S.B. 277 78(R)    BILL ANALYSIS


S.B. 277
By: Ellis, Rodney
Licensing & Administrative Procedures
Committee Report (Unamended)



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. 
S.B. 277 continues TBPE for the standard 12-year period and strengthens
the enforcement process to enhance public protection.  


RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Texas Board of Professional
Engineers is modified in SECTION 11 (Section 1001.203, Occupations Code),
and granted in SECTION 2 (Section 1001.057, Occupations Code), SECTION 12
(Section 1001.2035, Occupations Code), SECTION 17 (Section 1001.252,
Occupations Code), SECTION 21 (Section 1001.304, Occupations Code),
SECTION 26 (Section 1001.405, Occupations Code), and SECTION 28 (Section
1001.4525, Occupations Code) of this bill.  


ANALYSIS

Amends Sections 1001.005 and 1001.051, Occupations Code, as follows: Sec.
1001.005. Continues the Texas Board of Professional Engineers (TBPE) for
the standard 12-year period until September 1, 2015. Sec. 1001.051.
Provides that an exemption under this subchapter applies only to a person
who does not offer, rather than one who is not directly or indirectly
represented, to the public to perform, rather than being legally qualified
to engage in the practice of, engineering services. 
Amends Section 1001.057, Occupations Code, as follows: Sec. 1001.057.
EMPLOYEE OF PRIVATE CORPORATION OR BUSINESS ENTITY. (a) Requires the Act
to not be construed to apply to the activities of a private corporation or
other business entity, or the activities of the full-time employees or
other personnel under the direct supervision and control of the business
entity, on or in connection with certain conditions. (b) Prohibits a
person who claims an exemption under this section and who is determined to
have directly or indirectly represented the person as legally qualified to
engage in the practice of engineering or who is determined to have
violated Section 1001.301 from claiming an exemption until the 10th
anniversary of the date the person made that representation. (c) Provides
that this exemption does not prohibit certain actions from occurring by
either a licensed professional engineer or TBPE. The measure also  adds
"specifications" to clarify that a licensed engineer working with
manufactured products on public or other's property would not be
prohibited from requiring the manufacturer to have plans or specifications
signed and sealed by a professional engineer. (d) Redefines "products
manufactured by the entity" for the purposes of this section.  
Amends Sections 1001.058 (b) and (c), to make a conforming change.
Amends Section 1001.101(b), Occupations Code, to update standard Sunset
language requiring appointments to TBPE to be nondiscriminatory. 
Amends Section 1001.102(a), Occupations Code, to update standard Sunset
language prohibiting certain persons from membership on TBPE. SECTION 6.
Amends Section 1001.103, Occupations Code, to update standard Sunset
language relating to membership and employee restrictions. 
Amends Section 1001.106, Occupations Code, by amending Subsection (a) and
adding Subsection (c), to update standard Sunset language relating to
grounds for removal of a TBPE member. 
Amends Section 1001.108, Occupations Code, to require the governor to
designate a member of TBPE as the presiding officer of TBPE to serve in
that capacity at the will of the governor. Deletes a reference to
"presiding officer" from text.  
Amends Chapter 1001C, Occupations Code, by adding Section 1001.112, as
follows: Sec. 1001.112. TRAINING. Applies standard Sunset language
relating to training of TBPE members.  
Amends Chapter 1001D, Occupations Code, by adding Sections
1001.1531001.156, as follows: Sec. 1001.153. DIVISION OF RESPONSIBILITIES.
Applies standard Sunset language to require TBPE to develop policies that
clearly separate the policy-making responsibilities of TBPE members and
management responsibilities of TBPE staff. Sec. 1001.154. QUALIFICATIONS
AND STANDARDS OF CONDUCT INFORMATION. Updates standard Sunset language
requiring information on standards of conduct to be provided to members of
TBPE and TBPE staff. Sec. 1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT. Applies standard Sunset language requiring the executive director
to develop an equal employment opportunity program. Sec. 1001.156.
INFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. Applies standard Sunset
language requiring training on participation in the state employee
incentive program.  
Amends Section 1001.203, Occupations Code, as follows: (a) Requires TBPE
by rule to prescribe standards for compliance with Chapter 2254A,
Government Code. (b) Provides that except as provided by Subsection (a),
TBPE may not adopt rules restricting advertising or competitive bidding by
a license holder except to prohibit false, misleading, or deceptive
practices. (c) Provides that in its rules to prohibit false, misleading,
or deceptive practices, TBPE may not include certain rules.  
Amends Chapter 1001E, Occupations Code, by adding Section 1001.2035, as
follows: Sec. 1001.2035. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
Requires TBPE to adopt rules and guidelines as necessary to comply with
Chapter 53.  
Amends Section 1001.204(a), Occupations Code, to require TBPE to establish
certain fees in amounts reasonable and necessary to cover the costs of
administering this chapter.  
Amends  Section 1001.210, Occupations Code, to update standard Sunset
language requiring the Board to develop continuing education programs for
licensees. Prohibits the Board from requiring a licensee to complete more
than 15 hours of CE annually. Requires the Board to allow a license holder
to certify that the license holder has complied with continuing education
requirements at the time the license holder renews the license. Specifies
the types of continuing education activities that the Board must accept.
Limits the number of credit hours a license holder may receive for
self-directed study to five credit hours annually. 
Amends Chapter 1001E, Occupations Code, by adding Sections
1001.2141001.216, as follows: Sec. 1001.214. TECHNOLOGY POLICY. Applies
standard Sunset language requiring TBPE to develop and implement a
technology policy. Sec. 1001.215. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. Applies standard Sunset language requiring TBPE
to develop and implement a policy to encourage the use of negotiated
rulemaking and alternative dispute resolution procedures. Sec. 1001.216.
JOINT ADVISORY  COMMITTEE ON THE PRACTICE OF ENGINEERING AND ARCHITECTURE.
(a) Provides that the Joint Advisory Committee on the Practice of
Engineering and Architecture is an advisory committee to TBPE and to the
Texas Board of Architectural Examiners (TBAE). Provides that the advisory
committee consists of certain individuals. (b) Provides that members of
the advisory committee serve staggered six-year terms with the terms of
one member appointed by TBPE and one member appointed by TBAE expiring
each odd-numbered year. (c) Requires the advisory committee to meet at
least twice a year. (d) Requires the advisory committee to work to resolve
issues that result from the overlap between activities that constitute the
practice of engineering and those that constitute the practice of
architecture. Requires the advisory committee to assist each agency in
protecting the public rather than advancing the interests of either agency
or the profession it regulates. (e) Requires the advisory committee to
issue advisory opinions to TBPE and to TBAA on matters relating to the
practice of engineering and the practice of architecture, including
certain factors. (f) Requires an agency, if the advisory committee issues
an advisory opinion to TBPE or TBAE on a matter, to notify the committee
of the final action taken with regard to the matter. Requires the advisory
committee to consider the action taken by the agency on the matter in any
advisory opinion subsequently issued by the committee on a related matter.
(g) Requires TBPE and TBAE to enter into a memorandum of understanding
regarding the advisory committee that includes the composition and purpose
of the committee.  
Amends Section 1001.251, Occupations Code, by adding Subsection (c), to
require TBPE to maintain on TBPE's Internet website certain information.  
Amends Sections 1001.252 and 1001.253, Occupations Code, as follows: Sec.
1001.252. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION.
Updates standard Sunset language regarding complaints and disposition.
Sec. 1001. 253. COMPLAINT INFORMATION. Updates standard Sunset language
requiring information to be maintained on complaints.  
Amends Chapter 1001F, Occupations Code, by adding Sections 1001.254 and
1001.255, as follows: Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS.
(a) Requires TBPE to develop and maintain a complaint tracking system to
monitor the processing of complaints filed with TBPE. (b) Requires TBPE to
include with TBPE's annual financial report under Section 2101.011,
Government Code, a statistical analysis of the complaints filed with TBPE
during the preceding year, including certain information. Sec. 1001.255.
PUBLIC PARTICIPATION. Applies standard Sunset language providing for
public testimony meetings of the policymaking body. 
Amends Section 1001.301, Occupations Code, by amending Subsections (b) and
(c) and adding Subsection (f), as follows: (b) Makes a conforming change.
(c) Makes a conforming change. (f) Provides that notwithstanding the other
provisions of this chapter, a regular employee of a business entity who is
engaged in engineering activities but is exempt from the licensing
requirements of this chapter under Sections 1001.057 or 1001.058 is not
prohibited from using the term "engineer" on a business card, cover
letter, or other form of correspondence that is made available to the
public if the person does not perform certain actions. Provides that this
subsection does not authorize a person to use a term listed in Subsections
(b)(2)-(6) or a variation or abbreviation of one of those terms.  
Amends Section 1001.303, Occupations Code, to update standard Sunset
language relating to an application for licensure. 
Amends Section 1001.304, Occupations Code, by adding Subsection (d), as
follows: (d) Requires TBPE by rule to ensure that the examination is
administered to applicants with disabilities in compliance with the
Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.),
and its subsequent amendments.  
Amends Sections 1001.306, 1001.310, and 1001.311, Occupations Code, to
update standard Sunset language requiring notice regarding examination
results to persons seeking TBPE licensure. Sec. 1001.310. Updates standard
Sunset language regarding temporary or provisional licensure. Sec.
1001.311. Updates standard Sunset language regarding the application of a
nonresident for licensure. 
Amends Section 1001.351(b), Occupations Code, to require TBPE, for the
year in which the license or registration expiration date is changed, to
prorate license or registration fees on a monthly basis so that each
license or registration holder pays only that portion of the license or
registration fee that is allocable to the number of months during which
the license or registration is valid. Provides that on renewal of the
license or registration on the new expiration date, the total license or
registration renewal fee is payable.  
Amends Sections 1001.352 and 1001.353, Occupations Code, to update
standard Sunset language regarding the notice of license expiration and
the procedure for renewal. 
Amends Chapter 1001H, Occupations Code, by adding Section 1001.354, as
follows: Sec. 1001.354. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER. (a) Authorizes a person who was licensed in this state,
moved to another state, and is currently licensed and has been in practice
in the other state for the two years preceding the date of application to
obtain a new license without reexamination. (b) Requires the person to pay
to TBPE a fee that is equal to two times the normally required renewal fee
for the license.  
Amends Section 1001.405, Occupations Code, by adding Subsection (g), to
authorize TBPE by rule, notwithstanding the other provisions of this
section, to provide that a business entity that has not previously
registered with TBPE and that is engaged in the practice of engineering in
violation of Subsection (b) is not subject to disciplinary action for the
violation if the business entity registers with TBPE not later than the
30th day after the date TBPE gives written notice to the business entity
of the registration requirement. Provides that this subsection does not
apply to a business entity whose registration has expired.  
Amends Section 1001.406, Occupations Code, as follows: Sec. 1001.406.
GRADUATE ENGINEERS. (a) Provides certain rights for a graduate of a
university with certain credentials and qualifications. (b) Authorizes a
graduate engineer who is employed in a firm registered under this Act and
who is working under the direct supervision of a licensed professional
engineer to use the term "engineer" on the person's stationery or business
cards or in personal communications of any character.  
Amends Chapter 1001J, Occupations Code, by adding Sections
1001.45251001.4527, as follows: Sec. 1001.4525. PROBATION. (a) Authorizes
TBPE, if a person's license suspension is probated, to require the person
to perform certain tasks. (b) Requires TBPE by rule to adopt written
guidelines to ensure that probation is administered consistently. Sec.
1001.4526. RESTITUTION. (a) Authorizes TBPE, subject to Subsection (b), to
order a person licensed or registered under this chapter to pay
restitution to a consumer as provided in an agreement resulting from an
informal settlement conference instead of or in addition to imposing an
administrative penalty under this chapter. (b) Provides that the amount of
restitution ordered as provided in an agreement resulting from an informal
settlement conference may not exceed the amount the consumer paid to the
person for a service regulated by this chapter. Provides that the board
may not require payment of other damages or estimate harm in a restitution
order. Sec. 1001.4527. RECUSAL OF BOARD MEMBER. (a) Provides that a TBPE
member who participated in the investigation of a complaint or in informal
settlement negotiations regarding the complaint: (1) may not participate
in the discussion of or vote on the matter at a board meeting related to
the complaint; and (2) must state at the meeting why the member is
prohibited from participating in the discussion of or voting on the
matter. (b) Requires a statement under Subsection (a)(2) to be entered
into the minutes of the meeting.  
Requires TBPE, not later than January 1, 2004, to adopt the rules required
by Section 1001.2035, Occupations Code, as added by this Act. Requires
TBPE, not later than September 1, 2005, to adopt the written guidelines
required by Section 1001.4525, Occupations Code, as added by this Act.  

EFFECTIVE DATE

September 1, 2003. Provides that the changes in law made by Sections
1001.102 and 1001.103, Occupations Code, as amended by this Act, and
Section 1001.112, Occupations Code, as added by this Act, in the
prohibitions on or qualifications of members of the Texas Board of
Professional Engineers do not affect the entitlement of a member serving
on the Texas Board of Professional Engineers immediately before September
1, 2003, to continue to serve and function as a member of the Texas Board
of Professional Engineers for the remainder of the member's term. Provides
that those changes in law apply only to a member appointed on or after
September 1, 2003.