H.B. 1789 78(R) BILL ANALYSIS
H.B. 1789
By: Chisum
Licensing & Administrative Procedures
Committee Report (Amended)
BACKGROUND AND PURPOSE
The Texas Board of Professional Engineers was created in 1937, after an
explosion at the New London School killed nearly 300 students and
teachers. The Board's main functions include: licensing Professional
Engineers; enforcing the Texas Engineering Practice Act, including
investigating and resolving complaints; and registering engineering firms.
As part of the Self-Directed, Semi-Independent Licensing Agency Pilot
Project, the Board raises revenue from licensing fees to support agency
functions and operates outside the appropriations process. In fiscal year
2002, the Board operated with a budget of $1.5 million, and a staff of 25
FTEs.
The Board is subject to the Sunset Act and will be abolished on September
1, 2003, unless continued by the Legislature. The Sunset review found
that while regulation of engineers who offer their services to the public
is needed, the Board should make improvements to its enforcement process
to strengthen this regulation and enhance public protection.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is expressly
granted to the Texas Board of Professional Engineers in SECTION 11
(Section 1001.203, Occupations Code); SECTION 12 (Section 1001.2035,
Occupations Code); SECTION 17 (Section 1001.252(b) and (g)); SECTION 21
(Section 1001.304, Occupations Code); SECTION 26 (Section 1001.405,
Occupations Code); SECTION 27 (Section 1001.4525, Occupations Code) of
this bill.
ANALYSIS
SECTION 1. HB 1789 updates the Board's sunset review date to 2015 to
provide for the standard 12-year review.
SECTION 2. The Bill clarifies that the terms "engineer" and "engineering"
can be used by individuals other than licensed Professional Engineers who
are operating within the scope of their duties for their employer.
SECTION 3. The Bill clarifies that the Board should direct its
enforcement authority to ensure that only licensed individuals use the
Professional Engineer designation and offer services to the public.
SECTION 4. The Bill updates standard Sunset language requiring impartial
appointments to the Board.
SECTION 5. The Bill updates standard Sunset language requiring one-third
of Board members to be public members without financial ties to the agency
or the regulated industry.
SECTION 6. The Bill updates standard Sunset language prohibiting Board
members, high-level employees, and spouses from serving as an officer or
employee of a related Texas trade association.
SECTION 7. The Bill updates standard language specifying the grounds for
removing a Board member.
SECTION 8. The Bill adds standard Sunset language to give the Governor
authority to designate the Board's presiding officer.
SECTION 9. The Bill adds standard Sunset language requiring members of
the Board to complete training before assuming their duties.
SECTION 10. The Bill adds standard Sunset language requiring the Board to
separate its policymaking duties from the agency's management functions
and language requiring the executive director to inform Board members and
employees of the qualifications and responsibilities for office. It adds
standard Sunset language requiring the Board to have a current equal
employment opportunity policy and language requiring the executive
director to inform employees about the State Employee Incentive Program.
SECTION 11. The Bill modifies standard Sunset language requiring the
Board to adopt rules for compliance with the Professional Services
Procurement Act, but otherwise prohibits the Board from adopting rules
that restrict competitive bidding or advertising except to prohibit false,
misleading, or deceptive practices.
SECTION 12. The Bill requires the Board to adopt rules to comply with
Occupations Code, Chapter 53, regarding criminal convictions.
SECTION 13. The Bill requires the Board to set fee amounts and removes
the fee caps specified in statute.
SECTION 14. The Bill updates standard Sunset language requiring the Board
to develop continuing education programs for licenses.
SECTION 15. The Bill adds standard Sunset language requiring the Board to
make effective use of technology in its delivery of services and provision
of information to the public and language requiring the Board to develop a
policy that encourages the use of negotiated rulemaking and alternative
dispute resolution. It requires the Board to form a joint practice
committee with the Texas Board of Architectural Examiners.
SECTION 16. The Bill requires the Board to maintain information regarding
filing a complaint with the Board and a form a person may file a
complaint with the Board on the Board's internet website.
SECTION 17. The Bill requires the Board to establish the process for
filing a complaint in rule and to make this information available to the
public via the Board's Web site and the Board to establish a simple,
accessible process for accepting, opening, and investigating complaints.
The Bill clarifies that complaints be required only to provide enough
information for the Board to determine jurisdiction, and that Board staff
is responsible for conducting all phases of investigations, including
gathering needed evidence. The Bill requires the Board to develop a
system to prioritize complaints and to focus on those complaints that
could harm the public. It authorizes the Board to use advisors and
consultants to provide technical assistance on enforcement cases and
grants these technical experts immunity from civil liability for any
damage caused in the performance of their duties. The Bill requires
agency staff to report administratively dismissed complaints to the Board
and requires the Board to track detailed statistics about complaints
received and resolved each year and provide this information in its annual
financial report. It adds standard Sunset language requiring the Board to
maintain information on written complaints and notify the parties about
policies for and status of complaints.
SECTION 18. The Bill requires the Board to provide the number, type, and
age of all open cases as of the end of each fiscal year and the Board to
maintain documentation on all complaint files and adds standard Sunset
language requiring the Board to give the public a reasonable opportunity
to present issues under the Board's jurisdiction.
SECTION 19. The Bill clarifies that the terms "engineer" and
"engineering" can be used by individuals other than licensed Professional
Engineers who are operating within the scope of their duties for their
employer.
SECTION 20. The Bill removes the requirement that applications for
licensure be made under oath and notarized and eliminates the requirement
that applicants must submit separate character references as a
qualification for licensure.
SECTION 21. The Bill requires the Board to adopt rules to ensure that its
exams are accessible to persons with disabilities in accordance with the
Americans with Disabilities Act.
SECTION 22. The Bill updates standard Sunset language requiring the Board
to notify applicants of exam results within a reasonable time, and to
provide an analysis of exam performance to an applicant who failed a
licensing exam. It adds standard Sunset language allowing the Board to
issue provisional licenses to qualified applicants licensed in other
states and language allowing the Board to license applicants with valid
licenses from other states that have similar licensing requirements.
SECTION 23. The Bill adds standard Sunset language allowing the Board to
adopt a staggered license renewal system.
SECTION 24. The Bill updates standard Sunset language establishing a
method for license renewal and a time-frame and penalty structure for
delinquent renewals.
SECTION 25. The Bill updates standard Sunset language establishing a
renewal time-frame.
SECTION 26. The Bill authorizes the Board to establish a 30-day grace
period for firms to register with the Board.
SECTION 27. The Bill adds standard Sunset language authorizing the Board
to use a full range of penalties for violations of state laws or agency
rules and requires the Board to adopt written guidelines for probation in
rule. It authorizes the Board to order restitution as part of an
agreement resulting from an informal settlement conference and specifies
that the amount of restitution may not exceed the amount the consumer paid
to the licensee and that the Board may not require payment of other
damages or estimate harm. The Bill requires Board members to rescue
themselves from voting on disciplinary actions in cases in which they
participated in investigations or informal hearings.
SECTION 28. The Bill requires the Board to adopt the rules by September
1, 2005.
SECTION 29. This Act takes effect September 1, 2003.
EFFECTIVE DATE
September 1, 2003
EXPLANATION OF AMENDMENTS
Amendment #1 amends Sections 1001.057, 1001.058, 1001.301, and 1001.406,
Occupations Code, to clarify the existing exemption for private
corporations and their full-time employees from engineering licensing
requirements for purposes of modifying existing structures that are not
accessible to the public, and for activities related to services or
products manufactured by the corporation. It does not prohibit a
professional engineer working for a private manufacturer from requiring
the manufacturer to have plans sealed by a professional engineer. The
board may require a professional engineer to design and seal certain
products delivered to or used by the public. Fulltime employees of an
exempt corporation may call themselves "engineer" on cards and
correspondence if they do not perform engineering services to the public
or imply that they can make engineering judgments requiring a professional
engineer license. Graduate engineers with a degree from an accredited
engineering program may work under the supervision of a professional
engineer in a firm registered by the board and call themselves "engineer"
on stationery, cards, or in personal communications.
Amendment #2 adds Section 1001.065, Occupations Code, to prohibit a state
agency or political subdivision from requiring a person who is exempt from
the engineering licensing requirements to employ, pay for the services of
a licensed engineer; or to obtain the seal of a licensed professional
engineer on plans, designs, specifications, reports, or inspections.