78R1168 MXM-F
By: Naishtat H.B. No. 329
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of mold assessors and remediators;
providing civil and administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 12, Occupations Code, is
amended by adding Chapter 1958 to read as follows:
CHAPTER 1958. MOLD ASSESSORS AND REMEDIATORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1958.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commissioner" means the commissioner of public
health.
(3) "Department" means the Texas Department of Health.
(4) "License" means a license issued under this
chapter.
(5) "Mold" means any living or dead fungi or related
products or parts, including spores, hyphae, and mycotoxins.
(6) "Mold assessment" means:
(A) the performance of a mold assessment,
investigation, or survey;
(B) the development of a mold management plan or
response action; or
(C) the collection or analysis of a mold sample.
(7) "Mold remediation" means the removal or other
treatment, including preventive activities, of mold or
mold-contaminated matter that was not purposely grown at that
location.
Sec. 1958.002. SCOPE OF AUTHORITY. (a) This chapter
applies only to the regulation of mold-related activities that
affect indoor air quality.
(b) This chapter does not apply to routine cleaning when not
conducted for the purpose of mold remediation.
[Sections 1958.003-1958.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES
Sec. 1958.051. GENERAL POWERS AND DUTIES OF DEPARTMENT;
SCOPE OF AUTHORITY. The department shall administer this chapter
to protect the public from the adverse health effects of mold.
Sec. 1958.052. EDUCATION PROGRAM. (a) The department
shall conduct a statewide education and outreach program regarding
the health implications of mold growth in indoor environments. The
program must include methods to recognize, prevent, and mitigate
mold occurrence.
(b) The department may contract with governmental entities
or other persons to provide the program.
Sec. 1958.053. GENERAL RULEMAKING AUTHORITY. The board
shall adopt substantive and procedural rules as necessary or
desirable for the board, department, and commissioner to discharge
their powers and duties under this chapter.
Sec. 1958.054. RULES REGARDING PERFORMANCE STANDARDS AND
WORK PRACTICES. The board by rule shall establish minimum
performance standards and work practices for conducting a mold
assessment or mold remediation in this state.
Sec. 1958.055. FEES. The board shall establish reasonable
and necessary fees to administer this chapter, including fees for
licenses and examinations. The board shall set the fees in an
amount sufficient to recover the costs of administering this
chapter.
Sec. 1958.056. INSPECTIONS. (a) The department shall
conduct inspections as necessary to ensure compliance with this
chapter.
(b) The board shall adopt rules regarding compliance
investigations.
Sec. 1958.057. COMPLAINTS. The department shall
investigate any complaint regarding mold-related activities.
[Sections 1958.058-1958.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 1958.101. LICENSE REQUIRED; RULES. (a) A person may
not engage in:
(1) mold assessment unless the person holds a mold
assessment license; or
(2) mold remediation unless the person holds a mold
remediation license.
(b) The board shall adopt rules regarding:
(1) the scope of mold-related work for which a license
is required, including the supervision of employees or other
persons by license holders; and
(2) renewal requirements for a license issued under
this chapter.
Sec. 1958.102. EXEMPTIONS. (a) A residential property
owner is not required to be licensed under this chapter to perform
mold assessment or mold remediation on the owner's property.
(b) A residential tenant is not required to be licensed
under this chapter to perform mold assessment or mold remediation
on the residential property rented by the tenant.
(c) A nonresidential property owner, or the employee of that
owner, is not required to be licensed under this chapter to perform
mold assessment or mold remediation on an apartment building owned
by that person that has not more than four dwelling units. The
individual performing the work must complete at least two hours of
continuing education per year regarding mold.
Sec. 1958.103. RULES REGARDING LICENSE APPLICATION. The
board shall adopt rules regarding a license application. The board
shall adopt rules that establish minimum requirements for a
license, including the type, term, qualifications, renewal, and
liability insurance requirements for the license.
Sec. 1958.104. EXAMINATION. The department may require
that an applicant for a license pass a competency examination to
qualify for the license.
Sec. 1958.105. CONTINUING EDUCATION. (a) The board shall
adopt rules regarding continuing education required under this
chapter.
(b) The rules may include requirements regarding continuing
education providers, including rules establishing:
(1) accreditation by the department;
(2) curriculum and training requirements; and
(3) qualifications.
Sec. 1958.106. RECIPROCITY. The board may adopt rules that
facilitate reciprocity and communication with other states that
have a similar licensing program.
[Sections 1958.107-1958.150 reserved for expansion]
SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
Sec. 1958.151. NOTICE OF MOLD REMEDIATION. (a) Not later
than the 10th day before the date on which a license holder starts
mold remediation at a property, the license holder shall notify the
department about the project.
(b) Not later than the 10th day after the date on which a
license holder completes mold remediation at a property, the
license holder shall notify the department that the project has
been completed.
(c) Except for an emergency, notice to the department under
this section must be in writing.
(d) The board shall adopt rules to implement this section,
including rules:
(1) describing the information that must be provided
in the notice; and
(2) authorizing oral notification to the department in
an emergency.
Sec. 1958.152. CONFLICT OF INTEREST. A license holder may
not perform both mold assessment and mold remediation at a
property.
[Sections 1958.153-1958.200 reserved for expansion]
SUBCHAPTER E. DISCIPLINARY PROCEDURES
Sec. 1958.201. DISCIPLINARY ACTION. If a license holder
violates this chapter or an order or rule adopted under this
chapter, the department, after providing the person with notice and
an opportunity for a hearing, shall:
(1) revoke, suspend, or refuse to renew the license;
(2) impose an administrative penalty;
(3) bring an action to collect a civil penalty; or
(4) reprimand the person.
[Sections 1958.202-1958.250 reserved for expansion]
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 1958.251. IMPOSITION OF ADMINISTRATIVE PENALTY. The
commissioner may impose an administrative penalty on a person who
violates this chapter or a rule adopted or order issued under this
chapter.
Sec. 1958.252. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $5,000 a day for each
violation. Each day a violation continues may be considered a
separate violation for purposes of imposing a penalty.
(b) In determining the amount of the penalty, the
commissioner shall consider:
(1) the seriousness of the violation;
(2) any hazard created to the health and safety of the
public;
(3) the person's history of previous violations; and
(4) any other matter that justice may require.
Sec. 1958.253. OPPORTUNITY FOR HEARING; ORDER. (a) The
commissioner may impose an administrative penalty under this
subchapter only after the person charged with a violation is given
the opportunity for a hearing.
(b) If a hearing is held, the commissioner shall make
findings of fact and issue a written decision as to:
(1) the occurrence of the violation; and
(2) the amount of any penalty that is warranted.
(c) If the person charged with a violation fails to exercise
the opportunity for a hearing, the commissioner, after determining
that a violation occurred and the amount of the penalty that is
warranted, may impose a penalty and shall issue an order requiring
the person to pay any penalty imposed.
(d) Not later than the 30th day after the date an order is
issued after determining that a violation occurred, the
commissioner shall inform the person charged with the violation of
the amount of any penalty imposed.
(e) The commissioner may consolidate a hearing under this
section with another proceeding.
Sec. 1958.254. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the commissioner's
decision or order becomes final as provided by Section 2001.144,
Government Code, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
fact of the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(2) may stay enforcement of the penalty by:
(1) paying the penalty to the commissioner for
placement in an escrow account; or
(2) giving the commissioner a bond in a form approved
by the commissioner that:
(A) is for the amount of the penalty; and
(B) is effective until judicial review of the
commissioner's decision or order is final.
Sec. 1958.255. COLLECTION OF PENALTY. At the request of the
commissioner, the attorney general may bring a civil action to
recover an administrative penalty imposed under this subchapter.
Sec. 1958.256. JUDICIAL REVIEW. Judicial review of a
decision or order of the commissioner imposing a penalty under this
subchapter is instituted by filing a petition with a district court
in Travis County and is under the substantial evidence rule as
provided by Subchapter G, Chapter 2001, Government Code.
Sec. 1958.257. REMITTANCE OF PENALTY AND INTEREST OR
RELEASE OF BOND. If after judicial review the administrative
penalty is reduced or is not upheld by the court, the commissioner
shall:
(1) remit the appropriate amount, plus accrued
interest, to the person not later than the 30th day after the date
of the determination, if the person paid the penalty; or
(2) execute a release of the bond, if the person gave a
bond.
[Sections 1958.258-1958.300 reserved for expansion]
SUBCHAPTER G. OTHER PENALTIES; ENFORCEMENT PROVISIONS
Sec. 1958.301. CIVIL PENALTY. (a) A person who violates
this chapter or a rule adopted under this chapter is liable for a
civil penalty in an amount not to exceed $2,000 for the first
violation or $10,000 for a second or later violation.
(b) The commissioner may request the attorney general or the
district, county, or city attorney having jurisdiction to bring an
action to collect a civil penalty under this section.
Sec. 1958.302. INJUNCTIVE RELIEF. The commissioner may
request the attorney general or the district, county, or city
attorney having jurisdiction to bring an action in a district court
of Travis County for a restraining order, injunction, or other
relief the court determines is appropriate if it appears to the
department that a person is violating or has violated this chapter
or a rule adopted under this chapter.
SECTION 2. The Texas Board of Health shall adopt the rules
required by Chapter 1958, Occupations Code, as added by this Act,
not later than April 1, 2004.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2003.
(b) Section 1958.101(a), Occupations Code, and Subchapters
D, E, F, and G, Chapter 1958, Occupations Code, as added by this
Act, take effect July 1, 2004.