2003S0019-2 11/18/02
By: Fraser, Jackson S.B. No. 129
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of mold remediation and other
mold-related activities; providing civil, administrative, and
criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 12, Occupations Code, is
amending by adding Chapter 1958 to read as follows:
CHAPTER 1958. MOLD REMEDIATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1958.001. SHORT TITLE. This chapter may be cited as
the Texas Mold Remediation Licensing Act.
Sec. 1958.002. SCOPE OF CHAPTER. (a) This chapter applies
to:
(1) any mold-related activity performed by a third
party for compensation; and
(2) any mold-related activity performed in a facility
owned or leased by the state or by a county or a city.
(b) An activity described in Subsection (a) may be performed
only by a person licensed under this chapter.
Sec. 1958.003. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Certified industrial hygienist" means an
individual certified by the American Board of Industrial Hygiene as
a certified industrial hygienist and whose certification has not
expired or been suspended or revoked.
(3) "Commissioner" means the commissioner of public
health.
(4) "Department" means the Texas Department of Health.
(5) "Indoor air quality factors" means:
(A) physical parameters of an indoor air
environment, including temperature, moisture content, airflow, and
pressure;
(B) contaminants of any origin likely to produce
adverse effects in an indoor environment including gases, vapors,
aerosols, or particulates; and
(C) major influences, including contaminant
sources and their transport mechanisms, and occupant
sensitivities.
(6) "Licensee" means an individual licensed to engage
in a business or profession listed under Section 1958.101(a) or, if
the licensee is a company, the officers or partners licensed to
engage in a business or profession listed under Section 1958.101(a).
(7) "Mold" means any fungi or related products or
parts, including spores, hyphae, and mycotoxins.
(8) "Mold analysis company" means a person, other than
an individual, that performs mold and mold-related analyses for
compensation.
(9) "Mold assessment" means the performance of mold
assessments, investigations, or surveys; the development of mold
management plans or response actions; or the collection or analysis
of mold samples.
(10) "Mold assessment company" means a person, other
than an individual, that performs mold assessments for
compensation.
(11) "Mold assessment consultant" means an individual
who performs mold assessments for compensation.
(12) "Mold assessment technician" means an individual
who performs mold assessments under the supervision of a licensed
mold assessment consultant and who is an employee of a mold
assessment company or a mold assessment consultant.
(13) "Mold remediation" means the removal, cleaning,
or other treatment of mold or mold-contaminated matter, live or
dead, that was not intended to be grown, or purposely grown, at that
location.
(14) "Mold remediation company" means a person, other
than an individual, that performs mold remediation for
compensation.
(15) "Mold remediation contractor" means an
individual who performs mold remediation for compensation.
(16) "Mold remediation supervisor" means an
individual who performs mold remediation under the supervision of a
licensed mold remediation contractor and who is an employee of a
mold remediation company or a mold remediation contractor.
(17) "Mold-related activities" means the performance
of mold assessments or mold remediation or any other activities
conducted to assess or remediate mold.
SUBCHAPTER B. POWERS AND DUTIES OF THE BOARD AND THE DEPARTMENT
Sec. 1958.051. ADOPTION OF RULES; AUTHORITY TO CONTRACT.
(a) The board shall adopt substantive and procedural rules as
necessary for the board, the department, and the commissioner to
discharge their powers and duties under this chapter.
(b) The board by rule shall establish procedures to be
followed if, in the opinion of the department following a site
inspection, there is a danger or potential danger to the occupants
of a building, workers in a building or facility, or the general
public.
(c) The department may adopt rules under this chapter to
effect reciprocity agreements with other states.
(d) The department may contract with any qualified person to
perform inspections necessary to enforce the provisions of this
chapter.
Sec. 1958.052. STANDARDS FOR MOLD-RELATED ACTIVITIES. The
board by rule shall adopt minimum standards for conducting
mold-related activities.
Sec. 1958.053. MOLD REMEDIATION PROCEDURES. The board
shall adopt rules to ensure proper and adequate procedures for mold
remediation, including rules specifying:
(1) any additional procedures beyond those required
under Section 1958.257 that are required to be addressed in the
written standard operating procedures for mold remediation that
must be prepared and followed by any licensee conducting mold
remediation;
(2) any other requirements or procedures that the
board determines are necessary to be included in the scope of work
analysis required under Section 1958.254(a) and that the board
determines are necessary to implement the scope of work analysis;
(3) any other requirements or procedures that the
board determines are necessary to be included in the work plan
required under Section 1958.254(b), including the elements of the
work plan such as safety plans, contractor standard operating
procedures, specific methods of removal for each type of
remediation required for the project, estimated start and finish
dates of the project, and the type of personal protective equipment
to be used on the job, and any other requirements or procedures that
the board determines are necessary to implement the work plan;
(4) minimum standards for containment procedures to be
used in mold remediation activities;
(5) any required safety standards mandated or
recommended by federal, state, or other jurisdictions or
organizations;
(6) any required equipment and equipment maintenance
standards;
(7) any necessary periodic medical monitoring of
licensees; and
(8) necessary project documentation and records to be
maintained at the job site and records to be maintained at the
licensee's place of business.
Sec. 1958.054. PUBLIC EDUCATION PROGRAM. (a) The
department shall conduct a statewide public education and outreach
program regarding the importance of and ways to improve air quality
in buildings, including the importance of and the ways to
recognize, prevent, control, and mitigate mold occurrence and other
indoor air quality factors that have an adverse impact on human
health.
(b) The program may include the development and
distribution of information to the public concerning indoor air
quality and mold, educational programs, informational or
educational exhibits, and any other methods of education or
communication that the department deems appropriate.
SUBCHAPTER C. LICENSING; TEMPORARY CERTIFICATION
Sec. 1958.101. LICENSE REQUIRED; EXEMPTION. (a) Unless a
person holds a license issued by the department under Section
1958.103, the person may not act as or purport to be:
(1) a mold analysis company;
(2) a mold assessment company;
(3) a mold assessment consultant;
(4) a mold assessment technician;
(5) a mold remediation company;
(6) a mold remediation contractor;
(7) a mold remediation supervisor; or
(8) a person that, by any other title or occupation not
described in this subsection, engages in mold assessment, mold
remediation, or mold analysis.
(b) A mold training provider must obtain a license in
accordance with Section 1958.103.
(c) This section does not apply to an individual licensed as
a certified industrial hygienist.
Sec. 1958.102. TRAINING REQUIRED FOR LICENSE. A person may
not be licensed to engage in a business or profession listed under
Section 1958.101(a) unless the person completes all training
required by board rule.
Sec. 1958.103. ISSUANCE, TYPES OF LICENSES. Persons that
meet the requirements for licensing under this chapter, and any
education, experience, or other requirements established by board
rule, shall be licensed by the department to perform those
activities that are authorized under each of the following license
types:
(1) A person, other than an individual, that performs
mold and mold-related analyses for compensation must be licensed as
a mold analysis company.
(2) A person, other than an individual, that performs
mold assessments for compensation must be licensed as a mold
assessment company.
(3) An individual who performs mold assessments for
compensation must be licensed as a mold assessment consultant.
(4) An individual who performs mold assessment under
the supervision of a licensed mold assessment consultant must be
licensed as a mold assessment technician.
(5) A person, other than an individual, that performs
mold remediation for compensation must be licensed as a mold
remediation company.
(6) An individual who performs mold remediation for
compensation must be licensed as a mold remediation contractor.
(7) An individual who performs mold remediation under
the supervision of a licensed mold remediation contractor must be
licensed as a mold remediation supervisor.
(8) A person that offers and conducts mold assessment,
mold remediation, or mold analysis training for the fulfillment of
specific training requirements that are a prerequisite to licensing
must be licensed as a mold training provider.
Sec. 1958.104. APPLICATION FOR LICENSE. (a) An applicant
for a license issued under Section 1958.103 must apply to the
department on the form prescribed by the department.
(b) The application form must be signed by the applicant and
must include, where applicable:
(1) the business name and address of the applicant;
(2) personal history information, business records,
and other relevant facts as required by the department and, for an
applicant for a license to engage in a business or profession listed
in Section 1958.101, evidence of proof of compliance with the
insurance and incorporation requirements provided under Section
1958.107; and
(3) a sample of the applicant's fingerprints and a
recent passport color photograph.
(c) The completed application must be notarized.
(d) An applicant must pay a nonrefundable application fee
set by the board for each application submitted.
(e) The department may, at any time after the filing of the
application and before the expiration of the license, require
additional written information and assurances from the applicant or
licensee and may make any inspections or require the production of
any documentary or other evidence that the department considers
necessary to determine whether the license should be granted,
delayed, or denied or whether the license should be modified,
suspended, or revoked.
Sec. 1958.105. LICENSE FEES; OTHER FEES. (a) The board by
rule shall adopt a schedule of fees as set forth in this section and
any other fees reasonable and necessary to implement the provisions
of this chapter. The fees shall be collected by the department and
shall be deposited with the comptroller in the general revenue fund
to the credit of an account that may be used only by the department
for the purposes of this chapter.
(b) License fees may not exceed the following amounts:
(1) $600 for a mold analysis company license;
(2) $600 for a mold assessment company license;
(3) $500 for a mold assessment consultant license;
(4) $300 for a mold assessment technician license;
(5) $600 for a mold remediation company license;
(6) $500 for a mold remediation contractor license;
(7) $300 for a mold remediation supervisor license;
and
(8) $600 for a mold training provider license.
Sec. 1958.106. QUALIFICATIONS FOR LICENSE. (a) To qualify
for a license as a mold assessment consultant, mold assessment
technician, mold remediation contractor, mold remediation
supervisor, or mold training provider, an applicant must:
(1) be at least 18 years of age;
(2) be a citizen of the United States;
(3) be a resident of the state;
(4) be trustworthy and of a moral character that
reasonably ensures that the applicant will conduct the business of
the mold-related activity for which the applicant is seeking
licensure fairly and in good faith and without detriment to any
member of the public;
(5) have never been convicted of a felony or, if
convicted of a felony, must have received a full pardon from that
conviction and otherwise be relieved from any disabilities
connected with the conviction;
(6) possess sufficient knowledge and training or
experience to engage in the business of the mold-related activity
for which the applicant is seeking licensure competently and
without detriment to any member of the public;
(7) have successfully passed the license examination
adopted or approved under Section 1958.151;
(8) have successfully completed the training
requirements under Section 1958.102; and
(9) have complied with the insurance and other
requirements under Section 1958.107.
(b) To qualify for a license as a mold assessment company,
mold remediation company, or mold analysis company, the applicant
company must:
(1) be a corporation or other business entity
organized under the laws of this state or any other state or
territory of the United States;
(2) be admitted to conduct business in this state by
the secretary of state, if so required;
(3) be organized and operating for the purpose of
conducting the activity for which the company is seeking a license;
(4) have at least one officer of the corporation or one
active partner of the partnership and all other persons performing
the activity for which the company is seeking licensure on behalf of
the company in this state individually licensed or applying
individually for a license from the department separately from the
corporation or partnership; and
(5) have complied with the insurance and other
requirements under Section 1958.107.
Sec. 1958.107. CERTIFICATES OF INCORPORATION AND
INSURANCE. (a) To be issued a license under this chapter, an
applicant must also provide, as applicable:
(1) a certificate of good standing issued by the
secretary of state, if the applicant is a corporation or other
business entity;
(2) if the applicant is a foreign corporation, a
certificate from the secretary of state authorizing the applicant
to conduct business in this state;
(3) a State of Texas sales tax number; and
(4) a certificate of insurance or other proof of
insurance issued for the purpose of licensing under this chapter
that demonstrates:
(A) occurrence-based commercial general
liability pollution insurance with mold remediation included with a
minimum coverage of $1 million per occurrence and at least $2
million aggregate coverage for any person applying for a license as
a mold remediation company or a mold remediation contractor, or
coverage under such policy as an employee of the mold remediation
company or mold remediation contractor for any person applying as a
mold remediation supervisor;
(B) professional liability insurance coverage
for errors and omissions, in an amount and with a deductible as
required by the department, for any mold training provider, mold
assessment company, mold assessment consultant, or mold analysis
company applying for a license under this chapter, or coverage
under such policy as an employee of the mold assessment company,
mold assessment consultant, or mold analysis company for any person
applying as a mold assessment technician;
(C) workers' compensation insurance issued by a
company authorized and licensed to issue workers' compensation
insurance in the state and written in the state on the Texas form,
or evidence of self-insurance; and
(D) commercial automobile liability coverage in
an amount required by the department.
(b) A licensee must continuously maintain all applicable
insurance required under this section for the license to remain
effective. Failure to maintain the applicable insurance required
under this section will result in immediate forfeiture of the
license.
Sec. 1958.108. LICENSES SUBJECT TO RULES AND ORDERS. The
terms and conditions of licenses are subject to rules adopted or
orders issued by the board in accordance with this chapter.
Sec. 1958.109. LICENSE NOT ASSIGNABLE. A license issued
under this chapter may not be assigned to another person.
Sec. 1958.110. LICENSE REPLACEMENT. A licensee may request
a replacement license certificate by completing and submitting an
application as prescribed by the board.
Sec. 1958.111. PROVISIONAL LICENSE. (a) The department
may grant a provisional license to an applicant currently licensed
or registered in another jurisdiction who is applying for a license
in this state to engage in a business or profession listed under
Section 1958.101(a) and who:
(1) has been licensed or registered in good standing
to perform the relevant mold-related activity for at least two
years in the other jurisdiction, including a foreign country, if
the jurisdiction has licensing or registration requirements
substantially equivalent to the requirements of this chapter;
(2) has passed a national or other examination
recognized by the department relating to the relevant mold-related
activity in this state; and
(3) is sponsored by a person licensed by the
department under this chapter with whom the provisional license
holder will practice during the time the person holds the
provisional license.
(b) The department may waive the requirement of Subsection
(a)(3) for an applicant if the department determines that
compliance with that subsection would be a hardship to the
applicant.
(c) A provisional license is valid until the date the
department approves or denies the provisional license holder's
application for licensing. The department shall issue a license
under this chapter to the provisional license holder if the
provisional license holder is eligible to be licensed under Section
1958.106 and satisfies any other applicable licensing requirements
under this chapter.
(d) The department shall approve or deny a provisional
licensee's application for a license to engage in a business or
profession listed under Section 1958.101(a) not later than the
180th day after the date the provisional license is issued. The
department may extend the 180-day period if the results of an
examination have not been received by the department before the end
of that period.
(e) The department may establish a fee for a provisional
license in an amount reasonable and necessary to cover the cost of
issuing the license.
Sec. 1958.112. REGISTRATION FOR TRAINEES. (a) A trainee
for mold assessment technician or mold remediation supervisor must
register with the department for a temporary certificate under this
section. An applicant for the certificate must apply to the
department on a form prescribed by the board. The form must be
accompanied by a nonrefundable registration fee set by the board.
(b) A temporary certificate may be issued under this section
only for educational and training purposes. The holder of a
temporary certificate may train only under the direction and
sponsorship of a person licensed for the applicable mold-
assessment or mold-remediation activity.
(c) The sponsor must attest, on a form prescribed by the
board, that the trainee is an employee of and under the supervision
and control of the sponsor, that the sponsor is in compliance with
the insurance and other requirements of this chapter, and that the
trainee as an employee of the sponsor is in compliance with the
insurance and other requirements of this chapter.
(d) A temporary certificate expires on the 180th day after
the date of issuance and may be renewed once on application to the
department. A person may not hold more than two consecutive
temporary certificates.
(e) Each person who holds a temporary certificate under this
section must comply with the insurance requirements under Section
1958.107 and must meet the requirements for licensing under Section
1958.106(1)-(5).
SUBCHAPTER D. LICENSE EXAMINATION
Sec. 1958.151. EXAMINATION REQUIREMENT. (a) A person may
not receive a license for a business or profession licensed under
Section 1958.101 unless the person passes an examination required
for the license.
(b) The board shall adopt or approve examinations that
applicants must pass in order to be licensed under this chapter.
(c) The board may require or authorize the use of
standardized examinations for licensing under this chapter and may
set fees for the administration of the examinations.
Sec. 1958.152. NOTIFICATION OF EXAMINATION RESULTS.
(a) Not later than the 30th day after the date a person takes a
licensing examination under this chapter, the department shall
notify the person of the results of the examination.
(b) If the examination is graded or reviewed by a testing
service:
(1) the department shall notify the person of the
results of the examination not later than the 14th day after the
date the department receives the results from the testing service;
and
(2) if notice of the examination results will be
delayed for longer than 90 days after the examination date, the
department shall notify the person of the reason for the delay
before the 90th day.
(c) The department may require a testing service to notify a
person of the results of the person's examination under Subsection
(b).
(d) If requested in writing by a person who fails a
licensing examination, the department shall provide to the person
an analysis of the person's performance on the examination.
SUBCHAPTER E. CONTINUING EDUCATION; LICENSE RENEWAL
Sec. 1958.201. CONTINUING EDUCATION REQUIREMENT. (a) A
licensee must annually complete at least 15 hours of continuing
education courses as prescribed by board rule.
(b) The courses under this section shall be offered and
provided by mold training providers licensed under this chapter.
(c) The licensee must submit proof of compliance with the
continuing education requirements along with the licensee's
license renewal application.
Sec. 1958.202. LICENSE RENEWAL. (a) A license issued
under this chapter expires on the first anniversary of its
effective date unless the license is renewed for a one-year term as
provided by Subsection (d).
(b) The department by rule may adopt a system under which
licenses expire on various dates during the year. For the year in
which the license expiration date is changed, the department shall
prorate license fees on a monthly basis so that each licensee pays
only the portion of the license fee that is allocable to the number
of months during which the license is valid. On renewal of the
license on the new expiration date, the total license renewal fee is
payable.
(c) At least one month before the license expires, the
department shall send to the licensee, by first class mail to the
licensee's last known address, a renewal notice that states:
(1) the date on which the current license expires;
(2) the date by which the renewal application must be
received by the department in order for the renewal to be issued and
mailed before the license expires; and
(3) the amount of the renewal fee.
(d) A licensee may renew a license for a one-year term if,
before the license expires, the licensee:
(1) is otherwise entitled to be licensed;
(2) pays to the department a nonrefundable renewal fee
set by the board in an amount not greater than the amount set by the
board for an original application under Section 1958.105;
(3) submits to the department a renewal application on
the form prescribed by the board and proof of compliance with the
continuing education requirements under Section 1958.201;
(4) has successfully completed all requirements for
renewal as provided by this chapter and as required by the board by
rule; and
(5) has complied with all final orders resulting from
violations of this chapter.
Sec. 1958.203. EXPIRED LICENSE. (a) A person whose
license has expired may not engage in activities that require a
license until the license has been renewed.
(b) A person whose license has been expired for 90 days or
less may renew the license by meeting the requirements of Section
1958.202(d), except that the renewal fee shall be equal to 1-1/2
times the normally required renewal fee.
(c) A person whose license has been expired for more than 90
days but less than one year may renew the license by meeting the
requirements of Section 1958.202(d), except that the renewal fee
shall be equal to twice the normally required renewal fee.
(d) A person whose license has been expired for one year or
more may not renew the license. The person may obtain a new license
by complying with the requirements and procedures, including the
examination requirements, for obtaining an original license.
Sec. 1958.204. RENEWAL OF EXPIRED LICENSE BY NONRESIDENT
LICENSEES. (a) A person may renew without examination an expired
license if the person:
(1) was formerly licensed in this state to engage in a
mold-related activity required to be licensed under this chapter;
(2) moved to another state and is currently licensed
in good standing with the other state to conduct the activity; and
(3) has practiced the activity in the other state for
the two years preceding the date of application.
(b) The person must pay to the department a fee that is equal
to twice the normally required renewal fee for the license.
SUBCHAPTER F. PROFESSIONAL DUTIES AND CONDUCT
Sec. 1958.251. DUTY TO ENSURE EMPLOYEE QUALIFICATIONS AND
PROTECTION. A licensee engaged in any mold-related activity shall
ensure that each employee licensee who will be involved in or
responsible for the activity:
(1) is familiar with all relevant federal, state, and
local standards;
(2) has completed the applicable course of instruction
adopted or approved by the board and any continuing education
requirements adopted by the board; and
(3) is supplied with approved equipment in good
working order for the employee's protection and for the protection
of the public and the environment.
Sec. 1958.252. PROHIBITION ON MULTIPLE SERVICES THAT CREATE
CONFLICT OF INTEREST. A licensee may perform only one of the
following activities on the same project:
(1) mold assessment;
(2) mold remediation; or
(3) mold or mold-related analysis.
Sec. 1958.253. REQUIRED RECORDS. (a) A licensee shall:
(1) keep records, as prescribed by board rule, of each
mold-related activity that the licensee performs including:
(A) documentation and records to be maintained at
the job site; and
(B) permanent project records to be maintained at
the licensee's place of business; and
(2) make the records available to the department on
request.
(b) A licensee must keep records required by this section
for the period prescribed by board rule.
Sec. 1958.254. SCOPE OF WORK ANALYSIS; WORK PLAN. (a) A
scope of work analysis shall be prepared for each mold remediation
project by the mold remediation company or mold remediation
contractor. This scope of work document shall be provided to the
client or the client's representative either in the bidding phase
of the project or before the mold remediation begins and must
include a specification of:
(1) the rooms or areas where work will be performed;
(2) the quantities of materials to be removed or
cleaned;
(3) the licensee's proposed methods for each type of
remediation in each type of area in the project; and
(4) the clearance criteria proposed for each type of
remediation in each type of area in the project.
(b) A work plan providing instructions for the remediation
efforts to be performed shall be developed by the mold remediation
company or mold remediation contractor for each project. To allow
time for review and changes as needed, the work plan shall be
provided to the client and, if applicable, to the client's
third-party consultant before the mold remediation starts. A copy
of the plan must be maintained at the job site for constant review
by the mold remediation company, mold remediation contractor, and
mold remediation supervisor.
Sec. 1958.255. ADVERTISING OR COMPETITIVE BIDDING.
(a) Advertising or competitive bidding by a licensee that contains
false or misleading statements or that results in deceptive
practices is prohibited. The board may adopt rules to enforce this
section.
(b) If the board adopts rules under this section, the board
may not:
(1) restrict the use of any medium for advertising;
(2) restrict the use of a licensee's personal
appearance or voice in an advertisement;
(3) mandate the size or duration of an advertisement
by the licensee; or
(4) restrict the use of the licensee's trade name in an
advertisement.
Sec. 1958.256. REQUIRED NOTIFICATION OF MOLD-RELATED
ACTIVITIES. (a) A person engaged in mold-related activities in a
public building shall notify the department in writing or
electronically at least 10 days before the date the person begins
the activities.
(b) Notwithstanding Subsection (a), a person may give the
required notification orally if the mold-related activity is of an
emergency nature.
(c) The board shall impose a notification fee to be paid to
the department for notification under this section. The board by
rule shall determine the amount of the fee and the procedures for
payment. The fee is incurred on notification by the person under
this section.
Sec. 1958.257. STANDARD OPERATING PROCEDURES FOR MOLD
REMEDIATION. A person engaged in mold remediation shall develop
and follow standard operating procedures, including proper use of
personal protective equipment; employee decontamination
procedures; employee annual medical monitoring; work area
preparation; basic remediation techniques; decontamination
techniques including of contents and interior surfaces not directly
affected by visible mold; handling of mold remediation waste; use
of chemicals for mold remediation; and any other standard operating
procedures required by rule by the board.
Sec. 1958.258. CODE OF ETHICS. The board by rule shall
adopt a code of ethics for persons engaging in mold assessment, mold
remediation, and any other activities performed for the purpose of
assessing and remediating mold that fosters the education of
licensees concerning the ethical, legal, and business principles
that should govern their conduct. The code of ethics may address
ethical principles and practices common to all of the licensees as
well as specialized ethical principles and practices for each of
the professions licensed under this article.
SUBCHAPTER G. MOLD TRAINING
Sec. 1958.301. MOLD TRAINING PROVIDERS. (a) A mold
training provider may not offer a course of instruction approved
for the purposes of licensure under this chapter unless the
provider is licensed by the department under Section 1958.103(8).
(b) A mold training provider may not offer or provide
training in a course unless the course:
(1) is approved by the department as a prerequisite to
a license for a business or profession listed under Section
1958.101(a); and
(2) is offered or provided according to a course
schedule approved by the department.
(c) A mold training provider must furnish records to the
department concerning individuals who have attended a course of
instruction that is a prerequisite to licensing under this chapter.
Sec. 1958.302. BOARD TO ADOPT RULES. (a) The board shall
adopt rules reasonable and necessary to implement Sections
1958.301(b) and (c) and Section 1958.303.
(b) The board shall adopt any other rules necessary to
implement and monitor the mold training program.
Sec. 1958.303. TRAINING REQUIREMENTS. The board by rule
shall adopt a minimum curriculum and other training requirements
for mold training providers licensed under Section 1958.103(8) to
train persons who are required to be licensed under this chapter.
Sec. 1958.304. WITHDRAWAL OF COURSE APPROVAL. (a) The
board may withdraw approval of a course of instruction that the
board has previously approved.
(b) The withdrawal of approval is effective immediately,
and on receipt of notice from the department of the withdrawal of
approval, a mold training provider shall cease to offer and provide
the course of instruction.
SUBCHAPTER H. DISCIPLINARY ACTION
Sec. 1958.351. REPRIMAND; MODIFICATION, SUSPENSION, OR
REVOCATION OF LICENSE. (a) After providing notice and an
opportunity for hearing to a licensee, the department shall
reprimand a licensee or modify, suspend, suspend on an emergency
basis, or revoke a license issued under this chapter if an act or
omission of the licensee meets one of the criteria for departmental
action under Subsection (c).
(b) If the department suspends a license on an emergency
basis, the suspension is effective immediately. The department
shall provide an opportunity for a hearing within 20 days after the
date of the emergency suspension.
(c) The board by rule shall adopt the criteria for
departmental action under this section. At a minimum, the criteria
must require disciplinary action against a licensee who:
(1) commits fraud or deception in obtaining or
attempting to obtain a license or a contract to perform
mold-related activities;
(2) fails at any time to meet the qualifications for a
license;
(3) violates a rule adopted under this chapter;
(4) violates an applicable federal or state standard
for performance of mold-related activities; or
(5) fails to maintain the records required by this
chapter or board rule or fails to provide such records on request by
the department.
(d) If a license issued under this chapter has been revoked,
the individuals or organizations named in the revocation may not
reapply for a license for a period of at least five years after the
date of revocation.
(e) The notice and hearing required by this section shall be
conducted in accordance with Section 1958.352.
(f) The department may place on probation a person whose
license is suspended. If a suspension is probated, the department
may require the person to do one or more of the following:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
board; and
(3) continue or review professional education until
the person attains a degree of skill satisfactory to the board in
those areas that are the basis of the probation.
Sec. 1958.352. NOTICE; ADMINISTRATIVE HEARING; APPEAL. The
notice and hearing provisions under Section 1958.351(e) and appeals
for judicial review of final administrative decisions issued under
Section 1958.355 shall be conducted in accordance with the board's
rules for contested case hearings and the applicable provisions of
Chapter 2001, Government Code.
Sec. 1958.353. COMPLIANCE WITH STANDARDS NOT A DEFENSE.
Compliance with any minimum standards adopted by the board under
this chapter does not constitute a defense in a civil action for
damages arising from any work activity performed in the course of
mold-related activities.
Sec. 1958.354. CIVIL PENALTY; INJUNCTION. (a) If it
appears that a person has violated, is violating, or is threatening
to violate a provision of this chapter or a rule adopted or order
issued under this chapter, the commissioner may request the
attorney general or the district, county, or city attorney where
the violation has occurred, is occurring, or may occur to institute
a civil suit for:
(1) injunctive relief to restrain the person from
continuing the violation or threat of violation;
(2) the assessment and recovery of a civil penalty; or
(3) both injunctive relief and a civil penalty.
(b) The penalty may be in an amount not to exceed $10,000 a
day for each violation. Each day a violation occurs or continues to
occur is a separate violation for purposes of imposing a penalty.
(c) The owner of a public building or an agent of the owner
who has contracted with or otherwise permitted a person without a
license issued under this chapter to perform in that building any
activity for which a license under this chapter is required is
subject to the imposition of a civil penalty, and the commissioner
may request the institution of a suit for collection of the civil
penalty or for injunctive relief, or for both the civil penalty and
injunctive relief, as provided by Subsections (a) and (b).
(d) In determining the amount of a civil penalty, the court
shall consider the person's history of previous violations, the
seriousness of the violation, any hazard to the health and safety of
the public, and the demonstrated good faith of the person charged.
(e) Any civil penalty recovered in a suit instituted by the
attorney general under this chapter shall be deposited with the
comptroller to the credit of the general revenue fund. Any civil
penalty recovered in a suit instituted by a local government under
this chapter shall be paid to the local government.
Sec. 1958.355. ADMINISTRATIVE PENALTY. (a) If a person
violates this chapter or a rule adopted or order issued under this
chapter, the commissioner may assess an administrative penalty
against the person as provided by this section.
(b) The penalty may be in an amount not to exceed $10,000 for
each violation. Each day a violation continues may be considered a
separate violation for purposes of the penalty assessment.
(c) In determining the amount of an administrative penalty,
the commissioner shall consider the person's history of previous
violations, the seriousness of the violation, any hazard to the
health and safety of the public, and any other matter that justice
may require.
(d) The administrative penalty may be assessed only after
the person charged with the violation has been given the
opportunity for a hearing.
(e) In the event of a hearing, the commissioner shall make
findings of fact and shall issue a written decision about the
occurrence of the violation and the amount of the penalty that is
warranted.
(f) The commissioner may consolidate the hearings with
other proceedings.
(g) If the person charged with the violation fails to
exercise the opportunity for a hearing, the commissioner may assess
an administrative penalty after determining that a violation
occurred and determining the amount of penalty that is warranted.
(h) After making the determinations under Subsection (g),
the commissioner shall issue an order requiring that the penalty be
paid.
(i) Not later than the 30th day after the date of issuance of
an order finding that a violation has occurred, the commissioner
shall inform the person charged with the violation of the amount of
the penalty.
(j) Not later than the 30th day after the date the
commissioner's decision or order is final as provided by Section
2001.144, Government Code, the person shall:
(1) pay the penalty in full; or
(2) if the person seeks judicial review of either the
amount of the penalty or the fact of the violation, or both:
(A) forward the amount to the commissioner for
placement in an escrow account; or
(B) in lieu of payment into escrow, post with the
commissioner a bond, in a form approved by the commissioner, for the
amount of the penalty that is to remain effective until all judicial
review of the order or decision is final.
(k) If after judicial review of the decision or order it is
determined that the violation did not occur, that the penalty
should not be assessed, or that the amount of the penalty should be
reduced, the commissioner shall, if the penalty has been paid to the
department, remit the appropriate amount to the person with accrued
interest not later than the 30th day after the date of the
determination. The rate of the interest is the rate charged on
loans to depository institutions by the New York Federal Reserve
Bank, and the interest shall be paid for the period beginning on the
date the penalty was paid and ending on the date the penalty is
remitted. If a bond has been posted, the department shall execute a
release of the bond.
(l) Failure to forward the amount of the penalty to the
commissioner within the time provided by Subsection (j) results in
a waiver of all rights on the part of the person charged with the
violation to contest the determination of a violation or the amount
of the penalty.
(m) Judicial review of the order or decision of the
commissioner imposing a penalty under this subchapter is instituted
by filing a petition with a district court in Travis County as
provided by Subchapter G, Chapter 2001, Government Code, and is
under the substantial evidence rule.
(n) Administrative penalties owed under this section may be
recovered in a civil action brought by the attorney general at the
request of the commissioner.
(o) A penalty collected under this section shall be
deposited with the comptroller to the credit of the general revenue
fund.
Sec. 1958.356. CRIMINAL PENALTY. (a) A person who is
required to be licensed under this chapter commits an offense if the
person:
(1) knowingly or intentionally violates this chapter
or a rule adopted or order issued under this chapter and the
violation results in an endangerment to the public health and
safety;
(2) engages in mold-related activities without a
license issued in accordance with this chapter and has previously
been assessed a civil or administrative penalty for engaging in
mold-related activities without a license; or
(3) fails to keep records as required by Section
1958.253 and previously has been assessed a civil or administrative
penalty for failing to keep records.
(b) An offense under this section is a misdemeanor
punishable by:
(1) for the first offense, a fine not to exceed
$20,000, confinement in jail for a period of not more than six
months, or both the fine and confinement; or
(2) for a second or subsequent offense, a fine not to
exceed $25,000, confinement in jail for a period of not more than
two years, or both the fine and confinement.
SECTION 2. The Texas Board of Health shall adopt rules
implementing Chapter 1958, Occupations Code, as added by this Act,
not later than January 1, 2004.
SECTION 3. This Act takes effect June 1, 2003, if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this Act takes effect September 1, 2003.