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78R5822 YDB-F
By: Pitts H.B. No. 2069
A BILL TO BE ENTITLED
AN ACT
relating to licensing of auctioneers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1802.001, Occupations Code, is amended
by adding Subdivision (8-a) to read as follows:
(8-a) "Executive director" means the executive
director of the department.
SECTION 2. Section 1802.002, Occupations Code, is amended
to read as follows:
Sec. 1802.002. APPLICABILITY. This chapter does not apply
to:
(1) a sale conducted by order of a United States court
under Title 11, United States Code;
(2) a sale conducted by an employee of the United
States, this state, or a political subdivision of this state in the
course and scope of employment;
(3) a sale conducted by a charitable or nonprofit
organization, if the auctioneer receives no compensation;
(4) a sale conducted by an individual of the
individual's property if the individual is not engaged in the
business of selling property as an auctioneer on a recurring basis;
(5) a foreclosure sale of real property personally
conducted by a trustee under a deed of trust;
(6) a foreclosure sale of personal property personally
conducted by:
(A) a person who holds a security interest in the
property, including a mortgage; or
(B) an employee or agent of a person described by
Paragraph (A) acting in the course and scope of employment, if:
(i) the employee or agent is not otherwise
engaged in the auction business; and
(ii) all property for sale in the auction is
subject to a security agreement;
(7) a sale conducted by sealed bid;
(8) an auction conducted only for student training
purposes as part of a course of study approved by the executive
director [commissioner] for auctioneers;
(9) an auction conducted by a posted stockyard or
market agency as defined by the federal Packers and Stockyards Act
(7 U.S.C. Section 181 et seq.), as amended;
(10) an auction of livestock conducted by a nonprofit
livestock trade association chartered in this state, if the auction
involves only the sale of livestock owned by members of the trade
association; or
(11) an auction conducted by a charitable or nonprofit
organization chartered in this state, if the auction:
(A) is part of a fair that is organized under
state, county, or municipal authority; and
(B) involves only the sale of property owned by
the organization's members.
SECTION 3. Section 1802.051, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) A person may not act as an auctioneer or associate
auctioneer in an auction held in this state or advertise or
otherwise hold the person out to the public as an auctioneer unless
the person is an individual who holds a license issued by the
executive director [commissioner] under this chapter.
(d) An auction company shall include the name and license
number of each auctioneer who will act as a bid caller in an auction
conducted by the company in all advertising and printed materials
prepared for distribution to the public.
SECTION 4. Section 1802.052, Occupations Code, is amended
to read as follows:
Sec. 1802.052. ELIGIBILITY FOR AUCTIONEER'S LICENSE. An
individual is eligible for an auctioneer's license if the
individual:
(1) is at least 18 years of age;
(2) is a citizen of the United States or a legal alien;
and
(3) either:
(A) passes a written or oral examination
demonstrating knowledge of the auction business and of the laws of
this state relating to the auction business; or
(B) shows proof of employment as an associate
auctioneer with [by] a licensed auctioneer for at least one year
during which the applicant participated in at least five auctions.
SECTION 5. Section 1802.054, Occupations Code, is amended
to read as follows:
Sec. 1802.054. APPLICATION FOR LICENSE. An applicant for a
license must apply to the executive director [commissioner] on a
form provided by the executive director [commissioner] that
establishes the applicant's eligibility for the license. The
application must be accompanied by:
(1) [the required bond;
[(2)] the required license fees [fee]; and
(2) [(3)] either:
(A) the permit number of a sales tax permit
issued to the applicant by the comptroller under Subchapter F,
Chapter 151, Tax Code; or
(B) proof of exemption from the tax permit
requirement under Chapter 151, Tax Code.
SECTION 6. Section 1802.056, Occupations Code, is amended
by amending Subsections (b) and (c) and adding Subsection (d) to
read as follows:
(b) The license examination shall be offered at least four
times each year at locations designated by the executive director
[commissioner].
(c) The executive director [commissioner] shall prepare[:
[(1)] examinations for an auctioneer's license[; and
[(2) study and reference materials on which the
examinations are based].
(d) The applicant may take the examination at any scheduled
offering not later than the 90th day after the date the application
is approved.
SECTION 7. Sections 1802.057 and 1802.058, Occupations
Code, are amended to read as follows:
Sec. 1802.057. EXAMINATION RESULTS. (a) The executive
director [commissioner] shall notify each examinee of the results
of the examination not later than the 30th day after the date of the
examination. However, if an examination is graded or reviewed by a
national testing service, the executive director [commissioner]
shall notify each examinee of the results of the examination not
later than the 14th day after the date the executive director
[commissioner] receives the results from the testing service.
(b) If the notification of results of an examination graded
or reviewed by a national testing service will be delayed longer
than 90 days after the examination date, the executive director
[commissioner] shall notify each examinee of the reason for the
delay before the 90th day.
(c) If requested in writing by a person who fails the
examination, the executive director [commissioner] shall provide
to the person an analysis of the person's performance on the
examination.
Sec. 1802.058. REEXAMINATION. An applicant who fails the
license examination may retake [reapply to take] the examination.
[If the applicant fails the examination twice during a one-year
period, the applicant may not reapply for one year.]
SECTION 8. Sections 1802.059(a), (b), and (d), Occupations
Code, are amended to read as follows:
(a) An applicant for an auctioneer's license who is not a
resident of this state but is licensed as an auctioneer in another
state must submit to the executive director [commissioner]:
(1) a license application;
(2) a certified copy of the auctioneer's license
issued to the applicant by the state or political subdivision in
which the applicant resides; and
(3) proof that the state or political subdivision in
which the applicant is licensed has competency standards equivalent
to or stricter than those of this state.
(b) The executive director [commissioner] shall accept the
applicant's auctioneer's license submitted under Subsection (a)(2)
as proof of the applicant's professional competence and waive the
eligibility [examination and training] requirements of Section
1802.052(3) [1802.052] if the state or political subdivision that
issued the nonresident a license extends similar recognition and
courtesies to this state.
(d) A nonresident applicant must submit with the
application a written irrevocable consent to service of process.
The consent must be in the form and supported by additional
information that the executive director [commissioner] by rule
requires. The consent must:
(1) provide that an action relating to any transaction
subject to this chapter may be commenced against the license holder
in the proper court of any county of this state in which the cause of
action may arise or in which the plaintiff may reside by service of
process on the executive director [commissioner] as the license
holder's agent; and
(2) include a statement stipulating and agreeing that
service provided by this section is as valid and binding as if
service had been made on the person according to the laws of this or
any other state.
SECTION 9. Sections 1802.061 and 1802.101, Occupations
Code, are amended to read as follows:
Sec. 1802.061. CONTINUING EDUCATION. The executive
director [commissioner] may recognize, prepare, or administer
continuing education programs for license holders. Participation
in the programs is voluntary.
Sec. 1802.101. AUCTIONEER EDUCATION ADVISORY BOARD. The
advisory board shall advise the executive director [commissioner]
on educational matters.
SECTION 10. Sections 1802.102(a) and (b), Occupations Code,
are amended to read as follows:
(a) The advisory board consists of five members appointed as
follows:
(1) three members who are licensed auctioneers
appointed by the executive director [commissioner];
(2) the executive director of the Texas Department of
Economic Development or the director's designee; and
(3) the commissioner of education or the
commissioner's designee.
(b) In appointing advisory board members under Subsection
(a)(1), the executive director [commissioner] may not appoint
members who reside in contiguous senatorial districts.
SECTION 11. Section 1802.103(a), Occupations Code, is
amended to read as follows:
(a) The members appointed under Section 1802.102(a)(1)
serve two-year terms that expire on September 1. If a vacancy
occurs during the term of such a member, the executive director
[commissioner] shall appoint a replacement to serve for the
remainder of the term.
SECTION 12. Section 1802.107(a), Occupations Code, is
amended to read as follows:
(a) The advisory board shall meet at least once [quarterly]
each calendar year.
SECTION 13. Section 1802.109, Occupations Code, is amended
to read as follows:
Sec. 1802.109. AUCTIONEER EDUCATION PROGRAMS. (a) The
advisory board shall:
(1) evaluate educational programs, seminars, and
training projects; and
(2) make recommendations to the executive director
[commissioner] on their usefulness and merit as continuing
education tools.
(b) On the recommendation of the advisory board, the
executive director [commissioner] may fund or underwrite specific
classes, seminars, or events for the education and advancement of
the auctioneering profession in this state.
SECTION 14. Section 1802.152(a), Occupations Code, is
amended to read as follows:
(a) The department is the manager of the fund and shall:
(1) administer the fund without appropriation;
(2) maintain books and records as required by the
executive director [commissioner];
(3) appear at hearings or judicial proceedings; and
(4) invest and reinvest the fund's assets as
instructed by the executive director [commissioner].
SECTION 15. The heading to Section 1802.153, Occupations
Code, is amended to read as follows:
Sec. 1802.153. [ADDITIONAL] FEES FOR AUCTIONEER EDUCATION
AND RECOVERY FUND.
SECTION 16. Section 1802.153(a), Occupations Code, is
amended to read as follows:
(a) In addition to any other fees required by this chapter,
at the time an initial license is issued, the [an applicant entitled
to receive a] license holder shall [under this chapter must] pay a
fee of $100 for the auctioneer education and recovery fund [before
the commissioner issues the license].
SECTION 17. Section 1802.155(b), Occupations Code, is
amended to read as follows:
(b) If the fund contains insufficient assets to pay the
consumer:
(1) the department shall record the time and date an
order for payment to a consumer was received; and
(2) the executive director [commissioner] shall pay
consumers for whom an order is recorded under Subdivision (1) as
funds become available in the order of the recorded time and date of
the order.
SECTION 18. Sections 1802.156 and 1802.201, Occupations
Code, are amended to read as follows:
Sec. 1802.156. EDUCATION EXPENDITURES PERMITTED. The
executive director [commissioner] may use amounts in excess of
$250,000 in the fund to:
(1) advance education and research in the
auctioneering profession for the benefit of license holders and to
improve and increase the efficiency of the industry;
(2) underwrite educational seminars, training
centers, and other educational projects for the use and benefit of
license holders;
(3) sponsor, contract, and underwrite other
educational and research projects that advance the auctioneering
profession in this state; and
(4) cooperate with associations of auctioneers and
other groups for the education and advancement of the auctioneering
profession in this state.
Sec. 1802.201. INVESTIGATION OF COMPLAINTS. The executive
director [commissioner] may, on the executive director's
[commissioner's] motion, and shall, on the written and verified
complaint of a person aggrieved by the actions of an auctioneer in
an auction, investigate an alleged violation of this chapter by a
licensed or unlicensed auctioneer or an applicant.
SECTION 19. Sections 1802.202(a) and (b), Occupations Code,
are amended to read as follows:
(a) A person who deals with an auctioneer licensed under
this chapter and who is aggrieved by an action of the auctioneer as
a result of a violation of a contract made with the auctioneer may
initiate a claim against the fund by[:
[(1)] filing with the department a [sworn] complaint
against the auctioneer[; and
[(2) paying to the department a filing fee of $50].
(b) The executive director [commissioner] may not pay a
claim against an auctioneer who was not licensed at the time of the
transaction on which the claim is based.
SECTION 20. Section 1802.203(c), Occupations Code, is
amended to read as follows:
(c) After the hearing, the hearings examiner shall prepare a
proposal for decision for the executive director [commissioner].
SECTION 21. Section 1802.204, Occupations Code, is amended
to read as follows:
Sec. 1802.204. APPEAL. A party may appeal a decision of the
executive director [commissioner] in the manner provided for a
contested case under Chapter 2001, Government Code.
SECTION 22. Sections 1802.205(a) and (b), Occupations Code,
are amended to read as follows:
(a) If the department's determination under Section
1802.202 is not disputed by the auctioneer or the aggrieved party,
the executive director [commissioner] shall pay the claim from the
fund, subject to Section 1802.206.
(b) If a hearing is held on the department's determination,
the executive director [commissioner] shall pay to the aggrieved
party the amount of actual damages determined by the executive
director [commissioner].
SECTION 23. Section 1802.206(a), Occupations Code, is
amended to read as follows:
(a) The executive director [commissioner] may not pay a
single aggrieved party more than $10,000.
SECTION 24. Sections 1802.207 and 1802.208, Occupations
Code, are amended to read as follows:
Sec. 1802.207. REIMBURSEMENT; INTEREST. (a) If the
executive director [commissioner] pays a claim against an
auctioneer, the auctioneer shall:
(1) reimburse the fund immediately or agree in writing
to reimburse the fund on a schedule to be determined by rule of the
executive director [commissioner]; and
(2) immediately pay the aggrieved party any amount due
to that party or agree in writing to pay the party on a schedule to
be determined by rule of the executive director [commissioner].
(b) Payments made by an auctioneer to the fund or to an
aggrieved party under this section include interest accruing at the
rate of eight percent a year beginning on the date the executive
director [commissioner] pays the claim.
Sec. 1802.208. SUBROGATION. If the executive director
[commissioner] pays a claim against an auctioneer, the department
is subrogated to all rights of the aggrieved party against the
auctioneer to the extent of the amount paid to the aggrieved party.
SECTION 25. Section 1802.209(a), Occupations Code, is
amended to read as follows:
(a) This subchapter and Section 1802.252 do not limit the
executive director's [commissioner's] authority to take
disciplinary action against a license holder for a violation of
this chapter or a rule adopted under this chapter.
SECTION 26. Sections 1802.251 and 1802.252, Occupations
Code, are amended to read as follows:
Sec. 1802.251. DENIAL OF APPLICATION; REPRIMAND OR
SUSPENSION OR REVOCATION OF LICENSE. The executive director
[commissioner] may deny an application for a license, issue a
reprimand, or suspend or revoke the license of any auctioneer for:
(1) violating this chapter or a rule adopted under
this chapter or Chapter 51;
(2) obtaining or attempting to obtain a license
through false or fraudulent representation;
(3) making a substantial misrepresentation in an
application for an auctioneer's license;
(4) engaging in a continued and flagrant course of
misrepresentation or making false promises through an agent,
advertising, or otherwise;
(5) failing to account for or remit, within a
reasonable time, money belonging to another that is in the
auctioneer's possession and commingling funds of another with the
auctioneer's funds or failing to keep the funds of another in an
escrow or trust account;
(6) being convicted in a court of this state or another
state of a criminal offense involving moral turpitude or a felony;
or
(7) violating the Business & Commerce Code in
conducting an auction.
Sec. 1802.252. SUSPENSION OR REVOCATION FOR CLAIM ON
FUND. (a) The executive director [commissioner] may suspend or
revoke a license issued under this chapter if the executive
director [commissioner] makes a payment from the fund as the result
of an action of the license holder.
(b) The executive director [commissioner] may probate an
order suspending [revoking] a license.
(c) An auctioneer is not eligible for a new license until
the auctioneer has repaid in full the amount paid from the fund on
the auctioneer's account, including interest, unless:
(1) a hearing is held; and
(2) the executive director [commissioner] issues a new
probated license.
SECTION 27. Section 1802.253, Occupations Code, is amended
to read as follows:
Sec. 1802.253. NOTICE AND HEARING. (a) Before denying an
application for a license, issuing a reprimand, or suspending or
revoking a license for a violation of this chapter or a rule adopted
under this chapter or Chapter 51, the executive director
[commissioner] shall:
(1) notify the applicant or license holder of the
alleged violation [set the matter for a hearing]; and
(2) provide the applicant or license holder with an
opportunity for a hearing under Chapter 2001, Government Code
[before the 30th day before the hearing date, notify the applicant
or license holder in writing of:
[(A) the charges alleged or the question to be
determined at the hearing; and
[(B) the date and location of the hearing].
(b) [At a hearing under this section, the applicant or
license holder may:
[(1) be present and be heard in person or by counsel;
and
[(2) have an opportunity to offer evidence by oral
testimony, affidavit, or deposition.
[(c) Written notice may be served by personal delivery to
the applicant or license holder or by certified mail to the last
known mailing address of the applicant or license holder.
[(d)] If the applicant or license holder who is the subject
of the hearing is an associate auctioneer, the executive director
[commissioner] shall provide written notice to the auctioneer who
employs the associate auctioneer or who has agreed to employ the
associate auctioneer by mailing the notice by certified mail to the
auctioneer's last known mailing address.
SECTION 28. Subchapter F, Chapter 1802, Occupations Code,
is amended by adding Section 1802.2535 to read as follows:
Sec. 1802.2535. ADMINISTRATIVE PENALTY. In addition to
any other penalty assessed under this chapter, the executive
director or commission may assess an administrative penalty as
provided by Subchapter F, Chapter 51, for a violation of this
chapter or a rule adopted by the department under this chapter or
Chapter 51.
SECTION 29. Section 1802.254, Occupations Code, is amended
to read as follows:
Sec. 1802.254. APPEAL. (a) A person aggrieved by a
ruling, order, decision, or other action of the commission,
executive director, or department may appeal by filing a petition
in [An appeal by an applicant or license holder of the
commissioner's determination under Section 1802.252 must be to] a
district court of Travis County [or of the county in which the
violation is alleged to have occurred].
(b) An appeal under this chapter is governed by Subchapter
G, Chapter 2001, Government Code.
SECTION 30. Section 1802.303(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person violates a
provision of this chapter or a rule adopted by the executive
director [commissioner] under this chapter for which a penalty is
not provided.
SECTION 31. Chapter 1802, Occupations Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1802.401. CIVIL PENALTY. A person who violates this
chapter or a rule adopted under this chapter or Chapter 51 is
subject to a civil penalty of up to $1,000 for each day of
noncompliance or each act of noncompliance as determined by the
court.
Sec. 1802.402. CEASE AND DESIST ORDERS. The executive
director may issue a cease and desist order to any person who is
acting as an auctioneer without an auctioneer's license.
Sec. 1802.403. INJUNCTION AND OTHER ENFORCEMENT
PROVISIONS. (a) The executive director may bring an action in a
district court of Travis County to enjoin a person from violating
this chapter.
(b) The executive director may enforce by injunction or
other appropriate remedy in court any rule, decision,
determination, or order adopted or entered under this chapter or
Chapter 51.
Sec. 1802.404. ACTION BY ATTORNEY GENERAL. At the request
of the executive director, the attorney general shall bring an
action in the name of the state for injunctive relief, to recover a
civil penalty, or for both injunctive relief and a civil penalty, as
authorized by this subchapter or Chapter 51.
SECTION 32. Sections 1802.001(7) and 1802.055, Occupations
Code, are repealed.
SECTION 33. This Act takes effect September 1, 2003, and
applies only to a violation committed on or after the effective date
of this Act. A violation committed before the effective date of
this Act is covered by the law in effect when the violation was
committed and the former law is continued in effect for that
purpose.