C.S.H.B. 1218 78(R)    BILL ANALYSIS


C.S.H.B. 1218
By: Chisum
Licensing & Administrative Procedures
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

The Texas State Board of Public Accountancy regulates the accounting
profession in an effort to provide competent, objective accountants and
auditors for Texas' financial markets, banking systems, and businesses.
The Board's major functions include administering the Uniform Certified
Public Accountant Examination, licensing individuals and firms, and
enforcing the Public Accountancy Act, including investigating and
resolving complaints. 

The Board is subject to the Sunset Act and will be abolished on September
1, 2003, unless continued by the Legislature.  As a result of its review
of the Texas State Board of Public Accountancy, the Sunset Advisory
Commission recommended continuation of the Board and several statutory
modifications that are contained in this legislation.   


RULEMAKING AUTHORITY

It is the opinion of this committee that rulemaking authority is expressly
delegated to the Texas State Board of Public Accountancy in SECTION 8
(Section 901.1525(g), Occupations Code); SECTION 9 (Section 901.153(e),
Occupations Code); SECTION 10 (Section 901.1565, Occupations Code);
SECTION 11 (Section 901.160(e), Occupations Code); SECTION 17 (Section
901.403(b), Occupations Code); SECTION 23 (Section 901.552(c), Occupations
Code); SECTION 24 (Section 901.601(c), Occupations Code) of this bill.  

ANALYSIS

SECTION 1.  C.S.H.B. 1218 amends Section 901.006, Occupations Code, to
update the Texas Board of Public Accountancy's Sunset date to September 1,
2015, which provides for the standard 12-year review.  

SECTION 2.  Amends Section 901.053, Occupations Code, to update standard
Sunset language prohibiting persons from being Board members or high-level
employees, if they or their spouses serve as an officer, executive board
or committee member,  or employee of a related Texas trade association.   
SECTION 3.  Amends Section 901.056(a) and (c), Occupations Code, to update
standard language developed by the Sunset Commission specifying the
grounds for removing a Board member. 

SECTION 4.  Amends Subchapter B, Chapter 901, Occupations Code, by adding
Section 901.059, to add standard language adopted by the Sunset Commission
requiring members of the Board to complete training before assuming their
duties. 

SECTION 5.  Amends Section 901.102, Occupations Code, to update standard
language adopted by the Sunset Commission requiring the Board to separate
its policymaking duties from the agency's management functions. 

SECTION 6.  Amends Section 901.105, Occupations Code, to update standard
language adopted by the Sunset Commission requiring the Board to have a
current equal employment opportunity policy. 

SECTION 7.  Amends Subchapter C, Chapter 901, Occupations Code, to add
901.106, which is standard language developed by the Sunset Commission
requiring the Board to inform employees about the State Employee Incentive
Program. 
 
SECTION 8.  Amends Subchapter D, Chapter 901, Occupations Code, to add
Section 901.1525, which authorizes the Board to establish policymaking and
working committees to assist the Board in performing its responsibilities.
Specifies that the Board's policymaking committees shall assist the Board
with policy matters, drafting rules, establishing budgets, and other
oversight functions, and restricts membership on the policymaking
committees to Board members.  Specifies that the working committees shall
assist with Board functions, such as reviewing enforcement cases and other
licensing matters. Authorizes the Board to appoint non-Board members, with
full voting privileges, to its working committees, but requires the
non-Board members to meet the same qualifications as Board members,
including the restriction against serving on an executive board or
committee of a related Texas trade association.  Provides that the Board
shall adopt rules to prevent committee members from voting on issues
before the committee in which the member has a personal or financial
interest. 

SECTION 9.  Amends Section 901.153(a) and adds Subsections (d) and (e),
Occupations Code, to clarify that the Board's enforcement committees are
working committees, and license holders who have been the subject of any
disciplinary action under the Public Accountancy Act may not serve on an
enforcement committee.  Prohibits Board members who serve on a Board
enforcement committee, and have participated in the investigation of a
specific complaint, from participating in any subsequent disciplinary
proceeding pertaining to the complaint, including voting on the final
disposition of the case.  Requires the Board to adopt rules to implement
this provision. 

SECTION 10.  Amends Subchapter D, Chapter 901, Occupations Code, to add
Section 901.1565, which requires the Board to adopt rules to comply with
Chapter 53, Occupations Code, regarding criminal convictions, and develop
a list of the specific misdemeanor offenses for which a conviction would
constitute grounds for the Board to take action under Section 53.021.
Requires the Board to develop a process for determining which out-of-state
misdemeanor convictions would be similar to the convictions listed in
Board rules. 

SECTION 11.  Amends Section 901.160, Occupations Code, to add Subsection
(e), to authorize the Board to disclose confidential information to
governmental, regulatory, or law enforcement agencies for joint
investigation purposes.  Requires the Board to adopt guidelines to assist
in exercising this authority.  Provides that subsections (a) and (c) do
not apply to information disclosed under this subsection.  

SECTION 12.  Amends Subchapter D, Chapter 901, Occupations Code, to add
Section 901.166, to authorize the Board to issue subpoenas to compel the
attendance of a witness or the production of documents and other evidence.
Requires the Board to pay a reasonable fee for photocopies subpoenaed
under this Section, and reimburse the expenses of witnesses in accordance
with Section 2001.103, Government Code.  Authorizes the Board, acting
through the Attorney General, to file suit in district court to enforce a
subpoena.      

SECTION 13.  Amends Subchapter D, Chapter 901, Occupations Code, to add
Section 901.167, which is standard language developed by the Sunset
Commission requiring the Board to develop a policy that encourages the use
of negotiated rulemaking and alternative dispute resolution. 

SECTION 14.  Amends Subchapter D, Chapter 901, Occupations Code, to add
Section 901.168, which is standard Sunset language requiring the Board to
make effective use of technology in its delivery of services and provision
of information to the public. 

SECTION 15.  Amends Section 901.203, Occupations Code, to update standard
Sunset language requiring the Board to maintain information on written
complaints and notify the parties about the policies for and status of
complaints. 

SECTION 16.  Amends Section 901.304(a), Occupations Code, to eliminate the
requirement that the Board collect exam fees.  Authorizes the Board to
delegate the collection of an exam fee to the person conducting the exam. 

SECTION 17.  Amends Section 901.403, Occupations Code, to add Subsection
(b), which  adds standard Sunset language allowing the Board to adopt a
staggered license renewal system. 
 
SECTION 18.  Amends Section 901.404(a), Occupations Code, to update
standard Sunset language specifying the time frame during which the Board
must send renewal notices to license holders.   

SECTION 19.  Amends Section 901.405, Occupations Code, to update standard
Sunset language establishing a method for license renewal,  and a time
frame and penalty structure for delinquent renewals.  Modifies standard
Sunset language by extending the time allowed to renew a delinquent
license from one year to two years, and creating a penalty, equal to three
times the normally required renewal fee, for renewing a license that has
been expired at least one year but less than two years. Prohibits a person
from renewing a license that has been expired for two years or more.

SECTION 20.  Amends Section 901.501(a), Occupations Code, to grant the
Board the authority to impose disciplinary sanctions, including an order
of restitution.  Modifies standard Sunset language authorizing the Board
to use a full range of penalties for violations of state laws or agency
rules, by instead allowing the Board to use a combination of existing
penalties.   
SECTION 21.  Amends Section 901.503(c), Occupations Code, to eliminate the
provision requiring the Board to refund the exam fee of a person whose
application for examination has been denied, and instead requires the
Board to provide for a refund. 

SECTION 22.  Amends Subchapter K, Chapter 901, Occupations Code, to add
Section 901.5045, which authorizes the Board to suspend a license on an
emergency basis upon determining that the license holder is engaged in, or
about to engage in, an act of fraud or a violation of the Public
Accountancy Act.  Provides for an appeals process in accordance with the
Administrative Procedure Act.  Requires the Board to issue notice of a
hearing within five days of appeal, and to hold the appeal hearing within
five days of notice, unless otherwise agreed to by the parties. Provides
that the Board must act within two days if the hearing results in a
recommendation to vacate the emergency suspension order.    

SECTION 23.  Amends Section 901.552(a) and adds Subsection (c),
Occupations Code,  to increase the maximum administrative penalty from
$1,000 to $100,000 per violation. Requires the Board to adopt a schedule
that prescribes ranges of administrative penalties to be imposed for
specified types of conduct and circumstances. 

SECTION 24.  Amends Section 901.601, Occupations Code, to eliminate the
Board's injunctive authority, and grant the Board cease-and-desist
authority to prohibit a person from the unauthorized practice of
accountancy.  Imposes an administrative penalty, up to $25,000, for
violating a ceaseand-desist order and requires the Board to adopt a
schedule prescribing the ranges of administrative penalties to be imposed
for specified types of conduct and circumstances. 

SECTION 25.  Amends Subchapter M, Chapter 901, Occupations Code, to add
Section 901.6015, which authorizes the Board to order a license holder to
pay restitution to a person harmed by the license holder's violation of
the Public Accountancy Act and failure to fulfill the terms of a contract.
Restricts the amount of restitution to the actual amount paid under the
contract. 

SECTION 26.  Amends Sections 901.602(b), Occupations Code, to increase the
penalty for intentional, fraud-related violations of the Public
Accountancy Act from a Class B misdemeanor to a felony, and provides that
the range of penalty is determined by the amount of monetary loss
resulting from the violation.  Maintains the current Class B penalty for
all other violations of the Act.   

SECTION 27.  Amends Subchapter M, Chapter 901, Occupations Code, to add
Section 901.606, which grants immunity from civil and criminal liability
to persons who voluntarily report, or assist in investigations of, alleged
violations of the Public Accountancy Act. 

SECTION 28.  Repeals the provision requiring applicants to pay the exam
fee to the Board at the time of application for examination. 

SECTION 29.  Instructional provision which requires the Board to report,
by December 31, 2005,  on federal requirements in the Sarbanes-Oxley Act,
the General Accounting Office study on audit firm rotation, and rules
adopted by the Board that are intended to comply with the federal
standards.  
 
SECTION 30.  Effective date:  September 1, 2003.

SECTION 31.  Provides that the Board shall adopt rules as required by this
Act by March 1, 2004. Specifies that changes in Board member
qualifications do not affect the entitlement of a member serving on the
Board before September 1, 2003, from continuing to serve the remainder of
the member's term.  Specifies that the changes relating to the imposition
of disciplinary sanctions, including restitution, administrative
penalties, and cease-and-desist orders, apply only to violations occurring
on or after the effective date, September 1, 2003.  Provides that the
changes relating to immunity from civil and criminal liability apply only
to reports made after the effective date, September 1, 2003. 

SECTION 32.  Specifies that the changes made relating to penalties for
violations of the Act, apply only to offenses committed on or after the
effective date, September 1, 2003. 


EFFECTIVE DATE

Establishes the effective date of the Act as September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1218 clarifies that Board personnel are prohibited from serving
on the executive Board or executive committee of a related Texas Trade
Association.  The original applied to any board or committee of a related
Texas trade association.  

The substitute corrects the spelling of the word subsection. 

The substitute extends the time allowed for renewing a delinquent license
from one year to two years, and creates a penalty for renewing a license
during this extended period, by requiring payment equal to three times the
normally required renewal fee.  The substitute prohibits a person from
renewing a license that has been expired at least two years.     

The substitute modifies a provision in the original version, relating to
notice and hearing on the emergency suspension of a license, by requiring
the Board to issue notice of a hearing within five days of appeal, and to
hold a hearing on the appeal within five days of notice, unless otherwise
agreed to by the parties.  The original version required the Board to
issue notice within 10 days of receiving a hearing request, and to hold
the hearing "as soon as practicable."  The substitute adds new language
requiring the Board to take action within two days if the hearing results
in a recommendation to vacate the emergency suspension order.  The
substitute removes the term hearings officer and substitutes
administrative law judge, for consistency with the Government Code.  

The substitute removes the language in the original which made all
violations of the Accountancy Act subject to enhanced criminal penalties,
and instead subjects only intentional, fraud-related violations to the
enhanced criminal penalties.  The substitute maintains the current Class B
penalty for all other violations.  C.S.H.B. 1218 also replaces the penalty
language in the original with standard penal code terminology.