 (1) is predominately engaged in the business of
876-17 obtaining ferrous or nonferrous metal that has served its original
876-18 economic purpose in order to convert the metal, or sell the metal
876-19 for conversion, into raw material products consisting of prepared
876-20 grades and having an existing or potential economic value;
876-21 (2) has a facility to convert ferrous or nonferrous
876-22 metal into raw material products consisting of prepared grades and
876-23 having an existing or potential economic value, by method other
876-24 than the exclusive use of hand tools, including the processing,
876-25 sorting, cutting, classifying, cleaning, baling, wrapping,
876-26 shredding, shearing, or changing the physical form or chemical
876-27 content of the metal; and
877-1 (3) sells or purchases the ferrous or nonferrous metal
877-2 solely for use as raw material in the production of new products.
877-3 (V.A.C.S. Art. 6687-2b, Sec. (g) (part).)
877-4 Sec. 2302.004. SALE OF CERTAIN WATER-DAMAGED VEHICLES.
877-5 Subchapters B-E do not prohibit the sale to any person of a vehicle
877-6 that is classified as a salvage motor vehicle or a nonrepairable
877-7 motor vehicle solely because of water damage caused by flood
877-8 conditions. (V.A.C.S. Art. 6687-1a, Sec. 2.01(h).)
877-9 Sec. 2302.005. APPLICABILITY OF CERTAIN MUNICIPAL
877-10 ORDINANCES, LICENSES, AND PERMITS. Subchapters B-E:
877-11 (1) are in addition to any municipal ordinance
877-12 relating to the regulation of a person who deals in salvage motor
877-13 vehicles; and
877-14 (2) do not prohibit the enforcement of a requirement
877-15 of a municipal license or permit that is related to an activity
877-16 regulated under those subchapters. (V.A.C.S. Art. 6687-1a, Sec.
877-17 5.01.)
877-18 Sec. 2302.006. APPLICATION OF SUBCHAPTERS B-E TO METAL
877-19 RECYCLERS. (a) Except as provided by Subsection (b), Subchapters
877-20 B-E do not apply to a transaction in which a metal recycler is a
877-21 party, other than a transaction in which a motor vehicle:
877-22 (1) is sold or delivered to the metal recycler for the
877-23 purpose of reuse or resale as a motor vehicle or as motor vehicle
877-24 parts; and
877-25 (2) is used for that purpose.
877-26 (b) Section 2302.205 applies to a metal recycler.
877-27 (c) Subchapter G does not apply to a sale or purchase by a
878-1 metal recycler. (V.A.C.S. Art. 6687-1a, Secs. 2.01(d), (f);
878-2 Art. 6687-2b, Sec. (g) (part).)
878-3 Sec. 2302.007. APPLICATION OF SUBCHAPTERS B-E TO INSURANCE
878-4 COMPANIES. Subchapters B-E do not apply to an insurance company
878-5 authorized to engage in the business of insurance in this state.
878-6 (V.A.C.S. Art. 6687-1a, Sec. 2.01(c).)
878-7 (Sections 2302.008-2302.050 reserved for expansion)
878-8 SUBCHAPTER B. COMMISSION POWERS AND DUTIES
878-9 Sec. 2302.051. RULES AND ENFORCEMENT POWERS. The commission
878-10 shall adopt rules as necessary to administer this subchapter and
878-11 Subchapters A and C-E and may take other action as necessary to
878-12 enforce those subchapters. (V.A.C.S. Art. 6687-1a, Sec. 1.02(a).)
878-13 Sec. 2302.052. DUTY TO SET FEES. The commission shall set
878-14 application fees, license fees, renewal fees, and other fees as
878-15 required to implement Subchapters C-E. The commission shall set
878-16 the fees in amounts reasonable and necessary to implement those
878-17 subchapters. (V.A.C.S. Art. 6687-1a, Sec. 1.02(b).)
878-18 Sec. 2302.053. RULES RESTRICTING ADVERTISING OR COMPETITIVE
878-19 BIDDING. (a) The commission may not adopt a rule under Section
878-20 2302.051 restricting advertising or competitive bidding by a person
878-21 who holds a license issued under this chapter except to prohibit
878-22 false, misleading, or deceptive practices by the person.
878-23 (b) The commission may not include in its rules to prohibit
878-24 false, misleading, or deceptive practices a rule that:
878-25 (1) restricts the use of any advertising medium;
878-26 (2) restricts the person's personal appearance or use
878-27 of the person's voice in an advertisement;
879-1 (3) relates to the size or duration of an
879-2 advertisement by the person; or
879-3 (4) restricts the use of a trade name in advertising
879-4 by the person. (V.A.C.S. Art. 6687-1a, Sec. 1.02(c).)
879-5 (Sections 2302.054-2302.100 reserved for expansion)
879-6 SUBCHAPTER C. LICENSE REQUIREMENTS
879-7 Sec. 2302.101. LICENSE REQUIRED FOR SALVAGE VEHICLE DEALER.
879-8 (a) In this section, "automobile recycler" has the meaning
879-9 assigned by Section 501.0911, Transportation Code.
879-10 (b) Unless a person holds a salvage vehicle dealer license
879-11 issued under this chapter, the person may not:
879-12 (1) act as a salvage vehicle dealer or an automobile
879-13 recycler; or
879-14 (2) store or display a vehicle as an agent or escrow
879-15 agent of an insurance company. (V.A.C.S. Art. 6687-1a, Secs.
879-16 1.01(2), 2.01(a).)
879-17 Sec. 2302.102. SALVAGE VEHICLE DEALER LICENSE
879-18 CLASSIFICATION. (a) The department shall classify a salvage
879-19 vehicle dealer according to the type of activity performed by the
879-20 dealer.
879-21 (b) A salvage vehicle dealer may not engage in activities of
879-22 a particular classification unless the dealer holds a license with
879-23 an endorsement in that classification. (V.A.C.S. Art. 6687-1a,
879-24 Sec. 2.04(a).)
879-25 Sec. 2302.103. APPLICATION FOR SALVAGE VEHICLE DEALER
879-26 LICENSE. (a) To apply for a salvage vehicle dealer license, a
879-27 person must submit to the department an application on a form
880-1 prescribed by the department. The application must be signed by
880-2 the applicant and accompanied by the application fee.
880-3 (b) An applicant may apply for a salvage vehicle dealer
880-4 license with an endorsement in one or more of the following
880-5 classifications:
880-6 (1) new automobile dealer;
880-7 (2) used automobile dealer;
880-8 (3) used vehicle parts dealer;
880-9 (4) salvage pool operator;
880-10 (5) salvage vehicle broker; or
880-11 (6) salvage vehicle rebuilder. (V.A.C.S. Art. 6687-1a,
880-12 Secs. 2.02(a) (part), 2.04(b).)
880-13 Sec. 2302.104. CONTENTS OF APPLICATION. (a) An application
880-14 for a salvage vehicle dealer license must include:
880-15 (1) the name, business address, and business telephone
880-16 number of the applicant;
880-17 (2) the name under which the applicant proposes to
880-18 conduct business;
880-19 (3) the location, by number, street, and municipality,
880-20 of each office at which the applicant proposes to conduct business;
880-21 (4) a statement indicating whether the applicant
880-22 previously applied for a license under this chapter and, if so, a
880-23 statement indicating the result of the previous application and
880-24 indicating whether the applicant has ever been the holder of a
880-25 license issued under this chapter that was revoked or suspended;
880-26 (5) a statement of the previous history, record, and
880-27 associations of the applicant to the extent sufficient to
881-1 establish, to the satisfaction of the department, the business
881-2 reputation and character of the applicant;
881-3 (6) the applicant's federal tax identification number,
881-4 if any;
881-5 (7) the applicant's state sales tax number; and
881-6 (8) any other information required by rules adopted
881-7 under this chapter.
881-8 (b) In addition to the information required by Subsection
881-9 (a), the application of a corporation must include:
881-10 (1) the state of its incorporation;
881-11 (2) the name, address, date of birth, and social
881-12 security number of each principal officer or director of the
881-13 corporation;
881-14 (3) a statement of the previous history, record, and
881-15 associations of each officer and each director to the extent
881-16 sufficient to establish, to the satisfaction of the department, the
881-17 business reputation and character of the applicant; and
881-18 (4) a statement showing whether an officer, director,
881-19 or employee of the applicant has been refused a license as a
881-20 salvage vehicle dealer or has been the holder of a license issued
881-21 under this chapter that was revoked or suspended.
881-22 (c) In addition to the information required by Subsection
881-23 (a), the application of a partnership must include:
881-24 (1) the name, address, date of birth, and social
881-25 security number of each owner or partner;
881-26 (2) a statement of the previous history, record, and
881-27 associations of each owner and each partner to the extent
882-1 sufficient to establish, to the satisfaction of the department, the
882-2 business reputation and character of the applicant; and
882-3 (3) a statement showing whether an owner, partner, or
882-4 employee of the applicant has been refused a license as a salvage
882-5 vehicle dealer or has been the holder of a license issued under
882-6 this chapter that was revoked or suspended. (V.A.C.S.
882-7 Art. 6687-1a, Secs. 2.02(a) (part), 2.03(a), (b), 2.08(a).)
882-8 Sec. 2302.105. DEPARTMENT INVESTIGATION. (a) The department
882-9 may not issue a license under this chapter until the department
882-10 completes an investigation of the applicant's qualifications.
882-11 (b) The department shall conduct the investigation not later
882-12 than the 15th day after the date the department receives the
882-13 application. The department shall report to the applicant the
882-14 results of the investigation. (V.A.C.S. Art. 6687-1a, Sec. 2.05.)
882-15 Sec. 2302.106. LICENSE ISSUANCE. (a) The department shall
882-16 issue a license to an applicant who meets the license
882-17 qualifications adopted under this chapter and pays the required
882-18 fees.
882-19 (b) A license may not be issued in a fictitious name that
882-20 may be confused with or is similar to that of a governmental entity
882-21 or that is otherwise deceptive or misleading to the public.
882-22 (V.A.C.S. Art. 6687-1a, Secs. 2.02(b), 2.06.)
882-23 Sec. 2302.107. SALVAGE VEHICLE AGENT LICENSE. (a) A person
882-24 may not act as a salvage vehicle agent unless the person holds a
882-25 salvage vehicle agent license issued under this chapter.
882-26 (b) A person is entitled to a salvage vehicle agent license
882-27 on application to the department, payment of the required fee, and
883-1 authorization from a salvage vehicle dealer to operate under the
883-2 dealer's license.
883-3 (c) A salvage vehicle dealer may authorize not more than
883-4 five persons to operate as salvage vehicle agents under the
883-5 dealer's license.
883-6 (d) A salvage vehicle agent may acquire, sell, or otherwise
883-7 deal in late model salvage motor vehicles, nonrepairable motor
883-8 vehicles, or salvage parts as directed by the authorizing dealer.
883-9 (V.A.C.S. Art. 6687-1a, Secs. 2.01(b), 3.04.)
883-10 Sec. 2302.108. DISCIPLINARY ACTION. (a) The department may
883-11 deny, suspend, revoke, or reinstate a license issued under this
883-12 chapter.
883-13 (b) The commission by rule shall establish the grounds for
883-14 denial, suspension, revocation, or reinstatement of a license
883-15 issued under this chapter and the procedures for disciplinary
883-16 action. A rule adopted under this subsection may not conflict with
883-17 a rule adopted by the State Office of Administrative Hearings.
883-18 (c) A proceeding under this section is subject to Chapter
883-19 2001, Government Code.
883-20 (d) A person whose license is revoked may not apply for a
883-21 new license before the first anniversary of the date of the
883-22 revocation. (V.A.C.S. Art. 6687-1a, Sec. 4.01.)
883-23 (Sections 2302.109-2302.150 reserved for expansion)
883-24 SUBCHAPTER D. LICENSE EXPIRATION AND RENEWAL
883-25 Sec. 2302.151. LICENSE EXPIRATION. (a) A license issued
883-26 under this chapter expires on the first anniversary of the date of
883-27 issuance.
884-1 (b) A person whose license has expired may not engage in the
884-2 activities that require a license until the license has been
884-3 renewed under this subchapter. (V.A.C.S. Art. 6687-1a, Secs.
884-4 2.07(a) (part), (b) (part).)
884-5 Sec. 2302.152. NOTICE OF EXPIRATION. Not later than the 31st
884-6 day before the expiration date of a person's license, the
884-7 department shall send written notice of the impending expiration to
884-8 the person at the person's last known address according to
884-9 department records. (V.A.C.S. Art. 6687-1a, Sec. 2.07(f).)
884-10 Sec. 2302.153. PROCEDURES FOR RENEWAL. (a) A person who is
884-11 otherwise eligible to renew a license issued under this chapter may
884-12 renew an unexpired license by paying the required renewal fee to
884-13 the department on or before the expiration date of the license.
884-14 (b) A person whose license has been expired for 90 days or
884-15 less may renew the license by paying to the department a renewal
884-16 fee that is equal to 1-1/2 times the normally required renewal fee.
884-17 (c) A person whose license has been expired for more than 90
884-18 days but less than one year may renew the license by paying to the
884-19 department a renewal fee that is equal to two times the normally
884-20 required renewal fee.
884-21 (d) A person whose license has been expired for one year or
884-22 longer may not renew the license. The person may obtain a new
884-23 license by complying with the requirements and procedures for
884-24 obtaining an original license.
884-25 (e) A person who was licensed in this state, moved to
884-26 another state, and has been doing business in the other state for
884-27 the two years preceding the date of application may renew an
885-1 expired license. The person must pay to the department a renewal
885-2 fee that is equal to two times the normally required renewal fee.
885-3 (V.A.C.S. Art. 6687-1a, Secs. 2.07(a) (part), (b) (part), (c), (d),
885-4 (e).)
885-5 (Sections 2302.154-2302.200 reserved for expansion)
885-6 SUBCHAPTER E. CONDUCTING BUSINESS
885-7 Sec. 2302.201. DUTIES ON ACQUISITION OF SALVAGE MOTOR
885-8 VEHICLE. (a) A salvage vehicle dealer who acquires ownership of a
885-9 salvage motor vehicle from an owner must receive an assigned
885-10 certificate of title.
885-11 (b) If the assigned certificate of title is not a salvage
885-12 motor vehicle certificate of title, a nonrepairable motor vehicle
885-13 certificate of title, or a comparable ownership document issued by
885-14 another state or jurisdiction, the dealer shall comply with Section
885-15 501.0916(b), Transportation Code. (V.A.C.S. Art. 6687-1a, Sec.
885-16 3.01(a).)
885-17 Sec. 2302.202. RECORDS OF PURCHASES. A salvage vehicle
885-18 dealer license holder shall maintain a record of each salvage motor
885-19 vehicle and each salvage part purchased by the license holder.
885-20 (V.A.C.S. Art. 6687-1a, Sec. 3.02 (part).)
885-21 Sec. 2302.203. REGISTRATION OF NEW BUSINESS LOCATION. Before
885-22 moving a place of business or opening an additional place of
885-23 business, a salvage vehicle dealer must register the new location
885-24 with the department. (V.A.C.S. Art. 6687-1a, Sec. 2.08(b).)
885-25 Sec. 2302.204. CASUAL SALES. This subchapter and Subchapters
885-26 B-D do not apply to a person who purchases a nonrepairable motor
885-27 vehicle or salvage motor vehicle from a salvage pool operator in a
886-1 casual sale, except that:
886-2 (1) the commission shall adopt rules as necessary to
886-3 regulate casual sales by salvage pool operators and to enforce this
886-4 section; and
886-5 (2) a salvage pool operator who sells a vehicle in a
886-6 casual sale shall comply with those rules. (V.A.C.S. Art. 6687-1a,
886-7 Sec. 2.01(g).)
886-8 Sec. 2302.205. DUTY OF METAL RECYCLER. A metal recycler who
886-9 purchases a motor vehicle shall, not later than the 60th day after
886-10 the date the recycler receives the certificate of title or
886-11 equivalent document in conjunction with the purchase, submit the
886-12 certificate or document to the department. (V.A.C.S. Art. 6687-1a,
886-13 Sec. 2.01(e).)
886-14 (Sections 2302.206-2302.250 reserved for expansion)
886-15 SUBCHAPTER F. ADDITIONAL DUTIES OF SALVAGE VEHICLE DEALER
886-16 IN CONNECTION WITH MOTOR VEHICLE COMPONENT PARTS
886-17 Sec. 2302.251. DEFINITIONS. In this subchapter:
886-18 (1) "Component part" means:
886-19 (A) a front-end assembly or tail section;
886-20 (B) the cab of a light or heavy truck;
886-21 (C) the bed of a one-ton or lighter truck; or
886-22 (D) an interior component part, a special
886-23 accessory part, or a motor vehicle part that displays or should
886-24 display one or more of the following:
886-25 (i) a federal safety certificate;
886-26 (ii) a motor number;
886-27 (iii) a serial number;
887-1 (iv) a manufacturer's permanent vehicle
887-2 identification number; or
887-3 (v) a derivative of a vehicle
887-4 identification number.
887-5 (2) "Front-end assembly" means a motor vehicle hood,
887-6 right or left front fender, grill, bumper, radiator, or radiator
887-7 support, if two or more of those parts are assembled together as
887-8 one unit.
887-9 (3) "Interior component part" means the front or rear
887-10 seat or the radio of a motor vehicle.
887-11 (4) "Special accessory part" means a tire, wheel,
887-12 tailgate, or removable glass top of a motor vehicle.
887-13 (5) "Tail section" means a motor vehicle roof, floor
887-14 pan, right or left rear quarter panel, deck lid, or rear bumper, if
887-15 two or more of those parts are assembled together as one unit.
887-16 (V.A.C.S. Art. 6687-2, Secs. (a)(2), (3), (4), (6), (7).)
887-17 Sec. 2302.252. REMOVAL OF LICENSE PLATES; INVENTORY. (a)
887-18 Immediately on receipt of a motor vehicle, a salvage vehicle dealer
887-19 shall remove any unexpired license plates from the vehicle and
887-20 place the license plates in a secure, locked place.
887-21 (b) A salvage vehicle dealer shall maintain on a form
887-22 provided by the department an inventory of unexpired license plates
887-23 removed under Subsection (a). The inventory must include:
887-24 (1) each license plate number;
887-25 (2) the make of the motor vehicle from which the
887-26 license plate was removed;
887-27 (3) the motor number of that vehicle; and
888-1 (4) the vehicle identification number of that vehicle.
888-2 (V.A.C.S. Art. 6687-2, Sec. (b) (part).)
888-3 Sec. 2302.253. RECEIPT OF MOTOR VEHICLE BY HOLDER OF
888-4 ENDORSEMENT AS USED VEHICLE PARTS DEALER. A salvage vehicle dealer
888-5 who holds a license with an endorsement as a used vehicle parts
888-6 dealer may not receive a motor vehicle unless the dealer first
888-7 obtains:
888-8 (1) a certificate of authority to dispose of the
888-9 vehicle, a sales receipt, or a transfer document for the vehicle
888-10 issued under Chapter 683, Transportation Code; or
888-11 (2) a certificate of title showing that there are no
888-12 liens on the vehicle or that all recorded liens have been released.
888-13 (V.A.C.S. Art. 6687-2, Sec. (b) (part).)
888-14 Sec. 2302.254. RECORD OF PURCHASE; INVENTORY OF PARTS. (a)
888-15 A salvage vehicle dealer shall keep an accurate and legible
888-16 inventory of each used component part purchased by or delivered to
888-17 the dealer. The inventory must contain a record of each part that
888-18 includes:
888-19 (1) the date of purchase or delivery;
888-20 (2) the name, age, address, sex, and driver's license
888-21 number of the seller and a legible photocopy of the seller's
888-22 driver's license;
888-23 (3) the license plate number of the motor vehicle in
888-24 which the part was delivered;
888-25 (4) a complete description of the part, including the
888-26 type of material and, if applicable, the make, model, color, and
888-27 size of the part; and
889-1 (5) the vehicle identification number of the motor
889-2 vehicle from which the part was removed.
889-3 (b) Instead of the information required by Subsection (a), a
889-4 salvage vehicle dealer may record:
889-5 (1) the name of the person who sold the part or the
889-6 motor vehicle from which the part was obtained; and
889-7 (2) the Texas certificate of inventory number or the
889-8 federal taxpayer identification number of that person.
889-9 (c) The department shall prescribe the form of the record
889-10 required under Subsection (a) and shall make the form available to
889-11 salvage vehicle dealers.
889-12 (d) This section does not apply to:
889-13 (1) an interior component part or special accessory
889-14 part that is from a motor vehicle more than 10 years of age; or
889-15 (2) a part delivered to a salvage vehicle dealer by a
889-16 commercial freight line or commercial carrier. (V.A.C.S.
889-17 Art. 6687-2, Secs. (c), (d), (e), (i).)
889-18 Sec. 2302.255. ASSIGNMENT OF INVENTORY NUMBER. (a) A
889-19 salvage vehicle dealer shall:
889-20 (1) assign a unique inventory number to each
889-21 transaction in which the dealer purchases or takes delivery of a
889-22 component part;
889-23 (2) attach the unique inventory number to each
889-24 component part the dealer obtains in the transaction; and
889-25 (3) retain each component part in its original
889-26 condition on the business premises of the dealer for at least three
889-27 calendar days, excluding Sundays, after the date the dealer obtains
890-1 the part.
890-2 (b) An inventory number attached to a component part under
890-3 Subsection (a) may not be removed while the part remains in the
890-4 inventory of the salvage vehicle dealer.
890-5 (c) A salvage vehicle dealer shall record a component part
890-6 on an affidavit bill of sale if:
890-7 (1) the component part does not have a vehicle
890-8 identification number or the vehicle identification number has been
890-9 removed; or
890-10 (2) the vehicle identification number of the vehicle
890-11 from which the component part was removed is not available.
890-12 (d) The department shall prescribe and make available the
890-13 form for the affidavit bill of sale.
890-14 (e) This section does not apply to the purchase by a salvage
890-15 vehicle dealer of a nonoperational engine, transmission, or rear
890-16 axle assembly from another salvage vehicle dealer or an
890-17 automotive-related business. (V.A.C.S. Art. 6687-2, Sec. (g).)
890-18 Sec. 2302.256. MAINTENANCE OF RECORDS. A salvage vehicle
890-19 dealer shall keep a record required under this subchapter on a form
890-20 prescribed by the department. The dealer shall maintain two copies
890-21 of each record required under this subchapter until the first
890-22 anniversary of the date the dealer sells or disposes of the item
890-23 for which the record is maintained. (V.A.C.S. Art. 6687-2, Secs.
890-24 (f) (part), (h) (part).)
890-25 Sec. 2302.257. SURRENDER OF CERTAIN DOCUMENTS OR LICENSE
890-26 PLATES. (a) On demand, a salvage vehicle dealer shall surrender to
890-27 the department for cancellation a certificate of title or
891-1 authority, sales receipt or transfer document, license plate, or
891-2 inventory list that the dealer is required to possess or maintain.
891-3 (b) The department shall provide a signed receipt for a
891-4 surrendered certificate of title or license plate. (V.A.C.S.
891-5 Art. 6687-2, Sec. (b) (part).)
891-6 Sec. 2302.258. INSPECTION OF RECORDS. (a) A peace officer
891-7 at any reasonable time may inspect a record required to be
891-8 maintained under this subchapter, including an inventory record and
891-9 affidavit bill of sale.
891-10 (b) On demand of a peace officer, a salvage vehicle dealer
891-11 shall give to the officer a copy of a record required to be
891-12 maintained under this subchapter.
891-13 (c) A peace officer may inspect the inventory on the
891-14 premises of a salvage vehicle dealer at any reasonable time in
891-15 order to verify, check, or audit the records required to be
891-16 maintained under this subchapter.
891-17 (d) A salvage vehicle dealer or an employee of the dealer
891-18 shall allow and may not interfere with a peace officer's inspection
891-19 of the dealer's inventory, premises, or required inventory records
891-20 or affidavit bills of sale. (V.A.C.S. Art. 6687-2, Secs. (f)
891-21 (part), (h) (part), (j).)
891-22 (Sections 2302.259-2302.300 reserved for expansion)
891-23 SUBCHAPTER G. MOTOR VEHICLE SALVAGE YARDS IN CERTAIN COUNTIES
891-24 Sec. 2302.301. APPLICATION OF SUBCHAPTER. This subchapter
891-25 applies only to a motor vehicle salvage yard located in a county
891-26 with a population of 2.8 million or more. (V.A.C.S. Art. 6687-2b,
891-27 Sec. (c).)
892-1 Sec. 2302.302. LIMITS ON OPERATION OF HEAVY MACHINERY. A
892-2 salvage vehicle dealer may not operate heavy machinery in a motor
892-3 vehicle salvage yard between the hours of 7 p.m. of one day and 7
892-4 a.m. of the following day. (V.A.C.S. Art. 6687-2b, Sec. (a).)
892-5 (Sections 2302.303-2302.350 reserved for expansion)
892-6 SUBCHAPTER H. PENALTIES AND ENFORCEMENT
892-7 Sec. 2302.351. INJUNCTIONS. (a) The prosecutor in the
892-8 county where a motor vehicle salvage yard is located or the city
892-9 attorney in the municipality where the salvage yard is located may
892-10 bring suit to enjoin a violation of Subchapter G.
892-11 (b) If a salvage vehicle dealer or an employee of the dealer
892-12 acting in the course of employment is convicted of more than one
892-13 offense under Section 2302.353(a)(2) or (b), the district attorney
892-14 for the county in which the dealer's salvage business is located
892-15 may bring an action in that county to enjoin the dealer's business
892-16 operations.
892-17 (c) An action under Subsection (b) must be brought in the
892-18 name of the state. If judgment is in favor of the state, the court
892-19 shall:
892-20 (1) enjoin the dealer from maintaining or
892-21 participating in the business of a salvage vehicle dealer for a
892-22 definite period or indefinitely, as determined by the court; and
892-23 (2) order that the dealer's place of business be
892-24 closed for the same period. (V.A.C.S. Art. 6687-2a; Art. 6687-2b,
892-25 Sec. (e).)
892-26 Sec. 2302.352. SEIZURE OF VEHICLE OR PART. A peace officer
892-27 may seize, hold, and dispose of, according to the Code of Criminal
893-1 Procedure, a motor vehicle or a motor vehicle part that is in the
893-2 possession of a salvage vehicle dealer and that has been stolen or
893-3 been altered by the removal, changing, mutilation, or obliteration
893-4 of a permanent vehicle identification number, derivative number,
893-5 motor number, serial number, or federal safety certificate.
893-6 (V.A.C.S. Art. 6687-2, Sec. (k).)
893-7 Sec. 2302.353. OFFENSES. (a) A person commits an offense if
893-8 the person violates:
893-9 (1) Subchapter C, D, or E or a rule adopted under
893-10 Subchapter C, D, or E; or
893-11 (2) Subchapter F.
893-12 (b) A person commits an offense if the person violates
893-13 Subchapter F in conjunction with a violation of Section 31.03,
893-14 Penal Code.
893-15 (c) A person commits an offense if the person violates
893-16 Subchapter G.
893-17 (d) An offense under Subsection (a) is a Class A
893-18 misdemeanor.
893-19 (e) An offense under Subsection (b) is a Class A misdemeanor
893-20 unless it is shown on the trial of the offense that the defendant
893-21 has been previously convicted of an offense under that subsection,
893-22 in which event the offense is punishable as a felony of the third
893-23 degree.
893-24 (f) An offense under Subsection (c) is a Class C
893-25 misdemeanor. (V.A.C.S. Art. 6687-1a, Sec. 4.02; Art. 6687-2, Secs.
893-26 (l), (m), (n), (o); Art. 6687-2b, Sec. (d).)
893-27 CHAPTER 2303. VEHICLE STORAGE FACILITIES
894-1 SUBCHAPTER A. GENERAL PROVISIONS
894-2 Sec. 2303.001. SHORT TITLE
894-3 Sec. 2303.002. DEFINITIONS
894-4 Sec. 2303.003. EXEMPTIONS
894-5 (Sections 2303.004-2303.050 reserved for expansion)
894-6 SUBCHAPTER B. POWERS AND DUTIES OF
894-7 COMMISSION AND DEPARTMENT
894-8 Sec. 2303.051. RULEMAKING: LICENSE REQUIREMENTS;
894-9 SANCTIONS
894-10 Sec. 2303.052. ISSUANCE OF LICENSE; FEES
894-11 Sec. 2303.053. RULES REGARDING PAYMENT OF FEE
894-12 Sec. 2303.054. RULES RESTRICTING ADVERTISING OR
894-13 COMPETITIVE BIDDING
894-14 (Sections 2303.055-2303.100 reserved for expansion)
894-15 SUBCHAPTER C. LICENSE REQUIREMENTS, ISSUANCE,
894-16 AND RENEWAL
894-17 Sec. 2303.101. LICENSE REQUIRED
894-18 Sec. 2303.102. LICENSE APPLICATION
894-19 Sec. 2303.103. ELIGIBILITY
894-20 Sec. 2303.104. NOTICE OF DENIAL; OPPORTUNITY TO COMPLY
894-21 Sec. 2303.105. TERM OF LICENSE; NOTICE OF EXPIRATION
894-22 Sec. 2303.106. PROCEDURE FOR RENEWAL
894-23 (Sections 2303.107-2303.150 reserved for expansion)
894-24 SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
894-25 Sec. 2303.151. NOTICE TO VEHICLE OWNER OR LIENHOLDER
894-26 Sec. 2303.152. NOTICE BY PUBLICATION
894-27 Sec. 2303.153. CONTENTS OF NOTICE
895-1 Sec. 2303.154. SECOND NOTICE; CONSENT TO SALE
895-2 Sec. 2303.155. CHARGES RELATED TO STORAGE
895-3 Sec. 2303.156. PAYMENT BY LIENHOLDER OR INSURANCE COMPANY
895-4 Sec. 2303.157. DISPOSAL OF CERTAIN ABANDONED VEHICLES
895-5 (Sections 2303.158-2303.200 reserved for expansion)
895-6 SUBCHAPTER E. DISCIPLINARY ACTION AND PROCEDURES
895-7 Sec. 2303.201. DISCIPLINARY ACTION BASED ON VIOLATION OF
895-8 CHAPTER
895-9 Sec. 2303.202. DISCIPLINARY ACTION BASED ON CERTAIN CRIMINAL
895-10 CONVICTIONS
895-11 Sec. 2303.203. RIGHT TO HEARING
895-12 Sec. 2303.204. HEARING; DECISION BY DIRECTOR
895-13 Sec. 2303.205. ADMINISTRATIVE PROCEDURE
895-14 (Sections 2303.206-2303.250 reserved for expansion)
895-15 SUBCHAPTER F. ADMINISTRATIVE PENALTY
895-16 Sec. 2303.251. IMPOSITION OF ADMINISTRATIVE PENALTY
895-17 Sec. 2303.252. AMOUNT OF ADMINISTRATIVE PENALTY
895-18 Sec. 2303.253. OPPORTUNITY FOR HEARING
895-19 Sec. 2303.254. HEARING
895-20 Sec. 2303.255. DECISION BY DIRECTOR
895-21 Sec. 2303.256. OPTIONS FOLLOWING DECISION: PAY OR APPEAL
895-22 Sec. 2303.257. COLLECTION OF PENALTY
895-23 Sec. 2303.258. REMITTANCE OF PENALTY AND INTEREST
895-24 (Sections 2303.259-2303.300 reserved for expansion)
895-25 SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
895-26 Sec. 2303.301. INJUNCTION; CIVIL PENALTY
895-27 Sec. 2303.302. CRIMINAL PENALTIES
896-1 Sec. 2303.303. AUTHORITY TO ARREST
896-2 CHAPTER 2303. VEHICLE STORAGE FACILITIES
896-3 SUBCHAPTER A. GENERAL PROVISIONS
896-4 Sec. 2303.001. SHORT TITLE. This chapter may be cited as the
896-5 Vehicle Storage Facility Act. (V.A.C.S. Art. 6687-9a, Sec. 1.)
896-6 Sec. 2303.002. DEFINITIONS. In this chapter:
896-7 (1) "Commission" means the Texas Transportation
896-8 Commission.
896-9 (2) "Department" means the Texas Department of
896-10 Transportation.
896-11 (3) "Director" means the executive director of the
896-12 department or a person designated by the executive director who is
896-13 not below the rank of division or special office director.
896-14 (4) "Owner of a vehicle" means a person:
896-15 (A) named as the purchaser or transferee in the
896-16 certificate of title issued for the vehicle under Chapter 501,
896-17 Transportation Code;
896-18 (B) in whose name the vehicle is registered
896-19 under Chapter 502, Transportation Code, or a member of the person's
896-20 immediate family;
896-21 (C) who holds the vehicle through a lease
896-22 agreement; or
896-23 (D) who is an unrecorded lienholder entitled to
896-24 possess the vehicle under the terms of a chattel mortgage.
896-25 (5) "Principal" means an individual who:
896-26 (A) personally or constructively holds,
896-27 including as the beneficiary of a trust:
897-1 (i) at least 10 percent of a corporation's
897-2 outstanding stock; or
897-3 (ii) more than $25,000 of the fair market
897-4 value of a business entity;
897-5 (B) has the controlling interest in a business
897-6 entity;
897-7 (C) has a direct or indirect participating
897-8 interest through shares, stock, or otherwise, regardless of whether
897-9 voting rights are included, of more than 10 percent of the profits,
897-10 proceeds, or capital gains of a business entity;
897-11 (D) is a member of the board of directors or
897-12 other governing body of a business entity; or
897-13 (E) serves as an elected officer of a business
897-14 entity.
897-15 (6) "Vehicle" means:
897-16 (A) a motor vehicle for which the issuance of a
897-17 certificate of title is required under Chapter 501, Transportation
897-18 Code; or
897-19 (B) any other device designed to be
897-20 self-propelled or transported on a public highway.
897-21 (7) "Vehicle storage facility" means a garage, parking
897-22 lot, or other facility that is:
897-23 (A) owned by a person other than a governmental
897-24 entity; and
897-25 (B) used to store or park at least 10 vehicles
897-26 each year. (V.A.C.S. Art. 6687-9a, Secs. 2(1), (2), (3), (4), (5),
897-27 (6), (8).)
898-1 Sec. 2303.003. EXEMPTIONS. (a) This chapter does not apply
898-2 to a vehicle stored or parked at a vehicle storage facility with
898-3 the consent of the owner of the vehicle.
898-4 (b) This chapter does not apply to a vehicle storage
898-5 facility operated by a person licensed under Chapter 2301.
898-6 (V.A.C.S. Art. 6687-9a, Sec. 3.)
898-7 (Sections 2303.004-2303.050 reserved for expansion)
898-8 SUBCHAPTER B. POWERS AND DUTIES OF
898-9 COMMISSION AND DEPARTMENT
898-10 Sec. 2303.051. RULEMAKING: LICENSE REQUIREMENTS; SANCTIONS.
898-11 The commission shall adopt rules that:
898-12 (1) establish the requirements for a person to be
898-13 licensed to operate a vehicle storage facility to ensure that the
898-14 facility maintains adequate standards for the care of stored
898-15 vehicles; and
898-16 (2) relate to the administrative sanctions that may be
898-17 imposed on a person licensed under this chapter. (V.A.C.S.
898-18 Art. 6687-9a, Secs. 4(b), 10(a) (part).)
898-19 Sec. 2303.052. ISSUANCE OF LICENSE; FEES. (a) The
898-20 department may issue licenses to operate vehicle storage
898-21 facilities.
898-22 (b) The department may impose and collect a fee for a
898-23 license in an amount sufficient to cover the costs incurred by the
898-24 department in administering this chapter. (V.A.C.S. Art. 6687-9a,
898-25 Secs. 4(a), (c) (part).)
898-26 Sec. 2303.053. RULES REGARDING PAYMENT OF FEE. (a) The
898-27 commission may adopt rules regarding the method of payment of a fee
899-1 under this chapter.
899-2 (b) The rules may authorize the use of:
899-3 (1) electronic funds transfer; or
899-4 (2) a credit card issued by a financial institution
899-5 chartered by:
899-6 (A) a state or the federal government; or
899-7 (B) a nationally recognized credit organization
899-8 approved by the department.
899-9 (c) The rules may require the payment of a discount or a
899-10 service charge for a credit card payment in addition to the fee.
899-11 (V.A.C.S. Art. 6687-9a, Sec. 4(c) (part).)
899-12 Sec. 2303.054. RULES RESTRICTING ADVERTISING OR COMPETITIVE
899-13 BIDDING. (a) The commission may not adopt a rule restricting
899-14 advertising or competitive bidding by a person licensed under this
899-15 chapter except to prohibit a false, misleading, or deceptive
899-16 practice.
899-17 (b) In its rules to prohibit a false, misleading, or
899-18 deceptive practice, the commission may not include a rule that:
899-19 (1) restricts the person's use of any advertising
899-20 medium;
899-21 (2) restricts the person's personal appearance or the
899-22 use of the person's voice in an advertisement;
899-23 (3) relates to the size or duration of an
899-24 advertisement by the person; or
899-25 (4) restricts the person's advertisement under a trade
899-26 name. (V.A.C.S. Art. 6687-9a, Sec. 4(d).)
899-27 (Sections 2303.055-2303.100 reserved for expansion)
900-1 SUBCHAPTER C. LICENSE REQUIREMENTS, ISSUANCE,
900-2 AND RENEWAL
900-3 Sec. 2303.101. LICENSE REQUIRED. (a) A person may not
900-4 operate a vehicle storage facility unless the person holds a
900-5 license issued under this chapter.
900-6 (b) A license issued under this chapter:
900-7 (1) is valid only for the person who applied for the
900-8 license; and
900-9 (2) applies only to a single vehicle storage facility
900-10 named on the license. (V.A.C.S. Art. 6687-9a, Secs. 5, 12.)
900-11 Sec. 2303.102. LICENSE APPLICATION. (a) The commission by
900-12 rule shall determine the types of information to be included in an
900-13 application for a license under this chapter.
900-14 (b) The rules adopted by the commission under this section
900-15 must require the application to be made under oath and to list:
900-16 (1) the name and address of each partner, if the
900-17 applicant is a partnership;
900-18 (2) the name and address of the president, secretary,
900-19 and treasurer of the corporation, if the applicant is a
900-20 corporation; and
900-21 (3) each conviction of a felony, or of a misdemeanor
900-22 punishable by confinement in jail or by a fine exceeding $200, that
900-23 was obtained against the applicant or a partner or officer of the
900-24 applicant in the three years preceding the date of application.
900-25 (c) A corporation's application must be signed and sworn to
900-26 by the president and secretary of the corporation. (V.A.C.S.
900-27 Art. 6687-9a, Sec. 6.)
901-1 Sec. 2303.103. ELIGIBILITY. The department shall approve an
901-2 application submitted as provided by Section 2303.102 unless the
901-3 department determines that:
901-4 (1) the applicant knowingly supplied false or
901-5 incomplete information on the application;
901-6 (2) in the three years preceding the date of
901-7 application, the applicant, a partner, principal, or officer of the
901-8 applicant, or the general manager of the applicant, was convicted
901-9 of:
901-10 (A) a felony; or
901-11 (B) a misdemeanor punishable by confinement in
901-12 jail or by a fine exceeding $500; or
901-13 (3) the vehicle storage facility for which the license
901-14 is sought does not meet the standards for storage facilities
901-15 established by commission rules. (V.A.C.S. Art. 6687-9a, Sec. 7.)
901-16 Sec. 2303.104. NOTICE OF DENIAL; OPPORTUNITY TO COMPLY. (a)
901-17 If the department denies an application for a license under this
901-18 chapter, the department shall send written notice of the decision
901-19 to the applicant at the address shown on the application by
901-20 certified mail, return receipt requested.
901-21 (b) The notice must state the reason for the department's
901-22 decision and that the applicant is entitled to a hearing before the
901-23 department under Subchapter E.
901-24 (c) The notice may state that the decision is temporary
901-25 pending compliance by the applicant. If the decision is temporary
901-26 and the applicant complies with this chapter and commission rules
901-27 not later than the 14th day after the date the applicant receives
902-1 the notice, the department shall approve the application.
902-2 (V.A.C.S. Art. 6687-9a, Sec. 8.)
902-3 Sec. 2303.105. TERM OF LICENSE; NOTICE OF EXPIRATION. (a) A
902-4 license issued under this chapter is valid for the period set by
902-5 the department.
902-6 (b) Not later than the 30th day before the expiration date
902-7 of a person's license, the department shall send written notice of
902-8 the impending license expiration to the person at the person's last
902-9 known address according to the department's records. (V.A.C.S.
902-10 Art. 6687-9a, Sec. 9(a).)
902-11 Sec. 2303.106. PROCEDURE FOR RENEWAL. (a) A person may
902-12 apply to the department to renew the person's license. The
902-13 application for renewal must be:
902-14 (1) made on a form approved by the department;
902-15 (2) submitted to the department before the expiration
902-16 date of the license; and
902-17 (3) accompanied by a nonrefundable fee.
902-18 (b) A person whose license expires and is not renewed under
902-19 this section may apply for a new license under Section 2303.102.
902-20 (V.A.C.S. Art. 6687-9a, Secs. 9(b), (c), (d).)
902-21 (Sections 2303.107-2303.150 reserved for expansion)
902-22 SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
902-23 Sec. 2303.151. NOTICE TO VEHICLE OWNER OR LIENHOLDER. (a)
902-24 The operator of a vehicle storage facility who receives a vehicle
902-25 that is registered in this state and that is towed to the facility
902-26 for storage shall send a written notice to the registered owner and
902-27 the primary lienholder of the vehicle not later than the fifth day
903-1 after the date but not earlier than 24 hours after the date the
903-2 operator receives the vehicle.
903-3 (b) Except as provided by Section 2303.152, the operator of
903-4 a vehicle storage facility who receives a vehicle that is
903-5 registered outside this state shall send a written notice to the
903-6 registered owner and each recorded lienholder of the vehicle not
903-7 later than the 14th day after the date but not earlier than 24
903-8 hours after the date the operator receives the vehicle.
903-9 (c) It is a defense to an action initiated by the department
903-10 for a violation of this section that the operator of the facility
903-11 unsuccessfully attempted in writing to obtain information from the
903-12 governmental entity with which the vehicle is registered.
903-13 (d) A notice under this section must:
903-14 (1) be correctly addressed;
903-15 (2) carry sufficient postage; and
903-16 (3) be sent by certified mail, return receipt
903-17 requested.
903-18 (e) A notice under this section is considered to have been
903-19 given on the date indicated on the postmark and to be timely filed
903-20 if:
903-21 (1) the postmark indicates that the notice was mailed
903-22 within the period described by Subsection (a) or (b), as
903-23 applicable; or
903-24 (2) the notice was published as provided by Section
903-25 2303.152. (V.A.C.S. Art. 6687-9a, Secs. 13(a), (b), (c), (d)
903-26 (part), (h).)
903-27 Sec. 2303.152. NOTICE BY PUBLICATION. (a) Notice to the
904-1 registered owner and the primary lienholder of a vehicle towed to a
904-2 vehicle storage facility may be provided by publication in a
904-3 newspaper of general circulation in the county in which the vehicle
904-4 is stored if:
904-5 (1) the vehicle is registered in another state;
904-6 (2) the operator of the storage facility submits to
904-7 the governmental entity with which the vehicle is registered a
904-8 written request for information relating to the identity of the
904-9 registered owner and any lienholder of record;
904-10 (3) the identity of the registered owner cannot be
904-11 determined;
904-12 (4) the registration does not contain an address for
904-13 the registered owner; and
904-14 (5) the operator of the storage facility cannot
904-15 reasonably determine the identity and address of each lienholder.
904-16 (b) The written request must:
904-17 (1) be correctly addressed;
904-18 (2) carry sufficient postage; and
904-19 (3) be sent by certified mail, return receipt
904-20 requested.
904-21 (c) Notice by publication is not required if each notice
904-22 sent as provided by Section 2303.151 is returned because:
904-23 (1) the notice was unclaimed or refused; or
904-24 (2) the person to whom the notice was sent moved
904-25 without leaving a forwarding address. (V.A.C.S. Art. 6687-9a,
904-26 Secs. 13(e), (f).)
904-27 Sec. 2303.153. CONTENTS OF NOTICE. (a) A notice provided
905-1 under Section 2303.151 or 2303.152 must include:
905-2 (1) the date the vehicle was accepted for storage;
905-3 (2) the first day for which a storage fee is assessed;
905-4 (3) the daily storage rate;
905-5 (4) the type and amount of any other charge to be paid
905-6 when the vehicle is claimed;
905-7 (5) the full name, street address, and telephone
905-8 number of the vehicle storage facility;
905-9 (6) the hours during which the owner may claim the
905-10 vehicle; and
905-11 (7) the facility license number preceded by "Texas
905-12 Department of Transportation Vehicle Storage Facility License
905-13 Number."
905-14 (b) Notice by publication may include a list of more than
905-15 one vehicle, watercraft, or outboard motor. (V.A.C.S.
905-16 Art. 6687-9a, Secs. 13(d) (part), (g).)
905-17 Sec. 2303.154. SECOND NOTICE; CONSENT TO SALE. (a) If a
905-18 vehicle is not claimed by a person permitted to claim the vehicle
905-19 or is not taken into custody by a law enforcement agency under
905-20 Chapter 683, Transportation Code, before the 41st day after the
905-21 date notice is mailed or published under Section 2303.151 or
905-22 2303.152, the operator of the vehicle storage facility shall send a
905-23 second notice to the registered owner and the primary lienholder of
905-24 the vehicle.
905-25 (b) Notice under this section must include:
905-26 (1) the information listed in Section 2303.153(a);
905-27 (2) a statement of the right of the facility to
906-1 dispose of the vehicle under Section 2303.157; and
906-2 (3) a statement that the failure of the owner or
906-3 lienholder to claim the vehicle before the 30th day after the date
906-4 the notice is provided is:
906-5 (A) a waiver by that person of all right, title,
906-6 or interest in the vehicle; and
906-7 (B) a consent to the sale of the vehicle at a
906-8 public sale. (V.A.C.S. Art. 6687-9a, Sec. 13(j).)
906-9 Sec. 2303.155. CHARGES RELATED TO STORAGE. (a) For the
906-10 purposes of this section, "governmental vehicle storage facility"
906-11 means a garage, parking lot, or other facility that is:
906-12 (A) owned by a governmental entity; and
906-13 (B) used to store or park at least 10 vehicles
906-14 each year.
906-15 (b) The operator of a vehicle storage facility or
906-16 governmental vehicle storage facility may charge the owner of a
906-17 vehicle stored or parked at the facility:
906-18 (1) a notification fee set in a reasonable amount not
906-19 to exceed $25 for providing notice under this subchapter;
906-20 (2) an impoundment fee of $10 for any action that:
906-21 (A) is taken by or at the direction of the owner
906-22 or operator of the facility; and
906-23 (B) is necessary to preserve, protect, or
906-24 service a vehicle stored or parked at the facility; and
906-25 (3) a daily storage fee of not less than $5 and not
906-26 more than $15 for each day or part of a day the vehicle is stored
906-27 at the facility.
907-1 (c) For purposes of imposing a daily storage fee, a day is
907-2 considered to begin at midnight and to end at the next following
907-3 midnight. A daily storage fee may be charged regardless of whether
907-4 the vehicle is stored for 24 hours of the day, except that a daily
907-5 storage fee may not be charged for more than one day if the vehicle
907-6 remains at the facility for less than 12 hours.
907-7 (d) The operator of a vehicle storage facility or
907-8 governmental vehicle storage facility may charge a daily storage
907-9 fee under Subsection (b):
907-10 (1) for not more than five days before the date notice
907-11 is mailed or published under this subchapter; and
907-12 (2) for each day the vehicle is in storage after the
907-13 date the notice is mailed or published until the vehicle is removed
907-14 and all accrued charges are paid.
907-15 (e) The operator of a vehicle storage facility or
907-16 governmental vehicle storage facility may not charge an additional
907-17 fee that is similar to a notification, impoundment, or
907-18 administrative fee.
907-19 (f) This section controls over any conflicting municipal
907-20 ordinance or charter provision. (V.A.C.S. Art. 6687-9a, Secs.
907-21 2(9); 13(i); 14.)
907-22 Sec. 2303.156. PAYMENT BY LIENHOLDER OR INSURANCE COMPANY.
907-23 (a) A lienholder who repossesses a vehicle delivered to a vehicle
907-24 storage facility is liable to the operator of the facility for any
907-25 money owed to the operator in relation to delivery of the vehicle
907-26 to or storage of the vehicle in the facility regardless of whether
907-27 an amount accrued before the lienholder repossessed the vehicle.
908-1 (b) An insurance company that pays a claim of total loss on
908-2 a vehicle in a vehicle storage facility is liable to the operator
908-3 of the facility for any money owed to the operator in relation to
908-4 delivery of the vehicle to or storage of the vehicle in the
908-5 facility regardless of whether an amount accrued before the
908-6 insurance company paid the claim. (V.A.C.S. Art. 6687-9a, Sec.
908-7 14A.)
908-8 Sec. 2303.157. DISPOSAL OF CERTAIN ABANDONED VEHICLES. (a)
908-9 The operator of a vehicle storage facility may dispose of a vehicle
908-10 for which notice is given under Section 2303.154 if, before the
908-11 30th day after the date notice is mailed, the vehicle is not:
908-12 (1) claimed by a person entitled to claim the vehicle;
908-13 or
908-14 (2) taken into custody by a law enforcement agency
908-15 under Chapter 683, Transportation Code.
908-16 (b) An operator entitled to dispose of a vehicle under this
908-17 section may sell the vehicle at a public sale without obtaining a
908-18 release or discharge of any lien on the vehicle. The proceeds from
908-19 the sale of the vehicle shall be applied to the charges incurred
908-20 for the vehicle under Section 2303.155. The operator shall pay any
908-21 excess proceeds to the person entitled to those proceeds.
908-22 (V.A.C.S. Art. 6687-9a, Sec. 14B.)
908-23 (Sections 2303.158-2303.200 reserved for expansion)
908-24 SUBCHAPTER E. DISCIPLINARY ACTION AND PROCEDURES
908-25 Sec. 2303.201. DISCIPLINARY ACTION BASED ON VIOLATION OF
908-26 CHAPTER. If a license holder, a partner of the license holder, or a
908-27 principal in the license holder's business knowingly violates this
909-1 chapter or a rule or order adopted under this chapter or if, with
909-2 the license holder's knowledge, an employee of the license holder
909-3 violates this chapter or a rule or order adopted under this
909-4 chapter, the department may:
909-5 (1) issue a written warning to the license holder
909-6 specifying the violation;
909-7 (2) deny an application for a license under this
909-8 chapter;
909-9 (3) revoke or suspend a license issued under this
909-10 chapter;
909-11 (4) place on probation a person whose license is
909-12 suspended; or
909-13 (5) impose an administrative penalty in an amount not
909-14 to exceed $1,000 for each violation, with each act of violation
909-15 considered a separate violation. (V.A.C.S. Art. 6687-9a, Sec.
909-16 10(a) (part).)
909-17 Sec. 2303.202. DISCIPLINARY ACTION BASED ON CERTAIN CRIMINAL
909-18 CONVICTIONS. (a) The department may revoke or suspend a license
909-19 issued under this chapter or place on probation a person whose
909-20 license is suspended if the department determines that a license
909-21 holder, a partner or employee of the license holder, or a principal
909-22 in the license holder's business has been finally convicted of:
909-23 (1) a felony; or
909-24 (2) a misdemeanor that:
909-25 (A) directly relates to a duty or responsibility
909-26 of an operator of a vehicle storage facility; and
909-27 (B) is punishable by confinement or by a fine
910-1 exceeding $500.
910-2 (b) If the department places a person on probation under
910-3 Subsection (a), the department may require the person to report
910-4 regularly to the department on any matter that is the basis of the
910-5 probation. (V.A.C.S. Art. 6687-9a, Sec. 10(b), (e).)
910-6 Sec. 2303.203. RIGHT TO HEARING. (a) If the department
910-7 proposes to take action against a person under this subchapter, the
910-8 person is entitled to a hearing held by an administrative law judge
910-9 of the State Office of Administrative Hearings.
910-10 (b) A person whose license is revoked or whose application
910-11 for the issuance or renewal of a license is denied may make a
910-12 written request for an administrative hearing not later than the
910-13 14th day after the date the person receives notice of the denial or
910-14 revocation. (V.A.C.S. Art. 6687-9a, Secs. 10(f) (part); 11(a), (c)
910-15 (part).)
910-16 Sec. 2303.204. HEARING; DECISION BY DIRECTOR. (a) At a
910-17 hearing under this subchapter, the administrative law judge shall
910-18 make findings of fact and conclusions of law and promptly issue to
910-19 the director a proposal for a decision about the revocation or
910-20 denial.
910-21 (b) Based on the findings of fact, conclusions of law, and
910-22 proposal for a decision, the director by order may revoke or deny a
910-23 license. (V.A.C.S. Art. 6687-9a, Sec. 11(c) (part).)
910-24 Sec. 2303.205. ADMINISTRATIVE PROCEDURE. (a) A proceeding
910-25 under this subchapter is a contested case for purposes of Chapter
910-26 2001, Government Code.
910-27 (b) Rules of practice adopted by the commission under
911-1 Section 2001.004, Government Code, applicable to the proceedings
911-2 for a disciplinary action may not conflict with rules adopted by
911-3 the State Office of Administrative Hearings. (V.A.C.S.
911-4 Art. 6687-9a, Secs. 10(f) (part), 11(b).)
911-5 (Sections 2303.206-2303.250 reserved for expansion)
911-6 SUBCHAPTER F. ADMINISTRATIVE PENALTY
911-7 Sec. 2303.251. IMPOSITION OF ADMINISTRATIVE PENALTY. The
911-8 department may impose an administrative penalty on a person who
911-9 operates a vehicle storage facility without holding a license
911-10 issued under this chapter. An action under this section is in
911-11 addition to any action authorized under Subchapter G. (V.A.C.S.
911-12 Art. 6687-9a, Sec. 10A(a) (part).)
911-13 Sec. 2303.252. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
911-14 amount of an administrative penalty under Section 2303.251 may not
911-15 exceed $10,000 for each violation. Each day a violation continues
911-16 or occurs is a separate violation for purposes of imposing a
911-17 penalty.
911-18 (b) In determining the amount of the penalty, the department
911-19 shall consider:
911-20 (1) the seriousness of the violation, including:
911-21 (A) the nature, circumstances, extent, and
911-22 gravity of any prohibited act; and
911-23 (B) the hazard or potential hazard to the
911-24 health, safety, or economic welfare of the public;
911-25 (2) the economic harm to property or the environment
911-26 caused by the violation;
911-27 (3) the history of previous violations;
912-1 (4) the amount necessary to deter a future violation;
912-2 (5) efforts to correct the violation; and
912-3 (6) any other matter that justice may require.
912-4 (V.A.C.S. Art. 6687-9a, Secs. 10A(a) (part), (b).)
912-5 Sec. 2303.253. OPPORTUNITY FOR HEARING. An administrative
912-6 penalty may be imposed under this subchapter only after the person
912-7 charged with a violation is given an opportunity for an
912-8 administrative hearing. (V.A.C.S. Art. 6687-9a, Sec. 10A(c).)
912-9 Sec. 2303.254. HEARING. (a) If the person requests a
912-10 hearing or fails to respond timely to notice, the department shall
912-11 set a hearing and give notice of the hearing to the person.
912-12 (b) A hearing set by the department under Subsection (a)
912-13 shall be held by an administrative law judge of the State Office of
912-14 Administrative Hearings.
912-15 (c) The administrative law judge shall:
912-16 (1) make findings of fact and conclusions of law; and
912-17 (2) issue to the director a proposal for a decision as
912-18 to the occurrence of the violation and the amount of any proposed
912-19 administrative penalty. (V.A.C.S. Art. 6687-9a, Sec. 10A(d).)
912-20 Sec. 2303.255. DECISION BY DIRECTOR. (a) Based on the
912-21 findings of fact, conclusions of law, and proposal for a decision
912-22 under Section 2303.254, the director by order may:
912-23 (1) determine that a violation has occurred and impose
912-24 an administrative penalty; or
912-25 (2) determine that a violation has not occurred.
912-26 (b) The director may increase or decrease the amount of the
912-27 penalty recommended by the administrative law judge.
913-1 (c) If the person does not appear for the hearing, the
913-2 director may impose a penalty and issue an order that the penalty
913-3 be paid after the department has determined that a violation
913-4 occurred. (V.A.C.S. Art. 6687-9a, Secs. 10A(e), (f).)
913-5 Sec. 2303.256. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
913-6 (a) Not later than the 30th day after the date the director's
913-7 order becomes final as provided by Section 2001.144, Government
913-8 Code, the person shall:
913-9 (1) pay the administrative penalty; or
913-10 (2) file a petition for judicial review.
913-11 (b) Within the 30-day period, a person who acts under
913-12 Subsection (a)(2) may:
913-13 (1) stay enforcement of the penalty by:
913-14 (A) paying the penalty to the department for
913-15 placement in an escrow account; or
913-16 (B) giving the department a supersedeas bond
913-17 that is for the amount of the penalty and is effective until
913-18 judicial review of the director's order is final; or
913-19 (2) request the court to stay enforcement of the
913-20 penalty by:
913-21 (A) filing with the court an affidavit of the
913-22 person stating that the person is financially unable to pay the
913-23 penalty and is financially unable to give the supersedeas bond; and
913-24 (B) giving a copy of the affidavit to the
913-25 department by certified mail.
913-26 (c) If the department receives a copy of an affidavit under
913-27 Subsection (b)(2), the department may file with the court a contest
914-1 to the affidavit not later than the fifth day after the date the
914-2 copy is received. The court shall hold a hearing on the facts
914-3 alleged in the affidavit as soon as practicable and shall stay
914-4 enforcement of the penalty on finding that the alleged facts are
914-5 true. The person who files an affidavit has the burden of proving
914-6 that the person is financially unable to pay the penalty and to
914-7 give a supersedeas bond.
914-8 (d) A person who fails to take action as provided by this
914-9 section waives the right to judicial review of the director's
914-10 order. (V.A.C.S. Art. 6687-9a, Secs. 10A(h), (i), (j).)
914-11 Sec. 2303.257. COLLECTION OF PENALTY. An administrative
914-12 penalty owed under this subchapter may be recovered in a civil
914-13 action brought by the attorney general at the request of the
914-14 department. (V.A.C.S. Art. 6687-9a, Sec. 10A(l).)
914-15 Sec. 2303.258. REMITTANCE OF PENALTY AND INTEREST. If, after
914-16 judicial review, the administrative penalty is reduced or is not
914-17 upheld by the court, the department shall:
914-18 (1) remit the appropriate amount, plus accrued
914-19 interest, to the person if the person paid the penalty; or
914-20 (2) execute a release of the bond if the person posted
914-21 a supersedeas bond. (V.A.C.S. Art. 6687-9a, Sec. 10A(k).)
914-22 (Sections 2303.259-2303.300 reserved for expansion)
914-23 SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
914-24 Sec. 2303.301. INJUNCTION; CIVIL PENALTY. (a) If a person
914-25 has violated, is violating, or is threatening to violate this
914-26 chapter or a rule or order adopted under this chapter, the
914-27 department or the attorney general at the request of the department
915-1 may institute an action for:
915-2 (1) injunctive relief;
915-3 (2) a civil penalty not to exceed $1,000 for each
915-4 violation; or
915-5 (3) both injunctive relief and the civil penalty.
915-6 (b) If the department or the attorney general prevails in an
915-7 action under this section, the department or the attorney general
915-8 is entitled to recover reasonable attorney's fees and court costs.
915-9 (V.A.C.S. Art. 6687-9a, Sec. 10(c).)
915-10 Sec. 2303.302. CRIMINAL PENALTIES. (a) A person commits an
915-11 offense if the person:
915-12 (1) operates a vehicle storage facility for which a
915-13 license has not been issued under this chapter; or
915-14 (2) violates a rule adopted by the commission under
915-15 this chapter.
915-16 (b) An offense under this section is a misdemeanor
915-17 punishable by a fine of not less than $200 and not more than $500.
915-18 (c) A person commits a separate offense for each day the
915-19 person violates this section. (V.A.C.S. Art. 6687-9a, Sec. 17.)
915-20 Sec. 2303.303. AUTHORITY TO ARREST. A peace officer or
915-21 license and weight inspector for the Department of Public Safety
915-22 may make an arrest for a violation of a rule adopted under this
915-23 chapter. (V.A.C.S. Art. 6687-9a, Sec. 10(d).)
915-24 CHAPTER 2304. NONMECHANICAL REPAIRS TO MOTOR VEHICLES
915-25 SUBCHAPTER A. GENERAL PROVISIONS
915-26 Sec. 2304.001. DEFINITIONS
915-27 Sec. 2304.002. APPLICATION OF CHAPTER
916-1 (Sections 2304.003-2304.050 reserved for expansion)
916-2 SUBCHAPTER B. CERTIFICATE OF REGISTRATION
916-3 Sec. 2304.051. REGISTRATION REQUIRED
916-4 Sec. 2304.052. APPLICATION
916-5 Sec. 2304.053. ISSUANCE AND RENEWAL OF CERTIFICATE
916-6 Sec. 2304.054. FORM OF CERTIFICATE; TRANSFERABILITY
916-7 Sec. 2304.055. REPLACEMENT CERTIFICATE
916-8 Sec. 2304.056. VOLUNTARY SURRENDER OF CERTIFICATE
916-9 Sec. 2304.057. CANCELLATION OF CERTIFICATE
916-10 Sec. 2304.058. MAINTENANCE OF REGISTRATION INFORMATION
916-11 (Sections 2304.059-2304.100 reserved for expansion)
916-12 SUBCHAPTER C. PRACTICE BY CERTIFICATE HOLDER
916-13 Sec. 2304.101. DISPLAY OF CERTIFICATE
916-14 Sec. 2304.102. REGISTRATION NUMBER
916-15 Sec. 2304.103. FALSE STATEMENTS
916-16 Sec. 2304.104. RECORD OF VEHICLE REPAIRS
916-17 (Sections 2304.105-2304.150 reserved for expansion)
916-18 SUBCHAPTER D. ENFORCEMENT PROVISIONS
916-19 Sec. 2304.151. INSPECTION OF PREMISES AND RECORD
916-20 Sec. 2304.152. ADMINISTRATIVE DISCIPLINARY ACTION AND
916-21 PROCEDURES
916-22 Sec. 2304.153. FAILURE TO REGISTER; CIVIL PENALTY
916-23 Sec. 2304.154. VIOLATION OF CHAPTER; CIVIL PENALTY
916-24 CHAPTER 2304. NONMECHANICAL REPAIRS TO MOTOR VEHICLES
916-25 SUBCHAPTER A. GENERAL PROVISIONS
916-26 Sec. 2304.001. DEFINITIONS. In this chapter:
916-27 (1) "Commission" means the Texas Natural Resource
917-1 Conservation Commission.
917-2 (2) "Executive director" means the executive director
917-3 of the Texas Natural Resource Conservation Commission.
917-4 (3) "Motor vehicle" means a vehicle with at least four
917-5 wheels that is self-propelled and that can transport a person or
917-6 property on a public street or highway. The term does not include
917-7 a vehicle that is used exclusively on stationary tracks.
917-8 (4) "Repair facility" means a person that engages in
917-9 the business of repairing or replacing the nonmechanical exterior
917-10 or interior body parts of a damaged motor vehicle. (V.A.C.S.
917-11 Art. 9028, Secs. 1(2), (3), (4), (5).)
917-12 Sec. 2304.002. APPLICATION OF CHAPTER. This chapter does not
917-13 apply to a repair facility located in a county with a population of
917-14 50,000 or less. (V.A.C.S. Art. 9028, Sec. 13.)
917-15 (Sections 2304.003-2304.050 reserved for expansion)
917-16 SUBCHAPTER B. CERTIFICATE OF REGISTRATION
917-17 Sec. 2304.051. REGISTRATION REQUIRED. A repair facility
917-18 shall register with the commission as provided by this chapter and
917-19 the rules adopted by the commission. (V.A.C.S. Art. 9028, Sec. 2
917-20 (part).)
917-21 Sec. 2304.052. APPLICATION. (a) The commission by rule
917-22 shall:
917-23 (1) prescribe an application form for the issuance or
917-24 renewal of a certificate of registration; and
917-25 (2) determine the information to be disclosed on the
917-26 application.
917-27 (b) The application must include:
918-1 (1) the name, street address, and mailing address of
918-2 each location at which the applicant operates a repair facility;
918-3 (2) the name and address of:
918-4 (A) each owner, partner, officer, or director of
918-5 the applicant; and
918-6 (B) if the applicant is a corporation, each
918-7 shareholder holding 10 percent or more of the outstanding shares;
918-8 (3) the identification number assigned by, or a
918-9 statement of other evidence of compliance with any applicable
918-10 requirements of:
918-11 (A) the United States Environmental Protection
918-12 Agency;
918-13 (B) the United States Occupational Safety and
918-14 Health Administration;
918-15 (C) the commission;
918-16 (D) the Texas Department of Health;
918-17 (E) the comptroller; and
918-18 (F) a municipality or county; and
918-19 (4) a statement of each conviction obtained against
918-20 the applicant or a partner or officer of the applicant during the
918-21 three years preceding the date of the application of:
918-22 (A) a felony; or
918-23 (B) a misdemeanor punishable by confinement in
918-24 jail or by a fine exceeding $200. (V.A.C.S. Art. 9028, Sec. 3(a)
918-25 (part).)
918-26 Sec. 2304.053. ISSUANCE AND RENEWAL OF CERTIFICATE. (a) An
918-27 applicant for the issuance or renewal of a certificate of
919-1 registration shall submit to the executive director a sworn
919-2 application on the form prescribed by the commission accompanied by
919-3 a $50 fee.
919-4 (b) On receipt of the application and required fee, the
919-5 executive director shall issue a certificate of registration to the
919-6 applicant.
919-7 (c) A certificate of registration expires on the first
919-8 anniversary of the date of issuance and may be renewed annually in
919-9 the manner prescribed by the commission. An application for
919-10 renewal must be submitted to the executive director within 30 days
919-11 before the expiration date of the certificate. (V.A.C.S.
919-12 Art. 9028, Secs. 2 (part); 3(a) (part), (b); 4 (part); 5.)
919-13 Sec. 2304.054. FORM OF CERTIFICATE; TRANSFERABILITY. A
919-14 certificate of registration:
919-15 (1) must contain a unique number;
919-16 (2) applies only to the person whose name appears on
919-17 the certificate or an employee of that person; and
919-18 (3) is not transferable. (V.A.C.S. Art. 9028, Sec. 4
919-19 (part).)
919-20 Sec. 2304.055. REPLACEMENT CERTIFICATE. (a) If a
919-21 certificate of registration is lost or destroyed, the certificate
919-22 holder may apply to the executive director for a replacement
919-23 certificate of registration.
919-24 (b) The certificate holder must submit:
919-25 (1) an affidavit verifying that the certificate of
919-26 registration was lost or destroyed; and
919-27 (2) a $25 replacement fee.
920-1 (c) The executive director shall issue a replacement
920-2 certificate of registration on receipt of the affidavit and
920-3 replacement fee.
920-4 (d) A replacement certificate of registration must be
920-5 clearly identified as a replacement certificate on the certificate
920-6 and in the records of the commission. (V.A.C.S. Art. 9028, Sec.
920-7 6(c).)
920-8 Sec. 2304.056. VOLUNTARY SURRENDER OF CERTIFICATE. A
920-9 certificate holder may terminate a certificate of registration at
920-10 any time by voluntarily surrendering the certificate. (V.A.C.S.
920-11 Art. 9028, Sec. 6(a) (part).)
920-12 Sec. 2304.057. CANCELLATION OF CERTIFICATE. (a) On the
920-13 expiration, termination, or surrender of a certificate of
920-14 registration, the certificate holder shall deliver the certificate
920-15 to the executive director.
920-16 (b) The executive director shall:
920-17 (1) cancel the certificate; or
920-18 (2) endorse on the certificate the date of expiration,
920-19 termination, or surrender. (V.A.C.S. Art. 9028, Sec. 6(b).)
920-20 Sec. 2304.058. MAINTENANCE OF REGISTRATION INFORMATION. (a)
920-21 The executive director shall maintain each application for a
920-22 certificate of registration and a copy of each certificate of
920-23 registration in a convenient form that is available to the public.
920-24 (b) The executive director shall annually publish a list of:
920-25 (1) the name and address of each person registered
920-26 under this chapter; and
920-27 (2) the name of each person whose registration has
921-1 been revoked, suspended, or surrendered during the period and the
921-2 specific date of the suspension, revocation, or surrender.
921-3 (V.A.C.S. Art. 9028, Sec. 8.)
921-4 (Sections 2304.059-2304.100 reserved for expansion)
921-5 SUBCHAPTER C. PRACTICE BY CERTIFICATE HOLDER
921-6 Sec. 2304.101. DISPLAY OF CERTIFICATE. A certificate holder
921-7 shall publicly display the current certificate of registration at
921-8 the certificate holder's place of business in a location readily
921-9 visible to a customer paying for repairs. (V.A.C.S. Art. 9028,
921-10 Sec. 9 (part).)
921-11 Sec. 2304.102. REGISTRATION NUMBER. A certificate holder
921-12 shall include the certificate holder's registration number:
921-13 (1) on each repair estimate, repair order, or
921-14 correspondence; and
921-15 (2) in each advertisement for motor vehicle repairs by
921-16 the repair facility. (V.A.C.S. Art. 9028, Secs. 9 (part), 10(a).)
921-17 Sec. 2304.103. FALSE STATEMENTS. A certificate holder may
921-18 not make a false or fraudulent statement in connection with:
921-19 (1) a repair; or
921-20 (2) an attempt to collect compensation for a repair.
921-21 (V.A.C.S. Art. 9028, Sec. 10(b).)
921-22 Sec. 2304.104. RECORD OF VEHICLE REPAIRS. (a) A certificate
921-23 holder shall maintain in a convenient place a record of each motor
921-24 vehicle that enters the certificate holder's premises for a repair.
921-25 Except as provided by Subsection (b), the certificate holder shall
921-26 include in the record:
921-27 (1) a description of the vehicle;
922-1 (2) the vehicle identification number;
922-2 (3) the date the vehicle entered the certificate
922-3 holder's premises;
922-4 (4) the odometer reading at the time the vehicle is
922-5 received;
922-6 (5) the name and address of the person from whom the
922-7 vehicle is received; and
922-8 (6) a signed authorization for the work to be
922-9 performed on the vehicle.
922-10 (b) If a motor vehicle is towed to the certificate holder's
922-11 repair facility without the consent of the owner of the vehicle,
922-12 the information in the record is the information provided by the
922-13 law enforcement agency that initiated the towing process. (V.A.C.S.
922-14 Art. 9028, Secs. 11(a), (b) (part), (c).)
922-15 (Sections 2304.105-2304.150 reserved for expansion)
922-16 SUBCHAPTER D. ENFORCEMENT PROVISIONS
922-17 Sec. 2304.151. INSPECTION OF PREMISES AND RECORD. The
922-18 executive director or an employee of the commission may, at any
922-19 time, inspect:
922-20 (1) a record maintained under Section 2304.104; and
922-21 (2) the premises of a certificate holder's place of
922-22 business. (V.A.C.S. Art. 9028, Sec. 11(b) (part).)
922-23 Sec. 2304.152. ADMINISTRATIVE DISCIPLINARY ACTION AND
922-24 PROCEDURES. (a) The commission shall adopt rules establishing:
922-25 (1) grounds for suspension, revocation, or
922-26 reinstatement of a certificate of registration; and
922-27 (2) procedures for taking disciplinary action.
923-1 (b) The executive director may suspend or revoke a
923-2 certificate of registration based on a ground established under
923-3 this section.
923-4 (c) Procedures for the suspension or revocation of a
923-5 certificate of registration are governed by Chapter 2001,
923-6 Government Code. (V.A.C.S. Art. 9028, Secs. 6(a) (part), 7.)
923-7 Sec. 2304.153. FAILURE TO REGISTER; CIVIL PENALTY. (a) A
923-8 repair facility that fails to register under this chapter is liable
923-9 to the state for a civil penalty of $250.
923-10 (b) The executive director shall waive the penalty if the
923-11 repair facility applies for registration not later than the 10th
923-12 day after the date of notice of the violation. (V.A.C.S. Art. 9028,
923-13 Sec. 12(a).)
923-14 Sec. 2304.154. VIOLATION OF CHAPTER; CIVIL PENALTY. Except
923-15 as provided by Section 2304.153, a person that violates this
923-16 chapter is liable to the state for a civil penalty in an amount not
923-17 to exceed $100. (V.A.C.S. Art. 9028, Sec. 12(b).)
923-18 CHAPTER 2305. RECORDS OF CERTAIN VEHICLE REPAIRS,
923-19 SALES, AND PURCHASES
923-20 SUBCHAPTER A. RECORDS MAINTAINED BY CERTAIN ENTITIES
923-21 Sec. 2305.001. DEFINITIONS
923-22 Sec. 2305.002. APPLICATION OF SUBCHAPTER
923-23 Sec. 2305.003. REGISTER OF REPAIRS
923-24 Sec. 2305.004. REGISTER OF USED AUTOMOBILE SALES AND
923-25 PURCHASES
923-26 Sec. 2305.005. RECORD OF REPLACED CYLINDER BLOCK
923-27 Sec. 2305.006. MAINTENANCE AND INSPECTION OF RECORDS
924-1 (Sections 2305.007-2305.050 reserved for expansion)
924-2 SUBCHAPTER B. REQUIREMENT APPLICABLE TO
924-3 OWNERS OF CERTAIN MOTOR VEHICLES
924-4 Sec. 2305.051. REPLACEMENT OF CYLINDER BLOCK
924-5 (Sections 2305.052-2305.100 reserved for expansion)
924-6 SUBCHAPTER C. ENFORCEMENT
924-7 Sec. 2305.101. CRIMINAL PENALTY
924-8 CHAPTER 2305. RECORDS OF CERTAIN VEHICLE REPAIRS,
924-9 SALES, AND PURCHASES
924-10 SUBCHAPTER A. RECORDS MAINTAINED BY CERTAIN ENTITIES
924-11 Sec. 2305.001. DEFINITIONS. In this subchapter:
924-12 (1) "Person" means an individual, corporation, or
924-13 firm.
924-14 (2) "Repair" includes the rebuilding of an automobile,
924-15 the installation of a new part or accessory on an automobile, and
924-16 the performance of electrical work in connection with the repair of
924-17 an automobile. The term does not include a repair covered by
924-18 Chapter 2304.
924-19 (3) "Used automobile" includes a secondhand
924-20 automobile. (V.A.C.S. Art. 6687-7 (part); New.)
924-21 Sec. 2305.002. APPLICATION OF SUBCHAPTER. This subchapter
924-22 applies to any person who:
924-23 (1) operates a shop or garage that is engaged in the
924-24 business of repairing automobiles; or
924-25 (2) engages in the business of purchasing or selling
924-26 used automobiles in this state. (V.A.C.S. Art. 6687-7 (part).)
924-27 Sec. 2305.003. REGISTER OF REPAIRS. (a) A person subject to
925-1 this subchapter shall maintain a register of each repair the person
925-2 makes to an automobile. The register must contain a substantially
925-3 complete and accurate description of each automobile that is
925-4 repaired.
925-5 (b) This section does not apply to a repair having a value
925-6 of $1 or less. (V.A.C.S. Art. 6687-7 (part).)
925-7 Sec. 2305.004. REGISTER OF USED AUTOMOBILE SALES AND
925-8 PURCHASES. (a) A person subject to this subchapter shall maintain
925-9 a register of each sale or purchase the person makes of a used
925-10 automobile.
925-11 (b) If the person buys a used automobile, the register must
925-12 contain:
925-13 (1) the make and model, the number of cylinders, the
925-14 motor number, and the passenger capacity of the automobile;
925-15 (2) the name, sex, apparent age, usual place of
925-16 address, and any special identifying physical characteristics of
925-17 each person claiming to be the owner of the automobile; and
925-18 (3) the state registration number of the automobile.
925-19 (c) If the person sells a used automobile, in addition to
925-20 the requirements of Subsection (b), the register must contain the
925-21 name, the address, and a description of the purchaser of the
925-22 automobile. (V.A.C.S. Art. 6687-7 (part).)
925-23 Sec. 2305.005. RECORD OF REPLACED CYLINDER BLOCK. The owner
925-24 of the garage or repair shop that installs a replacement cylinder
925-25 block and stamps the original engine number on the block as
925-26 required by Section 2305.051 shall record in a substantially bound
925-27 book:
926-1 (1) the name and address of the vehicle's owner; and
926-2 (2) the engine number and registration number of the
926-3 vehicle. (V.A.C.S. Art. 6687-7 (part).)
926-4 Sec. 2305.006. MAINTENANCE AND INSPECTION OF RECORDS. (a)
926-5 All records maintained under this subchapter shall be:
926-6 (1) kept until at least the first anniversary of the
926-7 date the record is made; and
926-8 (2) open for public inspection at all reasonable
926-9 hours.
926-10 (b) The registers required by Sections 2305.003 and 2305.004
926-11 shall be maintained in a clear and intelligent manner in a
926-12 well-bound book and kept in a secure place in the office or place
926-13 of business where the work is performed or the business is
926-14 conducted. The registers shall be open at all times to inspection
926-15 by:
926-16 (1) a peace officer; or
926-17 (2) any person interested in tracing or locating
926-18 stolen automobiles. (V.A.C.S. Art. 6687-7 (part).)
926-19 (Sections 2305.007-2305.050 reserved for expansion)
926-20 SUBCHAPTER B. REQUIREMENT APPLICABLE TO OWNERS OF
926-21 CERTAIN MOTOR VEHICLES
926-22 Sec. 2305.051. REPLACEMENT OF CYLINDER BLOCK. The owner of a
926-23 motor vehicle registered under Chapter 502, Transportation Code,
926-24 that has a damaged cylinder block replaced shall have the original
926-25 engine number of the motor vehicle stamped with a steel die on the
926-26 replacement cylinder block. (V.A.C.S. Art. 6687-7 (part).)
926-27 (Sections 2305.052-2305.100 reserved for expansion)
927-1 SUBCHAPTER C. ENFORCEMENT
927-2 Sec. 2305.101. CRIMINAL PENALTY. A person who violates this
927-3 chapter commits an offense. An offense under this section is
927-4 punishable by a fine of not less than $10 and not more than $100.
927-5 (V.A.C.S. Art. 6687-7 (part).)
927-6 (Chapters 2306-2350 reserved for expansion)
927-7 SUBTITLE B. REGULATIONS RELATED TO VESSELS
927-8 CHAPTER 2351. STEVEDORES
927-9 SUBCHAPTER A. GENERAL PROVISIONS
927-10 Sec. 2351.001. DEFINITION
927-11 (Sections 2351.002-2351.050 reserved for expansion)
927-12 SUBCHAPTER B. BOND AND LICENSE REQUIREMENTS
927-13 Sec. 2351.051. BOND AND LICENSE REQUIRED
927-14 Sec. 2351.052. BOND TERMS AND CONDITIONS
927-15 Sec. 2351.053. APPROVAL AND RECORDING OF BOND
927-16 Sec. 2351.054. LICENSE APPLICATION AND ISSUANCE
927-17 Sec. 2351.055. ANNUAL RENEWAL
927-18 (Sections 2351.056-2351.100 reserved for expansion)
927-19 SUBCHAPTER C. ENFORCEMENT PROVISIONS
927-20 Sec. 2351.101. CRIMINAL PENALTY
927-21 Sec. 2351.102. SUIT ON BOND
927-22 CHAPTER 2351. STEVEDORES
927-23 SUBCHAPTER A. GENERAL PROVISIONS
927-24 Sec. 2351.001. DEFINITION. In this chapter, "contracting
927-25 stevedore" means a person, firm or association of persons, or
927-26 corporation that contracts with another person or corporation,
927-27 including an agent, owner, master, manager, or captain of a vessel,
928-1 to load or unload a vessel. (V.A.C.S. Art. 5191.)
928-2 (Sections 2351.002-2351.050 reserved for expansion)
928-3 SUBCHAPTER B. BOND AND LICENSE REQUIREMENTS
928-4 Sec. 2351.051. BOND AND LICENSE REQUIRED. A contracting
928-5 stevedore must execute a bond and obtain a license in each county
928-6 in which the contracting stevedore engages in business as a
928-7 contracting stevedore. (V.A.C.S. Arts. 5192 (part), 5195 (part).)
928-8 Sec. 2351.052. BOND TERMS AND CONDITIONS. (a) A bond
928-9 executed under this subchapter must:
928-10 (1) be in the amount of $5,000;
928-11 (2) be conditioned that the contracting stevedore
928-12 will:
928-13 (A) on Saturday of each week pay wages promptly
928-14 according to the agreed wage scale to each laborer who engaged in
928-15 loading and unloading a vessel; and
928-16 (B) perform each agreement the contracting
928-17 stevedore enters into with a laborer with respect to the loading
928-18 and unloading of a vessel; and
928-19 (3) be payable to the county judge of the county in
928-20 which the contracting stevedore does business as trustee for any
928-21 person who may be entitled to recover under the bond.
928-22 (b) The bond must be made with:
928-23 (1) a surety company authorized to do business in this
928-24 state; or
928-25 (2) two or more good and sufficient sureties, each of
928-26 whom is a resident of this state. (V.A.C.S. Art. 5192 (part).)
928-27 Sec. 2351.053. APPROVAL AND RECORDING OF BOND. (a) The bond
929-1 must be approved by the county clerk of the county in which the
929-2 contracting stevedore engages in business.
929-3 (b) The county clerk shall file and record the bond.
929-4 (V.A.C.S. Art. 5192 (part).)
929-5 Sec. 2351.054. LICENSE APPLICATION AND ISSUANCE. (a) Before
929-6 engaging in business as a contracting stevedore in any county, the
929-7 contracting stevedore must file a written application for a license
929-8 with the county clerk.
929-9 (b) The county clerk shall issue the license on:
929-10 (1) approval of the bond executed under this
929-11 subchapter; and
929-12 (2) receipt of a $5 license fee.
929-13 (c) The county clerk shall deposit the license fee into the
929-14 general fund of the county. (V.A.C.S. Art. 5194.)
929-15 Sec. 2351.055. ANNUAL RENEWAL. A contracting stevedore must
929-16 execute a new bond and obtain a new license on each anniversary of
929-17 the date the former license is issued. (V.A.C.S. Art. 5195 (part).)
929-18 (Sections 2351.056-2351.100 reserved for expansion)
929-19 SUBCHAPTER C. ENFORCEMENT PROVISIONS
929-20 Sec. 2351.101. CRIMINAL PENALTY. (a) A contracting
929-21 stevedore commits an offense if the contracting stevedore engages
929-22 in business as a contracting stevedore without first executing the
929-23 bond and obtaining the license required by Section 2351.051.
929-24 (b) An offense under this section is punishable by a fine of
929-25 not less than $100 or more than $500.
929-26 (c) Each day of violation is a separate offense. (V.A.C.S.
929-27 Art. 5195a.)
930-1 Sec. 2351.102. SUIT ON BOND. (a) A person to whom wages are
930-2 not paid as required by Section 2351.052(a)(2) may bring suit and
930-3 recover under the bond executed under Subchapter B.
930-4 (b) The bond may be sued on until:
930-5 (1) the full amount of the bond is exhausted; or
930-6 (2) suits sufficient to exhaust the bond are pending.
930-7 (c) If a bond is exhausted under this section, the
930-8 contracting stevedore shall execute and file a new bond that meets
930-9 the requirements of Subchapter B. (V.A.C.S. Art. 5193.)
930-10 CHAPTER 2352. BOAT MANUFACTURERS, DISTRIBUTORS, AND DEALERS
930-11 SUBCHAPTER A. GENERAL PROVISIONS
930-12 Sec. 2352.001. DEFINITIONS
930-13 (Sections 2352.002-2352.050 reserved for expansion)
930-14 SUBCHAPTER B. DEALER AGREEMENTS
930-15 Sec. 2352.051. AGREEMENT REQUIRED
930-16 Sec. 2352.052. TERMS OF AGREEMENT
930-17 Sec. 2352.053. TERMINATION OR NONRENEWAL OF AGREEMENT;
930-18 NOTICE
930-19 (Sections 2352.054-2352.100 reserved for expansion)
930-20 SUBCHAPTER C. REGULATION OF MANUFACTURERS, DISTRIBUTORS,
930-21 AND DEALERS
930-22 Sec. 2352.101. DELIVERY REQUIREMENTS
930-23 Sec. 2352.102. SALE, TRANSFER, OR PASSAGE OF TITLE
930-24 Sec. 2352.103. FINANCING
930-25 Sec. 2352.104. SALE OF PARTS AND ACCESSORIES AFTER
930-26 TERMINATION OF AGREEMENT
930-27 Sec. 2352.105. COMPENSATION FOR WARRANTY SERVICE
931-1 Sec. 2352.106. REFUNDS, REBATES, AND DISCOUNTS
931-2 Sec. 2352.107. REPURCHASE BY MANUFACTURER OR DISTRIBUTOR
931-3 (Sections 2352.108-2352.200 reserved for expansion)
931-4 SUBCHAPTER D. ENFORCEMENT PROVISIONS
931-5 Sec. 2352.201. CIVIL LIABILITY
931-6 Sec. 2352.202. VENUE FOR DISPUTE
931-7 Sec. 2352.203. ARBITRATION
931-8 CHAPTER 2352. BOAT MANUFACTURERS, DISTRIBUTORS, AND DEALERS
931-9 SUBCHAPTER A. GENERAL PROVISIONS
931-10 Sec. 2352.001. DEFINITIONS. In this chapter:
931-11 (1) "Agreement" means a written agreement between a
931-12 manufacturer or distributor and a dealer for the purchase and sale
931-13 of new boats or new outboard motors.
931-14 (2) "Boat" means:
931-15 (A) a motorboat; or
931-16 (B) any other vessel that is more than 14 feet
931-17 in length and is designed to be propelled by a sail.
931-18 (3) "Dealer" has the meaning assigned by Section
931-19 31.003, Parks and Wildlife Code.
931-20 (4) "Distributor" means a person who:
931-21 (A) offers for sale, sells, or distributes new
931-22 boats or new outboard motors to dealers; or
931-23 (B) controls a person described by Subdivision
931-24 (A).
931-25 (5) "Manufacturer" has the meaning assigned by Section
931-26 31.003, Parks and Wildlife Code.
931-27 (6) "Motorboat" has the meaning assigned by Section
932-1 31.003, Parks and Wildlife Code.
932-2 (7) "New" has the meaning assigned by Section 31.003,
932-3 Parks and Wildlife Code.
932-4 (8) "Outboard motor" has the meaning assigned by
932-5 Section 31.003, Parks and Wildlife Code.
932-6 (9) "Vessel" has the meaning assigned by Section
932-7 31.003, Parks and Wildlife Code. (V.A.C.S. Art. 8911, Sec. 1.)
932-8 (Sections 2352.002-2352.050 reserved for expansion)
932-9 SUBCHAPTER B. DEALER AGREEMENTS
932-10 Sec. 2352.051. AGREEMENT REQUIRED. A manufacturer or
932-11 distributor contracting with a dealer may not sell or offer for
932-12 sale, and a dealer may not purchase or offer to purchase, a new
932-13 boat or a new outboard motor unless the manufacturer or distributor
932-14 and the dealer enter into an agreement that complies with this
932-15 chapter. (V.A.C.S. Art. 8911, Sec. 2 (part).)
932-16 Sec. 2352.052. TERMS OF AGREEMENT. (a) An agreement under
932-17 this chapter must include:
932-18 (1) the dealer's location, territory, or market area;
932-19 (2) the length of the agreement;
932-20 (3) any performance or marketing standards;
932-21 (4) any working capital, inventory, facility,
932-22 equipment, or tool standards;
932-23 (5) provisions for termination or nonrenewal of the
932-24 agreement and the designation of a successor dealer in the event of
932-25 the dealer's death or disability;
932-26 (6) the obligations of the manufacturer, distributor,
932-27 and dealer in the preparation and delivery of and warranty service
933-1 on new boats and new outboard motors;
933-2 (7) the obligations of the manufacturer, distributor,
933-3 and dealer on termination of the agreement, including inventory of
933-4 new boats and new outboard motors, parts inventory, equipment,
933-5 furnishings, special tools, and required signs; and
933-6 (8) dispute resolution procedures.
933-7 (b) Notwithstanding the terms of a dealer agreement, a
933-8 dealer agreement and any transaction subject to this chapter must
933-9 comply with the requirements of this section. (V.A.C.S. Art. 8911,
933-10 Secs. 2 (part), 3(a).)
933-11 Sec. 2352.053. TERMINATION OR NONRENEWAL OF AGREEMENT;
933-12 NOTICE. (a) A manufacturer or distributor may not terminate an
933-13 agreement unless there is good cause for the termination and:
933-14 (1) the manufacturer or distributor gives the dealer
933-15 written notice of termination in clear and concise terms;
933-16 (2) the notice states the reasons for termination; and
933-17 (3) the dealer has been given 30 days to make a good
933-18 faith effort to cure the reasons for termination stated in the
933-19 notice.
933-20 (b) Good cause is not required for the nonrenewal of an
933-21 agreement other than an agreement having an original term of less
933-22 than one year.
933-23 (c) The fact that a dealer holds an agreement involving
933-24 another line, make, or brand of new boat or new outboard motor does
933-25 not constitute good cause.
933-26 (d) A manufacturer or distributor may terminate an agreement
933-27 on written notice if the dealer:
934-1 (1) financially defaults to the manufacturer, the
934-2 distributor, or a financing source;
934-3 (2) becomes subject to an order for relief, as that
934-4 term is used in Title 11, United States Code;
934-5 (3) engages in fraudulent conduct in:
934-6 (A) conducting the dealer's business; or
934-7 (B) performing the agreement;
934-8 (4) is a corporation that ceases to exist;
934-9 (5) becomes insolvent or takes or fails to take any
934-10 action that constitutes an admission of inability to pay debts as
934-11 the debts mature;
934-12 (6) makes a general assignment for the benefit of
934-13 creditors to an agent authorized to liquidate any substantial
934-14 amount of assets; or
934-15 (7) applies to a court for the appointment of a
934-16 receiver for any assets or properties. (V.A.C.S. Art. 8911, Secs.
934-17 3(c), (d), (e).)
934-18 (Sections 2352.054-2352.100 reserved for expansion)
934-19 SUBCHAPTER C. REGULATION OF MANUFACTURERS, DISTRIBUTORS,
934-20 AND DEALERS
934-21 Sec. 2352.101. DELIVERY REQUIREMENTS. (a) A manufacturer
934-22 or distributor who publically advertises a new boat, new outboard
934-23 motor, or part as available for immediate delivery shall deliver
934-24 the boat, outboard motor, or part in reasonable quantities and
934-25 within a reasonable time after receipt of an order from a dealer
934-26 who has an agreement with the manufacturer or distributor
934-27 applicable to the advertised boat, outboard motor, or part.
935-1 (b) Subsection (a) does not apply if circumstances beyond
935-2 the control of the manufacturer or distributor prevent the
935-3 delivery. (V.A.C.S. Art. 8911, Sec. 3(b).)
935-4 Sec. 2352.102. SALE, TRANSFER, OR PASSAGE OF TITLE. A
935-5 manufacturer or distributor may not unreasonably withhold approval
935-6 of a sale, transfer, or passage of title of a dealer, agreement,
935-7 management of the dealer, or designation of a successor dealer if:
935-8 (1) the dealer complies with any provisions in the
935-9 agreement for the sale, transfer, or passage of title;
935-10 (2) the transferee meets the criteria:
935-11 (A) stated in the agreement; or
935-12 (B) generally applied by the manufacturer or
935-13 distributor in similar situations; and
935-14 (3) the transferee agrees to be bound by the terms and
935-15 conditions of the manufacturer's or distributor's standard
935-16 agreement. (V.A.C.S. Art. 8911, Sec. 3(f).)
935-17 Sec. 2352.103. FINANCING. (a) A manufacturer or
935-18 distributor may not require a dealer to finance through a
935-19 particular financing source a new boat or new outboard motor sold
935-20 by the dealer.
935-21 (b) A manufacturer or distributor may not require a dealer
935-22 to act as the manufacturer's or distributor's agent in securing:
935-23 (1) a promissory note and security agreement in
935-24 connection with the sale or purchase of a new boat or new outboard
935-25 motor; or
935-26 (2) an insurance policy on the operation of a new boat
935-27 or new outboard motor. (V.A.C.S. Art. 8911, Sec. 3(l).)
936-1 Sec. 2352.104. SALE OF PARTS AND ACCESSORIES AFTER
936-2 TERMINATION OF AGREEMENT. (a) After a manufacturer or distributor
936-3 terminates an agreement, the former dealer may continue to purchase
936-4 parts and accessories to service the products covered by the
936-5 agreement until the first anniversary of the date of termination.
936-6 The manufacturer or distributor shall sell parts and accessories
936-7 under this subsection at the same price offered to a current
936-8 dealer.
936-9 (b) Subsection (a) does not apply if the manufacturer or
936-10 distributor terminates the agreement:
936-11 (1) based on quality of service; or
936-12 (2) for a reason justifying immediate termination
936-13 under Section 2352.053(d). (V.A.C.S. Art. 8911, Sec. 3(n).)
936-14 Sec. 2352.105. COMPENSATION FOR WARRANTY SERVICE. (a) A
936-15 manufacturer or distributor shall fairly compensate a dealer for
936-16 the work and services the dealer performs and for expenses the
936-17 dealer incurs to comply with a manufacturer's or distributor's
936-18 warranty.
936-19 (b) Except as provided by Subsection (c), a manufacturer or
936-20 distributor may not pay a dealer a labor rate for warranty work
936-21 that is less than the rate the dealer charges retail customers for
936-22 nonwarranty work of the same kind by similar technicians.
936-23 (c) A manufacturer or distributor who has a warranty program
936-24 that reimburses a dealer at 100 percent of the dealer's retail
936-25 labor rate if the dealer complies with reasonable and objective
936-26 criteria shall pay the dealer the labor rate provided by the terms
936-27 of the program or a rate equal to 80 percent of the dealer's retail
937-1 labor rate, whichever rate is higher.
937-2 (d) A manufacturer or distributor shall approve or
937-3 disapprove a dealer's claim for warranty work within a reasonable
937-4 time. If the claim is approved, the manufacturer or distributor
937-5 shall pay the claim within a reasonable time. If the claim is
937-6 disapproved, the manufacturer or distributor shall notify the
937-7 dealer of the grounds for disapproval. (V.A.C.S. Art. 8911, Sec.
937-8 3(g).)
937-9 Sec. 2352.106. REFUNDS, REBATES, AND DISCOUNTS. A dealer
937-10 may not pay or assume a part of a refund, rebate, discount, or
937-11 other financial adjustment made by the manufacturer or distributor
937-12 to a customer or a dealer unless the dealer voluntarily agrees to
937-13 make the payment or assumption. (V.A.C.S. Art. 8911, Sec. 3(h).)
937-14 Sec. 2352.107. REPURCHASE BY MANUFACTURER OR DISTRIBUTOR.
937-15 (a) A manufacturer or distributor who terminates an agreement
937-16 shall repurchase on demand from the dealer any of the following
937-17 items, purchased by the dealer from the manufacturer or
937-18 distributor, that are free and clear of a lien or encumbrance:
937-19 (1) a new, unsold, retailable, undamaged, and complete
937-20 boat, with accessories and packaged trailers sold with the boat,
937-21 and any outboard motor that:
937-22 (A) is in the dealer's inventory; and
937-23 (B) was purchased within one year preceding the
937-24 date of the termination; and
937-25 (2) any new, current, unsold, undamaged, and unused
937-26 parts or accessories for boats or outboard motors in the original
937-27 resalable merchandising package.
938-1 (b) A demand for repurchase must be made in writing not
938-2 later than the 30th day after the date the manufacturer or
938-3 distributor terminates the agreement. The dealer must provide the
938-4 manufacturer or distributor with a complete list of the items to be
938-5 repurchased. The manufacturer or distributor shall complete the
938-6 repurchase within a reasonable time.
938-7 (c) The manufacturer or distributor shall:
938-8 (1) repurchase an item described by Subsection (a)(1)
938-9 at the dealer's invoiced cost, less any allowance paid to the
938-10 dealer;
938-11 (2) repurchase an item described by Subsection (a)(2)
938-12 at the dealer's invoiced cost; and
938-13 (3) pay the cost incurred by the dealer to transport
938-14 an item described by Subsection (a) to the manufacturer. (V.A.C.S.
938-15 Art. 8911, Secs. 3(i), (j), (k).)
938-16 (Sections 2352.108-2352.200 reserved for expansion)
938-17 SUBCHAPTER D. ENFORCEMENT PROVISIONS
938-18 Sec. 2352.201. CIVIL LIABILITY. A person who violates this
938-19 chapter or an agreement regulated by this chapter is liable to an
938-20 injured party for:
938-21 (1) the actual damages caused by the violation; and
938-22 (2) reasonable legal fees and court costs if
938-23 litigation is commenced in connection with the violation.
938-24 (V.A.C.S. Art. 8911, Sec. 3(p).)
938-25 Sec. 2352.202. VENUE FOR DISPUTE. Venue for a dispute under
938-26 an agreement is in the county of the dealer's principal place of
938-27 business as stated in the agreement. (V.A.C.S. Art. 8911, Sec.
939-1 3(o).)
939-2 Sec. 2352.203. ARBITRATION. A dealer may not be required to
939-3 submit to arbitration on an issue between the dealer and the
939-4 manufacturer or distributor at a location that is out of state or
939-5 an unreasonable distance from the dealer's principal place of
939-6 business. (V.A.C.S. Art. 8911, Sec. 3(m).)
939-7 (Chapters 2353-2400 reserved for expansion)
939-8 SUBTITLE C. REGULATION OF TRANSPORTATION SERVICES
939-9 CHAPTER 2401. TRANSPORTATION SERVICE PROVIDERS
939-10 SUBCHAPTER A. GENERAL PROVISIONS
939-11 Sec. 2401.001. DEFINITIONS
939-12 Sec. 2401.002. APPLICATION OF CHAPTER
939-13 (Sections 2401.003-2401.050 reserved for expansion)
939-14 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION,
939-15 COMMISSIONER, AND DEPARTMENT
939-16 Sec. 2401.051. RULES
939-17 Sec. 2401.052. EXAMINATION OR AUDIT
939-18 Sec. 2401.053. FEES FOR CERTIFICATE OF REGISTRATION
939-19 Sec. 2401.054. INTERAGENCY COOPERATION
939-20 (Sections 2401.055-2401.100 reserved for expansion)
939-21 SUBCHAPTER C. REGISTRATION REQUIREMENTS
939-22 Sec. 2401.101. REGISTRATION REQUIRED
939-23 Sec. 2401.102. APPLICATION FOR CERTIFICATE OF REGISTRATION
939-24 Sec. 2401.103. ELIGIBILITY; GROUNDS FOR REFUSAL TO ISSUE
939-25 CERTIFICATE
939-26 Sec. 2401.104. EXPIRATION; RENEWAL
939-27 Sec. 2401.105. TRANSFER OR ASSIGNMENT PROHIBITED
940-1 (Sections 2401.106-2401.150 reserved for expansion)
940-2 SUBCHAPTER D. PRACTICE BY TRANSPORTATION SERVICE
940-3 PROVIDER
940-4 Sec. 2401.151. POSTING OF CERTIFICATE
940-5 Sec. 2401.152. RECORDS
940-6 (Sections 2401.153-2401.200 reserved for expansion)
940-7 SUBCHAPTER E. DISCIPLINARY ACTION AND PROCEDURES
940-8 Sec. 2401.201. DENIAL, SUSPENSION, OR REVOCATION FOR
940-9 VIOLATION OF CHAPTER
940-10 Sec. 2401.202. RETURN OF CERTIFICATE IN CONNECTION WITH
940-11 CONVICTION OR DELINQUENT TAXES
940-12 Sec. 2401.203. SUSPENSION OR REVOCATION OF CERTIFICATE IN
940-13 CONNECTION WITH CONVICTION OR DELINQUENT
940-14 TAXES
940-15 Sec. 2401.204. SUSPENSION FOR REFUSAL TO PERMIT
940-16 EXAMINATION
940-17 Sec. 2401.205. PROCEDURES FOR DISCIPLINARY ACTION
940-18 (Sections 2401.206-2401.250 reserved for expansion)
940-19 SUBCHAPTER F. PENALTIES AND OTHER
940-20 ENFORCEMENT PROVISIONS
940-21 Sec. 2401.251. CIVIL PENALTY
940-22 Sec. 2401.252. CRIMINAL PENALTY
940-23 Sec. 2401.253. AUTHORITY TO INVESTIGATE AND FILE COMPLAINT
940-24 CHAPTER 2401. TRANSPORTATION SERVICE PROVIDERS
940-25 SUBCHAPTER A. GENERAL PROVISIONS
940-26 Sec. 2401.001. DEFINITIONS. In this chapter:
940-27 (1) "Commissioner" means the commissioner of licensing
941-1 and regulation.
941-2 (2) "Department" means the Texas Department of
941-3 Licensing and Regulation.
941-4 (3) "Motor carrier" has the meaning assigned by 49
941-5 U.S.C. Section 13102.
941-6 (4) "Person" means an individual, corporation,
941-7 partnership, or association.
941-8 (5) "Transportation service provider" or "freight
941-9 forwarder" means a person, other than a motor carrier, who:
941-10 (A) represents to the public that the person
941-11 provides transportation in this state only of property for
941-12 compensation; and
941-13 (B) in the ordinary course of business:
941-14 (i) assembles and consolidates, or
941-15 provides for assembling and consolidating, a shipment;
941-16 (ii) performs or provides for break-bulk
941-17 and distribution operations of a shipment;
941-18 (iii) assumes responsibility for the land
941-19 transportation of property at any place from origin to destination;
941-20 and
941-21 (iv) uses a motor or rail carrier at any
941-22 time during the transportation. (V.A.C.S. Art. 6675e, Sec. 2.)
941-23 Sec. 2401.002. APPLICATION OF CHAPTER. This chapter does
941-24 not apply to a person who:
941-25 (1) acts as a customs broker as defined by 19 U.S.C.
941-26 Section 1641;
941-27 (2) operates trucks and delivery vehicles in the
942-1 wholesale distribution of alcoholic beverages under Chapter 19, 20,
942-2 21, 64, or 65, Alcoholic Beverage Code; or
942-3 (3) acts as an ocean freight forwarder as defined by
942-4 46 U.S.C. Section 1702. (V.A.C.S. Art. 6675e, Secs. 3(b), (c),
942-5 (d).)
942-6 (Sections 2401.003-2401.050 reserved for expansion)
942-7 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION,
942-8 COMMISSIONER, AND DEPARTMENT
942-9 Sec. 2401.051. RULES. The commissioner shall adopt rules
942-10 necessary to administer this chapter, including rules to establish
942-11 requirements for the issuance, renewal, denial, suspension, and
942-12 revocation of a certificate of registration. (V.A.C.S. Art. 6675e,
942-13 Sec. 8.)
942-14 Sec. 2401.052. EXAMINATION OR AUDIT. (a) To administer
942-15 this chapter, the department may:
942-16 (1) examine:
942-17 (A) a record maintained under Section 2401.152;
942-18 or
942-19 (B) a record or object the department determines
942-20 is necessary to conduct a complete examination; or
942-21 (2) question under oath any person who:
942-22 (A) is associated with the business of a
942-23 transportation service provider; or
942-24 (B) claims the person was negatively affected by
942-25 a violation of this chapter committed by a transportation service
942-26 provider.
942-27 (b) The department may periodically audit the business
943-1 records of a transportation service provider registered under this
943-2 chapter. (V.A.C.S. Art. 6675e, Secs. 11(a), (b).)
943-3 Sec. 2401.053. FEES FOR CERTIFICATE OF REGISTRATION. The
943-4 Texas Commission of Licensing and Regulation shall set fees for the
943-5 issuance and renewal of a certificate of registration in amounts
943-6 reasonable and necessary to cover the cost of administering this
943-7 chapter. (V.A.C.S. Art. 6675e, Sec. 5.)
943-8 Sec. 2401.054. INTERAGENCY COOPERATION. In administering
943-9 this chapter, the department shall cooperate with any federal or
943-10 state agency. (V.A.C.S. Art. 6675e, Sec. 13.)
943-11 (Sections 2401.055-2401.100 reserved for expansion)
943-12 SUBCHAPTER C. REGISTRATION REQUIREMENTS
943-13 Sec. 2401.101. REGISTRATION REQUIRED. A person may not
943-14 operate as a transportation service provider or freight forwarder
943-15 in this state unless the person holds a certificate of
943-16 registration. (V.A.C.S. Art. 6675e, Sec. 3(a).)
943-17 Sec. 2401.102. APPLICATION FOR CERTIFICATE OF REGISTRATION.
943-18 (a) An applicant for a certificate of registration must submit to
943-19 the department:
943-20 (1) an application on a form prescribed by the
943-21 commissioner; and
943-22 (2) a nonrefundable registration fee.
943-23 (b) The application form must require the applicant to
943-24 provide:
943-25 (1) the current and each previous business name of the
943-26 applicant, if the applicant is not an individual;
943-27 (2) the physical business address of the applicant;
944-1 (3) if applicable, the type of business organization
944-2 of the applicant and the date the business was started or, if the
944-3 applicant is a corporation, the date the applicant was
944-4 incorporated;
944-5 (4) the applicant's federal employer identification
944-6 number or social security number; and
944-7 (5) if the applicant is a corporation, a list of any
944-8 related domestic or foreign entity and the name and social security
944-9 number of each of the corporation's officers and shareholders.
944-10 (V.A.C.S. Art. 6675e, Secs. 4(a), (b).)
944-11 Sec. 2401.103. ELIGIBILITY; GROUNDS FOR REFUSAL TO ISSUE
944-12 CERTIFICATE. (a) An individual is not eligible for a certificate
944-13 of registration if:
944-14 (1) during the 10 years preceding the date the
944-15 certificate is issued, the individual was convicted of an offense
944-16 under:
944-17 (A) Chapter 481 or 483, Health and Safety Code;
944-18 or
944-19 (B) a law of another state, the United States,
944-20 or another country containing substantially the same elements as
944-21 the elements of an offense under Chapter 481 or 483, Health and
944-22 Safety Code; or
944-23 (2) the individual owes delinquent taxes to a local,
944-24 state, or federal taxing entity.
944-25 (b) The department may refuse to issue a certificate of
944-26 registration to a person other than an individual if:
944-27 (1) the department determines that, during the 10
945-1 years preceding the date the certificate is issued, an officer,
945-2 director, member, or shareholder of the person or of a person who
945-3 owns shares in the person was convicted of an offense described by
945-4 Subsection (a)(1); or
945-5 (2) the person owes delinquent taxes to a local,
945-6 state, or federal taxing entity. (V.A.C.S. Art. 6675e, Secs. 9(a)
945-7 (part), (b) (part).)
945-8 Sec. 2401.104. EXPIRATION; RENEWAL. (a) A certificate of
945-9 registration expires on the second anniversary of the date of
945-10 issuance.
945-11 (b) To renew a certificate of registration, the holder of
945-12 the certificate must submit to the department:
945-13 (1) an application for renewal on a form prescribed by
945-14 the commissioner; and
945-15 (2) a registration renewal fee. (V.A.C.S. Art. 6675e,
945-16 Secs. 4(c), (d).)
945-17 Sec. 2401.105. TRANSFER OR ASSIGNMENT PROHIBITED. The
945-18 holder of a certificate of registration may not transfer or assign
945-19 the certificate. (V.A.C.S. Art. 6675e, Sec. 4(e).)
945-20 (Sections 2401.106-2401.150 reserved for expansion)
945-21 SUBCHAPTER D. PRACTICE BY TRANSPORTATION SERVICE
945-22 PROVIDER
945-23 Sec. 2401.151. POSTING OF CERTIFICATE. A person who holds a
945-24 certificate of registration shall post the certificate in the
945-25 person's place of business in a location visible to the public.
945-26 (V.A.C.S. Art. 6675e, Sec. 16.)
945-27 Sec. 2401.152. RECORDS. (a) A transportation service
946-1 provider shall maintain a record for each shipment of property the
946-2 transportation service provider assumes responsibility for
946-3 transporting. The record must include:
946-4 (1) the name of the shipper of the property;
946-5 (2) the type of property being transported;
946-6 (3) the destination of the property;
946-7 (4) the name of the person receiving the property; and
946-8 (5) the name of the person transporting the property.
946-9 (b) The transportation service provider shall keep a copy of
946-10 the record until at least the fourth anniversary of the date the
946-11 property is transported. (V.A.C.S. Art. 6675e, Sec. 10.)
946-12 (Sections 2401.153-2401.200 reserved for expansion)
946-13 SUBCHAPTER E. DISCIPLINARY ACTION AND PROCEDURES
946-14 Sec. 2401.201. DENIAL, SUSPENSION, OR REVOCATION FOR
946-15 VIOLATION OF CHAPTER. The commissioner may deny, suspend, or
946-16 revoke a certificate of registration for a violation of this
946-17 chapter or a rule adopted under this chapter. (V.A.C.S.
946-18 Art. 6675e, Sec. 7(a).)
946-19 Sec. 2401.202. RETURN OF CERTIFICATE IN CONNECTION WITH
946-20 CONVICTION OR DELINQUENT TAXES. An individual must return to the
946-21 department a certificate of registration if:
946-22 (1) during the period the individual holds the
946-23 certificate, the individual is convicted of an offense described by
946-24 Section 2401.103(a)(1); or
946-25 (2) the individual owes delinquent taxes to a local,
946-26 state, or federal taxing entity. (V.A.C.S. Art. 6675e, Sec. 9(a)
946-27 (part).)
947-1 Sec. 2401.203. SUSPENSION OR REVOCATION OF CERTIFICATE IN
947-2 CONNECTION WITH CONVICTION OR DELINQUENT TAXES. The commissioner
947-3 may suspend or revoke the certificate of registration of a person
947-4 other than an individual if:
947-5 (1) the department determines that, during the period
947-6 the person holds the certificate, an officer, director, member, or
947-7 shareholder of the person or of a person who owns shares in the
947-8 person is convicted of an offense described by Section
947-9 2401.103(a)(1); or
947-10 (2) the person owes delinquent taxes to a local,
947-11 state, or federal taxing entity. (V.A.C.S. Art. 6675e, Sec. 9(b)
947-12 (part).)
947-13 Sec. 2401.204. SUSPENSION FOR REFUSAL TO PERMIT EXAMINATION.
947-14 (a) The commissioner may suspend a certificate of registration
947-15 issued to a transportation service provider if:
947-16 (1) the department requires a person associated with
947-17 the business of the transportation service provider to submit to an
947-18 examination under Section 2401.052; and
947-19 (2) the person refuses to permit the examination or to
947-20 respond to questioning under Section 2401.052(a)(2).
947-21 (b) A suspension under this section continues until the
947-22 person complies. (V.A.C.S. Art. 6675e, Sec. 11(c).)
947-23 Sec. 2401.205. PROCEDURES FOR DISCIPLINARY ACTION. The
947-24 denial, suspension, or revocation of a certificate of registration
947-25 by the commissioner and the appeal from that action are governed by
947-26 the procedures for a contested case hearing under Chapter 2001,
947-27 Government Code. (V.A.C.S. Art. 6675e, Sec. 7(b).)
948-1 (Sections 2401.206-2401.250 reserved for expansion)
948-2 SUBCHAPTER F. PENALTIES AND OTHER
948-3 ENFORCEMENT PROVISIONS
948-4 Sec. 2401.251. CIVIL PENALTY. A transportation service
948-5 provider who knowingly violates this chapter or a rule adopted
948-6 under this chapter is liable for a civil penalty of not less than
948-7 $100 or more than $500 for each violation. (V.A.C.S. Art. 6675e,
948-8 Sec. 15.)
948-9 Sec. 2401.252. CRIMINAL PENALTY. (a) A transportation
948-10 service provider commits an offense if the transportation service
948-11 provider knowingly violates this chapter.
948-12 (b) An offense under this section is a Class A misdemeanor.
948-13 (V.A.C.S. Art. 6675e, Sec. 14.)
948-14 Sec. 2401.253. AUTHORITY TO INVESTIGATE AND FILE COMPLAINT.
948-15 (a) The commissioner, with the assistance of the Texas Department
948-16 of Public Safety, may investigate a violation of this chapter or a
948-17 rule adopted under this chapter.
948-18 (b) The commissioner or any law enforcement agency may file
948-19 a complaint with:
948-20 (1) the district attorney of Travis County; or
948-21 (2) the prosecuting attorney of the county in which a
948-22 violation is alleged to have occurred. (V.A.C.S. Art. 6675e, Sec.
948-23 12.)
948-24 SECTION 6. ADOPTION OF EMPLOYMENT TITLE. The Occupations
948-25 Code is amended by adding Title 15 to read as follows:
948-26 TITLE 15. OCCUPATIONS RELATED TO EMPLOYMENT
948-27 CHAPTER 2501. PERSONNEL SERVICES
949-1 CHAPTER 2502. CAREER COUNSELING SERVICES
949-2 CHAPTER 2501. PERSONNEL SERVICES
949-3 SUBCHAPTER A. GENERAL PROVISIONS
949-4 Sec. 2501.001. DEFINITIONS
949-5 Sec. 2501.002. EXCEPTION
949-6 (Sections 2501.003-2501.050 reserved for expansion)
949-7 SUBCHAPTER B. CERTIFICATE OF AUTHORITY
949-8 Sec. 2501.051. CERTIFICATE REQUIRED
949-9 Sec. 2501.052. MANAGEMENT SEARCH CONSULTANTS
949-10 Sec. 2501.053. NOTICE
949-11 Sec. 2501.054. SECURITY REQUIRED
949-12 Sec. 2501.055. ISSUANCE OF CERTIFICATE; TERM
949-13 Sec. 2501.056. DISPLAY OF CERTIFICATE
949-14 Sec. 2501.057. RENEWAL OF CERTIFICATE
949-15 Sec. 2501.058. CONTINUING EDUCATION
949-16 (Sections 2501.059-2501.100 reserved for expansion)
949-17 SUBCHAPTER C. PROHIBITED PRACTICES
949-18 Sec. 2501.101. PROHIBITED PRACTICES
949-19 Sec. 2501.102. IMPOSITION OF FEE PROHIBITED BEFORE
949-20 EMPLOYMENT OFFER ACCEPTED
949-21 Sec. 2501.103. CHARGING OF FEE IN EXCESS OF CERTAIN
949-22 AMOUNT PROHIBITED IF EMPLOYMENT TERMINATED
949-23 (Sections 2501.104-2501.150 reserved for expansion)
949-24 SUBCHAPTER D. ENFORCEMENT BY COMMISSIONER
949-25 Sec. 2501.151. ENFORCEMENT
949-26 Sec. 2501.152. COMPLAINT AND INVESTIGATION
949-27 Sec. 2501.153. HEARING
950-1 Sec. 2501.154. SANCTIONS
950-2 Sec. 2501.155. REISSUANCE OF CERTIFICATE AFTER REVOCATION
950-3 (Sections 2501.156-2501.200 reserved for expansion)
950-4 SUBCHAPTER E. CIVIL LIABILITY
950-5 Sec. 2501.201. LIABILITY FOR DAMAGES
950-6 Sec. 2501.202. INJUNCTION AND OTHER REMEDIES
950-7 Sec. 2501.203. AWARD OF ATTORNEY'S FEES
950-8 Sec. 2501.204. DECEPTIVE TRADE PRACTICE
950-9 (Sections 2501.205-2501.250 reserved for expansion)
950-10 SUBCHAPTER F. PENALTIES
950-11 Sec. 2501.251. CRIMINAL PENALTY
950-12 Sec. 2501.252. TRADE SECRET
950-13 Sec. 2501.253. ADMINISTRATIVE PENALTY
950-14 Sec. 2501.254. EFFECT ON OTHER REMEDIES AND ENFORCEMENT
950-15 POWERS
950-16 CHAPTER 2501. PERSONNEL SERVICES
950-17 SUBCHAPTER A. GENERAL PROVISIONS
950-18 Sec. 2501.001. DEFINITIONS. In this chapter:
950-19 (1) "Applicant" means a person who:
950-20 (A) engages the services of a personnel service
950-21 to secure employment; or
950-22 (B) is placed with an employer by a personnel
950-23 service.
950-24 (2) "Commissioner" means the commissioner of licensing
950-25 and regulation.
950-26 (3) "Counselor" means a person who:
950-27 (A) interviews and refers an applicant to a
951-1 prospective employer; or
951-2 (B) solicits job orders from an employer.
951-3 (4) "Employer" means a person who employs or seeks to
951-4 employ an employee.
951-5 (5) "Fee" means anything of value, including valuable
951-6 consideration or a service or the promise of valuable consideration
951-7 or a service, directly or indirectly received by a personnel
951-8 service as payment from a person seeking employment.
951-9 (6) "Job order" means a verbal or written notice of a
951-10 job opening from an employer.
951-11 (7) "Owner" means a person who possesses a proprietary
951-12 interest in a personnel service.
951-13 (8) "Person" means an individual, partnership,
951-14 association, corporation, legal representative, trustee in
951-15 bankruptcy, or receiver.
951-16 (9) "Personnel service" means a person who, regardless
951-17 of whether for a fee, directly or indirectly offers or attempts to
951-18 obtain permanent employment for an applicant or obtains or attempts
951-19 to obtain a permanent employee for an employer. The term does not
951-20 include a newspaper of general circulation or other publication
951-21 that primarily communicates information, other than information
951-22 relating to employment positions, and that does not claim to adapt
951-23 the information provided to the needs or desires of an individual
951-24 applicant. The term includes a person who offers the facilities of
951-25 or advertises as:
951-26 (A) an executive search or consulting service;
951-27 (B) an out-placement service;
952-1 (C) an overseas placement service;
952-2 (D) a job listing service;
952-3 (E) a personnel consulting service; or
952-4 (F) a resume service that provides job market
952-5 investigation, research, or evaluation.
952-6 (10) "Service file" means a job order, resume,
952-7 application, workpaper, or other record containing information
952-8 relating to:
952-9 (A) an applicant;
952-10 (B) an employer;
952-11 (C) an employment position; or
952-12 (D) the operation of a personnel service.
952-13 (V.A.C.S. Art. 5221a-7, Secs. 1(1), (2), (3), (4), (5), (6), (7),
952-14 (8), (9), (12).)
952-15 Sec. 2501.002. EXCEPTION. This chapter does not apply to:
952-16 (1) a personnel service operated by the United States,
952-17 this state, or a municipality of this state;
952-18 (2) a personnel service operated by a person who does
952-19 not assess a fee if the personnel service is operated in
952-20 conjunction with the person's own business exclusively to employ
952-21 help for that business;
952-22 (3) a labor union; or
952-23 (4) a professional counselor licensed under Chapter
952-24 503. (V.A.C.S. Art. 5221a-7, Sec. 2(a).)
952-25 (Sections 2501.003-2501.050 reserved for expansion)
952-26 SUBCHAPTER B. CERTIFICATE OF AUTHORITY
952-27 Sec. 2501.051. CERTIFICATE REQUIRED. A person may not own a
953-1 personnel service that operates in this state unless the person
953-2 holds a certificate of authority issued under this chapter. (New.)
953-3 Sec. 2501.052. MANAGEMENT SEARCH CONSULTANTS. (a) In this
953-4 section, "management search consultant" means a personnel service
953-5 that:
953-6 (1) is retained by, acts solely on behalf of, and is
953-7 compensated only by an employer; and
953-8 (2) does not directly or indirectly collect a fee from
953-9 an applicant as payment for a service performed by the personnel
953-10 service.
953-11 (b) This subchapter does not apply to a management search
953-12 consultant. (V.A.C.S. Art. 5221a-7, Secs. 1(11), 2(b).)
953-13 Sec. 2501.053. NOTICE. (a) Not later than the 30th day
953-14 before the date a personnel service begins operating in this state,
953-15 the owner of the service must file notice with the commissioner.
953-16 (b) The notice must include:
953-17 (1) the address of each location at which the
953-18 personnel service is to operate its business on a daily basis;
953-19 (2) the assumed name, if any, under which the
953-20 personnel service will operate;
953-21 (3) the name and residence address of each owner; and
953-22 (4) a statement that each owner has read and is
953-23 familiar with this chapter.
953-24 (c) The notice must be signed and sworn to by the owner
953-25 before a notary public or other officer authorized to administer
953-26 oaths. (V.A.C.S. Art. 5221a-7, Secs. 1(10), 7(a).)
953-27 Sec. 2501.054. SECURITY REQUIRED. (a) An owner who files a
954-1 notice under Section 2501.053 shall file with the notice a bond in
954-2 the amount of $5,000 that is:
954-3 (1) executed with a good and sufficient surety;
954-4 (2) payable to the state; and
954-5 (3) conditioned that the obligor will not violate this
954-6 chapter.
954-7 (b) In lieu of a bond under Subsection (a), the owner may
954-8 deposit $5,000 in cash.
954-9 (c) A bond filed under Subsection (a) must state that a
954-10 person aggrieved by a violation of this chapter by the principal or
954-11 an agent or representative of the principal is entitled to bring an
954-12 action on the bond.
954-13 (d) An owner of a personnel service may satisfy the
954-14 requirements of this section by filing one bond for the personnel
954-15 service, regardless of the number of locations at which the
954-16 personnel service is to operate its business on a daily basis.
954-17 (V.A.C.S. Art. 5221a-7, Secs. 1(10), 7(c) (part).)
954-18 Sec. 2501.055. ISSUANCE OF CERTIFICATE; TERM. (a) On
954-19 receipt of a notice filed under Section 2501.053, the commissioner
954-20 shall issue to the owner a certificate of authority to do business
954-21 as a personnel service not later than the 15th day after the date
954-22 the notice is filed if the owner:
954-23 (1) pays the filing fee required for the certificate;
954-24 and
954-25 (2) complies with the requirements of Section
954-26 2501.054.
954-27 (b) A certificate of authority is valid for the period set
955-1 by the Texas Commission of Licensing and Regulation. (V.A.C.S.
955-2 Art. 5221a-7, Secs. 7(b), (c) (part), (d) (part).)
955-3 Sec. 2501.056. DISPLAY OF CERTIFICATE. An owner shall
955-4 display a certificate of authority issued under this chapter in a
955-5 prominent place in each location at which the personnel service
955-6 operates its business on a daily basis. (V.A.C.S. Art. 5221a-7,
955-7 Secs. 1(10), 7(d) (part).)
955-8 Sec. 2501.057. RENEWAL OF CERTIFICATE. The commissioner
955-9 shall issue a renewal of a certificate of authority on the receipt
955-10 of:
955-11 (1) a renewal notice from the owner that contains the
955-12 information required by Section 2501.053;
955-13 (2) a renewal fee; and
955-14 (3) security that complies with Section 2501.054.
955-15 (V.A.C.S. Art. 5221a-7, Secs. 7(c) (part), (e).)
955-16 Sec. 2501.058. CONTINUING EDUCATION. (a) The commissioner
955-17 may recognize, prepare, or administer continuing education programs
955-18 for persons regulated under this chapter.
955-19 (b) Participation in a continuing education program is
955-20 voluntary. (V.A.C.S. Art. 5221a-7, Sec. 7A.)
955-21 (Sections 2501.059-2501.100 reserved for expansion)
955-22 SUBCHAPTER C. PROHIBITED PRACTICES
955-23 Sec. 2501.101. PROHIBITED PRACTICES. (a) An owner,
955-24 operator, counselor, agent, or employee of a personnel service may
955-25 not:
955-26 (1) share or attempt to share a fee paid by a person
955-27 seeking employment or an employer with an employer or an agent or
956-1 employee of an employer or another person provided services by the
956-2 personnel service;
956-3 (2) make or cause to be made a false promise,
956-4 misrepresentation, or misleading statement or give or cause to be
956-5 given misleading information to an applicant;
956-6 (3) refer an applicant to an employer unless the
956-7 personnel service has a job order for the referral;
956-8 (4) advertise a position unless the personnel service
956-9 has a job order verifiable by the employer;
956-10 (5) procure or attempt to procure the discharge of a
956-11 person from the person's current employment;
956-12 (6) induce, solicit, or attempt to induce or solicit
956-13 an employee to terminate current employment in order to obtain new
956-14 employment if the current employment was obtained through that
956-15 personnel service or a personnel service that has a common
956-16 ownership with that personnel service unless the employee initiates
956-17 the new contact;
956-18 (7) deliver, disclose, distribute, or otherwise
956-19 communicate to or receive from a person a service file or
956-20 information contained in a service file, except as authorized by
956-21 the personnel service that owns the file;
956-22 (8) advertise in any medium, including a newspaper,
956-23 trade publication, billboard, radio, television, card, printed
956-24 notice, circular, contract, letterhead, or any other material made
956-25 for public distribution, except an envelope, without clearly
956-26 stating that the advertisement is by a firm providing a private
956-27 personnel service;
957-1 (9) refer an applicant to a place where the personnel
957-2 service has knowledge of the existence of a strike or lockout
957-3 unless the personnel service informs the applicant in writing of
957-4 the strike or lockout before the referral is made; or
957-5 (10) refer an applicant to employment harmful to the
957-6 applicant's health or morals if the personnel service has knowledge
957-7 of the harmful condition.
957-8 (b) An employer or a person seeking employment may not:
957-9 (1) make a false statement or conceal any material
957-10 fact to obtain an employee or employment by or through a personnel
957-11 service; or
957-12 (2) share or attempt to share with a person subject to
957-13 this chapter a fee paid or another payment made for the services of
957-14 a personnel service. (V.A.C.S. Art. 5221a-7, Secs. 3(a) (part),
957-15 (b).)
957-16 Sec. 2501.102. IMPOSITION OF FEE PROHIBITED BEFORE
957-17 EMPLOYMENT OFFER ACCEPTED. Notwithstanding any refund policy, an
957-18 owner, operator, counselor, agent, or employee of a personnel
957-19 service may not impose a fee on an applicant until the applicant
957-20 accepts an offer of employment resulting from an employment
957-21 referral made by the personnel service. (V.A.C.S. Art. 5221a-7,
957-22 Sec. 3(a) (part).)
957-23 Sec. 2501.103. CHARGING OF FEE IN EXCESS OF CERTAIN AMOUNT
957-24 PROHIBITED IF EMPLOYMENT TERMINATED. An owner, operator,
957-25 counselor, agent, or employee of a personnel service may not charge
957-26 an applicant a fee that exceeds 20 percent of the applicant's gross
957-27 wages if:
958-1 (1) the employment accepted by the applicant as a
958-2 result of a referral by the personnel service lasts less than 30
958-3 days; and
958-4 (2) the applicant terminates the employment for good
958-5 cause. (V.A.C.S. Art. 5221a-7, Sec. 3(a) (part).)
958-6 (Sections 2501.104-2501.150 reserved for expansion)
958-7 SUBCHAPTER D. ENFORCEMENT BY COMMISSIONER
958-8 Sec. 2501.151. ENFORCEMENT. (a) The commissioner shall
958-9 enforce Section 2501.102 and may investigate a personnel service as
958-10 necessary to enforce that section.
958-11 (b) The attorney general shall assist the commissioner on
958-12 request. (V.A.C.S. Art. 5221a-7, Sec. 6A(a).)
958-13 Sec. 2501.152. COMPLAINT AND INVESTIGATION. (a) A person
958-14 by sworn affidavit may file with the commissioner a complaint
958-15 alleging a violation of Section 2501.102.
958-16 (b) On receipt of a complaint, the commissioner shall
958-17 investigate the alleged violation and may:
958-18 (1) inspect any records relevant to the complaint; and
958-19 (2) subpoena those records and any necessary
958-20 witnesses. (V.A.C.S. Art. 5221a-7, Sec. 6A(b).)
958-21 Sec. 2501.153. HEARING. (a) If the commissioner determines
958-22 as a result of an investigation that a violation of Section
958-23 2501.102 may have occurred, the commissioner shall hold a hearing
958-24 not later than the 45th day after the date the complaint was filed
958-25 under Section 2501.152.
958-26 (b) A hearing under this section shall be conducted in the
958-27 manner provided for a contested case under Chapter 2001, Government
959-1 Code.
959-2 (c) The commissioner shall render a decision on the alleged
959-3 violation not later than the eighth day after the date the hearing
959-4 is concluded. (V.A.C.S. Art. 5221a-7, Sec. 6A(c).)
959-5 Sec. 2501.154. SANCTIONS. (a) If, after a hearing, the
959-6 commissioner determines that a personnel service has violated
959-7 Section 2501.102, the commissioner may, as appropriate:
959-8 (1) issue a warning to the personnel service; or
959-9 (2) suspend or revoke the certificate of authority
959-10 issued to the personnel service.
959-11 (b) If, after a hearing, the commissioner determines that a
959-12 personnel service has violated Section 2501.102, the commissioner
959-13 may award the complainant an amount equal to the amount of the fee
959-14 charged by the personnel service. (V.A.C.S. Art. 5221a-7, Secs.
959-15 6A(d), 6B(a) (part).)
959-16 Sec. 2501.155. REISSUANCE OF CERTIFICATE AFTER REVOCATION.
959-17 If the commissioner revokes a certificate of authority of a
959-18 personnel service under Section 2501.154, the personnel service and
959-19 any owner of that personnel service may not apply for a new
959-20 certificate until the third anniversary of the date the certificate
959-21 was revoked. (V.A.C.S. Art. 5221a-7, Sec. 7(f).)
959-22 (Sections 2501.156-2501.200 reserved for expansion)
959-23 SUBCHAPTER E. CIVIL LIABILITY
959-24 Sec. 2501.201. LIABILITY FOR DAMAGES. (a) In this section,
959-25 "knowingly" means actual awareness of the act or practice that is
959-26 the alleged violation. Actual awareness may be inferred if any
959-27 objective manifestation indicates that the person acted with actual
960-1 awareness.
960-2 (b) A person who violates this chapter is liable to a person
960-3 adversely affected by the violation for:
960-4 (1) actual damages; or
960-5 (2) if the person adversely affected establishes that
960-6 the violation was committed knowingly, three times the amount of
960-7 actual damages.
960-8 (c) Damages recoverable in an action under this section are
960-9 subject to reduction by an amount equal to an amount awarded under
960-10 Section 2501.154 based on the same conduct. (V.A.C.S.
960-11 Art. 5221a-7, Secs. 6(a), 6B(b) (part).)
960-12 Sec. 2501.202. INJUNCTION AND OTHER REMEDIES. A plaintiff
960-13 in an action filed under Section 2501.201 may obtain:
960-14 (1) an order enjoining the defendant from violating
960-15 this chapter;
960-16 (2) any order necessary to restore to the plaintiff
960-17 any property acquired by the defendant in violation of this
960-18 chapter; or
960-19 (3) other relief the court considers proper,
960-20 including:
960-21 (A) the appointment of a receiver if the
960-22 judgment against the defendant is not satisfied within three months
960-23 after the date of the final judgment;
960-24 (B) the revocation of a certificate authorizing
960-25 the defendant to engage in business in this state; or
960-26 (C) an order enjoining the defendant from acting
960-27 as a personnel service. (V.A.C.S. Art. 5221a-7, Sec. 6(c).)
961-1 Sec. 2501.203. AWARD OF ATTORNEY'S FEES. (a) A plaintiff
961-2 who prevails in an action filed under Section 2501.201 is entitled
961-3 to receive court costs and reasonable and necessary attorney's
961-4 fees.
961-5 (b) On finding that an action filed under Section 2501.201
961-6 is groundless and was brought in bad faith or for the purpose of
961-7 harassment, the court may award court costs and reasonable
961-8 attorney's fees to the defendant. (V.A.C.S. Art. 5221a-7, Secs.
961-9 6(b), (d).)
961-10 Sec. 2501.204. DECEPTIVE TRADE PRACTICE. A violation of
961-11 this chapter is a false, misleading, or deceptive act or practice
961-12 within the meaning of Section 17.46, Business & Commerce Code, and
961-13 any public or private right or remedy authorized by Subchapter E,
961-14 Chapter 17, Business & Commerce Code, may be used to enforce this
961-15 chapter. (V.A.C.S. Art. 5221a-7, Sec. 6(e).)
961-16 (Sections 2501.205-2501.250 reserved for expansion)
961-17 SUBCHAPTER F. PENALTIES
961-18 Sec. 2501.251. CRIMINAL PENALTY. (a) A person commits an
961-19 offense if the person knowingly violates this chapter.
961-20 (b) An offense under this section is a Class A misdemeanor.
961-21 (V.A.C.S. Art. 5221a-7, Sec. 5.)
961-22 Sec. 2501.252. TRADE SECRET. A service file is a trade
961-23 secret for purposes of Section 31.05, Penal Code. (V.A.C.S.
961-24 Art. 5221a-7, Sec. 4.)
961-25 Sec. 2501.253. ADMINISTRATIVE PENALTY. (a) In addition to
961-26 the amount awarded to a complainant under Section 2501.154(b), the
961-27 commissioner may impose on the personnel service an administrative
962-1 penalty equal to two times the amount awarded under that
962-2 subsection. A penalty collected under this section shall be
962-3 deposited in the state treasury.
962-4 (b) A penalty imposed under this section is in lieu of a
962-5 criminal penalty provided by this chapter for a violation of
962-6 Section 2501.102. (V.A.C.S. Art. 5221a-7, Secs. 6B(a) (part), (b)
962-7 (part).)
962-8 Sec. 2501.254. EFFECT ON OTHER REMEDIES AND ENFORCEMENT
962-9 POWERS. This chapter does not affect a public or private remedy or
962-10 enforcement power available under other law. (V.A.C.S.
962-11 Art. 5221a-7, Sec. 6(f).)
962-12 CHAPTER 2502. CAREER COUNSELING SERVICES
962-13 SUBCHAPTER A. GENERAL PROVISIONS
962-14 Sec. 2502.001. DEFINITIONS
962-15 Sec. 2502.002. EXCEPTION
962-16 (Sections 2502.003-2502.050 reserved for expansion)
962-17 SUBCHAPTER B. CERTIFICATE OF AUTHORITY
962-18 Sec. 2502.051. CERTIFICATE REQUIRED
962-19 Sec. 2502.052. CERTIFICATE APPLICATION
962-20 Sec. 2502.053. SECURITY REQUIRED
962-21 Sec. 2502.054. ISSUANCE OF CERTIFICATE; TERM
962-22 Sec. 2502.055. DISPLAY OF CERTIFICATE
962-23 Sec. 2502.056. RULES
962-24 Sec. 2502.057. CONTINUING EDUCATION
962-25 (Sections 2502.058-2502.100 reserved for expansion)
962-26 SUBCHAPTER C. CONTRACT FOR SERVICES
962-27 Sec. 2502.101. INTERVIEW REQUIRED
963-1 Sec. 2502.102. CONTRACT REQUIRED
963-2 Sec. 2502.103. CONTRACT CANCELLATION; REFUND
963-3 (Sections 2502.104-2502.150 reserved for expansion)
963-4 SUBCHAPTER D. PRACTICE BY CERTIFICATE HOLDER
963-5 Sec. 2502.151. ADVERTISING REQUIREMENTS
963-6 Sec. 2502.152. GUARANTEE PROHIBITED
963-7 Sec. 2502.153. ANNUAL FILING
963-8 (Sections 2502.154-2502.200 reserved for expansion)
963-9 SUBCHAPTER E. CONSUMER INFORMATION AND COMPLAINT PROCEDURES
963-10 Sec. 2502.201. CONSUMER INFORMATION
963-11 Sec. 2502.202. COMPLAINT PROCEDURES
963-12 Sec. 2502.203. ARBITRATION
963-13 (Sections 2502.204-2502.250 reserved for expansion)
963-14 SUBCHAPTER F. DISCIPLINARY PROCEDURES
963-15 Sec. 2502.251. ENFORCEMENT
963-16 Sec. 2502.252. COMPLAINT AND INVESTIGATION
963-17 Sec. 2502.253. HEARING
963-18 Sec. 2502.254. SANCTIONS
963-19 Sec. 2502.255. REISSUANCE OF CERTIFICATE AFTER
963-20 REVOCATION
963-21 (Sections 2502.256-2502.300 reserved for expansion)
963-22 SUBCHAPTER G. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
963-23 Sec. 2502.301. ADMINISTRATIVE PENALTY
963-24 Sec. 2502.302. DECEPTIVE TRADE PRACTICE
963-25 CHAPTER 2502. CAREER COUNSELING SERVICES
963-26 SUBCHAPTER A. GENERAL PROVISIONS
963-27 Sec. 2502.001. DEFINITIONS. In this chapter:
964-1 (1) "Career counseling service" means a person who,
964-2 for compensation, provides a service designed to assist a client in
964-3 the development or marketing of the client's career, including:
964-4 (A) identifying career options;
964-5 (B) assessing the marketability or income
964-6 potential of a proposed career;
964-7 (C) providing recommendations relating to job
964-8 search goals and interview techniques and strategy;
964-9 (D) identifying career advancement and
964-10 negotiation techniques; and
964-11 (E) providing similar career development advice
964-12 or assistance.
964-13 (2) "Client" means an individual who contracts to use
964-14 the services of a career counseling service.
964-15 (3) "Commissioner" means the commissioner of licensing
964-16 and regulation.
964-17 (4) "Department" means the Texas Department of
964-18 Licensing and Regulation.
964-19 (5) "Owner" means a person who owns or operates a
964-20 career counseling service. (V.A.C.S. Art. 5221a-8, Secs. 1(1),
964-21 (2), (3), (4), (5).)
964-22 Sec. 2502.002. EXCEPTION. This chapter does not apply to:
964-23 (1) a psychologist licensed under Chapter 501 while
964-24 practicing within the scope of that license;
964-25 (2) a professional counselor licensed under Chapter
964-26 503;
964-27 (3) a person regulated by Chapter 2501;
965-1 (4) a personnel service operated by:
965-2 (A) the United States, this state, or a
965-3 political subdivision of this state; or
965-4 (B) an organization that receives appropriated
965-5 funds from or under contract with a governmental entity described
965-6 by Paragraph (A); or
965-7 (5) an organization that:
965-8 (A) qualifies for an exemption from federal
965-9 income taxation under Section 501(a), Internal Revenue Code of
965-10 1986, by being listed as an exempt organization under Section
965-11 501(c)(3) of that code; and
965-12 (B) provides as part of its charitable purposes
965-13 a service described by this chapter. (V.A.C.S. Art. 5221a-8, Sec.
965-14 2.)
965-15 (Sections 2502.003-2502.050 reserved for expansion)
965-16 SUBCHAPTER B. CERTIFICATE OF AUTHORITY
965-17 Sec. 2502.051. CERTIFICATE REQUIRED. A person may not own
965-18 or operate a career counseling service in this state unless the
965-19 person holds a certificate of authority issued under this chapter.
965-20 (V.A.C.S. Art. 5221a-8, Sec. 3(a) (part).)
965-21 Sec. 2502.052. CERTIFICATE APPLICATION. (a) To obtain a
965-22 certificate of authority, an owner must:
965-23 (1) file with the commissioner a sworn application
965-24 accompanied by the required application fee; and
965-25 (2) file with the department security that complies
965-26 with Section 2502.053.
965-27 (b) The application must be in the form prescribed by the
966-1 commissioner and include:
966-2 (1) the address of the principal location of the
966-3 career counseling service;
966-4 (2) the assumed name, if any, under which the career
966-5 counseling service will operate;
966-6 (3) the name and address of each owner; and
966-7 (4) a statement that the owner has read and is
966-8 familiar with this chapter.
966-9 (c) If the applicant is a corporation, the statement
966-10 described by Subsection (b)(4) must be signed by each officer. If
966-11 the applicant is an association or partnership, the statement must
966-12 be signed by each associate or partner. (V.A.C.S. Art. 5221a-8,
966-13 Secs. 3(a) (part), (b), (c) (part).)
966-14 Sec. 2502.053. SECURITY REQUIRED. (a) Before the
966-15 commissioner may issue a certificate of authority to an owner, the
966-16 owner must file with the department a bond in the amount of $10,000
966-17 that is:
966-18 (1) executed by a surety company authorized to do
966-19 business in this state;
966-20 (2) payable to the state; and
966-21 (3) conditioned on the faithful performance of the
966-22 owner's obligations under this chapter.
966-23 (b) In lieu of a bond under Subsection (a), the owner may
966-24 deposit $10,000 in cash.
966-25 (c) An owner must file a separate bond or make a separate
966-26 cash deposit for each business location. (V.A.C.S. Art. 5221a-8,
966-27 Sec. 3(c) (part).)
967-1 Sec. 2502.054. ISSUANCE OF CERTIFICATE; TERM. (a) The
967-2 commissioner shall issue a certificate of authority to do business
967-3 as a career counseling service to an applicant who meets the
967-4 requirements of this subchapter.
967-5 (b) The commissioner shall process a certificate application
967-6 not later than the 15th day after the date the application is
967-7 filed.
967-8 (c) A certificate of authority is valid for the period set
967-9 by the Texas Commission of Licensing and Regulation. (V.A.C.S.
967-10 Art. 5221a-8, Secs. 3(d) (part), (e) (part).)
967-11 Sec. 2502.055. DISPLAY OF CERTIFICATE. An owner shall
967-12 display a certificate of authority issued under this chapter in a
967-13 prominent place in the principal location of the career counseling
967-14 service. (V.A.C.S. Art. 5221a-8, Sec. 3(e) (part).)
967-15 Sec. 2502.056. RULES. The commissioner may adopt rules
967-16 relating to the administration and enforcement of the certificate
967-17 of authority program created under this subchapter. (V.A.C.S.
967-18 Art. 5221a-8, Sec. 3(d) (part).)
967-19 Sec. 2502.057. CONTINUING EDUCATION. (a) The commissioner
967-20 may recognize, prepare, or administer continuing education programs
967-21 for persons regulated under this chapter.
967-22 (b) Participation in a continuing education program is
967-23 voluntary. (V.A.C.S. Art. 5221a-8, Sec. 9A.)
967-24 (Sections 2502.058-2502.100 reserved for expansion)
967-25 SUBCHAPTER C. CONTRACT FOR SERVICES
967-26 Sec. 2502.101. INTERVIEW REQUIRED. (a) A career
967-27 counseling service shall provide a copy of the service contract to
968-1 the consumer at the first interview.
968-2 (b) Before entering into a contract with a consumer, a
968-3 career counseling service must conduct at least two interviews with
968-4 the consumer. (V.A.C.S. Art. 5221a-8, Sec. 7(b).)
968-5 Sec. 2502.102. CONTRACT REQUIRED. (a) A career counseling
968-6 service must provide a completed copy of a proposed written
968-7 contract to a consumer before the contract is signed.
968-8 (b) The contract must:
968-9 (1) be written in clear language;
968-10 (2) specify the terms and time schedule for payment
968-11 for services;
968-12 (3) specify the services provided for the payment for
968-13 services;
968-14 (4) clearly state the refund policy of the career
968-15 counseling service; and
968-16 (5) include the following notice printed in at least
968-17 10-point type that is boldfaced, capitalized, underlined, or
968-18 otherwise conspicuously set out from surrounding written material:
968-19 NOTICE TO CLIENT
968-20 (1) DO NOT SIGN THIS CONTRACT UNTIL YOU HAVE READ IT OR IF
968-21 IT CONTAINS BLANK SPACES.
968-22 (2) IF YOU DECIDE THAT YOU DO NOT WISH TO PURCHASE THE
968-23 SERVICES OF THIS CAREER COUNSELING SERVICE, YOU MAY CANCEL THIS
968-24 CONTRACT BY MAILING TO THE SERVICE BY MIDNIGHT NOT LATER THAN THE
968-25 THIRD BUSINESS DAY AFTER THE DATE ON WHICH YOU SIGN THIS CONTRACT A
968-26 NOTICE STATING YOUR DESIRE TO CANCEL THE CONTRACT. THE WRITTEN
968-27 NOTICE MUST BE SENT BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
969-1 (Address of service's home office)
969-2 (3) IF YOUR COMPLAINT IS NOT RESOLVED TO YOUR SATISFACTION
969-3 BY THE SERVICE, YOU MAY RESOLVE YOUR COMPLAINT THROUGH ARBITRATION
969-4 BY CONTACTING THE FOLLOWING ASSOCIATION:
969-5 (Name, address, and telephone number of the arbitration
969-6 association)
969-7 (c) A contract under this section must be signed by the
969-8 client. The written contract constitutes the entire agreement
969-9 between the career counseling service and the client. (V.A.C.S.
969-10 Art. 5221a-8, Sec. 8.)
969-11 Sec. 2502.103. CONTRACT CANCELLATION; REFUND. (a) A client
969-12 may cancel a contract before the fourth business day after the date
969-13 the contract is signed by notifying the career counseling service
969-14 in writing of the cancellation. Written notification is considered
969-15 given if the notification is mailed by certified mail to the home
969-16 office of the career counseling service and postmarked not later
969-17 than midnight of the third business day. The career counseling
969-18 service shall refund all money paid by the client.
969-19 (b) A client may cancel a contract if the client decides not
969-20 to use the services or determines that the career counseling
969-21 service is not offering suitable services under the contract. The
969-22 client is liable for an amount equal to the value of the services
969-23 rendered under the contract as of the date the contract is
969-24 canceled.
969-25 (c) A career counseling service shall make a refund required
969-26 under this section not later than the 31st day after the date the
969-27 service receives the notice of cancellation. (V.A.C.S.
970-1 Art. 5221a-8, Sec. 9.)
970-2 (Sections 2502.104-2502.150 reserved for expansion)
970-3 SUBCHAPTER D. PRACTICE BY CERTIFICATE HOLDER
970-4 Sec. 2502.151. ADVERTISING REQUIREMENTS. (a) A career
970-5 counseling service must be able to prove the truth of each claim
970-6 made by the service in any literature offered by the service,
970-7 advertising used by the service, or interview conducted by the
970-8 service.
970-9 (b) Literature and other advertising must include:
970-10 (1) the length of time that the career counseling
970-11 service has been in business; and
970-12 (2) the certificate of authority number of the career
970-13 counseling service. (V.A.C.S. Art. 5221a-8, Sec. 6.)
970-14 Sec. 2502.152. GUARANTEE PROHIBITED. An owner of a career
970-15 counseling service or an agent or employee of the owner may not
970-16 offer or imply, in advertising or in an interview, any guarantee
970-17 that a consumer will obtain a job through the service. (V.A.C.S.
970-18 Art. 5221a-8, Sec. 7(a).)
970-19 Sec. 2502.153. ANNUAL FILING. A career counseling service
970-20 shall file an annual financial statement with the department.
970-21 (V.A.C.S. Art. 5221a-8, Sec. 4.)
970-22 (Sections 2502.154-2502.200 reserved for expansion)
970-23 SUBCHAPTER E. CONSUMER INFORMATION AND COMPLAINT PROCEDURES
970-24 Sec. 2502.201. CONSUMER INFORMATION. A career counseling
970-25 service shall provide to a consumer on request information relating
970-26 to:
970-27 (1) the credentials of each consultant employed by the
971-1 service; and
971-2 (2) the number of consultants available through the
971-3 service in the immediate area. (V.A.C.S. Art. 5221a-8, Sec. 5(c).)
971-4 Sec. 2502.202. COMPLAINT PROCEDURES. (a) A career
971-5 counseling service shall:
971-6 (1) adopt a program for consumer complaint resolution;
971-7 and
971-8 (2) display a notice in the main office of the service
971-9 that:
971-10 (A) states that a complaint may be referred to
971-11 the department; and
971-12 (B) provides the telephone number of the
971-13 department.
971-14 (b) Not later than 48 hours after a career counseling
971-15 service receives a written complaint, the service shall respond to
971-16 the complaint. Not later than the 10th day after the date the
971-17 complaint is received, the service shall resolve the complaint.
971-18 (V.A.C.S. Art. 5221a-8, Secs. 5(a) (part), (b).)
971-19 Sec. 2502.203. ARBITRATION. (a) If a career counseling
971-20 service cannot resolve a complaint within the period described by
971-21 Section 2502.202, the service shall:
971-22 (1) refer the complaint to a qualified independent
971-23 arbitration organization recognized by the department; and
971-24 (2) resolve the complaint not later than the 30th day
971-25 after the date the complaint is referred for arbitration.
971-26 (b) The arbitrator may recommend a refund on a pro rata
971-27 basis if the arbitrator determines that the complaint is valid.
972-1 (V.A.C.S. Art. 5221a-8, Sec. 5(a) (part).)
972-2 (Sections 2502.204-2502.250 reserved for expansion)
972-3 SUBCHAPTER F. DISCIPLINARY PROCEDURES
972-4 Sec. 2502.251. ENFORCEMENT. (a) The commissioner shall
972-5 enforce this chapter and may investigate a career counseling
972-6 service as necessary.
972-7 (b) The attorney general shall assist the commissioner on
972-8 request. (V.A.C.S. Art. 5221a-8, Sec. 11(a).)
972-9 Sec. 2502.252. COMPLAINT AND INVESTIGATION. (a) A person
972-10 by sworn affidavit may file with the commissioner a complaint
972-11 alleging a violation of this chapter.
972-12 (b) On receipt of the complaint, the commissioner shall
972-13 investigate the alleged violation and may:
972-14 (1) inspect any record relevant to the complaint; and
972-15 (2) subpoena the record and any necessary witness.
972-16 (V.A.C.S. Art. 5221a-8, Sec. 11(b).)
972-17 Sec. 2502.253. HEARING. (a) If the commissioner determines
972-18 as a result of an investigation that a violation of this chapter
972-19 may have occurred, the commissioner shall hold a hearing not later
972-20 than the 45th day after the date the complaint was filed under
972-21 Section 2502.252.
972-22 (b) A hearing under this section shall be conducted in the
972-23 manner provided for a contested case under Chapter 2001, Government
972-24 Code.
972-25 (c) The commissioner shall render a decision on the alleged
972-26 violation not later than the eighth day after the date the hearing
972-27 is concluded. (V.A.C.S. Art. 5221a-8, Sec. 11(c).)
973-1 Sec. 2502.254. SANCTIONS. (a) If, after a hearing, the
973-2 commissioner determines that a career counseling service has
973-3 violated this chapter, the commissioner may, as appropriate:
973-4 (1) issue a warning to the service; or
973-5 (2) suspend or revoke the certificate of authority
973-6 issued to the service.
973-7 (b) If, after a hearing, the commissioner determines that a
973-8 career counseling service has violated this chapter, the
973-9 commissioner may award the complainant an amount equal to the
973-10 amount of the fee charged by the service. (V.A.C.S. Art. 5221a-8,
973-11 Secs. 11(d), 12 (part).)
973-12 Sec. 2502.255. REISSUANCE OF CERTIFICATE AFTER REVOCATION.
973-13 If the commissioner revokes the certificate of authority of a
973-14 career counseling service under Section 2502.254, the service and
973-15 any owner of that service may not apply for a new certificate until
973-16 after the third anniversary of the date the certificate was
973-17 revoked. (V.A.C.S. Art. 5221a-8, Sec. 13.)
973-18 (Sections 2502.256-2502.300 reserved for expansion)
973-19 SUBCHAPTER G. PENALTIES AND OTHER ENFORCEMENT
973-20 PROVISIONS
973-21 Sec. 2502.301. ADMINISTRATIVE PENALTY. In addition to the
973-22 amount awarded to a complainant under Section 2502.254(b), the
973-23 commissioner may impose on the career counseling service an
973-24 administrative penalty equal to two times the amount awarded under
973-25 that subsection. A penalty collected under this section shall be
973-26 deposited in the state treasury. (V.A.C.S. Art. 5221a-8, Sec. 12
973-27 (part).)
974-1 Sec. 2502.302. DECEPTIVE TRADE PRACTICE. A violation of
974-2 this chapter is a false, misleading, or deceptive act or practice
974-3 within the meaning of Section 17.46, Business & Commerce Code, and
974-4 any public or private right or remedy authorized by Subchapter E,
974-5 Chapter 17, Business & Commerce Code, may be used to enforce this
974-6 chapter. (V.A.C.S. Art. 5221a-8, Sec. 10.)
974-7 SECTION 7. CONFORMING AMENDMENT. Subchapter C, Chapter 23,
974-8 Natural Resources Code, is amended by adding Section 23.0515 to
974-9 read as follows:
974-10 Sec. 23.0515. FIELD NOTES, PLATS, AND OTHER DOCUMENTS. (a)
974-11 In a county in which there is a county surveyor, only the county
974-12 surveyor may:
974-13 (1) file and record field notes and plats of surveys
974-14 made in the county and other documents required by law to be
974-15 recorded in the county surveyor's records; and
974-16 (2) issue a certificate of fact and certify the
974-17 correctness of a copy of any document, record, or entry shown by
974-18 the records of the county surveyor.
974-19 (b) If the county surveyor and each authorized deputy of the
974-20 county surveyor are absent from the county surveyor's office, the
974-21 county clerk of the county has unrestricted access to the county
974-22 surveyor's office and public records and may:
974-23 (1) record field notes, plats, and other documents
974-24 required to be recorded in the county surveyor's records; and
974-25 (2) issue a certificate of fact and certify the
974-26 correctness of a copy of any document, record, or entry shown by
974-27 the official records of the county surveyor. (V.A.C.S. Art. 5282c,
975-1 Sec. 28(a) (part).)
975-2 SECTION 8. CONFORMING AMENDMENT. Section 23.057, Natural
975-3 Resources Code, is amended to read as follows:
975-4 Sec. 23.057. CUSTODY OF RECORDS IN ABSENCE OF COUNTY
975-5 SURVEYOR; POWERS AND DUTIES OF COUNTY CLERK. If a county does not
975-6 have a county surveyor, the county clerk of the county:
975-7 (1) is the legal custodian of the county surveyor's
975-8 records;
975-9 (2) shall take charge of all records, maps, and papers
975-10 belonging to the county surveyor's office and safely keep them in
975-11 the county clerk's [his] office; and
975-12 (3) may make any certificate and certify any copy that
975-13 the county surveyor would be authorized to make or certify.
975-14 (V.A.C.S. Art. 5282c, Sec. 28(a) (part).)
975-15 SECTION 9. CONFORMING AMENDMENT. Subchapter C, Chapter 23,
975-16 Natural Resources Code, is amended by adding Section 23.060 to read
975-17 as follows:
975-18 Sec. 23.060. FEES FOR RECORDING AND ISSUING DOCUMENTS. (a)
975-19 The fees for recording documents in the county surveyor's records,
975-20 for issuing certificates, and for making certified copies are the
975-21 fees provided by law.
975-22 (b) The county surveyor is entitled to fees for all
975-23 documents recorded by the county surveyor or a deputy of the county
975-24 surveyor and for all certificates and certified copies issued by
975-25 the county surveyor or a deputy of the county surveyor.
975-26 (c) The county clerk of the county is entitled to all fees
975-27 for documents recorded by the county clerk and for all certificates
976-1 and certified copies issued by the county clerk under Sections
976-2 23.0515(b) and 23.057(3). (V.A.C.S. Art. 5282c, Sec. 28(b).)
976-3 SECTION 10. CONFORMING AMENDMENT. Section 501.0916,
976-4 Transportation Code, is amended to read as follows:
976-5 Sec. 501.0916. SALE, TRANSFER, OR RELEASE OF LATE MODEL
976-6 SALVAGE OR NONREPAIRABLE MOTOR VEHICLE. (a) A person [who owns a
976-7 late model salvage motor vehicle] may not sell, transfer, or
976-8 release a late model salvage motor vehicle or a nonrepairable motor
976-9 [the] vehicle to a person other than:
976-10 (1) a person who holds a salvage vehicle dealer
976-11 license issued under Chapter 2302, Occupations Code;
976-12 (2)[,] the former owner of the vehicle;
976-13 (3)[,] a governmental entity;
976-14 (4)[,] an out-of-state buyer;
976-15 (5)[,] a buyer in a casual sale at auction;[,] or
976-16 (6) a person described by Section 2302.003,
976-17 Occupations Code [Subsection (g), Article 6687-2b, Revised
976-18 Statutes, and shall deliver to that person a properly assigned
976-19 certificate of title for the vehicle].
976-20 (b) A person who sells, transfers, or releases a motor
976-21 vehicle under Subsection (a) shall deliver a properly assigned
976-22 certificate of title for the vehicle to the person to whom the
976-23 motor vehicle is sold, transferred, or released. If the assigned
976-24 certificate of title is not a salvage motor vehicle certificate of
976-25 title, a nonrepairable motor vehicle certificate of title, or a
976-26 comparable ownership document issued by another state or
976-27 jurisdiction, the purchaser shall, not later than the 10th day
977-1 after the date the purchaser receives the certificate of title
977-2 [from the owner]:
977-3 (1) surrender the certificate of title to the
977-4 department; and
977-5 (2) apply for a salvage motor vehicle certificate of
977-6 title or a nonrepairable motor vehicle certificate of title for the
977-7 vehicle, as appropriate.
977-8 (c) A salvage vehicle dealer that acquires ownership of a
977-9 late model salvage motor vehicle or a nonrepairable motor vehicle
977-10 for the purpose of dismantling, scrapping, or destroying the
977-11 vehicle shall, before the 31st day after the date the dealer
977-12 acquires the vehicle, submit to the department, on the form
977-13 prescribed by the department, a report stating that the vehicle
977-14 will be dismantled, scrapped, or destroyed, accompanied by a
977-15 properly assigned regular certificate of title, salvage motor
977-16 vehicle certificate of title, nonrepairable motor vehicle
977-17 certificate of title, or comparable ownership document issued by
977-18 another state or jurisdiction for the vehicle.
977-19 (d) On receipt of the report and the certificate of title,
977-20 the department shall issue the salvage vehicle dealer a receipt for
977-21 the certificate of title, salvage motor vehicle certificate of
977-22 title, nonrepairable motor vehicle certificate of title, or
977-23 comparable ownership document issued by another state or
977-24 jurisdiction.
977-25 (e) A salvage vehicle dealer who submits a report under
977-26 Subsection (c) shall report to the department after the action is
977-27 taken that the vehicle was dismantled, scrapped, or destroyed.
978-1 (V.A.C.S. Art. 6687-1a, Secs. 3.01(b), 3.03.)
978-2 SECTION 11. CONFORMING AMENDMENT. Section 501.0917,
978-3 Transportation Code, is amended to read as follows:
978-4 Sec. 501.0917. Salvage Vehicle Dealer to Submit Report to
978-5 Department. (a) A salvage vehicle dealer that acquires an older
978-6 model vehicle for the purpose of dismantling, scrapping, or
978-7 destroying the vehicle and that receives a properly assigned
978-8 certificate of title for the vehicle shall, before the 31st day
978-9 after the date the dealer acquires the vehicle:
978-10 (1) submit to the department, on the form prescribed
978-11 by the department, a report stating that the vehicle will be
978-12 dismantled, scrapped, or destroyed, accompanied by the properly
978-13 assigned regular certificate of title, salvage motor vehicle
978-14 certificate of title, nonrepairable motor vehicle certificate of
978-15 title, or comparable ownership document issued by another state or
978-16 jurisdiction for the vehicle; and
978-17 (2) keep on the business premises of the dealer, until
978-18 the third anniversary of the date the report on the vehicle is
978-19 submitted to the department, a record of the vehicle.
978-20 (b) A salvage vehicle dealer that is required to submit a
978-21 report under Subsection (a) shall present evidence that the vehicle
978-22 was dismantled, scrapped, or destroyed. (V.A.C.S. Art. 6687-1a,
978-23 Sec. 3.01(c).)
978-24 SECTION 12. CONFORMING AMENDMENT. Subchapter A, Chapter
978-25 503, Transportation Code, is amended by adding Section 503.009 to
978-26 read as follows:
978-27 Sec. 503.009. PROCEDURE FOR CERTAIN CONTESTED CASES.
979-1 (a) The department's Motor Vehicle Board may conduct hearings in
979-2 contested cases brought under and as provided by this chapter.
979-3 (b) The procedures applicable to a hearing conducted under
979-4 this section are those applicable to a hearing conducted as
979-5 provided by Section 2301.606(a), Occupations Code.
979-6 (c) A decision or final order issued under this section is
979-7 final and may not be appealed, as a matter of right, to the
979-8 commission.
979-9 (d) The department's Motor Vehicle Board may adopt rules for
979-10 the procedure, a hearing, or an enforcement proceeding for an
979-11 action brought under this section. (V.A.C.S. Art. 4413(36), Sec.
979-12 3.03(b).)
979-13 SECTION 13. REPEALER. (a) The following Acts and articles
979-14 as compiled in Vernon's Texas Civil Statutes are repealed: 135b-6,
979-15 249a, 249c, 249e, 3271a, 4413(36), 4413(36a), 4447bb, 4477-3,
979-16 4477-3a, 5191, 5192, 5193, 5194, 5195, 5195a, 5221a-7, 5221a-8,
979-17 5221f, 5221f-1, 5282c, 6243-101, 6573a, 6573a.1, 6573a.2, 6573b,
979-18 6675e, 6687-1a, 6687-2, 6687-2a, 6687-2b, 6687-7, 6687-9a, 8861,
979-19 8885, 8886, 8911, 9009, 9009a, 9009b, 9028, 9029, 9034, as added by
979-20 Chapter 981, Acts of the 76th Legislature, Regular Session, 1999,
979-21 and 9034, as added by Chapter 1559, Acts of the 76th Legislature,
979-22 Regular Session, 1999.
979-23 (b) Chapters 32, 33, and 34, Water Code, are repealed.
979-24 SECTION 14. LEGISLATIVE INTENT OF NO SUBSTANTIVE CHANGE.
979-25 This Act is enacted under Section 43, Article III, Texas
979-26 Constitution. This Act is intended as a recodification only, and
979-27 no substantive change in law is intended by this Act.
980-1 SECTION 15. EFFECTIVE DATE. This Act takes effect June 1,
980-2 2003.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2813 was passed by the House on April
26, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2813 was passed by the Senate on May
22, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor