By: Shapleigh S.B. No. 260
A BILL TO BE ENTITLED
AN ACT
relating to continuation and functions of the Texas Board of
Professional Land Surveying.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1071.003, Occupations Code, is amended
to read as follows:
Sec. 1071.003. APPLICATION OF SUNSET ACT. The Texas Board
of Professional Land Surveying is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the board is abolished and this chapter
expires September 1, 2015 [2003].
SECTION 2. Subsections (a) and (g), Section 1071.051,
Occupations Code, are amended to read as follows:
(a) The Texas Board of Professional Land Surveying consists
of nine [10] members as follows:
(1) the commissioner;
(2) two licensed state land surveyor members actively
engaged in the practice of state land surveying for not less than
the five years preceding appointment;
(3) three [four] registered professional land
surveyor members actively engaged in the practice of professional
surveying in this state for not less than the five years preceding
appointment; and
(4) three members who represent the public.
(g) Appointments to the board shall be made without regard
to the race, color, disability, [creed,] sex, religion, age, or
national origin of the appointee.
SECTION 3. Section 1071.053, Occupations Code, is amended
to read as follows:
Sec. 1071.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(a) In this section, "Texas trade association" means a
[nonprofit,] cooperative[,] and voluntarily joined statewide
association of business or professional competitors in this state
designed to assist its members and its industry or profession in
dealing with mutual business or professional problems and in
promoting their common interest.
(b) A person may not be a member of the board and may not be
an employee of the board employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.) and its subsequent amendments, if:
(1) the person is an [An] officer, employee, or paid
consultant of a Texas trade association in the field of surveying;
or
(2) the person's spouse is [may not be a board member
or an employee of the board who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group A17, of the position classification salary schedule.
[(c) A person who is the spouse of] an officer, manager, or
paid consultant of a Texas trade association in the field of
surveying [may not be a board member or an employee of the board who
is exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule].
(c) [(d)] A person may not be [serve as] a member of the
board or act as the general counsel to the board if the person is
required to register as a lobbyist under Chapter 305, Government
Code, because of the person's activities for compensation on behalf
of a profession related to the operation of the board.
SECTION 4. Subsection (a), Section 1071.054, Occupations
Code, is amended to read as follows:
(a) Members of the board appointed by the governor serve
staggered six-year terms, with the terms of approximately one-third
of those members expiring on January 31 of each odd-numbered year.
SECTION 5. Subsections (a) and (c), Section 1071.056,
Occupations Code, are amended to read as follows:
(a) It is a ground for removal from the board that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Sections 1071.051 and
1071.052;
(2) does not maintain during service on the board the
qualifications required by Sections 1071.051 and 1071.052;
(3) is ineligible for membership under Section
1071.051, 1071.052, or [violates a prohibition established by
Section] 1071.053;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved [unless the
absence is excused] by majority vote of the board.
(c) If the executive director has knowledge that a potential
ground for removal exists, the executive director shall notify the
presiding officer of the board of the potential ground. The
presiding officer shall then notify the governor and the attorney
general that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
executive director shall notify the next highest ranking officer of
the board, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
SECTION 6. Subchapter B, Chapter 1071, Occupations Code, is
amended by adding Section 1071.059 to read as follows:
Sec. 1071.059. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the board may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the board until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the board;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the
board;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
board or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 7. Section 1071.104, Occupations Code, is amended
to read as follows:
Sec. 1071.104. REQUIREMENTS [QUALIFICATIONS] AND STANDARDS
OF CONDUCT INFORMATION. The executive director or the executive
director's designee [board] shall provide[, as often as necessary,]
to [its] members of the board and to board employees, as often as
necessary, information regarding the requirements [their:
[(1) qualifications] for office or employment under
this chapter, including information regarding a person's[; and
[(2)] responsibilities under applicable laws relating
to standards of conduct for state officers or employees.
SECTION 8. Section 1071.106, Occupations Code, is amended
to read as follows:
Sec. 1071.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY;
REPORT. (a) The executive director or the executive director's
designee shall prepare and maintain a written policy statement that
implements a program [to ensure implementation] of [an] equal
employment opportunity to ensure that [program under which] all
personnel decisions [transactions] are made without regard to race,
color, disability, sex, religion, age, or national origin. The
policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, appointment, training, and
promotion of personnel, that show the intent of the board to avoid
the unlawful employment practices described by Chapter 21, Labor
Code; and
(2) an [a comprehensive] analysis of the extent to
which the composition of the board's personnel is in accordance
with [board workforce that meets federal and] state and federal law
and a description of reasonable methods to achieve compliance with
state and federal law [guidelines;
[(3) procedures by which a determination can be made
of significant underuse in the board workforce of all persons for
whom federal or state guidelines encourage a more equitable
balance; and
[(4) reasonable methods to appropriately address
those areas of significant underuse].
(b) A policy statement prepared under Subsection (a) must:
(1) [cover an annual period;
[(2)] be updated [at least] annually;
(2) be reviewed by the Commission on Human Rights for
compliance with Subsection (a)(1); and
(3) be filed with the governor's office [governor].
[(c) The governor shall deliver a biennial report to the
legislature based on information received under Subsection (b).
The report may be made separately or as part of other biennial
reports made to the legislature.]
SECTION 9. Subchapter C, Chapter 1071, Occupations Code, is
amended by adding Section 1071.107 to read as follows:
Sec. 1071.107. INFORMATION ON STATE EMPLOYEE INCENTIVE
PROGRAM. The executive director or the executive director's
designee shall provide to board employees information and training
on the benefits and methods of participation in the state employee
incentive program under Subchapter B, Chapter 2108, Government
Code.
SECTION 10. Section 1071.151, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board by rule shall establish the enforcement
process for a violation of this chapter or a board rule.
SECTION 11. Subchapter D, Chapter 1071, Occupations Code,
is amended by adding Section 1071.1515 to read as follows:
Sec. 1071.1515. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. The board shall adopt rules necessary to comply with
Chapter 53.
SECTION 12. Subchapter D, Chapter 1071, Occupations Code,
is amended by adding Sections 1071.1525, 1071.1526, and 1071.158 to
read as follows:
Sec. 1071.1525. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The board shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the board's
jurisdiction.
(b) The board's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
regarding the use of alternative dispute resolution by state
agencies.
(c) The board shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training necessary for
implementation of the negotiated rulemaking or alternative dispute
resolution procedures; and
(3) collect data on the effectiveness of the
procedures as implemented by the board.
Sec. 1071.1526. FEES. The board shall set fees in amounts
reasonable and necessary to cover the costs of administering this
chapter.
Sec. 1071.158. TECHNOLOGY POLICY. The board shall develop
and implement a policy requiring the executive director and board
employees to research and propose appropriate technological
solutions to improve the board's ability to perform its functions.
The technological solutions must:
(1) ensure that the public is able to easily find
information about the board on the Internet;
(2) ensure that persons who want to use the board's
services are able to:
(A) interact with the board through the Internet;
and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
board's planning process.
SECTION 13. Section 1071.203, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board shall accept a complaint regardless of whether
the complaint is notarized.
SECTION 14. Section 1071.204, Occupations Code, is amended
to read as follows:
Sec. 1071.204. RECORDS OF COMPLAINTS. (a) The board shall
maintain a [keep an information] file on [about] each written
complaint filed with the board that the board has authority to
resolve. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the board;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the board closed the file without taking action other than to
investigate the complaint.
(b) If a written complaint that the board has authority to
resolve is filed with the board, the board shall provide to the
person filing the complaint and to each person who is a subject of
the complaint a copy of the board's policies and procedures
relating to complaint investigation and resolution.
(c) The board, at least quarterly and until final
disposition of the complaint, shall notify the person filing
[parties to] the complaint and each person who is a subject of the
complaint of the status of the investigation [complaint] unless the
notice would jeopardize an undercover investigation.
(d) Except as provided by Subsection (e), a complaint filed
with the board is public information.
(e) A frivolous complaint is public information, except
that the license holder's name and other personal information shall
be redacted.
(f) In this section, "frivolous complaint" means a
complaint that the executive director and investigator, with board
approval, determine:
(1) was made for the purpose of harassment; and
(2) does not demonstrate harm to any person.
SECTION 15. Subsection (b), Section 1071.252, Occupations
Code, is amended to read as follows:
(b) An application must be made on a form prescribed and
furnished by the board and contain statements [made under oath]
that show the applicant's education and experience. The
application must contain a detailed summary of the applicant's
education and experience and references from at least three
registered professional land surveyors having personal knowledge
of the applicant's surveying experience. The board shall accept an
application that meets board requirements regardless of whether the
application is notarized.
SECTION 16. Section 1071.257, Occupations Code, is amended
to read as follows:
Sec. 1071.257. EXAMINATION RESULTS. (a) Not later than
the 30th day after the date a person takes a licensing examination,
the [The] board shall notify the person [each examinee] of the
[examination] results of the [not later than the 30th day after the
date the board receives notice of all] examination [results].
(b) If the examination is graded or reviewed by a testing
service:
(1) the board shall notify the person of the results of
the examination not later than the 14th day after the date the board
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
board shall notify the person of the reason for the delay before the
90th day.
(c) If requested in writing by a person who fails an
examination administered under this chapter, the board shall
furnish [provide to] the person with an analysis of the person's
performance on the examination. The analysis shall be provided in a
summary form that does not compromise the integrity of the
examination.
(d) The board may require a testing service to notify a
person of the results of the person's examination.
SECTION 17. Section 1071.258, Occupations Code, is amended
to read as follows:
Sec. 1071.258. REEXAMINATION; FEE. An applicant who fails
an examination may apply to take a subsequent examination by filing
an updated application and paying an additional examination fee set
by the board [not to exceed $100].
SECTION 18. Subsection (b), Section 1071.259, Occupations
Code, is amended to read as follows:
(b) The board may issue a certificate of registration as a
registered professional land surveyor to an applicant under this
section who meets all waived and unwaived registration requirements
and who:
(1) applies to the board for a certificate of
registration;
(2) pays a fee set by the board [in an amount not to
exceed $100]; and
(3) passes an examination on Texas surveying.
SECTION 19. Section 1071.262, Occupations Code, is amended
to read as follows:
Sec. 1071.262. REPLACEMENT OF REVOKED, LOST, OR DESTROYED
CERTIFICATE OR LICENSE. The board may issue, on payment of a [$20]
fee set by the board and subject to board rules, a new certificate
of registration or license to replace a certificate or license that
has been revoked, lost, destroyed, or mutilated.
SECTION 20. Subsection (b), Section 1071.263, Occupations
Code, is amended to read as follows:
(b) A registration holder on inactive status must pay an
annual fee set by the board [of $10].
SECTION 21. Subsection (a), Section 1071.301, Occupations
Code, is amended to read as follows:
(a) The board by rule may adopt a system under which
certificates of registration and licenses expire on various dates
during the year. For the year in which the [A] certificate [of
registration] or [a] license expiration date is changed, the board
shall prorate certificate and license fees on a monthly basis so
that each certificate or license holder pays only that portion of
the certificate or license fee that is allocable to the number of
months during which the certificate or license is valid. On renewal
of the certificate or license on the new expiration date, the total
certificate or license renewal fee is payable [issued under this
chapter expires on December 31 of each year or on a date set by board
rule as part of a staggered renewal system].
SECTION 22. Section 1071.302, Occupations Code, is amended
to read as follows:
Sec. 1071.302. NOTICE OF EXPIRATION. Not later than
[Before] the 30th day before [preceding] the [expiration] date [of]
a person's certificate of registration or license is scheduled to
expire, the board shall send written notice of the impending
expiration to the person at the person's last known address
according to the board's records.
SECTION 23. Section 1071.303, Occupations Code, is amended
to read as follows:
Sec. 1071.303. PROCEDURE FOR RENEWAL. (a) A person who is
otherwise eligible to renew a certificate of registration or
license may renew an unexpired certificate [of registration] or
license by paying the required renewal fee to the board before the
expiration date of the certificate or license. A person whose
certificate or license has expired may not engage in activities
that require a certificate or license until the certificate or
license has been renewed.
(b) A person whose certificate or license has been expired
for 90 days or less may renew the certificate or license by paying
to the board a [the required] renewal fee [and a fee] that is equal
to 1-1/2 times the normally required renewal [half of the amount of
the examination] fee [for the certificate or license].
(c) A person whose certificate or license has been expired
for more than 90 days but less than one year may renew the
certificate or license by paying to the board a [all unpaid] renewal
[fees and a] fee that is equal to two times the normally required
renewal [the amount of the examination] fee [for the certificate or
license].
(d) A person whose certificate or license has been expired
for one year or more may not renew the certificate or license. The
person may obtain a new certificate or license by [submitting to
reexamination and] complying with the requirements and procedures,
including the examination requirements, for obtaining an original
certificate or license.
(e) A person who was registered or licensed in this state,
moved to another state, and is currently registered or licensed and
has been in practice in the other state for the two years preceding
the date of application may obtain a new certificate or license
without reexamination. The person must pay to the board a fee that
is equal to two times the normally required renewal fee for the
certificate or license.
SECTION 24. Subsection (a), Section 1071.401, Occupations
Code, is amended to read as follows:
(a) The board shall revoke, [or] suspend, or refuse to renew
a certificate of registration or license, place on probation a
person whose certificate or license has been suspended, or
reprimand a registration holder or license holder for:
(1) fraud or deceit in obtaining a certificate or
license under this chapter;
(2) gross negligence, incompetence, or misconduct in
the practice of surveying as a land surveyor; or
(3) a violation of this chapter or a board rule.
SECTION 25. Section 1071.402, Occupations Code, is amended
by amending Subsection (b) and adding Subsections (c) through (g)
to read as follows:
(b) The board shall assign an employee or contract with an
investigator to investigate each alleged violation of this chapter
or a board rule [an applicable statute] that is reported to the
board [and substantiated by an affidavit]. The board may employ
investigators and inspectors as necessary to properly enforce this
chapter.
(c) A board employee investigating an alleged violation
may:
(1) dismiss a complaint that is without merit; or
(2) determine whether a person has committed the
violation and recommend sanctions to the board.
(d) A board employee investigating an alleged violation
shall report the dismissal of a complaint under Subsection (c)(1)
to the board in the manner required by the board.
(e) The person making a complaint that is dismissed under
Subsection (c)(1) may request reconsideration of the dismissal by
the board.
(f) The board may appoint a subcommittee of the board that
includes at least one board member who represents the public to
assist in an investigation. A member of a subcommittee or a member
of the board who consults with board personnel or an investigator on
a complaint may not vote at a board disciplinary hearing related to
the complaint.
(g) The board may not take into consideration a previously
dismissed complaint while resolving a complaint before the board.
The board may take into consideration any previous violation of
this chapter or a board rule when assessing a sanction or penalty
for a complaint before the board.
SECTION 26. Subchapter I, Chapter 1071, Occupations Code,
is amended by adding Section 1071.4035 to read as follows:
Sec. 1071.4035. INFORMAL SETTLEMENT CONFERENCE;
RESTITUTION. (a) The board by rule shall establish guidelines for
an informal settlement conference related to a complaint filed with
the board.
(b) Subject to Subsection (c), the board may 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 assessing an
administrative penalty under this chapter.
(c) 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. The board may not require payment of
other damages or estimate harm in a restitution order.
SECTION 27. Section 1071.404, Occupations Code, is amended
to read as follows:
Sec. 1071.404. PROBATION. (a) The board may require a
person whose certificate of registration or license suspension is
probated to:
(1) report regularly to the board on matters that are
the basis of the probation;
(2) limit practice to the areas prescribed by the
board; or
(3) continue or renew professional education until the
practitioner attains a degree of skill satisfactory to the board in
those areas that are the basis of the probation.
(b) The board by rule shall adopt written guidelines to
ensure that probation is administered consistently.
SECTION 28. Section 1071.452, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board by rule shall adopt an administrative penalty
schedule for violations of this chapter or board rules to ensure
that the amounts of penalties imposed are appropriate to the
violation.
SECTION 29. Chapter 1071, Occupations Code, is amended by
adding Subchapter L to read as follows:
SUBCHAPTER L. EXAMINATION ADVISORY COMMITTEES
Sec. 1071.551. EXAMINATION ADVISORY COMMITTEES. The board
may establish examination advisory committees to assist the board
in developing each examination required by this chapter.
Sec. 1071.552. BOARD RULES. (a) The board by rule shall:
(1) establish the purpose, role, responsibility, and
goals of an examination advisory committee;
(2) determine the size of and quorum requirements for
an examination advisory committee;
(3) determine the qualifications of an examination
advisory committee member, which may include experience and
geographic location requirements;
(4) provide a process for the appointment of
examination advisory committee members;
(5) establish the term of office for examination
advisory committee members; and
(6) determine the training requirements for an
examination advisory committee member.
(b) The board by rule shall define the examination
development process under this chapter, including the board's
interaction with the examination advisory committees during the
process.
Sec. 1071.553. ELIGIBILITY OF BOARD MEMBER. (a) A board
member is not eligible to serve as a voting member of an examination
advisory committee.
(b) A board member may attend an examination advisory
committee meeting to act as a liaison with the board.
Sec. 1071.554. MEETINGS. (a) Except as provided by
Subsection (b), the meetings of an examination advisory committee
are open meetings under Chapter 551, Government Code.
(b) An examination advisory committee may hold a closed
meeting to consider a test item or information related to a test
item as provided by Section 551.088, Government Code.
Sec. 1071.555. APPLICABILITY OF OTHER LAW. (a) Except as
provided by Subsection (b), an examination advisory committee is
subject to Chapter 2110, Government Code.
(b) Section 2110.002(b), Government Code, does not apply to
the appointment of examination advisory committee members.
Sec. 1071.556. EXAMINATION ADVISORY COMMITTEE DUTIES. An
examination advisory committee shall:
(1) develop the examinations required by this chapter
in accordance with board rules; and
(2) perform other tasks assigned by the board.
SECTION 30. (a) Not later than January 1, 2004, the Texas
Board of Professional Land Surveying shall:
(1) adopt the rules required by Sections 1071.1515 and
1071.4035, Occupations Code, as added by this Act; and
(2) set the fees required by Section 1071.1526,
Occupations Code, as added by this Act.
(b) Not later than September 1, 2005, the Texas Board of
Professional Land Surveying shall:
(1) adopt the written guidelines required by Section
1071.404, Occupations Code, as amended by this Act; and
(2) adopt the administrative penalty schedule
required by Subsection (c), Section 1071.452, Occupations Code, as
added by this Act.
SECTION 31. (a) In accordance with Subsection (c), Section
311.031, Government Code, which gives effect to a substantive
amendment enacted by the same legislature that codifies the amended
statute, the text of Section 1071.258, Occupations Code, as set out
in Section 17 of this Act, gives effect to changes made by Chapter
594, Acts of the 77th Legislature, Regular Session, 2001.
(b) To the extent of any conflict, this Act prevails over
another Act of the 78th Legislature, Regular Session, 2003,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 32. (a) A rule adopted by the Texas Board of
Professional Land Surveying applicable to Chapter 1071,
Occupations Code, that is in effect on the effective date of this
Act shall remain in effect as a rule of the Texas Board of
Professional Land Surveying until superseded by a new rule adopted
by the Texas Board of Professional Land Surveying.
(b) The changes in law made by this Act by Section 1071.053,
Occupations Code, as amended by this Act, and Section 1071.059,
Occupations Code, as added by this Act, in the prohibitions on or
qualifications of members of the Texas Board of Professional Land
Surveying do not affect the entitlement of a member serving on the
Texas Board of Professional Land Surveying immediately before
September 1, 2003, to continue to serve and function as a member of
the Texas Board of Professional Land Surveying for the remainder of
the member's term. Those changes in law apply only to a member
appointed on or after September 1, 2003.
(c) The change in law made by this Act to Chapter 1071,
Occupations Code, relating to the investigation of a complaint
applies only to a complaint filed with the Texas Board of
Professional Land Surveying on or after the effective date of this
Act. A complaint filed with the board before the effective date of
this Act is governed by the law as it existed immediately before
that date, and the former law is continued in effect for that
purpose.
(d) Of the four positions on the Texas Board of Professional
Land Surveying held by registered professional land surveyor
members, one of the positions is abolished on September 1, 2003. On
or before September 1, 2003, the four members who hold those
positions shall determine by unanimous agreement or by lot which of
the four positions is abolished on September 1, 2003, and shall
inform the president of the board of that determination.
SECTION 33. This Act takes effect September 1, 2003.