S.B. No. 279
AN ACT
relating to the continuation and functions of the Texas Department
of Licensing and Regulation, including certain functions
transferred to the department from the Department of Agriculture
and including certain functions transferred from the department to
the Department of Public Safety of the State of Texas; the financial
responsibilities of valet parking services; and the powers and
duties of the Department of Information Resources and the licensing
authorities of this state regarding on-line license information;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. TEXAS DEPARTMENT OF LICENSING AND REGULATION
SECTION 1.001. Section 51.002, Occupations Code, is amended
to read as follows:
Sec. 51.002. APPLICATION OF SUNSET ACT. The Texas
Commission of Licensing and Regulation and the Texas Department of
Licensing and Regulation are subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the commission and the department are abolished
September 1, 2015 [2003].
SECTION 1.002. Subchapter A, Chapter 51, Occupations Code,
is amended by adding Section 51.003 to read as follows:
Sec. 51.003. APPLICABILITY. This chapter applies to each
regulatory program administered by the department, including any
program under which a license is issued by the department.
SECTION 1.003. Subsection (a), Section 51.052, Occupations
Code, is amended to read as follows:
(a) The commission consists of seven [six] members
appointed by the governor with the advice and consent of the senate.
SECTION 1.004. Subsection (b), Section 51.053, Occupations
Code, is amended to read as follows:
(b) A person is not eligible for appointment as a member of
the commission if the person or the person's spouse:
(1) is regulated by the department;
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving funds from the department;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving funds from the department;
(4) uses or receives a substantial amount of tangible
goods, services, or funds from the department, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(5) [is an officer, employee, or paid consultant of a
trade association in a field regulated by the department;
[(6)] is an employee of the department[; or
[(7) 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 commission or department].
SECTION 1.005. Subchapter B, Chapter 51, Occupations Code,
is amended by adding Section 51.0535 to read as follows:
Sec. 51.0535. CONFLICT OF INTEREST. (a) In this section,
"Texas trade association" means a 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 commission and may
not be a department employee 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 officer, employee, or paid
consultant of a Texas trade association in a field regulated by the
department; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in a field regulated by the
department.
(c) A person may not be a member of the commission or act as
the general counsel to the commission or the department 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 department.
SECTION 1.006. Subchapter B, Chapter 51, Occupations Code,
is amended by adding Section 51.054 to read as follows:
Sec. 51.054. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the commission may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the commission 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 department and
the commission;
(2) the programs operated by the department;
(3) the role and functions of the department;
(4) the rules of the department, with an emphasis on
the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the department;
(6) the results of the most recent formal audit of the
department;
(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
department or the Texas Ethics Commission.
(c) A person appointed to the commission 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 1.007. Subsection (a), Section 51.055, Occupations
Code, is amended to read as follows:
(a) Members of the commission serve staggered six-year
terms. The terms of one or two members expire on February 1 of each
odd-numbered year.
SECTION 1.008. Subsection (a), Section 51.056, Occupations
Code, is amended to read as follows:
(a) The governor shall designate a member of the commission
as the presiding officer of the commission to serve in that capacity
at the pleasure of the governor [commission shall elect one of its
members as presiding officer. The presiding officer serves in that
capacity for a period of two years].
SECTION 1.009. Subsections (a) and (c), Section 51.057,
Occupations Code, are amended to read as follows:
(a) It is a ground for removal from the commission that a
member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 51.053 [for
appointment to the commission];
(2) does not maintain during service on the commission
the qualifications required by Section 51.053 [for appointment to
the commission];
(3) is ineligible for membership under [violates a
prohibition established by] Section 51.0535 [51.053]; [or]
(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 commission meetings that the member is eligible to attend
during a calendar year without an excuse approved [unless the
absence is excused] by a majority vote of the commission.
(c) If [a commission member or] the executive director has
knowledge that a potential ground for removal exists, the [member
or] executive director shall notify the presiding officer of the
commission 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 commission, who shall then
notify the governor and the attorney general that a potential
ground for removal exists.
SECTION 1.010. Section 51.105, Occupations Code, is amended
to read as follows:
Sec. 51.105. DIVISION OF RESPONSIBILITIES. The commission
shall develop and implement policies that clearly separate the
policy-making [define the respective] responsibilities of the
commission and the management responsibilities of[,] the executive
director[,] and the staff of the department.
SECTION 1.011. Subchapter C, Chapter 51, Occupations Code,
is amended by adding Section 51.106 to read as follows:
Sec. 51.106. INFORMATION ON STANDARDS OF CONDUCT. The
executive director or the executive director's designee shall
provide to members of the commission and to department employees,
as often as necessary, information regarding the requirements for
office or employment under this chapter, including information
regarding a person's responsibilities under applicable laws
relating to standards of conduct for state officers or employees.
SECTION 1.012. Section 51.108, Occupations Code, is amended
to read as follows:
Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
executive director or the executive director's designee shall
prepare and maintain a written policy statement that implements a
program of [to assure 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.
(b) The policy statement must include:
(1) personnel policies, including policies relating
[related] to recruitment, evaluation, selection, [appointment,]
training, and promotion of personnel, that show the intent of the
department to avoid the unlawful employment practices described by
Chapter 21, Labor Code; and
(2) an analysis of the extent to which the composition
of the department's personnel is in accordance with state and
federal law and a description of reasonable methods to achieve
compliance with state and federal law [a comprehensive analysis of
the department workforce that meets federal and state guidelines;
[(3) procedures by which a determination can be made
of significant underuse in the department 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].
(c) The [(b) A] policy statement [prepared under
Subsection (a)] must:
(1) [cover an annual period,] be updated [at least]
annually;
(2) be reviewed by the state Commission on Human
Rights for compliance with Subsection (b)(1);[,] and
(3) be filed with the governor's office [governor].
SECTION 1.013. Subchapter C, Chapter 51, Occupations Code,
is amended by adding Section 51.109 to read as follows:
Sec. 51.109. STATE EMPLOYEE INCENTIVE PROGRAM. The
executive director or the executive director's designee shall
provide to department employees information and training on the
benefits and methods of participation in the state employee
incentive program.
SECTION 1.014. Sections 51.203 and 51.204, Occupations
Code, are amended to read as follows:
Sec. 51.203. RULES REGARDING PROGRAMS REGULATED BY
DEPARTMENT [ADOPTED BY EXECUTIVE DIRECTOR]. The commission
[executive director] shall adopt rules as necessary to implement
each law establishing a program regulated by the department.
Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a) The commission [executive director] may not adopt
rules restricting advertising or competitive bidding by a license
holder except to prohibit false, misleading, or deceptive
practices.
(b) The commission [executive director] may not include in
rules to prohibit false, misleading, or deceptive practices by a
license holder a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the license holder's personal appearance
or the use of the license holder's voice in an advertisement;
(3) relates to the size or duration of an
advertisement; or
(4) restricts the use of a trade name in advertising.
SECTION 1.015. Subchapter D, Chapter 51, Occupations Code,
is amended by adding Sections 51.207 and 51.208 to read as follows:
Sec. 51.207. USE OF TECHNOLOGY. The commission shall
develop and implement a policy requiring the executive director and
department employees to research and propose appropriate
technological solutions to improve the department's ability to
perform its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the department on the Internet;
(2) ensure that persons who want to use the
department's services are able to:
(A) interact with the department 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
department's planning processes.
Sec. 51.208. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
RESOLUTION PROCEDURES. (a) The commission shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of department 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 department's
jurisdiction.
(b) The department'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 for the use of alternative dispute resolution by state
agencies.
(c) The commission 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 needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the department.
SECTION 1.016. Section 51.252, Occupations Code, is amended
to read as follows:
Sec. 51.252. COMPLAINTS. (a) The executive director shall
establish methods by which consumers and service recipients are
notified of the name, mailing address, and telephone number of the
department for the purpose of directing complaints to the
department. The department shall provide to the person filing the
complaint and to each person who is a subject of the complaint
information about the department's policies and procedures
relating to complaint investigation and resolution.
(b) The department shall maintain a [keep an information]
file on [about] each written complaint filed with the department
[that the commission or executive director 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
department;
(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 department closed the file without taking action other than
to investigate the complaint.
(c) The [If a written complaint is filed that the commission
or executive director has authority to resolve, the] department, 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) The commission shall adopt a procedure for documenting
complaints to the department from the time of the submission of the
initial complaint to the final disposition of the complaint. The
commission shall publish the procedure in the Texas Register.
SECTION 1.017. Section 51.302, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The commission shall by rule or by procedure published
in the Texas Register establish a written enforcement plan that
provides notice to license holders of the specific ranges of
penalties that apply to specific alleged violations and the
criteria by which the department determines the amount of a
proposed administrative penalty.
SECTION 1.018. Section 51.353, Occupations Code, is amended
to read as follows:
Sec. 51.353. ADMINISTRATIVE SANCTIONS. (a) The
commission shall revoke, suspend, or refuse to renew a license or
shall reprimand a license holder for a violation of this chapter,
[executive director shall adopt rules relating to administrative
sanctions that may be enforced against a license holder regulated
by the department. If a license holder violates] a law establishing
a regulatory program administered by the department, or a rule or
order of the commission [or executive director, the executive
director may:
[(1) issue a written reprimand to the license holder;
[(2) revoke or suspend the license holder's license;
or
[(3) place the license holder on probation if the
person's license has been suspended].
(b) The commission may place on probation a person whose
license is suspended. If a license suspension is probated, the
commission [executive director] may require the person [license
holder] to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
commission [executive director]; or
(3) continue or renew professional education [in those
areas that are the basis for the probation] until the person
[license holder] attains a degree of skill satisfactory to the
commission in those areas that are the basis for the probation
[executive director].
SECTION 1.019. Chapter 51, Occupations Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. LICENSE REQUIREMENTS
Sec. 51.401. LICENSE EXPIRATION AND RENEWAL. (a) A person
who is otherwise eligible to renew a license may renew an unexpired
license by paying the required renewal fee to the department before
the expiration date of the license. 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 paying to the department a renewal fee
that is 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 paying to the
department a renewal fee that is equal to two times 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.
(e) A person who was licensed in this state, moved to
another state, and is currently licensed and has been in practice in
the other state for the two years preceding the date of application
may obtain a new license without reexamination. The person must pay
to the department a fee that is equal to two times the normally
required renewal fee for the license.
(f) Not later than the 30th day before the date a person's
license is scheduled to expire, the department shall send written
notice of the impending expiration to the person at the person's
last known address according to the records of the department.
Sec. 51.402. EXAMINATIONS. (a) Not later than the 30th
day after the date a person takes a license examination, 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.
(d) If requested in writing by a person who fails a license
examination, the department shall furnish the person with an
analysis of the person's performance on the examination.
Sec. 51.403. EXAMINATION FEE REFUND. (a) The department
may refund a license examination fee to a person who is unable to
take the examination if the person:
(1) provides reasonable advance notice to the
department; or
(2) cannot take the examination because of an
emergency.
(b) The commission by rule shall define what constitutes
reasonable notice and an emergency under this section.
Sec. 51.404. ENDORSEMENT; RECIPROCITY. (a) The
commission may waive any prerequisite to obtaining a license for an
applicant after reviewing the applicant's credentials and
determining that the applicant holds a license issued by another
jurisdiction that has licensing requirements substantially
equivalent to those of this state.
(b) The commission may waive any prerequisite to obtaining a
license for an applicant who holds a license issued by another
jurisdiction with which this state has a reciprocity agreement.
The commission may make an agreement, subject to the approval of the
governor, with another state to allow for licensing by reciprocity.
Sec. 51.405. CONTINUING EDUCATION. The commission shall
recognize, prepare, or administer continuing education programs
for license holders. A license holder must participate in the
programs to the extent required by the commission to keep the
person's license.
SECTION 1.020. Section 51.205, Occupations Code, is
renumbered as Section 51.406, Occupations Code, and amended to read
as follows:
Sec. 51.406 [51.205]. STAGGERED [LICENSE EXPIRATION AND]
RENEWAL OF LICENSES. [(a)] The commission by rule [executive
director] 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 license holder pays only that 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 [annually
and may provide for a renewal period that exceeds 12 months.
[(b) The executive director shall notify a person regulated
by the department of the impending expiration of the person's
license].
SECTION 1.021. Chapter 51, Occupations Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. TELEPHONE INFORMATION SYSTEM
Sec. 51.451. DEFINITION. In this subchapter, "licensing
entity" means a department, commission, board, office, authority,
or other agency or governmental entity of this state that issues an
occupational license.
Sec. 51.452. TELEPHONE INFORMATION SYSTEM. The department
shall establish and operate a toll-free telephone information
system to provide assistance and referral services for persons who
inquire about a program regulated by a licensing entity.
SECTION 1.022. (a) The changes in law made by this article
in the prohibitions or qualifications applying to members of the
Texas Commission of Licensing and Regulation do not affect the
entitlement of a member serving on the commission immediately
before September 1, 2003, to continue to serve and function as a
member of the commission for the remainder of the member's term.
Those changes in law apply only to a member appointed on or after
September 1, 2003.
(b) Not later than November 1, 2003, the governor shall
appoint an additional member to serve on the Texas Commission of
Licensing and Regulation, as required by Subsection (a), Section
51.052, Occupations Code, as amended by this article. The new
member's term shall expire on February 1, 2007.
SECTION 1.023. Not later than September 1, 2004, the Texas
Department of Licensing and Regulation shall implement the
toll-free telephone information system required by Section 51.452,
Occupations Code, as added by this article.
SECTION 1.024. (a) In this section:
(1) "Department" means the Texas Department of
Licensing and Regulation.
(2) "Licensing entity" means a department,
commission, board, office, authority, or other agency or
governmental entity of this state that issues an occupational
license.
(3) "TexasOnline" means the project implemented under
Subchapter I, Chapter 2054, Government Code, as added by Chapter
342, Acts of the 77th Legislature, Regular Session, 2001.
(b) Not later than March 1, 2004, the department shall
identify licensing entities that do not use TexasOnline.
(c) Not later than September 1, 2004, the department shall
assist those entities to develop websites for, and to convert to,
TexasOnline.
(d) Licensing entities shall cooperate with the department
to implement this section.
SECTION 1.025. Not later than March 1, 2004, the Texas
Commission of Licensing and Regulation shall adopt the rules
required by Subsection (c), Section 51.302, Occupations Code, as
added by this article.
SECTION 1.026. Subsection (c), Section 51.053, Occupations
Code, is repealed.
SECTION 1.027. Section 51.252, Occupations Code, as amended
by this article, takes effect January 1, 2004.
ARTICLE 2. AIR CONDITIONING AND REFRIGERATION CONTRACTORS
SECTION 2.001. Section 1302.002, Occupations Code, is
amended by amending Subdivision (5) and adding Subdivision (11-a)
to read as follows:
(5) "Air conditioning and refrigeration maintenance
work" means all work, including repair work, required for the
continued normal performance of an environmental air conditioning
system, a process cooling or heating system, a commercial
refrigeration system, or commercial refrigeration equipment. The
term does not include:
(A) the total replacement of a system; or
(B) the installation or repair of a boiler or
pressure vessel that must be installed in accordance with rules
adopted by the commission [commissioner] under Chapter 755, Health
and Safety Code.
(11-a) "Executive director" means the executive
director of the department.
SECTION 2.002. The heading to Subchapter C, Chapter 1302,
Occupations Code, is amended to read as follows:
SUBCHAPTER C. [COMMISSIONER AND DEPARTMENT] POWERS AND DUTIES
SECTION 2.003. Section 1302.101, Occupations Code, is
amended to conform to Section 2, Chapter 790, Acts of the 77th
Legislature, Regular Session, 2001, and is further amended to read
as follows:
Sec. 1302.101. GENERAL POWERS AND DUTIES [OF COMMISSIONER].
(a) The commission [commissioner] shall[:
[(1)] adopt rules for the practice of air conditioning
and refrigeration contracting that are at least as strict as the
standards provided by:
(1) [(A)] the Uniform Mechanical Code [published
jointly by the International Conference of Building Officials and
the International Association of Plumbing and Mechanical
Officials, as that code exists at the time the rules are adopted];
and [or]
(2) [(B)] the International [Standard] Mechanical
Code.
(b) The executive director shall [published by the Southern
Building Code Congress International, Inc., as that code exists at
the time the rules are adopted;
[(2)] prescribe the design of an original and a
renewal license.
(c) The commission shall[; and
[(3)] maintain a record of the commission's
[commissioner's] proceedings under this chapter.
(d) [(b)] The executive director [commissioner] may
authorize disbursements necessary to implement this chapter,
including disbursements for office expenses, equipment costs, and
other necessary facilities.
SECTION 2.004. Section 1302.103, Occupations Code, is
amended to read as follows:
Sec. 1302.103. RULES REGARDING USE AND DISPLAY OF LICENSE.
The commission [commissioner], with the advice of the advisory
board, shall adopt rules relating to the use, display, and
advertisement of a license.
SECTION 2.005. Section 1302.201, Occupations Code, is
amended to read as follows:
Sec. 1302.201. ADVISORY BOARD MEMBERSHIP. The air
conditioning and refrigeration contractors advisory board consists
of six members appointed by the presiding officer of the
commission, with the commission's approval, [governor with the
advice and consent of the senate] and two ex officio nonvoting
members.
SECTION 2.006. Subsection (a), Section 1302.204,
Occupations Code, is amended to read as follows:
(a) The advisory board shall advise the commission
[commissioner] in adopting rules and in administering and enforcing
this chapter.
SECTION 2.007. Subsection (b), Section 1302.205,
Occupations Code, is amended to read as follows:
(b) If a vacancy occurs during an appointed member's term,
the presiding officer of the commission, with the commission's
approval, [governor] shall fill the vacancy for the remainder of
the unexpired term with a person who represents the same interests
as the predecessor.
SECTION 2.008. Section 1302.206, Occupations Code, is
amended to read as follows:
Sec. 1302.206. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, [governor] shall
designate one member of the advisory board to serve as presiding
officer of the board for two years.
SECTION 2.009. Section 1302.261, Occupations Code, is
amended to read as follows:
Sec. 1302.261. TEMPORARY LICENSE. The commission
[commissioner] by rule may provide for the issuance of a temporary
air conditioning and refrigeration contracting license to an
applicant who:
(1) submits to the executive director [commissioner]
an application on a form prescribed by the executive director
[commissioner]; and
(2) pays the required fees.
SECTION 2.010. Subsection (b), Section 1302.354,
Occupations Code, is amended to read as follows:
(b) The commission [commissioner] by rule shall adopt
requirements governing the registration and issuance of a
certificate of registration.
SECTION 2.011. Subsection (c), Section 1302.355,
Occupations Code, is amended to read as follows:
(c) The commission [commissioner] by rule shall establish
requirements for evidence that satisfies this section.
SECTION 2.012. The following laws are repealed:
(1) Subdivision (8), Section 1302.002, Occupations
Code;
(2) Section 1302.107, Occupations Code;
(3) Section 1302.152, Occupations Code;
(4) Section 1302.258, Occupations Code;
(5) Section 1302.259, Occupations Code; and
(6) Chapter 790, Acts of the 77th Legislature, Regular
Session, 2001.
SECTION 2.013. The changes in law made by this article
applying to members of the air conditioning and refrigeration
contractors advisory board do not affect the entitlement of a
member serving on the board immediately before September 1, 2003,
to continue to serve and function as a member of the board for the
remainder of the member's term. Those changes in law apply only to
a member appointed on or after September 1, 2003.
ARTICLE 3. ARCHITECTURAL BARRIERS
SECTION 3.001. Section 2, Article 9102, Revised Statutes,
is amended by adding Subsection (h) to read as follows:
(h) If any portion of a building described by Subsection
(a)(1) of this section is occupied solely for residential use and
the remaining occupied portion of the building is occupied for
nonresidential use, the executive director shall consider only the
nonresidential portion of the building in determining whether the
building complies with the standards and specifications adopted
under this article.
SECTION 3.002. Section 4, Article 9102, Revised Statutes,
is amended by adding Subdivision (6-a) to read as follows:
(6-a) "Executive director" means the executive
director of the department.
SECTION 3.003. Article 9102, Revised Statutes, is amended
by adding Section 4A to read as follows:
Sec. 4A. APPLICABILITY OF OTHER LAW. Section 51.404,
Occupations Code, does not apply to this article.
SECTION 3.004. Subsections (c) through (h) and (j), Section
5A, Article 9102, Revised Statutes, are amended to read as follows:
(c) An applicant for a certificate of registration must file
with the commission an application on a form prescribed by the
executive director [commissioner].
(d) To be eligible for a certificate of registration, an
applicant must satisfy any requirements adopted by the commission
[commissioner] by rule, including education and examination
requirements.
(e) The executive director [commissioner] may issue a
certificate of registration to perform review functions of the
commission, inspection functions of the commission, or both review
and inspection functions.
(f) The executive director [commissioner] may administer
separate examinations for applicants for certificates of
registration to perform review functions, inspection functions, or
both review and inspection functions. [Not later than the 30th day
after the examination date, the commissioner shall notify each
examinee of the results of the examination.]
(g) The executive director [commissioner] shall issue an
appropriate certificate of registration to an applicant who meets
the requirements for a certificate.
(h) The commission [commissioner] by rule shall specify the
term of a certificate of registration issued under this section.
(j) A certificate holder shall perform a review or
inspection function of the commission in a competent and
professional manner and in compliance with:
(1) standards and specifications adopted by the
commission under this article; and
(2) rules adopted by the commission [commissioner]
under this article.
SECTION 3.005. Section 7, Article 9102, Revised Statutes,
is amended to read as follows:
Sec. 7. ADVISORY COMMITTEE; REVIEW OF AND COMMENT ON RULES.
(a) The presiding officer of the commission, with the commission's
approval, shall appoint an advisory committee for the architectural
barriers program. The committee shall be composed of building
professionals and persons with disabilities who are familiar with
architectural barrier problems and solutions. The committee shall
be composed of at least eight members. Persons with disabilities
must make up a majority of the membership.
(b) A committee member serves at the will of the presiding
officer of the commission. A member may not receive compensation
for service on the committee but is entitled to reimbursement for
actual and necessary expenses incurred in performing functions as a
member.
(c) The presiding officer of the commission, with the
commission's approval, [committee] shall appoint [elect] a member
of the committee as chair for two years. The committee shall meet
at least twice each calendar year at the call of the committee chair
or at the call of the commission [commissioner].
(d) The committee periodically shall review the rules
relating to the architectural barriers program and recommend
changes in the rules to the commission [and the commissioner]. The
commission shall submit all proposed changes to rules and
procedures that relate to the architectural barriers program to the
committee for review and comment before adoption or implementation
of the new or amended rule or procedure.
SECTION 3.006. Article 9102, Revised Statutes, is amended
by adding Section 9 to read as follows:
Sec. 9. COMPLAINTS. (a) The department shall continue to
monitor a complaint made under Section 51.252, Occupations Code,
that alleges that a building or facility is not in compliance with
the standards and specifications adopted by the commission under
this article until the department determines that:
(1) the building or facility has been brought into
compliance; or
(2) the building or facility is not required to be
brought into compliance because of a rule or statute, including
Section 2(c) of this article.
(b) If the building or facility is not required to be
brought into compliance, the department shall, on final disposition
of the complaint, notify in writing the person filing the complaint
that the building or facility is not required to be brought into
compliance because of a rule or statute and provide a reference to
the rule or statute.
(c) The department, at least quarterly and for as long as
the department continues to monitor the complaint under Subsection
(a) of this section, shall notify the person filing the complaint of
the status of the monitoring.
SECTION 3.007. The following laws are repealed:
(1) Subdivision (3), Section 4, Article 9102, Revised
Statutes; and
(2) Subsection (i), Section 5A, Article 9102, Revised
Statutes.
SECTION 3.008. The changes in law made by this article
applying to members of the advisory committee for the program for
the elimination of architectural barriers do not affect the
entitlement of a member serving on the committee immediately before
September 1, 2003, to continue to serve and function as a member of
the committee for the remainder of the member's term. Those changes
in law apply only to a member appointed on or after September 1,
2003.
ARTICLE 4. AUCTIONEERS
SECTION 4.001. 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 4.002. Subsections (a), (b), and (d), Section
1802.059, 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
examination and training requirements of Section 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 commission [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 4.003. Section 1802.101, Occupations Code, is
amended to read as follows:
Sec. 1802.101. AUCTIONEER EDUCATION ADVISORY BOARD. The
advisory board shall advise the commission [commissioner] on
educational matters.
SECTION 4.004. Subsections (a) and (b), Section 1802.102,
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 presiding officer of the commission, with the
commission's approval [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 presiding officer of the commission [commissioner] may
not appoint members who reside in contiguous senatorial districts.
SECTION 4.005. Subsection (a), Section 1802.103,
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 presiding officer of
the commission, with the commission's approval, [commissioner]
shall appoint a replacement to serve for the remainder of the term.
SECTION 4.006. Section 1802.104, Occupations Code, is
amended to read as follows:
Sec. 1802.104. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, shall appoint a
member of the advisory board to serve [shall designate one of its
members] as presiding officer of the board. The presiding officer
serves for two years.
SECTION 4.007. 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 commission
[commissioner] on their usefulness and merit as continuing
education tools.
(b) On the recommendation of the advisory board, the
commission [commissioner] may fund or underwrite specific classes,
seminars, or events for the education and advancement of the
auctioneering profession in this state.
SECTION 4.008. Subsection (a), Section 1802.153,
Occupations Code, is amended to read as follows:
(a) In addition to any other fees required by this chapter,
an applicant entitled to receive a license under this chapter must
pay a fee [of $100] before the executive director [commissioner]
issues the license.
SECTION 4.009. Section 1802.201, Occupations Code, is
amended to read as follows:
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 4.010. Subsections (a) and (b), Section 1802.202,
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 4.011. Subsection (c), Section 1802.203,
Occupations Code, is amended to read as follows:
(c) After the hearing, the hearings examiner shall prepare a
proposal for decision for the commission [commissioner].
SECTION 4.012. Section 1802.204, Occupations Code, is
amended to read as follows:
Sec. 1802.204. APPEAL. A party may appeal a decision of the
commission [commissioner] in the manner provided for a contested
case under Chapter 2001, Government Code.
SECTION 4.013. Section 1802.207, Occupations Code, is
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
commission [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 commission [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.
SECTION 4.014. Subsection (a), Section 1802.209,
Occupations Code, is amended to read as follows:
(a) This subchapter and Section 1802.252 do not limit the
commission'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 4.015. Section 1802.251, Occupations Code, is
amended to read as follows:
Sec. 1802.251. DENIAL OF APPLICATION; SUSPENSION OR
REVOCATION OF LICENSE. The commission [commissioner] may deny an
application for a license or suspend or revoke the license of any
auctioneer for:
(1) violating this chapter or a rule adopted under
this chapter;
(2) obtaining 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; or
(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.
SECTION 4.016. Section 1802.252, Occupations Code, is
amended to read as follows:
Sec. 1802.252. REVOCATION FOR CLAIM ON FUND. (a) The
commission [commissioner] may 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 commission [commissioner] may probate an order
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 4.017. Section 1802.253, Occupations Code, is
amended to read as follows:
Sec. 1802.253. HEARING. (a) Before denying an application
for a license [or suspending or revoking a license], the commission
[commissioner] shall:
(1) set the matter for a hearing; and
(2) 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 commission
[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 4.018. Subsection (a), Section 1802.303,
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 commission
[commissioner] under this chapter for which a penalty is not
provided.
SECTION 4.019. The following laws are repealed:
(1) Subdivision (7), Section 1802.001, Occupations
Code;
(2) Section 1802.057, Occupations Code;
(3) Section 1802.061, Occupations Code; and
(4) Section 1802.254, Occupations Code.
SECTION 4.020. The changes in law made by this article
applying to members of the Auctioneer Education Advisory Board do
not affect the entitlement of a member serving on the board
immediately before September 1, 2003, to continue to serve and
function as a member of the board for the remainder of the member's
term. Those changes in law apply only to a member appointed on or
after September 1, 2003.
ARTICLE 5. BOILERS
SECTION 5.001. Section 755.001, Health and Safety Code, is
amended by amending Subdivisions (5), (6), and (23) and adding
Subdivision (7-a) to read as follows:
(5) "Certificate of operation" means a certificate
issued by the executive director [commissioner] to allow the
operation of a boiler.
(6) "Commission" ["Commissioner"] means the Texas
Commission of Licensing and Regulation [commissioner of licensing
and regulation].
(7-a) "Executive director" means the executive
director of the department.
(23) "Standard boiler" means a boiler that bears a
Texas stamp, the stamp of a nationally recognized engineering
professional society, or the stamp of any jurisdiction that has
adopted a standard of construction equivalent to the standard
required by the executive director [commissioner].
SECTION 5.002. Subsections (b) and (d), Section 755.011,
Health and Safety Code, are amended to read as follows:
(b) The board is composed of the following nine members
appointed by the presiding officer of the commission, with the
commission's approval [commissioner]:
(1) three members representing persons who own or use
boilers in this state;
(2) three members representing companies that insure
boilers in this state;
(3) one member representing boiler manufacturers or
installers;
(4) one member who is a mechanical engineer and a
member of the faculty of a recognized college of engineering in this
state; and
(5) one member representing a labor union.
(d) The executive director [commissioner] serves as an ex
officio board member.
SECTION 5.003. Section 755.013, Health and Safety Code, is
amended to read as follows:
Sec. 755.013. PRESIDING OFFICER [CHAIRMAN]. The chief
inspector serves as presiding officer [chairman] of the board.
SECTION 5.004. Section 755.014, Health and Safety Code, is
amended to read as follows:
Sec. 755.014. REMOVAL OF BOARD MEMBERS; VACANCY. (a) The
commission [commissioner] may remove a board member for
inefficiency or neglect of official duty.
(b) A board member's office becomes vacant on the
resignation, death, suspension, or incapacity of the member. The
presiding officer of the commission [commissioner] shall appoint,
in the same manner as the original appointment, a person to serve
for the remainder of the unexpired term.
SECTION 5.005. Section 755.016, Health and Safety Code, is
amended to read as follows:
Sec. 755.016. MEETINGS. The board shall meet at least twice
each year at the call of the presiding officer [chairman] at a place
designated by the board.
SECTION 5.006. Section 755.017, Health and Safety Code, is
amended to read as follows:
Sec. 755.017. POWERS AND DUTIES. The board shall advise the
commission [commissioner] in the adoption of definitions and rules
relating to the safe construction, installation, inspection,
operating limits, alteration, and repair of boilers and their
appurtenances.
SECTION 5.007. Subsection (a), Section 755.030, Health and
Safety Code, is amended to read as follows:
(a) In addition to the fees described by Section 51.202,
Occupations Code, the commission may authorize the collection of
fees for:
(1) boiler inspections, including fees for special
inspections; and
(2) other activities administered by the boiler
inspection section and authorized by rule of the commission
[executive director of the department].
SECTION 5.008. Section 755.032, Health and Safety Code, is
amended to read as follows:
Sec. 755.032. RULES. (a) The commission [commissioner]
may adopt and enforce rules, in accordance with standard boiler
usage, for the construction, inspection, installation, use,
maintenance, repair, alteration, and operation of boilers.
(b) The executive director [commissioner] may exchange
information, including data on experience, with other authorities
that inspect boilers or their appurtenances, to obtain information
necessary to adopt rules.
(c) The executive director [commissioner] or a department
employee may not prescribe the make, brand, or kind of boilers or
any appurtenances on the boiler to purchase.
(d) The executive director [commissioner] or a department
employee may not prescribe the make, brand, or kind of boilers to
purchase.
SECTION 5.009. Section 755.033, Health and Safety Code, is
amended to read as follows:
Sec. 755.033. INTERAGENCY INSPECTION AGREEMENTS. (a) The
executive director [commissioner] shall enter into interagency
agreements with the Texas Department of Health, the Texas
Commission on Fire Protection, and the Texas Department [State
Board] of Insurance under which inspectors, marshals, or
investigators from those agencies who discover unsafe or
unregistered boilers in the course and scope of inspections
conducted as part of regulatory or safety programs administered by
those agencies are required to report the unsafe or unregistered
boilers to the executive director [commissioner].
(b) The executive director [commissioner] may enter into
analogous agreements with local fire marshals.
(c) The commission [commissioner] shall adopt rules
relating to the terms and conditions of an interagency agreement
entered into under this section.
SECTION 5.010. Subsections (b) and (d), Section 755.041,
Health and Safety Code, are amended to read as follows:
(b) On written request, an owner or operator who does not
comply with a preliminary order is entitled to a hearing before the
executive director [commissioner] to show cause for not enforcing
the preliminary order. If, after the hearing, the executive
director [commissioner] determines that the boiler is unsafe and
that the preliminary order should be enforced, or that other acts
are necessary to make the boiler safe, the executive director
[commissioner] may order or confirm the withholding of the
certificate of operation for that boiler, and may impose additional
requirements as necessary for the repair or alteration of the
boiler or the correction of the unsafe conditions.
(d) This section does not limit the executive director's
[commissioner's] authority under Section 755.028 or the
commission's authority under Section 755.032.
SECTION 5.011. Subsection (a), Section 755.043, Health and
Safety Code, is amended to read as follows:
(a) A person, firm, or corporation commits an offense if:
(1) the person, firm, or corporation owns a boiler in
this state, has the custody, management, use, or operation of a
boiler in this state, or is otherwise subject to this chapter or a
rule adopted under this chapter; and
(2) the person, firm, or corporation violates this
chapter, a rule adopted under this chapter, or an order issued by
the commission, the executive director, [commissioner] or a
regularly employed inspector authorized to enforce this chapter and
rules and orders.
SECTION 5.012. Section 755.045, Health and Safety Code, is
amended to read as follows:
Sec. 755.045. NOTICE OF RULE OR ORDER REQUIRED BEFORE
PROSECUTION. A criminal action may not be maintained against any
person relating to the violation of a rule adopted or an order
issued under this chapter until the commission [commissioner] gives
notice of the rule or order.
SECTION 5.013. Section 755.046, Health and Safety Code, is
amended to read as follows:
Sec. 755.046. AFFIDAVIT OF ORDERS. An affidavit is
admissible as evidence in any civil or criminal action involving an
order adopted by the commission or the executive director
[commissioner] and the publication of the order, without further
proof of the order's issuance or publication or of the contents of
the order, if the affidavit:
(1) is issued under the seal of the commission or the
executive director [commissioner];
(2) is executed by the commission, the executive
director [commissioner], the chief inspector, or a deputy
inspector;
(3) states the terms of the order;
(4) states that the order was issued and published;
and
(5) states that the order was in effect during the
period specified by the affidavit.
SECTION 5.014. The following laws are repealed:
(1) Subsections (c), (d), (e), and (h), Section
755.024, Health and Safety Code; and
(2) Section 755.031, Health and Safety Code.
SECTION 5.015. The changes in law made by this article
applying to members of the board of boiler rules do not affect the
entitlement of a member serving on the board immediately before
September 1, 2003, to continue to serve and function as a member of
the board for the remainder of the member's term. Those changes in
law apply only to a member appointed on or after September 1, 2003.
ARTICLE 6. CAREER COUNSELING SERVICES
SECTION 6.001. Section 2502.001, Occupations Code, is
amended by amending Subdivision (3) and adding Subdivision (4-a) to
read as follows:
(3) "Commission" ["Commissioner"] means the Texas
Commission of Licensing and Regulation [commissioner of licensing
and regulation].
(4-a) "Executive director" means the executive
director of the department.
SECTION 6.002. Section 2502.056, Occupations Code, is
amended to read as follows:
Sec. 2502.056. RULES. The commission [commissioner] may
adopt rules relating to the administration and enforcement of the
certificate of authority program created under this subchapter.
SECTION 6.003. Subchapter B, Chapter 2502, Occupations
Code, is amended by adding Section 2502.058 to read as follows:
Sec. 2502.058. APPLICABILITY OF OTHER LAW. Section 51.404
does not apply to this chapter.
SECTION 6.004. Subsection (b), Section 2502.202,
Occupations Code, is amended to read as follows:
(b) Not later than 10 days [48 hours] after a career
counseling service receives a written complaint, the service shall
respond to the complaint. Not later than the 30th [10th] day after
the date the complaint is received, the service shall resolve the
complaint.
SECTION 6.005. Subsection (a), Section 2502.203,
Occupations Code, is amended to read as follows:
(a) If a career counseling service cannot resolve a
complaint within the period described by Section 2502.202, the
service shall:
(1) refer the complaint to a qualified independent
arbitration organization recognized by the department; and
(2) resolve the complaint not later than the 60th
[30th] day after the date the arbitration begins [complaint is
referred for arbitration].
SECTION 6.006. Section 2502.252, Occupations Code, is
amended to read as follows:
Sec. 2502.252. COMPLAINT AND INVESTIGATION. (a) A person
[by sworn affidavit] may file with the executive director
[commissioner] a complaint alleging a violation of this chapter.
(b) On receipt of the complaint, the executive director
[commissioner] shall investigate the alleged violation and may:
(1) inspect any record relevant to the complaint; and
(2) subpoena the record and any necessary witness.
SECTION 6.007. Subsections (a) and (c), Section 2502.253,
Occupations Code, are amended to read as follows:
(a) If the executive director [commissioner] determines as
a result of an investigation that a violation of this chapter may
have occurred, the executive director [commissioner] shall hold a
hearing [not later than the 45th day after the date the complaint
was filed under Section 2502.252].
(c) The executive director [commissioner] shall render a
decision on the alleged violation [not later than the eighth day]
after [the date] the hearing is concluded.
SECTION 6.008. Section 2502.254, Occupations Code, is
amended to read as follows:
Sec. 2502.254. SANCTIONS. (a) If, after a hearing, the
commission [commissioner] determines that a career counseling
service has violated this chapter, the commission [commissioner]
may, as appropriate:
(1) issue a warning to the service; or
(2) suspend or revoke the certificate of authority
issued to the service.
(b) If, after a hearing, the commission [commissioner]
determines that a career counseling service has violated this
chapter, the executive director [commissioner] may award the
complainant an amount equal to the amount of the fee charged by the
service.
SECTION 6.009. Section 2502.255, Occupations Code, is
amended to read as follows:
Sec. 2502.255. REISSUANCE OF CERTIFICATE AFTER REVOCATION.
If the commission [commissioner] revokes the certificate of
authority of a career counseling service under Section 2502.254,
the service and any owner of that service may not apply for a new
certificate until after the third anniversary of the date the
certificate was revoked.
SECTION 6.010. Sections 2502.057 and 2502.101, Occupations
Code, are repealed.
ARTICLE 7. COMBATIVE SPORTS
SECTION 7.001. Section 2052.002, Occupations Code, is
amended by amending Subdivisions (4) and (6) and adding
Subdivisions (8-a), (13-a), and (15-a) to read as follows:
(4) "Commission" ["Commissioner"] means the Texas
Commission of Licensing and Regulation [commissioner of licensing
and regulation or the commissioner's designated representative].
(6) "Elimination tournament" means a boxing contest in
which elimination tournament contestants compete in a series of
matches until not more than one contestant remains in any weight
category. The term does not include a boxing event described by
Section 2052.110.
(8-a) "Executive director" means the executive
director of the department.
(13-a) "Promoter" means a boxing promoter or wrestling
promoter.
(15-a) "Ringside physician" means an individual
licensed to practice medicine in this state who is registered with
the department.
SECTION 7.002. Subchapter A, Chapter 2052, Occupations
Code, is amended by adding Section 2052.003 to read as follows:
Sec. 2052.003. APPLICABILITY OF OTHER LAW. Section 51.401
does not apply to this chapter.
SECTION 7.003. The heading to Subchapter B, Chapter 2052,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. POWERS AND DUTIES [OF DEPARTMENT AND COMMISSIONER]
SECTION 7.004. Section 2052.052, Occupations Code, is
amended to read as follows:
Sec. 2052.052. RULES. (a) The commission [commissioner]
shall adopt reasonable and necessary rules to administer this
chapter.
(b) The commission [commissioner] may adopt rules:
(1) governing professional kickboxing contests and
exhibitions; [and]
(2) establishing reasonable qualifications for an
applicant seeking a license from the department under this chapter;
(3) recognizing a sanction, medical suspension, or
disqualification of a license holder by a combative sports
authority in any state, provided that if licensure is denied based
on those actions, an applicant has a right to a hearing as
prescribed by rule;
(4) establishing practice requirements or specialty
certifications that a person licensed to practice medicine in this
state must meet to register as a ringside physician;
(5) requiring a contestant to present to the executive
director at the time of weigh-in an original copy of recent blood
test results that demonstrate whether the contestant is free from
hepatitis B virus, hepatitis C virus, human immunodeficiency virus,
and any other communicable disease designated by commission rule
and providing that a contestant's failure to provide the required
blood test results disqualifies the contestant;
(6) providing that to participate in any event a
contestant must be free of hepatitis B virus, hepatitis C virus,
human immunodeficiency virus, and any other communicable disease
designated by rule;
(7) requiring that a contestant undergo a physical
examination, including an ophthalmological examination, at or near
the time of weigh-in and providing for disqualification of a
contestant who is determined by an examining physician to be unfit;
and
(8) establishing additional responsibilities for
promoters.
SECTION 7.005. Section 2052.054, Occupations Code, is
amended by amending Subsection (a) and adding Subsection (c) to
read as follows:
(a) The commission [commissioner] may recognize, prepare,
or administer continuing education programs for persons licensed
under this chapter.
(c) Section 51.405 does not apply to this chapter.
SECTION 7.006. Subchapter B, Chapter 2052, Occupations
Code, is amended by adding Section 2052.055 to read as follows:
Sec. 2052.055. MEDICAL ADVISORY COMMITTEE. (a) The
presiding officer of the commission, with the commission's
approval, may appoint a medical advisory committee to advise the
department concerning health issues for boxing event contestants.
(b) If the commission elects to appoint an advisory
committee, the commission by rule shall establish:
(1) the number of committee members;
(2) qualifications for appointment to the committee;
and
(3) the purpose and duties of the committee.
SECTION 7.007. Section 2052.103, Occupations Code, is
amended to read as follows:
Sec. 2052.103. ELIMINATION TOURNAMENT BOXING PROMOTER
LICENSE APPLICATION REQUIREMENTS. (a) An applicant for an
elimination tournament boxing promoter's license under this
chapter must apply on a form furnished by the executive director
[commissioner].
(b) An application must be accompanied by an application fee
[of not more than $1,000] and, if the applicant charges a fee for
admission to the elimination tournament or awards a trophy, prize,
including a prize of money, or other item of value of more than $50
to a contestant winning the elimination tournament:
(1) a $50,000 surety bond subject to approval by the
executive director [commissioner] and conditioned on the
applicant's payment of:
(A) the tax imposed under Section 2052.151; and
(B) a claim against the applicant as described by
Section 2052.109(a)(3); and
(2) proof of not less than $10,000 accidental death or
injury insurance coverage for each contestant participating in the
elimination tournament.
SECTION 7.008. Section 2052.107, Occupations Code, is
amended to read as follows:
Sec. 2052.107. OTHER BOXING LICENSES. Unless a person
holds a license or registration issued under this chapter, the
person may not act as a:
(1) professional boxer;
(2) manager of a professional boxer;
(3) referee;
(4) judge;
(5) second;
(6) timekeeper; [or]
(7) matchmaker; or
(8) ringside physician.
SECTION 7.009. Section 2052.110, Occupations Code, is
amended to read as follows:
Sec. 2052.110. LICENSE AND BONDING EXCEPTIONS. The
licensing and bonding requirements of this subchapter do not apply
to:
(1) a boxing event in which the participants do not
receive a money remuneration, purse, or prize for their
performances or services if the event is promoted, conducted, or
maintained by:
(A) an educational institution;
(B) a law enforcement organization;
(C) a Texas National Guard Unit; or
(D) an amateur athletic organization recognized
by the executive director [commissioner];
(2) an event conducted by a nonprofit amateur athletic
association chartered under the law of this state, including a
membership club affiliated with the association located within this
state and recognized by the executive director [commissioner];
(3) an event conducted by a college, school, or
university that is part of the institution's athletic program in
which only students of different educational institutions
participate; [or]
(4) an event in which only members of a troop, battery,
company, or unit of the Texas National Guard or a law enforcement
agency participate; or
(5) an event conducted by an organization of the
Olympic Games, the Paralympic Games, or the Pan-American Games.
SECTION 7.010. Subchapter C, Chapter 2052, Occupations
Code, is amended by adding Sections 2052.114 and 2052.115 to read as
follows:
Sec. 2052.114. LICENSE, REGISTRATION, AND PERMIT TERM AND
RENEWAL. (a) A license, registration, or permit issued under this
chapter is valid for one year after the date of issuance.
(b) The holder of a license, registration, or permit may
renew the license, registration, or permit by paying a renewal fee
and complying with other renewal requirements prescribed by
department rule before the expiration date. The department shall
issue a renewal certificate to the holder at the time of renewal.
Sec. 2052.115. PROMOTER RESPONSIBILITIES. For each
promoted event, a promoter shall:
(1) assure that all contestants scheduled to
participate are licensed before the event;
(2) provide that an ambulance, serviced by at least
two emergency medical technicians, is present on the premises where
the event is held;
(3) provide for a physical examination of each
contestant that complies with rules adopted under this chapter; and
(4) comply with all commission rules.
SECTION 7.011. Subsection (a), Section 2052.151,
Occupations Code, is amended to read as follows:
(a) A tax is imposed on a person who:
(1) conducts a boxing event, including an elimination
tournament, in which a fee is charged for admission to the event;
(2) exhibits in this state a simultaneous telecast of
a live, spontaneous, or current boxing event on a closed circuit
telecast, in which a fee is charged for admission to the telecast;
or
(3) conducts or sponsors an amateur boxing event,
other than an event exempt from licensing under Section
2052.110(2), (3), [or] (4), or (5), in which a fee is charged for
admission to the event.
SECTION 7.012. Subsection (a), Section 2052.152,
Occupations Code, is amended to read as follows:
(a) A person on whom a tax is imposed under Section
2052.151, not later than 72 hours after the end of the event or
telecast for which the tax is due, shall submit to the department a
verified report on a form furnished by the department stating:
(1) the number of tickets sold to the event;
(2) the ticket prices charged; [and]
(3) the gross price charged for the sale or lease of
broadcasting, television, and motion picture rights without any
deductions for commissions, brokerage fees, distribution fees,
advertising, or other expenses or charges; and
(4) the amount of gross receipts obtained from the
event.
SECTION 7.013. Subsection (b), Section 2052.201,
Occupations Code, is amended to read as follows:
(b) An elimination tournament match consists of three
[one-minute] rounds of not more than 90 seconds per round with an
interval of at least one minute between rounds.
SECTION 7.014. Section 2052.202, Occupations Code, is
amended to read as follows:
Sec. 2052.202. CONTESTANT PARTICIPATION; REGISTRATION.
(a) An elimination tournament contestant must register with the
department for a tournament not later than the 30th day before the
date of the tournament. The department shall prescribe the
registration form.
(b) An elimination tournament contestant may not
participate in more than[:
[(1)] one match a [during the first] night [of a
two-night elimination tournament other than a championship
tournament; or
[(2) two matches during the first night of a two-night
championship tournament.
[(b) An elimination tournament contestant may participate
in any number of matches during the second night of a two-night
elimination tournament].
(c) [Except as provided by Subsection (d), an elimination
tournament boxing promoter may permit an elimination tournament
contestant who does not win a match during the first night of a
two-night elimination tournament to participate in the tournament
during the second night of the tournament.
[(d)] An elimination tournament contestant who fights and
loses a match [is knocked out during the tournament] may not
[continue to] participate in another [the] tournament in this state
for at least 90 days after the date of the loss.
SECTION 7.015. Section 2052.251, Occupations Code, is
amended to read as follows:
Sec. 2052.251. BOXING GLOVES. A boxing event contestant,
other than an elimination tournament contestant under Subchapter E,
shall wear eight-ounce boxing gloves, unless the commission
[commissioner] by rule requires or permits a contestant to wear
heavier gloves.
SECTION 7.016. Subsections (a), (b), and (e), Section
2052.252, Occupations Code, are amended to read as follows:
(a) This section applies to an amateur boxing event, other
than an event described by Section 2052.110(2), (3), (4), or (5) or
an elimination tournament subject to Subchapter E, in which a fee is
charged for admission to the event.
(b) The event may take place only if the executive director
[commissioner] approves the event not later than seven days before
the date the event begins.
(e) The event is subject to the supervision of the executive
director [commissioner].
SECTION 7.017. Subchapter G, Chapter 2052, is amended by
adding Section 2052.3015 to read as follows:
Sec. 2052.3015. PROMOTER PENALTY FOR LATE LICENSE. A
promoter who does not comply with Section 2052.115(1) in a timely
manner is subject to a penalty under this chapter for each
contestant who obtains a license less than 72 hours before an event
in which the contestant is scheduled to participate.
SECTION 7.018. Section 2052.302, Occupations Code, is
amended to read as follows:
Sec. 2052.302. WITHHOLDING OF PURSE AND FORFEITURE OF
PURSE. (a) The executive director [commissioner] may order a
promoter [boxer or manager] to withhold any [forfeit to this state
a] purse or other funds payable to the holder of a license or
registration under this chapter if it appears more likely than not
that the holder has violated [in an amount of not more than $1,000
for violating] this chapter or a rule adopted under this chapter.
(b) The promoter shall surrender any purse or funds withheld
as provided by Subsection (a) to the executive director on demand.
Not later than the fifth working day after the event, the department
shall notify in writing the promoter and any person from whom a sum
was withheld of the date of a hearing to determine whether all or
part of the purse or funds withheld should be forfeited to the
state. The hearing must be scheduled for a date not later than the
10th day after the date of the notice. Not later than the 10th day
after the date of the hearing, the executive director shall enter an
order with findings of fact and conclusions of law determining
whether all or part of the purse or funds should be forfeited. Any
funds not forfeited shall be distributed to the persons entitled to
the funds.
(c) Except as otherwise provided by this subchapter, a
proceeding under this section shall be conducted in the manner
provided by Chapter 2001, Government Code.
(d) A person aggrieved by an order entered under this
section may appeal the order by filing a petition in a district
court in Travis County in the manner provided by Chapter 2001,
Government Code.
SECTION 7.019. Subsections (a) and (b), Section 2052.304,
Occupations Code, are amended to read as follows:
(a) A person may seek review of a decision or an order of the
executive director or the commission [commissioner] under this
chapter by filing a petition for review in a district court in
Travis County [not later than the 30th day after the date on which
the decision or order of the commissioner is final if the person is:
[(1) a party to an administrative hearing in which the
decision or order is issued; and
[(2) aggrieved by the decision or order].
(b) Chapter 2001, Government Code, governs any proceeding
under this section. [The filing of a petition for review under
Subsection (a) does not stay the effect of the decision or order of
the commissioner that is the subject of the petition. The
commissioner or the district court in which the petition for review
is filed may order a stay on appropriate terms.]
SECTION 7.020. The following laws are repealed:
(1) Section 2052.104, Occupations Code;
(2) Section 2052.112, Occupations Code;
(3) Section 2052.154, Occupations Code;
(4) Section 2052.301, Occupations Code;
(5) Subsection (c), Section 2052.304, Occupations
Code;
(6) Section 2052.305, Occupations Code;
(7) Section 2052.306, Occupations Code; and
(8) Section 2052.307, Occupations Code.
SECTION 7.021. Section 2052.302, Occupations Code, as
amended by this article, applies to a forfeiture imposed on or after
the effective date of this article. A forfeiture imposed before
that date is governed by the law in effect on the date the
forfeiture was ordered, and the former law is continued in effect
for that purpose.
SECTION 7.022. This article takes effect January 1, 2004.
ARTICLE 8. COURT INTERPRETERS
SECTION 8.001. Section 57.041, Government Code, is amended
by adding Subdivision (4-a) to read as follows:
(4-a) "Executive director" means the executive
director of the department.
SECTION 8.002. Subsections (a), (c), (e), and (g), Section
57.042, Government Code, are amended to read as follows:
(a) The licensed court interpreter advisory board is
established as an advisory board to the commission [department].
The board is composed of nine members appointed by the presiding
officer of the commission, with the commission's approval
[governor]. Members of the board serve staggered six-year terms,
with the terms of one-third of the members expiring on February 1 of
each odd-numbered year.
(c) The presiding officer of the commission, with the
commission's approval, [At the initial meeting of the board and at
the first meeting after new members take office, the board] shall
select from the board [its] members a presiding officer of the board
to serve for two years.
(e) The presiding officer of the commission, with the
commission's approval, [commissioner] may remove a member of the
board for inefficiency or neglect of duty in office. If a vacancy
occurs on the board, the presiding officer of the commission, with
the commission's approval, [governor] shall appoint a member who
represents the same interests as the former member to serve the
unexpired term.
(g) The board shall advise the commission [commissioner]
regarding the adoption of rules and the design of a licensing
examination.
SECTION 8.003. Subsections (a) and (b), Section 57.043,
Government Code, are amended to read as follows:
(a) The executive director [commissioner] shall issue a
court interpreter license to an applicant who:
(1) can interpret for an individual who can hear but
who does not comprehend English or communicate in English;
(2) passes the appropriate examination prescribed by
the executive director [commissioner]; and
(3) possesses the other qualifications for the license
required by this subchapter or by rules adopted under this
subchapter.
(b) The commission [commissioner] shall[:
[(1)] adopt rules relating to licensing under this
subchapter[;] and the executive director shall
[(2)] prescribe all forms required under this
subchapter.
SECTION 8.004. Section 57.048, Government Code, is amended
to read as follows:
Sec. 57.048. SUSPENSION AND REVOCATION OF LICENSES;
REISSUANCE. (a) After a hearing, the commission [commissioner]
shall suspend or revoke a court interpreter license on a finding
that the individual:
(1) made a material misstatement in an application for
a license;
(2) [wilfully] disregarded or violated this
subchapter or a rule adopted under this subchapter; or
(3) [has been convicted of a felony or of any crime in
which an essential element of the offense is misstatement, fraud,
or dishonesty; or
[(4)] engaged in dishonorable or unethical conduct
likely to deceive, defraud, or harm the public or a person for whom
the interpreter interprets.
(b) The executive director [commissioner] may reissue a
license to an individual whose license has been revoked if the
individual applies in writing to the department and shows good
cause to justify reissuance of the license.
SECTION 8.005. Subdivision (3), Section 57.041, Government
Code, is repealed.
SECTION 8.006. The changes in law made by this article
applying to members of the licensed court interpreter advisory
board do not affect the entitlement of a member serving on the board
immediately before September 1, 2003, to continue to serve and
function as a member of the board for the remainder of the member's
term. Those changes in law apply only to a member appointed on or
after September 1, 2003.
ARTICLE 9. ELEVATORS, ESCALATORS, AND RELATED EQUIPMENT
SECTION 9.001. Subchapter B, Chapter 754, Health and Safety
Code, is amended to read as follows:
SUBCHAPTER B. INSPECTION, [AND] CERTIFICATION, AND REGISTRATION
Sec. 754.011. DEFINITIONS. In this subchapter:
(1) "Acceptance inspection" means an inspection
performed at the completion of the initial installation or
alteration of equipment and in accordance with the applicable ASME
Code A17.1.
(2) "Accident" means an event involving equipment that
results in death or serious bodily injury to a person.
(3) "Alteration" means a change in or modernization of
existing equipment. The term does not include maintenance, repair,
replacement, or a cosmetic change that does not affect the
operational safety of the equipment or diminish the safety of the
equipment below the level required by the ASME Code A17.1, ASME Code
A17.3, ASME Code A18.1, or ASCE Code 21, as applicable, at the time
of alteration.
(4) "Annual inspection" means an inspection of
equipment performed in a 12-month period in accordance with the
applicable ASME Code A17.1, ASME Code A17.3, ASME Code A18.1, or
ASCE Code 21. The term includes an acceptance inspection performed
within that period.
(5) "ASCE Code 21" means the American Society of Civil
Engineers Code 21 for people movers operated by cables.
(6) "ASME Code A17.1" means the American Society of
Mechanical Engineers Safety Code for Elevators and Escalators
A17.1.
(6-a) "Executive director" means the executive
director of the department.
(7) [(2)] "ASME Code A17.3" means the 2002 American
Society of Mechanical Engineers Safety Code for Elevators and
Escalators A17.3.
(8) "ASME Code A18.1" means the American Society of
Mechanical Engineers Safety Code for Platform Lifts and Stairway
Chairlifts A18.1.
(9) [(3)] "Board" means the elevator advisory board.
(10) [(4)] "Commission" means the Texas Commission of
Licensing and Regulation.
(11) [(5)] "Commissioner" means the commissioner of
licensing and regulation.
(12) "Contractor" means a person engaged in the
installation, repair, or maintenance of equipment. The term does
not include an employee of a contractor or a person engaged in
cleaning or any other work performed on equipment that does not
affect the operational safety of the equipment or diminish the
safety of the equipment below the level required by the ASME Code
A17.1, ASME Code A17.3, ASME Code A18.1, or ASCE Code 21, as
applicable.
(13) [(6)] "Department" means the Texas Department of
Licensing and Regulation.
(14) "Equipment" means an elevator, escalator,
chairlift, platform lift, automated people mover operated by
cables, or moving sidewalk, or related equipment.
(15) "Industrial facility" means a facility to which
access is primarily limited to employees or contractors working in
that facility.
(16) [(7)] "Qualified historic building or facility"
means a building or facility that is:
(A) listed in or eligible for listing in the
National Register of Historic Places; or
(B) designated as a Recorded Texas Historic
Landmark or State Archeological Landmark.
(17) [(8)] "Related equipment" means:
(A) automatic equipment that is used to move a
person in a manner that is similar to that of an elevator, an [or]
escalator, a chairlift, a platform lift, an automated people mover
operated by cables, or [and includes] a moving sidewalk; and
(B) hoistways, pits, and machine rooms for
equipment.
(18) "Serious bodily injury" means a major impairment
to bodily function or serious dysfunction of any bodily organ or
part requiring medical attention.
(19) "Unit of equipment" means one elevator,
escalator, chairlift, platform lift, automated people mover
operated by cables, or moving sidewalk, or related equipment.
Sec. 754.0111. EXEMPTION. (a) This subchapter does not
apply to [an elevator, escalator, or related] equipment in a
private building for a labor union, trade association, private
club, or charitable organization that has two or fewer floors.
(b) This subchapter does not apply to an elevator located in
a single-family dwelling, except as provided by Section 754.0141.
Sec. 754.012. ELEVATOR ADVISORY BOARD. (a) The elevator
advisory board is composed of nine members appointed by the
presiding officer of the commission, with the commission's
approval, [commissioner] as follows:
(1) a representative of the insurance industry or a
certified elevator inspector;
(2) a representative of [elevator, escalator, and
related] equipment constructors;
(3) a representative of owners or managers of a
building [buildings] having fewer than six stories and having [an
elevator, an escalator, or related] equipment;
(4) a representative of owners or managers of a
building [buildings] having six stories or more and having [an
elevator, an escalator, or related] equipment;
(5) a representative of independent [elevator,
escalator, and related] equipment maintenance companies;
(6) a representative of [elevator, escalator, and
related] equipment manufacturers;
(7) a licensed or registered engineer or architect
[representative of professional engineers or architects];
(8) a public member; and
(9) a public member with a physical disability.
(b) Board members serve at the will of the commission
[commissioner].
(c) The presiding officer of the commission, with the
commission's approval, [commissioner] shall appoint a presiding
officer of the board to serve for two years.
(d) The board shall meet at least twice each calendar year.
(e) A board member serves without compensation but is
entitled to reimbursement for travel as provided for in the General
Appropriations Act [and other necessary expenses incurred in
performing duties under this subchapter].
Sec. 754.013. BOARD DUTIES. To protect public safety and to
identify and correct potential hazards, the board shall advise the
commission [commissioner] on:
(1) the adoption of appropriate standards for the
installation, alteration, operation, and inspection of [elevators,
escalators, and related] equipment;
(2) the status of [elevators, escalators, and related]
equipment used by the public in this state; [and]
(3) sources of information relating to equipment
safety;
(4) public awareness programs related to elevator
safety, including programs for sellers and buyers of single-family
dwellings with elevators, chairlifts, or platform lifts; and
(5) any other matter considered relevant by the
commission [commissioner].
Sec. 754.014. STANDARDS ADOPTED BY COMMISSION
[COMMISSIONER]. (a) The commission [commissioner] shall adopt
standards for the installation, maintenance, alteration,
operation, and inspection of [elevators, escalators, and related]
equipment used by the public in:
(1) buildings owned or operated by the state, a
state-owned institution or agency, or a political subdivision of
the state; and
(2) buildings that contain [an elevator, an escalator,
or related] equipment that is open to the general public, including
a hotel, motel, apartment house, boardinghouse, church, office
building, shopping center, or other commercial establishment.
(b) Standards adopted by the commission [commissioner] may
not contain requirements in addition to the requirements in the
ASME Code A17.1, [or] ASME Code A17.3, ASME Code A18.1, or ASCE Code
21. The standards must allow alteration of existing equipment if
the alteration does not diminish the safety of the equipment below
the level required by this subchapter at the time of alteration.
(c) Standards adopted by the commission [commissioner] must
require [elevators, escalators, and related] equipment to comply
with the installation requirements of the [following, whichever is
the least restrictive:
[(1) the] ASME Code A17.1, ASME Code A18.1, or ASCE
Code 21 that was in effect and applicable on the date of
installation of the [elevators, escalators, and related]
equipment[; or
[(2) an applicable municipal ordinance governing the
installation of elevators, escalators, and related equipment that
was in effect on the date of installation].
(d) Standards adopted by the commission [commissioner] must
require [elevators, escalators, and related] equipment to comply
with the installation requirements of the [1994] ASME Code A17.3
that contains minimum safety standards for all [elevators,
escalators, and related] equipment, regardless of the date of
installation.
(e) The executive director [On written request, the
commissioner] shall grant a delay for compliance with the
applicable ASME Code A17.1, [or the 1994] ASME Code A17.3, or ASME
Code A18.1 until a specified time if compliance is not readily
achievable, as that phrase is defined in the Americans with
Disabilities Act (42 U.S.C. Section 12101 et seq.), or regulations
adopted under that Act. The accumulated total time of all delays
may not exceed three years, except as provided by Subsection (f) or
as allowed in the discretion of the executive director.
(f) The executive director [On written request, the
commissioner] shall grant a delay until September 1, 2005, for
compliance with the requirements for door restrictors or
firefighter's service in the [1994] ASME Code A17.3 if those
requirements were not included in the ASME Code A17.1 that was in
effect on the date of installation [of the elevator, escalator, or
related equipment] and the [that] equipment was not subsequently
installed [by an owner of the elevator, escalator, or related
equipment].
(g) The executive director [commissioner] may grant a
waiver of compliance from an applicable code requirement [with the
applicable ASME Code A17.1 or the 1994 ASME Code A17.3] if the
executive director [commissioner] finds that:
(1) the building in which the [elevator, escalator, or
related] equipment is located is a qualified historic building or
facility or the noncompliance is due to structural components of
the building; [and]
(2) noncompliance will not constitute a significant
threat to passenger safety; and
(3) noncompliance, with adequate alternative
safeguards, will not constitute a significant threat to worker
safety.
(h) The executive director shall grant a waiver of
compliance if the noncompliance resulted from compliance with a
municipal equipment construction code at the time of the original
installation and the noncompliance does not pose imminent and
significant danger. The executive director [commissioner] may
grant a waiver of compliance with the firefighter's service
provisions of the ASME Code A17.1 or the [1994] ASME Code A17.3 in
an elevator that exclusively serves a vehicle parking garage in a
building that:
(1) is used only for parking;
(2) is constructed of noncombustible materials; and
(3) is not greater than 75 feet in height.
(i) This subchapter does not apply to [an elevator, an
escalator, or related] equipment in an industrial facility, or in a
grain silo, radio antenna, bridge tower, underground facility, or
dam, to which access is limited primarily [principally] to
employees of or working in that facility or structure.
(j) [The commissioner may charge a reasonable fee as set by
the commission for an application for waiver or delay.] One
application for a waiver or delay may contain all requests related
to a unit of equipment [particular building]. A delay may not be
granted indefinitely but must be granted for [to] a specified time
not to exceed three years.
(k) For purposes of this section, the date of installation
or alteration of equipment is the date that the owner of the real
property entered into a contract for the installation or alteration
of the [purchase of the elevators, escalators, or related]
equipment. If that date cannot be established, the date of
installation or alteration is the date of issuance of the municipal
building permit under which the [elevators, escalators, or related]
equipment was installed or altered [constructed] or, if a municipal
building permit was not issued, the date that electrical
consumption began for the construction of the building in which the
[elevators, escalators, or related] equipment was installed.
Sec. 754.0141. STANDARDS FOR EQUIPMENT IN SINGLE-FAMILY
DWELLINGS; REQUIRED INFORMATION. (a) Elevators, chairlifts, or
platform lifts installed in a single-family dwelling on or after
January 1, 2004, must comply with the ASME Code A17.1 or A18.1, as
applicable, and must be inspected by a QEI-1 certified inspector
after the installation is complete. The inspector shall provide
the dwelling owner a copy of the inspection report.
(b) The commission shall, before January 1, 2004, adopt
rules containing minimum safety standards that must be used by
QEI-1 certified inspectors when inspecting elevators, chairlifts,
and platform lifts installed in single-family dwellings.
(c) A municipality may withhold a certificate of occupancy
for a dwelling or for the installation of the elevator or chairlift
until the owner provides a copy of the QEI-1 inspection report to
the municipality.
(d) A contractor is not required to report to the department
any information concerning equipment in a single-family dwelling or
the contractor's work on the equipment.
(e) On completing installation of equipment in a
single-family dwelling, a contractor shall provide the dwelling
owner with relevant information, in writing, about use, safety, and
maintenance of the equipment, including the advisability of having
the equipment periodically and timely inspected by a QEI-1
certified inspector.
(f) An inspection by a QEI-1 certified inspector of
equipment in a single-family dwelling may be performed only at the
request and with the consent of the owner. The owner of a
single-family dwelling is not subject to Section 754.022, 754.023,
or 754.024.
Sec. 754.015. RULES. (a) The commission [commissioner] by
rule shall provide for:
(1) an annual [the] inspection and certification of
the [once each calendar year of elevators, escalators, and related]
equipment covered by standards adopted under this subchapter;
(2) [the] enforcement of those standards;
(3) registration [the certification] of qualified
[persons as] inspectors and contractors [for the purposes of this
subchapter]; [and]
(4) the form of [the] inspection documents, contractor
reports, [report] and certificates [certificate] of compliance;
(5) notification to building owners, architects, and
other building industry professionals regarding the necessity of
annually inspecting equipment;
(6) approval of continuing education programs for
registered QEI-1 certified inspectors; and
(7) standards of conduct for individuals who are
registered under this subchapter.
(b) The commission [commissioner] by rule may not [require
that]:
(1) require inspections of equipment to [inspection]
be made more often than every 12 months, except as provided by
Subsection (c) [once per year of elevators, escalators, and related
equipment];
(2) require persons to post a bond or furnish
insurance or to have minimum experience or education as a condition
of certification or registration; [and]
(3) require building owners to submit to the
department proposed plans for equipment installation or
alteration; or
(4) prohibit a QEI-1 certified inspector who is
registered with the department from inspecting equipment.
(c) The commission by rule may require a reinspection or
recertification of equipment if the equipment has been altered and
poses a significant threat to passenger or worker safety or if an
annual inspection report indicates an existing violation has
continued longer than permitted in a delay granted by the executive
director.
(d) The executive director may charge a reasonable fee as
set by the commission for:
(1) registering or renewing registration of an
inspector;
(2) registering or renewing registration of a
contractor;
(3) applying for a certificate of compliance;
(4) filing an inspection report as required by Section
754.019(a)(3), 30 days or more after the date the report is due, for
each day the report remains not filed after the date the report is
due;
(5) applying for a waiver or delay; and
(6) attending a continuing education program
sponsored by the department for registered QEI-1 inspectors
[inspection reports or certificates of compliance be placed in
locations other than one provided in Section 754.019(4)].
Sec. 754.016. INSPECTION REPORTS [REPORT] AND CERTIFICATES
[CERTIFICATE] OF COMPLIANCE. (a) Inspection reports [An
inspection report] and certificates [a certificate] of compliance
required under this subchapter must cover all [elevators,
escalators, and related] equipment in a building or structure
appurtenant to the building, including a parking facility, that are
owned by the same person or persons. [There shall be only one
inspection report and one certificate of compliance for each
building.]
(b) An inspector shall date and sign an inspection report
and shall issue the report to the building owner not later than the
10th calendar day after the date of inspection. [The inspection
report shall be on forms designated by the commissioner.]
(c) The executive director [commissioner] shall date and
sign a certificate of compliance and shall issue the certificate to
the building owner. The certificate of compliance shall state:
(1) that the [elevators, escalators, and related]
equipment has [have] been inspected by a certified inspector and
found by the inspector to be in compliance, except for any delays or
waivers granted by the executive director [commissioner] and stated
in the certificate;
(2) the date of the last inspection and the due date
for the next inspection; and
(3) contact information at the department to report a
violation of this subchapter.
(d) The commission by rule shall:
(1) specify what information must be contained in a
certificate of compliance;
(2) describe the procedure by which a certificate of
compliance is issued;
(3) require that a certificate of compliance related
to an elevator be posted in a publicly visible area of the building;
and
(4) determine what constitutes a "publicly visible
area" under Subdivision (3).
Sec. 754.017. CERTIFIED INSPECTORS. (a) In order to
inspect equipment, an individual must:
(1) be registered [An inspector must register] with
the department;
(2) attend educational programs approved by the
department;
(3) [and] be certified as a QEI-1 [an ASME-QEI-1]
inspector by an organization accredited by the American Society of
Mechanical Engineers; and
(4) pay all applicable fees. [Any certification
charges or fees shall be paid by the inspector.]
(b) [The commissioner may not by rule prohibit an ASME-QEI-1
certified inspector who is registered with the department from
inspecting under this subchapter an elevator, an escalator, or
related equipment.] A person assisting a certified inspector and
working under the direct, on-site supervision of the inspector is
not required to be [ASME-QEI-1] certified.
(c) A registration expires on the first anniversary of the
date of issuance.
(d) A certified inspector may not be required to attend more
than seven hours of continuing education during each licensing
period. [The commissioner may charge a $15 fee to certified
inspectors for registering with the department.]
Sec. 754.0171. CONTRACTOR REGISTRATION. (a) A person may
not install, repair, or maintain equipment without registering as a
contractor with the department as required by this subchapter.
(b) A contractor shall submit an application for
registration and pay appropriate fees to the department. The
registration application form may require information concerning
the background, experience, or identity of the applicant.
(c) A registration expires on the first anniversary of the
date of issuance.
(d) A person registering as a contractor under this
subchapter shall submit to the department an initial report, not
later than the 60th day following the application date, containing:
(1) the street address of each building or location at
which the person performed installation, repair, alteration, or
maintenance of equipment for the previous two years; and
(2) the name and mailing address of the building
owner.
(e) After the initial report required by Subsection (d), a
contractor registered as required by this subchapter shall submit
to the department a quarterly report containing:
(1) the street address of each building or location at
which the contractor performed installation, repair, alteration,
or maintenance of equipment not reported in the contractor's
initial report to the department under Subsection (d); and
(2) the name and mailing address of the building
owner.
(f) Installation, repair, alteration, and maintenance
standards for contractors must be consistent with ASME Code A17.1,
ASME Code A17.3, ASME Code A18.1, and ASCE Code 21.
Sec. 754.0172. INSPECTION FEE. [(a) A person inspecting
an elevator, an escalator, or related equipment under this
subchapter may not charge more than $65 per elevator cab or per
escalator for each inspection.
[(b)] The amount charged for an inspection or the
performance of an inspection of equipment under this subchapter may
not be contingent on the existence of a maintenance contract
between the person performing the inspection and any other person.
Sec. 754.018. POWERS OF MUNICIPALITIES. Subject to Section
754.014(h), if [If] a municipality operates a program for the
installation, maintenance, alteration, inspection, or [and]
certification of [elevators, escalators, and related] equipment,
this subchapter shall not apply to the [elevators, escalators, and
related] equipment in that municipality, provided that the
standards of installation, maintenance, alteration, inspection,
and certification are at least equivalent to [no less stringent
than] those contained in this subchapter.
Sec. 754.019. DUTIES OF REAL PROPERTY OWNERS. (a) The
owner of real property on which [an elevator, an escalator, or
related] equipment covered by this subchapter is located shall:
(1) have the [elevator, escalator, or related]
equipment inspected annually by a [an ASME-QEI-1] certified
inspector [in accordance with the commissioner's rules];
(2) obtain an inspection report from the inspector
evidencing that all [elevators, escalators, and related] equipment
in a building on the real property was [were] inspected in
accordance with this subchapter and rules adopted under this
subchapter;
(3) file with the executive director [commissioner a
copy of] each inspection report, and all applicable fees, [and a $20
filing fee for each report, plus $5 for each elevator, escalator, or
related equipment] not later than the 60th day after the date on
which an inspection is made under this subchapter;
(4) display the certificate of compliance:
(A) in a publicly visible area of the building,
as determined by commission rule under Section 754.016, [the
elevator mechanical room] if the certificate relates to an
elevator;
(B) in the escalator box if the certificate
relates to an escalator; or
(C) in a place designated by the executive
director [commissioner] if the certificate relates to [related]
equipment other than an elevator or escalator; and
(5) display the inspection report at the locations
designated in Subdivision (4) until a certificate of compliance is
issued [by the commissioner].
(b) When an inspection report is filed [with the
commissioner], the owner shall submit to the executive director, as
applicable [commissioner]:
(1) verification that any deficiencies in the
inspector's report have been remedied or that a bona fide contract
to remedy the deficiencies has been entered into; or
(2) any application for delay or waiver of an
applicable standard.
(c) [An inspection must be made not later than 18 months
after the previous calendar year's inspection. This subsection
does not affect the requirement that elevators, escalators, or
related equipment be inspected at least once each calendar year.
[(d)] For the purpose of determining timely filing under
Subsection (a)(3) and Section 754.016(b), an inspection report and
filing fees [fee] are considered filed on the earlier of:
(1) the date of personal delivery;
(2) the date of postmark [mailing] by United States
mail if properly addressed to the executive director; or
(3) the date of deposit with a commercial courier
service, if properly addressed to the executive director
[commissioner].
(d) [(e) If the inspection report and fee required by
Subsection (a)(3) are not timely filed, the commissioner may charge
the owner of the real property on which the elevator, escalator, or
related equipment is located an additional $100 fee for late
filing.
[(f) The commissioner may not require that an inspection
report or certificate of compliance be placed inside or immediately
outside an elevator cab or escalator or in the lobby or hallways of
a building.
[(g)] A fee may not be charged or collected for a
certificate of compliance for an institution of higher education as
defined in Section 61.003, Education Code.
(e) An owner shall report to the department each accident
involving equipment not later than 72 hours following the accident.
Sec. 754.020. CHIEF ELEVATOR INSPECTOR [DEPOSIT OF FEES].
The executive director may appoint a chief elevator inspector to
administer the equipment inspection and registration program. The
chief elevator inspector:
(1) may not have a financial or commercial interest in
the manufacture, maintenance, repair, inspection, installation, or
sale of equipment; and
(2) must possess a QEI-1 certification or obtain the
certification within six months after becoming chief inspector
[Fees collected under this subchapter shall be deposited to the
credit of an account in the general revenue fund that may be used by
the commissioner only to administer and enforce this subchapter and
to reimburse expenses of board members provided by this
subchapter].
Sec. 754.021. LIST OF REGISTERED INSPECTORS AND CONTRACTORS[;
PERSONNEL]. The executive director shall [commissioner may]:
(1) compile a list of [ASME-QEI-1] certified
inspectors and contractors who are registered with the department
[to perform an inspection under this subchapter]; and
(2) employ personnel who are [as] necessary to enforce
this subchapter.
Sec. 754.022. NOTICE OF NONCOMPLIANCE. If the department
[commissioner] learns of a situation of noncompliance under Section
754.019, the department [commissioner] shall send notice by
certified mail of the noncompliance and the actions required to
remedy the noncompliance to the record owner of the real property on
which the equipment that is the subject of the noncompliance is
located.
Sec. 754.023. INVESTIGATION; REGISTRATION [LICENSE]
PROCEEDINGS; INJUNCTION; EMERGENCY ORDERS. (a) If there is good
cause for the executive director [commissioner] to believe that [an
elevator, an escalator, or related] equipment on real property
poses an imminent and significant danger [is dangerous] or that an
accident involving [an elevator, an escalator, or related]
equipment occurred on the property and serious bodily injury or
property damage resulted, the executive director [the
commissioner] may enter the property during regular business hours
after notice to the owner, operator, or person in charge of the
property to inspect the [elevator, escalator, or related] equipment
or investigate the danger or accident at no cost to the owner.
(b) The executive director [commissioner] may enter real
property during regular business hours after notice to the owner,
operator, or person in charge of the property to verify, at no cost
to the owner, whether an inspection report or certificate of
compliance has been displayed as required under Section 754.019(a).
(c) The commission [commissioner] may deny, suspend, or
revoke a [the] registration under this subchapter and may assess an
administrative penalty [of any ASME-QEI-1 certified inspector]
for:
(1) obtaining registration with the executive
director [commissioner] by fraud or false representation;
(2) falsifying a [any inspection] report submitted to
the executive director [commissioner]; or
(3) violating this subchapter or a rule adopted under
this subchapter.
(d) Proceedings for the denial, suspension, or revocation
of a registration and appeals from those proceedings are governed
by Chapter 2001, Government Code.
(e) The executive director [commissioner] is entitled to
appropriate injunctive relief to prevent a violation or threatened
violation of this subchapter or a rule adopted under this
subchapter.
(f) [(e)] The executive director [commissioner] may bring
suit in a district court in Travis County or in the county in which
the violation or threatened violation occurs. If requested, the
attorney general shall represent the executive director
[commissioner] in the suit.
(g) The executive director may issue an emergency order as
necessary to enforce this subchapter if the executive director
determines that an emergency exists requiring immediate action to
protect the public health and safety.
(h) The executive director may issue an emergency order with
simultaneous notice and without hearing or with the notice and
opportunity for hearing practicable under the circumstances.
(i) If an emergency order is issued under this section
without a hearing, the executive director shall set the time and
place for a hearing to affirm, modify, or set aside the emergency
order not later than the 10th day after the date the order was
issued.
(j) An emergency order may direct a building owner or
manager to disconnect power to or lock out equipment if:
(1) the department determines imminent and
significant danger to passenger safety exists if action is not
taken immediately and reasonable effort has been made for voluntary
compliance by notification to the building owner or manager of the
danger before the issuance of an emergency order; or
(2) an annual inspection has not been performed in
more than two years and:
(A) the department gives the building owner or
manager, or the agent of the building owner or manager, 60 days'
written notice by certified mail directing the equipment to be
inspected according to this subchapter; and
(B) after the expiration of the notice period
under Paragraph (A), the department gives the building owner or
manager, or the agent of the building owner or manager, written
notice by certified mail stating that an order to disconnect power
or lock out equipment will be made after the seventh day after the
date notice is delivered.
(k) If an emergency order to disconnect power or lock out
equipment is issued, the building owner or manager may have the
power reconnected or the equipment unlocked only if:
(1) a registered inspector or contractor or a
department representative has filed a written form with the
department verifying the imminent and significant danger has been
removed by repair, replacement, or other means; and
(2) the building owner, before the reconnection of
power or unlocking of equipment, reimburses the department for all
expenses incurred relating to the disconnection of power or
lockout.
(l) The executive director or the executive director's
designee may allow delayed payment if the building owner or manager
commits in writing to pay the department for the expenses required
by Subsection (k) not later than the 10th day after the date power
is reconnected or equipment is unlocked.
(m) If an emergency order to disconnect power or lock out
equipment is issued and the building owner later notifies the
department that the imminent and significant danger no longer
exists, the executive director or the executive director's designee
shall, after the requirements of Subsection (k) are satisfied,
promptly issue written permission to reconnect power or unlock the
equipment and notify the owner.
Sec. 754.024. CRIMINAL PENALTY. (a) A person commits an
offense if the person receives notice of noncompliance under
Section 754.022 and the person has not remedied the noncompliance
or entered into a bona fide contract to remedy the noncompliance
before the 61st day after the date on which the notice is received.
(b) An offense under this section is a Class C misdemeanor.
(c) Each day of an offense under Subsection (a) constitutes
a separate offense.
Sec. 754.025. APPLICATION OF CERTAIN LAW. (a) Chapter 53,
Occupations Code, applies to a registration under this subchapter.
(b) Sections 51.401 and 51.404, Occupations Code, do not
apply to this subchapter.
SECTION 9.002. Not later than March 1, 2004, the Texas
Commission of Licensing and Regulation shall adopt the rules
required by Section 754.016 and Subsection (a), Section 754.019,
Health and Safety Code, as amended by this article.
SECTION 9.003. The changes in law made by this article apply
only to an inspection report or certificate of compliance issued on
or after the effective date of this article. An inspection report
or certificate issued before the effective date of this article is
covered by the law in effect when the report or certificate was
issued and is valid until the renewal date of that report or
certificate under the terms of the former law, and the former law is
continued in effect for that purpose. On renewal, an inspection
report or certificate is subject to Chapter 754, Health and Safety
Code, as amended by this article.
SECTION 9.004. (a) This article takes effect September 1,
2003, except that:
(1) a contractor is not required to be registered
under Section 754.0171, Health and Safety Code, as amended by this
article, before January 1, 2004; and
(2) an escalator constructed before September 1,
2003, is not required to comply with step/skirt index requirements
imposed under the 2002 American Society of Mechanical Engineers
Safety Code for Elevators and Escalators A17.3 before September 1,
2009.
(b) A member of the elevator advisory board serving on the
effective date of this article continues to serve until removed by
the governor or until the member's successor is appointed by the
governor.
ARTICLE 10. INDUSTRIALIZED HOUSING AND BUILDINGS
SECTION 10.001. Section 1202.001, Occupations Code, is
amended by amending Subdivision (2) and adding Subdivision (4-a) to
read as follows:
(2) "Construction site office building" means a
commercial structure that is:
(A) not open to the public; and
(B) used as an office at a commercial site by a
person constructing a building, road, bridge, utility, or other
infrastructure or improvement to real property ["Commissioner"
means the commissioner of licensing and regulation].
(4-a) "Executive director" means the executive
director of the department.
SECTION 10.002. Section 1202.003, Occupations Code, is
amended by amending Subsection (a) and adding Subsection (d) to
read as follows:
(a) An industrialized building is a commercial structure
that is:
(1) constructed in one or more modules or constructed
using one or more modular components built at a location other than
the commercial [permanent] site; and
(2) designed to be used as a commercial building when
the module or the modular component is transported to the
commercial [permanent] site and erected or installed [on a
permanent foundation system].
(d) An industrialized building includes a permanent
commercial structure and a commercial structure designed to be
transported from one commercial site to another commercial site.
SECTION 10.003. Section 1202.101, Occupations Code, is
amended to read as follows:
Sec. 1202.101. RULES; ORDERS. (a) The commission
[commissioner] shall adopt rules and issue orders as necessary to:
(1) ensure compliance with the purposes of this
chapter; and
(2) provide for uniform enforcement of this chapter.
(b) The commission [commissioner] shall adopt rules as
appropriate to implement the council's actions, decisions,
interpretations, and instructions.
SECTION 10.004. Section 1202.102, Occupations Code, is
amended to read as follows:
Sec. 1202.102. RULES PROVIDING FOR REGISTRATION AND
REGULATION. The commission [commissioner] by rule shall provide
for registration and regulation of manufacturers or builders of
industrialized housing or buildings.
SECTION 10.005. Subsection (a), Section 1202.104,
Occupations Code, is amended to read as follows:
(a) The commission shall set fees, in amounts sufficient to
cover the costs of the inspections described by this chapter and the
administration of this chapter, for:
(1) the registration of manufacturers or builders of
industrialized housing or buildings;
(2) the inspection of industrialized housing or
buildings [at the manufacturing facility]; and
(3) the issuance of decals or insignia required under
Section 1202.204.
SECTION 10.006. Subchapter C, Chapter 1202, Occupations
Code, is amended by adding Section 1202.106 to read as follows:
Sec. 1202.106. APPLICABILITY OF OTHER LAW. Sections 51.401
and 51.404 do not apply to this chapter.
SECTION 10.007. Subchapter D, Chapter 1202, Occupations
Code, is amended by adding Section 1202.1535 to read as follows:
Sec. 1202.1535. EFFECT OF BUILDING CODE AMENDMENT. (a) An
industrialized building that bears an approved decal or insignia
indicating that the building complies with the mandatory building
codes and that has not been modified or altered is considered to be
in compliance with a new mandatory building code adopted by the
council or an amendment to a code approved by the council under
Section 1202.152 or 1202.153.
(b) The owner of an industrialized building that bears an
approved decal or insignia indicating the building complies with
the mandatory building codes and that is modified or altered after
the date the council adopts a new mandatory building code or the
council approves a building code amendment must ensure:
(1) the entire building complies with the mandatory
building code or building code amendment if the cost of the
modification or alteration to the building is at least 50 percent of
the value of the modules or modular components used in the
construction of the building; or
(2) the modified or altered portion of the building
complies with the mandatory building code or building code
amendment if the cost of the modification or alteration is less than
50 percent of the value of the modules or modular components.
SECTION 10.008. Section 1202.154, Occupations Code, is
amended to read as follows:
Sec. 1202.154. DESIGN REVIEW. To ensure compliance with
the mandatory building [construction] codes, the department or
approved design review agency shall review all designs, plans, and
specifications of industrialized housing and buildings in
accordance with council interpretations and instructions.
SECTION 10.009. Subsection (b), Section 1202.156,
Occupations Code, is amended to read as follows:
(b) With reference to the standards and requirements of the
mandatory building [construction] codes, the council shall
determine, from an engineering performance standpoint, all
questions concerning:
(1) code equivalency; or
(2) alternative materials or methods of construction.
SECTION 10.010. Section 1202.202, Occupations Code, is
amended to read as follows:
Sec. 1202.202. DEPARTMENT [IN-PLANT] INSPECTIONS. (a) To
ensure compliance with the mandatory building codes or approved
designs, plans, and specifications, the department shall inspect
the construction of industrialized housing and buildings [at the
manufacturing facility]. The executive director [commissioner]
may designate approved third-party inspectors to perform the
inspections subject to the rules of the commission [commissioner].
(b) Local building officials may witness department
[in-plant] inspections to enable the local officials to make
recommendations on inspection procedures to the council.
SECTION 10.011. Section 1202.203, Occupations Code, is
amended by amending Subsection (a) and adding Subsection (c) to
read as follows:
(a) A municipal building official shall inspect all
construction involving [at the permanent site of] industrialized
housing and buildings to be located in the municipality to ensure
compliance with designs, plans, and specifications, including
inspection of:
(1) the construction of the foundation system; and
(2) the erection and installation of the modules or
modular components on the [permanent] foundation.
(c) An inspection under Subsection (a) shall be conducted:
(1) at the permanent site, if the inspection is of
industrialized housing; and
(2) at the commercial site, if the inspection is of
industrialized buildings.
SECTION 10.012. Section 1202.204, Occupations Code, is
amended to read as follows:
Sec. 1202.204. RULES PROVIDING FOR DECALS OR INSIGNIA.
(a) The commission [commissioner] by rule shall provide for the
placement of decals or insignia on each transportable modular
section or modular component to indicate compliance with the
mandatory building [construction] codes.
(b) The commission by rule shall exempt a construction site
office building from the requirements of this section.
SECTION 10.013. Section 1202.205, Occupations Code, is
amended to read as follows:
Sec. 1202.205. RECIPROCITY. (a) The commission
[commissioner] by rule may authorize an inspection of
industrialized housing or buildings constructed in another state to
be performed by an inspector of the equivalent regulatory agency of
the other state.
(b) The commission [commissioner] by rule may authorize an
inspection of industrialized housing or buildings constructed in
this state for use in another state.
(c) The commission [commissioner] shall enter into a
reciprocity agreement with the equivalent regulatory agency of the
other state as necessary to implement this section.
SECTION 10.014. Subsection (b), Section 1202.251,
Occupations Code, is amended to read as follows:
(b) Except as provided by Section 1202.253, requirements
[Requirements] and regulations not in conflict with this chapter or
with other state law relating to transportation, erection,
installation, or use of industrialized housing or buildings must be
reasonably and uniformly applied and enforced without distinctions
as to whether the housing or buildings are manufactured or are
constructed on-site.
SECTION 10.015. Section 1202.252, Occupations Code, is
amended to read as follows:
Sec. 1202.252. MUNICIPAL REGULATION OF INDUSTRIALIZED
HOUSING AND BUILDINGS. (a) A municipality that regulates the
on-site construction or installation of industrialized housing and
buildings may:
(1) require and review, for compliance with mandatory
building [construction] codes, a complete set of designs, plans,
and specifications bearing the council's stamp of approval for each
installation of industrialized housing or buildings in the
municipality;
(2) require that all applicable local permits and
licenses be obtained before construction begins on a building site;
(3) require, in accordance with commission
[commissioner] rules, that all modules or modular components bear
an approved decal or insignia indicating inspection by the
department [at the manufacturing facility]; and
(4) establish procedures for the inspection of:
(A) the erection and installation of
industrialized housing or buildings to be located in the
municipality, to ensure compliance with mandatory building
[construction] codes and commission [commissioner] rules; and
(B) all foundation and other on-site
construction, to ensure compliance with approved designs, plans,
and specifications.
(b) Procedures described by Subsection (a)(4) may require:
(1) before occupancy, a final inspection or test in
accordance with mandatory building [construction] codes; and
(2) correction of any deficiency identified by the
test or discovered in the final inspection.
SECTION 10.016. Subchapter F, Chapter 1202, Occupations
Code, is amended by adding Section 1202.253 to read as follows:
Sec. 1202.253. MUNICIPAL REGULATION OF SINGLE-FAMILY AND
DUPLEX INDUSTRIALIZED HOUSING. (a) Single-family or duplex
industrialized housing must have all local permits and licenses
that are applicable to other single-family or duplex dwellings.
(b) For purposes of this section, single-family or duplex
industrialized housing is real property.
(c) A municipality may adopt regulations that require
single-family or duplex industrialized housing to:
(1) have a value equal to or greater than the median
taxable value for each single-family dwelling located within 500
feet of the lot on which the industrialized housing is proposed to
be located, as determined by the most recent certified tax
appraisal roll for each county in which the properties are located;
(2) have exterior siding, roofing, roofing pitch,
foundation fascia, and fenestration compatible with the
single-family dwellings located within 500 feet of the lot on which
the industrialized housing is proposed to be located;
(3) comply with municipal aesthetic standards,
building setbacks, side and rear yard offsets, subdivision control,
architectural landscaping, square footage, and other site
requirements applicable to single-family dwellings; or
(4) be securely fixed to a permanent foundation.
(d) For purposes of Subsection (c), "value" means the
taxable value of the industrialized housing and the lot after
installation of the housing.
(e) Except as provided by Subsection (c), a municipality may
not adopt a regulation under this section that is more restrictive
for industrialized housing than that required for a new
single-family or duplex dwelling constructed on-site.
(f) This section does not:
(1) limit the authority of a municipality to adopt
regulations to protect historic properties or historic districts;
or
(2) affect deed restrictions.
SECTION 10.017. Subsection (b), Section 1202.301,
Occupations Code, is amended to read as follows:
(b) A person may not construct, sell or offer to sell, lease
or offer to lease, or transport over a street or highway of this
state any industrialized housing or building, or modular section or
component of a modular section, in violation of this chapter or a
rule of the commission or order of the commission or executive
director [commissioner].
SECTION 10.018. Section 1202.302, Occupations Code, is
amended to read as follows:
Sec. 1202.302. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION.
In addition to imposing sanctions allowed under Section 51.353, the
commission [The commissioner] may deny, permanently revoke, or
suspend for a definite period and specified location or geographic
area a certificate of registration if the commission [commissioner]
finds that the applicant or registrant:
(1) provided false information on an application or
other document filed with the department;
(2) failed to pay a fee or file a report required by
the department for the administration or enforcement of this
chapter;
(3) engaged in a false, misleading, or deceptive act
or practice as described by Subchapter E, Chapter 17, Business &
Commerce Code; or
(4) violated:
(A) this chapter;
(B) a rule adopted by the commission or order
issued by the commission or the executive director [commissioner]
under this chapter; or
(C) a decision, action, or interpretation of the
council.
SECTION 10.019. Subsection (b), Section 1202.351,
Occupations Code, is amended to read as follows:
(b) A person commits an offense if the person [knowingly and
wilfully] violates this chapter or a published rule of the
commission or order of the commission or the executive director
[commissioner].
SECTION 10.020. The following laws are repealed:
(1) Subdivision (2), Section 1202.001, Occupations
Code; and
(2) Section 1202.103, Occupations Code.
ARTICLE 11. PERSONNEL EMPLOYMENT SERVICES
SECTION 11.001. Section 2501.001, Occupations Code, is
amended by amending Subdivision (2) and adding Subdivisions (3-a)
and (4-a) to read as follows:
(2) "Commission" ["Commissioner"] means the Texas
Commission of Licensing and Regulation [commissioner of licensing
and regulation].
(3-a) "Department" means the Texas Department of
Licensing and Regulation.
(4-a) "Executive director" means the executive
director of the department.
SECTION 11.002. Section 2501.152, Occupations Code, is
amended to read as follows:
Sec. 2501.152. COMPLAINT AND INVESTIGATION. (a) A person
[by sworn affidavit] may file with the executive director
[commissioner] a complaint alleging a violation of Section
2501.102.
(b) On receipt of a complaint, the executive director
[commissioner] shall investigate the alleged violation and may:
(1) inspect any records relevant to the complaint; and
(2) subpoena those records and any necessary
witnesses.
SECTION 11.003. Subsections (a) and (c), Section 2501.153,
Occupations Code, are amended to read as follows:
(a) If the executive director [commissioner] determines as
a result of an investigation that a violation of Section 2501.102
may have occurred, the commission [commissioner] shall hold a
hearing [not later than the 45th day after the date the complaint
was filed under Section 2501.152].
(c) The commission [commissioner] shall render a decision
on the alleged violation [not later than the eighth day] after [the
date] the hearing is concluded.
SECTION 11.004. Section 2501.154, Occupations Code, is
amended to read as follows:
Sec. 2501.154. SANCTIONS. (a) If, after a hearing, the
commission [commissioner] determines that a personnel service has
violated Section 2501.102, the commission [commissioner] may, as
appropriate:
(1) issue a warning to the personnel service; or
(2) suspend or revoke the certificate of authority
issued to the personnel service.
(b) If, after a hearing, the commission [commissioner]
determines that a personnel service has violated Section 2501.102,
the commission [commissioner] may award the complainant an amount
equal to the amount of the fee charged by the personnel service.
SECTION 11.005. Sections 2501.058 and 2501.155,
Occupations Code, are repealed.
ARTICLE 12. PROPERTY TAX CONSULTANTS
SECTION 12.001. Section 1152.001, Occupations Code, is
amended by adding Subdivision (3-a) to read as follows:
(3-a) "Executive director" means the executive
director of the department.
SECTION 12.002. The heading to Subchapter B, Chapter 1152,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. DUTIES OF COMMISSION, EXECUTIVE DIRECTOR,
[COMMISSIONER] AND DEPARTMENT
SECTION 12.003. Section 1152.051, Occupations Code, is
amended to read as follows:
Sec. 1152.051. STANDARDS OF CONDUCT FOR REGISTRANTS. The
commission [commissioner] by rule shall establish standards of
practice, conduct, and ethics for registrants.
SECTION 12.004. Subsections (a) and (b), Section 1152.102,
Occupations Code, are amended to read as follows:
(a) The council is composed of six members appointed by the
presiding officer of the commission, with the commission's
approval.
(b) The presiding officer of the commission may appoint not
more than two members who are qualified for an exemption under
Section 1152.002(a)(3).
SECTION 12.005. Subsection (b), Section 1152.104,
Occupations Code, is amended to read as follows:
(b) If a vacancy occurs during a member's term, the
presiding officer of the commission, with the commission's
approval, [commissioner] shall appoint to fill the unexpired part
of the term a replacement who meets the qualifications of the
vacated office.
SECTION 12.006. Section 1152.105, Occupations Code, is
amended to read as follows:
Sec. 1152.105. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, [Before March 1 of
each year, the council] shall appoint [elect] a member of the
council to serve as presiding officer of the council for two years
[until the last day of February of the following year].
SECTION 12.007. Section 1152.108, Occupations Code, is
amended to read as follows:
Sec. 1152.108. COUNCIL POWERS. The council shall:
(1) recommend to the commission [commissioner]
standards of practice, conduct, and ethics for registrants to be
adopted under this chapter;
(2) recommend to the commission amounts for the fees
it may set under this chapter;
(3) recommend to the commission [commissioner]
contents for the senior property tax consultant registration
examination and standards of acceptable performance;
(4) assist and advise the commission [commissioner] in
recognizing continuing education programs and educational courses
for registrants; and
(5) advise the commission [commissioner] in
establishing educational requirements for initial applicants.
SECTION 12.008. Subsection (a), Section 1152.155,
Occupations Code, is amended to read as follows:
(a) To be eligible for registration, an applicant must:
(1) be at least 18 years of age;
(2) hold a high school diploma or its equivalent;
(3) pay the fees required by the commission;
(4) have a place of business in this state or designate
a resident of this state as the applicant's agent for service of
process; and
(5) meet any additional qualifications required by
this chapter or by the commission [commissioner] under this chapter
or Chapter 51.
SECTION 12.009. Section 1152.160, Occupations Code, is
amended to read as follows:
Sec. 1152.160. SENIOR PROPERTY TAX CONSULTANT REGISTRATION
EXAMINATION. (a) The executive director [commissioner] shall:
(1) adopt an examination for registration as a senior
property tax consultant; and
(2) establish the standards for passing the
examination.
(b) The department shall offer the examination at times and
places designated by the executive director [commissioner].
(c) To be eligible to take the examination, an applicant
must pay to the department an examination fee. [The commissioner by
rule may establish conditions for refunding the examination fee to
an applicant who does not take the examination.]
(d) The examination must:
(1) test the applicant's knowledge of:
(A) property taxation;
(B) the property tax system;
(C) property tax administration;
(D) ethical standards; and
(E) general principles of appraisal, accounting,
and law as they relate to property tax consulting services; and
(2) be graded according to rules adopted by the
commission [commissioner].
SECTION 12.010. Section 1152.201, Occupations Code, is
amended to read as follows:
Sec. 1152.201. TERM OF CERTIFICATE OF REGISTRATION. Except
as otherwise provided by the commission, a certificate of
registration expires on the first [second] anniversary of the date
of issuance.
SECTION 12.011. Subsection (a), Section 1152.202,
Occupations Code, is amended to read as follows:
(a) The executive director [commissioner] shall issue to an
eligible registrant a certificate of renewal of registration on the
timely receipt of the required renewal fee. [The certificate
expires on the second anniversary of the date of issuance.]
SECTION 12.012. Section 1152.204, Occupations Code, is
amended to read as follows:
Sec. 1152.204. RECOGNITION OF EDUCATIONAL PROGRAMS AND
COURSES. (a) The commission [commissioner] by rule shall
recognize appropriate continuing education programs for
registrants.
(b) The commission [commissioner] shall recognize a
continuing education course, including a course on the legal issues
and law related to property tax consulting services, that is:
(1) approved by the Texas Real Estate Commission or
the Texas Appraiser Licensing and Certification Board; and
(2) completed by a registrant who also holds:
(A) an active real estate broker license or an
active real estate salesperson license under Chapter 1101; or
(B) an active real estate appraiser license or
certificate under Chapter 1103.
(c) The commission [commissioner] may recognize an
educational program or course:
(1) related to property tax consulting services; and
(2) offered or sponsored by a public provider or a
recognized private provider, including:
(A) the comptroller;
(B) the State Bar of Texas;
(C) the Texas Real Estate Commission;
(D) an institution of higher education that meets
program and accreditation standards comparable to those for public
institutions of higher education as determined by the Texas Higher
Education Coordinating Board; or
(E) a nonprofit and voluntary trade association,
institute, or organization:
(i) whose membership consists primarily of
persons who represent property owners in property tax or
transactional tax matters;
(ii) that has written experience and
examination requirements for membership or for granting
professional designation to its members; and
(iii) that subscribes to a code of
professional conduct or ethics.
(d) The commission [commissioner] may recognize a private
provider of an educational program or course if the provider:
(1) applies to the department on a printed form
prescribed by the executive director [commissioner]; and
(2) pays in the amounts set by the commission:
(A) a nonrefundable application fee; and
(B) an educational provider's fee.
(e) The department shall refund the educational provider's
fee if the commission [commissioner] does not recognize the
provider's educational program or course.
SECTION 12.013. Section 1152.251, Occupations Code, is
amended to read as follows:
Sec. 1152.251. DISCIPLINARY POWERS OF COMMISSION
[COMMISSIONER]. After a hearing, the commission [commissioner] may
deny a certificate of registration and may impose an administrative
sanction or penalty and seek injunctive relief and a civil penalty
against a registrant as provided by Chapter 51 for:
(1) a violation of this chapter or a rule applicable to
the registrant adopted by the commission [commissioner] under this
chapter;
(2) gross incompetency in the performance of property
tax consulting services;
(3) dishonesty or fraud committed while performing
property tax consulting services; or
(4) a violation of the standards of ethics adopted by
the commission [commissioner].
SECTION 12.014. The following laws are repealed:
(1) Subdivision (2), Section 1152.001, Occupations
Code;
(2) Section 1152.161, Occupations Code;
(3) Section 1152.163, Occupations Code;
(4) Subsections (b) and (c), Section 1152.202,
Occupations Code; and
(5) effective March 1, 2004, Section 1152.203,
Occupations Code.
SECTION 12.015. The change in law made by this article to
Section 1152.201, Occupations Code, applies only to a certificate
of registration issued or renewed on or after the effective date of
this Act. A certificate of registration issued or renewed before
the effective date of this Act is governed by that section as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 12.016. The changes in law made by this article
applying to members of the Property Tax Consultants Advisory
Council do not affect the entitlement of a member serving on the
council immediately before September 1, 2003, to continue to serve
and function as a member of the council for the remainder of the
member's term. Those changes in law apply only to a member
appointed on or after September 1, 2003.
ARTICLE 13. SERVICE CONTRACT PROVIDERS
SECTION 13.001. Section 1304.002, Occupations Code, is
amended by adding Subdivision (5-a) to read as follows:
(5-a) "Executive director" means the executive
director of the department.
SECTION 13.002. Section 1304.051, Occupations Code, is
amended to read as follows:
Sec. 1304.051. SERVICE CONTRACT PROVIDERS ADVISORY BOARD.
(a) The Service Contract Providers Advisory Board consists of six
members appointed by the presiding officer of the commission, with
the commission's approval, [commissioner] and one ex officio
nonvoting member.
(b) Of the appointed members:
(1) two must be officers, directors, or employees of a
provider of service contracts that have been approved by the
executive director [commissioner];
(2) two must be officers, directors, or employees of a
retail outlet or other entity in this state that provides to
consumers service contracts approved by the executive director
[commissioner] for sale to consumers;
(3) one must be an officer, director, or employee of an
entity authorized by the Texas Department of Insurance to sell
reimbursement insurance policies; and
(4) one must be a resident of this state who holds, as
a consumer, a service contract that is in force in this state on the
date of the member's appointment and was issued by a provider
registered under this chapter.
(c) The executive director [commissioner] or the executive
director's [commissioner's] designee serves as an ex officio
nonvoting member of the advisory board.
SECTION 13.003. Subsection (a), Section 1304.052,
Occupations Code, is amended to read as follows:
(a) The advisory board shall advise the commission
[commissioner] in adopting rules and in administering and enforcing
this chapter.
SECTION 13.004. Subsection (b), Section 1304.053,
Occupations Code, is amended to read as follows:
(b) If a vacancy occurs during an appointed member's term,
the presiding officer of the commission [commissioner] shall fill
the vacancy for the remainder of the unexpired term with a person
who represents the same interests as the predecessor.
SECTION 13.005. Section 1304.054, Occupations Code, is
amended to read as follows:
Sec. 1304.054. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, [commissioner]
shall designate one member of the advisory board to serve as
presiding officer of the board for two years.
SECTION 13.006. Subsections (a) and (b), Section 1304.103,
Occupations Code, are amended to read as follows:
(a) The executive director [commissioner] shall develop a
tiered schedule of annual registration fees under which a
provider's registration fee is based on the number of service
contracts the provider sold in this state during the preceding
12-month period.
(b) The commission shall set the amounts of the fees to
cover the costs of administering this chapter. [The maximum fee may
not exceed $2,000.]
SECTION 13.007. Subchapter C, Chapter 1304, Occupations
Code, is amended by adding Section 1304.105 to read as follows:
Sec. 1304.105. RENEWAL. The commission shall adopt rules
regarding the renewal of a registration issued under this chapter.
SECTION 13.008. Subsections (a), (b), (c), and (e), Section
1304.151, Occupations Code, are amended to read as follows:
(a) To ensure the faithful performance of a provider's
obligations to its service contract holders, each provider must:
(1) insure the provider's service contracts under a
reimbursement insurance policy issued by an insurer authorized to
transact insurance in this state or by a surplus lines insurer
eligible to place coverage in this state under Chapter 981 [Article
1.14-2], Insurance Code;
(2) maintain a funded reserve account covering the
provider's obligations under its service contracts that are issued
and outstanding in this state and place in trust with the executive
director [commissioner] a financial security deposit consisting
of:
(A) a surety bond issued by an authorized surety;
(B) securities of the type eligible for deposit
by an authorized insurer in this state;
(C) a statutory deposit of cash or cash
equivalents;
(D) a letter of credit issued by a qualified
financial institution; or
(E) another form of security prescribed by rules
adopted by the commission [commissioner]; or
(3) maintain, or have a parent company that maintains,
a net worth or stockholders' equity of at least $100 million.
(b) If the provider ensures its obligations under
Subsection (a)(2), the amount maintained in the reserve account may
not be less than an amount equal to 40 percent of the gross
consideration the provider received from consumers from the sale of
all service contracts issued and outstanding in this state, minus
any claims paid. The executive director [commissioner] may review
and examine the reserve account. The amount of the security deposit
may not be less than the greater of:
(1) $25,000; or
(2) an amount equal to five percent of the gross
consideration the provider received from consumers from the sale of
all service contracts issued and outstanding in this state, minus
any claims paid.
(c) If the provider ensures its obligations under
Subsection (a)(3), the provider must give to the executive director
[commissioner] on request:
(1) a copy of the provider's or the provider's parent
company's most recent Form 10-K or Form 20-F filed with the
Securities and Exchange Commission within the preceding calendar
year; or
(2) if the provider or the provider's parent company
does not file with the Securities and Exchange Commission, a copy of
the provider's or the provider's parent company's audited financial
statements showing a net worth of the provider or its parent company
of at least $100 million.
(e) The executive director [commissioner] may not require a
provider to meet any additional financial security requirement.
SECTION 13.009. Subsection (a), Section 1304.201,
Occupations Code, is amended to read as follows:
(a) On a finding that a ground for disciplinary action
exists under this chapter, the commission [commissioner] may impose
an administrative sanction, including an administrative penalty,
as provided by Chapter 51.
SECTION 13.010. The following laws are repealed:
(1) Subdivision (3), Section 1304.002, Occupations
Code; and
(2) Subsection (b), Section 1304.201, Occupations
Code.
SECTION 13.011. The changes in law made by this article
applying to members of the Service Contract Providers Advisory
Board do not affect the entitlement of a member serving on the board
immediately before September 1, 2003, to continue to serve and
function as a member of the board for the remainder of the member's
term. Those changes in law apply only to a member appointed on or
after September 1, 2003.
ARTICLE 14. STAFF LEASING SERVICES
SECTION 14.001. Section 91.001, Labor Code, is amended by
adding Subdivision (8-a) to read as follows:
(8-a) "Executive director" means the executive
director of the department.
SECTION 14.002. Subsections (a) and (b), Section 91.002,
Labor Code, are amended to read as follows:
(a) The commission [commissioner] shall adopt rules as
necessary to administer this chapter.
(b) Each person who offers staff leasing services is subject
to this chapter and the rules adopted by the commission
[commissioner].
SECTION 14.003. Subchapter A, Chapter 91, Labor Code, is
amended by adding Section 91.008 to read as follows:
Sec. 91.008. APPLICABILITY OF CONTINUING EDUCATION LAW.
Section 51.405, Occupations Code, does not apply to this chapter.
SECTION 14.004. Subsection (b), Section 91.016, Labor Code,
is amended to read as follows:
(b) A license issued or renewed by the department under this
chapter is valid for one year [two years] from the date of the
issuance or renewal. The department shall renew a license on
receipt of a complete renewal application form and payment of the
license renewal fee.
SECTION 14.005. Subsection (a), Section 91.017, Labor Code,
is amended to read as follows:
(a) Each applicant for an original or renewal staff leasing
services company license shall pay to the department before the
issuance of the license or license renewal a fee set by the
commission by rule [in an amount not to exceed $6,000 for the
two-year license period].
SECTION 14.006. Subsections (b) and (d), Section 91.018,
Labor Code, are amended to read as follows:
(b) A license holder may change the license holder's
licensed name at any time by notifying the department and paying a
fee for each change of name. The commission by rule shall set the
fee for a name change [in an amount not to exceed $50]. A license
holder may change the license holder's name on renewal of the
license without the payment of the name change fee.
(d) A license holder may amend the name specified in its
license to add a trade name, trademark, service mark, or parent
company name. An amendment made under this subsection must comply
with the requirements imposed under Subsection (a). The department
may charge a fee [not to exceed $50] for processing of such an
amendment.
SECTION 14.007. Subsection (a), Section 91.019, Labor Code,
is amended to read as follows:
(a) The commission [commissioner] by rule shall provide for
the issuance of a limited license to a person who seeks to offer
limited staff leasing services in this state.
SECTION 14.008. Section 91.020, Labor Code, is amended to
read as follows:
Sec. 91.020. GROUNDS FOR DISCIPLINARY ACTION. [(a)] The
department may take disciplinary action against a license holder on
any of the following grounds:
(1) [being convicted or having a controlling person of
the license holder who is convicted of:
[(A) bribery, fraud, or intentional or material
misrepresentation in obtaining, attempting to obtain, or renewing a
license;
[(B) a crime that relates to the operation of a
staff leasing service or the ability of the license holder or any
controlling person of the license holder to operate a staff leasing
service;
[(C) a crime that relates to the classification,
misclassification, or under-reporting of employees under Subtitle
A, Title 5;
[(D) a crime that relates to the establishment or
maintenance of a self-insurance program, whether health insurance,
workers' compensation insurance, or other insurance; or
[(E) a crime that relates to fraud, deceit, or
misconduct in the operation of a staff leasing service;
[(2)] engaging in staff leasing services or offering
to engage in the provision of staff leasing services without a
license;
(2) [(3)] transferring or attempting to transfer a
license issued under this chapter;
(3) [(4)] violating this chapter or any order or rule
issued by the executive director [department] or commission
[commissioner] under this chapter;
(4) [(5)] failing after the 31st day after the date on
which a felony conviction of a controlling person is final to notify
the department in writing of the conviction;
(5) [(6)] failing to cooperate with an investigation,
examination, or audit of the license holder's records conducted by
the license holder's insurance company or the insurance company's
designee, as allowed by the insurance contract or as authorized by
law by the Texas Department of Insurance;
(6) [(7)] failing after the 31st day after the
effective date of a change in ownership, principal business
address, or the address of accounts and records to notify the
department and the Texas Department of Insurance of the change;
(7) [(8)] failing to correct any tax filings or
payment deficiencies within a reasonable time as determined by the
executive director [commissioner];
(8) [(9)] refusing, after reasonable notice, to meet
reasonable health and safety requirements within the license
holder's control and made known to the license holder by a federal
or state agency;
(9) [(10)] being delinquent in the payment of the
license holder's insurance premiums other than those subject to a
legitimate dispute;
(10) [(11)] being delinquent in the payment of any
employee benefit plan premiums or contributions other than those
subject to a legitimate dispute;
(11) [(12)] knowingly making a material
misrepresentation to an insurance company or to the department or
other governmental agency;
(12) [(13)] failing to maintain the net worth
requirements required under Section 91.014; or
(13) [(14)] using staff leasing services to avert or
avoid an existing collective bargaining agreement.
[(b) For purposes of this section, "conviction" includes a
plea of nolo contendere or a finding of guilt, regardless of
adjudication.]
SECTION 14.009. Subsection (c), Section 91.041, Labor Code,
is amended to read as follows:
(c) The commission [commissioner] by rule may require a
license holder to file other reports that are reasonably necessary
for the implementation of this chapter.
SECTION 14.010. The following laws are repealed:
(1) Subdivision (5), Section 91.001, Labor Code; and
(2) Section 91.021, Labor Code.
SECTION 14.011. The change in law made by this article to
Subsection (b), Section 91.016, Labor Code, applies only to a
license issued or renewed on or after January 1, 2004. A license
issued or renewed before January 1, 2004, is governed by that
subsection as it existed immediately before that date, and that law
is continued in effect for that purpose.
ARTICLE 15. TALENT AGENCIES
SECTION 15.001. Section 2105.001, Occupations Code, is
amended by amending Subdivision (2) and adding Subdivision (3-a) to
read as follows:
(2) "Commission" ["Commissioner"] means the Texas
Commission of Licensing and Regulation [commissioner of licensing
and regulation].
(3-a) "Executive director" means the executive
director of the department.
SECTION 15.002. Section 2105.002, Occupations Code, is
amended to read as follows:
Sec. 2105.002. POWERS AND DUTIES [OF DEPARTMENT]. (a) The
executive director [department] shall[:
[(1)] prescribe application forms for original and
renewal certificates of registration.
(b) The commission shall:[;]
(1) [(2)] set application and registration fees in
amounts that are reasonable and necessary to defray the costs of
administering this chapter; and
(2) [(3)] adopt rules as necessary to implement this
chapter.
(c) [(b)] The commission [department] may[:
[(1)] adopt rules as necessary to administer the
registration program created under this chapter.
(d) The department may[; and
[(2)] take other action as necessary to enforce this
chapter.
SECTION 15.003. Subchapter A, Chapter 2105, Occupations
Code, is amended by adding Section 2105.003 to read as follows:
Sec. 2105.003. APPLICABILITY OF OTHER LAW. Section 51.405
does not apply to this chapter.
SECTION 15.004. Section 2105.053, Occupations Code, is
amended to read as follows:
Sec. 2105.053. REGISTRATION FEE. The department may charge
a talent agency a reasonable fee [not to exceed $100] to cover the
cost of filing a registration statement or an update of a
registration statement.
SECTION 15.005. Section 2105.104, Occupations Code, is
amended to read as follows:
Sec. 2105.104. AGENCY RECORDS. A certificate holder shall
maintain records relating to the operation of the talent agency as
required by commission [department] rule.
SECTION 15.006. Subsection (b), Section 2105.105,
Occupations Code, is amended to read as follows:
(b) Funds deposited under this section may be disbursed only
as prescribed by commission [department] rule.
SECTION 15.007. The following laws are repealed:
(1) Subsections (b) and (c), Section 2105.055,
Occupations Code;
(2) Subsections (a), (b), and (c), Section 2105.056,
Occupations Code; and
(3) Section 2105.252, Occupations Code.
ARTICLE 16. TEMPORARY COMMON WORKER EMPLOYERS
SECTION 16.001. Section 92.002, Labor Code, is amended by
adding Subdivision (4-a) to read as follows:
(4-a) "Executive director" means the executive
director of the department.
SECTION 16.002. Subchapter A, Chapter 92, Labor Code, is
amended by adding Section 92.004 to read as follows:
Sec. 92.004. APPLICABILITY OF OTHER LAW. Section 51.405,
Occupations Code, does not apply to this chapter.
SECTION 16.003. Subsection (c), Section 92.022, Labor Code,
is amended to read as follows:
(c) Information received by the commission [commissioner]
or department under this section is privileged and confidential and
is for the exclusive use of the commission [commissioner] or
department. The information may not be disclosed to any other
person except on the entry of a court order requiring disclosure or
on the written consent of a person under investigation who is the
subject of the records.
SECTION 16.004. The following laws are repealed:
(1) Subdivision (2), Section 92.002, Labor Code; and
(2) Subsections (b) and (c), Section 92.015, Labor
Code.
ARTICLE 17. TRANSPORTATION SERVICE PROVIDERS
SECTION 17.001. Subdivision (2), Section 2401.001,
Occupations Code, is amended to read as follows:
(2) "Department" means the [Texas] Department of
Public Safety [Licensing and Regulation].
SECTION 17.002. The heading to Subchapter B, Chapter 2401,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. POWERS AND DUTIES [OF COMMISSION, COMMISSIONER, AND
DEPARTMENT]
SECTION 17.003. Section 2401.052, Occupations Code, is
amended to read as follows:
Sec. 2401.052. EXAMINATION OR AUDIT. (a) To administer
this chapter, the department may:
(1) examine:
(A) a record maintained under Section 2401.152;
or
(B) a record or object the department determines
is necessary to conduct a complete examination; or
(2) question under oath any person who[:
[(A)] is associated with the business of a
transportation service provider[; or
[(B) claims the person was negatively affected by
a violation of this chapter committed by a transportation service
provider].
(b) The department may periodically audit the business
records of a transportation service provider [registered under this
chapter].
SECTION 17.004. Section 2401.251, Occupations Code, is
amended to read as follows:
Sec. 2401.251. CIVIL PENALTY. A transportation service
provider who knowingly violates this chapter [or a rule adopted
under this chapter] is liable for a civil penalty of not less than
$100 or more than $500 for each violation.
SECTION 17.005. Section 2401.253, Occupations Code, is
amended to read as follows:
Sec. 2401.253. AUTHORITY TO INVESTIGATE AND FILE COMPLAINT.
(a) The department [commissioner, with the assistance of the Texas
Department of Public Safety,] may investigate a violation of this
chapter [or a rule adopted under this chapter].
(b) Any [The commissioner or any] law enforcement agency may
file a complaint with:
(1) the district attorney of Travis County; or
(2) the prosecuting attorney of the county in which a
violation is alleged to have occurred.
SECTION 17.006. The following laws are repealed:
(1) Subdivision (1), Section 2401.001, Occupations
Code;
(2) Section 2401.051, Occupations Code;
(3) Section 2401.053, Occupations Code;
(4) Section 2401.054, Occupations Code;
(5) Subchapter C, Chapter 2401, Occupations Code;
(6) Section 2401.151, Occupations Code; and
(7) Subchapter E, Chapter 2401, Occupations Code.
SECTION 17.007. (a) On November 1, 2003:
(1) all functions and activities relating to Chapter
2401, Occupations Code, performed by the Texas Department of
Licensing and Regulation immediately before that date are
transferred to the Department of Public Safety of the State of
Texas;
(2) a reference in law or an administrative rule to the
Texas Department of Licensing and Regulation that relates to
Chapter 2401, Occupations Code, means the Department of Public
Safety;
(3) a complaint, investigation, or other proceeding
before the Texas Department of Licensing and Regulation that is
related to Chapter 2401, Occupations Code, is transferred without
change in status to the Department of Public Safety, and the
Department of Public Safety assumes, as appropriate and without a
change in status, the position of the Texas Department of Licensing
and Regulation in an action or proceeding to which the Texas
Department of Licensing and Regulation is a party;
(4) all money, contracts, leases, property, and
obligations of the Texas Department of Licensing and Regulation
related to Chapter 2401, Occupations Code, are transferred to the
Department of Public Safety;
(5) all property in the custody of the Texas
Department of Licensing and Regulation related to Chapter 2401,
Occupations Code, is transferred to the Department of Public
Safety; and
(6) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Department of
Licensing and Regulation related to Chapter 2401, Occupations Code,
is transferred to the Department of Public Safety.
(b) An offense or other violation related to Chapter 2401,
Occupations Code, committed before the effective date of this Act
is covered by the law as it existed on the date on which the offense
or other violation was committed, and the former law is continued in
effect for that purpose.
(c) Before November 1, 2003, the Texas Department of
Licensing and Regulation may agree with the Department of Public
Safety of the State of Texas to transfer any property of the Texas
Department of Licensing and Regulation to the Department of Public
Safety to implement the transfer required by this article.
(d) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Department of
Licensing and Regulation shall continue to perform functions and
activities under Chapter 2401, Occupations Code, as if that chapter
had not been amended by this Act, and the former law is continued in
effect for that purpose.
ARTICLE 18. VEHICLE PROTECTION PRODUCT WARRANTORS
SECTION 18.001. Section 2, Article 9035, Revised Statutes,
is amended by adding Subdivision (4-a) to read as follows:
(4-a) "Executive director" means the executive
director of the department.
SECTION 18.002. Article 9035, Revised Statutes, is amended
by adding Section 3A to read as follows:
Sec. 3A. APPLICABILITY OF OTHER LAW. Section 51.405,
Occupations Code, does not apply to this article.
SECTION 18.003. Section 4, Article 9035, Revised Statutes,
is amended to read as follows:
Sec. 4. POWERS AND DUTIES [OF COMMISSIONER]. (a) The
commission [commissioner] may adopt rules as necessary to implement
this article.
(b) The executive director [commissioner] may conduct
investigations of warrantors or other persons as reasonably
necessary to enforce this article and to protect consumers in this
state. On request of the executive director [commissioner], a
warrantor shall make the warrantor's records maintained under
Section 10 of this article regarding vehicle protection products
sold by the warrantor available to the department as necessary to
enable the department to reasonably determine compliance with this
article.
SECTION 18.004. Subsections (a) through (g), Section 5,
Article 9035, Revised Statutes, are amended to read as follows:
(a) The Vehicle Protection Product Warrantor Advisory Board
is an advisory body to the commission [department]. The advisory
board shall advise[:
[(1)] the commission [commissioner] on adopting
rules, [and] enforcing and administering this article,[;] and
[(2) the commission on] setting fees.
(b) The advisory board consists of six members appointed by
the presiding officer of the commission, with the commission's
approval, [commissioner] as follows:
(1) two members who are officers, directors, or
employees of a warrantor who has been approved or expects to be
approved by the department;
(2) two members who are officers, directors, or
employees of a retail outlet or other entity located in this state
that sells vehicle protection products and is approved or expected
to be approved by the department; and
(3) two members who are residents of this state and, at
the time of appointment, are consumers of vehicle protection
products issued by warrantors registered or expected to be
registered under this article.
(c) Members of the advisory board serve staggered six-year
terms, with the terms of two members expiring on February 1 of each
odd-numbered year. [The commissioner shall appoint the initial six
board members to terms of six years or less in order to create
staggered terms for the subsequent members of the advisory board.]
(d) The presiding officer of the commission, with the
commission's approval, [commissioner] shall designate one member
of the advisory board to serve as presiding officer of the board for
two years.
(e) The executive director [commissioner] or the executive
director's [commissioner's] designee serves as an ex officio
nonvoting member of the advisory board.
(f) The presiding officer of the commission, with the
commission's approval, [commissioner] shall fill any vacancy on the
advisory board by appointing an individual who meets the
qualifications for the vacant advisory board position to serve the
remainder of the unexpired term.
(g) The advisory board shall meet at least every six months
and may meet at other times at the call of the presiding officer of
the board or the presiding officer of the commission
[commissioner]. The advisory board shall meet at a location in this
state designated by the [advisory] board.
SECTION 18.005. Subsections (c) and (d), Section 6, Article
9035, Revised Statutes, are amended to read as follows:
(c) Each registered warrantor shall pay an annual
registration fee [not to exceed $2,500] as set by the commission to
cover the costs of administering this article. The department
shall develop a tiered fee structure under which registration fees
are assessed on warrantors based on the number of vehicle
protection products sold within this state in the 12 months
preceding the date of registration. The information submitted to
the department under this section regarding the number of vehicle
protection products sold by a warrantor may only be used by the
department in determining the tiered fee structure. Information
concerning the number of vehicle protection products sold by a
warrantor submitted under this section is a trade secret and
subject to Section 552.110, Government Code.
(d) The commission [commissioner] shall adopt rules
providing for the renewal of a warrantor's registration.
SECTION 18.006. Subsection (e), Section 10, Article 9035,
Revised Statutes, is amended to read as follows:
(e) The commission [commissioner] shall adopt rules
governing how a warrantor shall protect nonpublic personal
information provided by a consumer to the warrantor.
SECTION 18.007. Subsections (a) and (c), Section 16,
Article 9035, Revised Statutes, are amended to read as follows:
(a) The executive director [commissioner] may bring an
action against a warrantor for injunctive relief under Section
51.352, Occupations Code, for a threatened or existing violation of
this article or of the [commissioner's] orders or rules adopted
under this article.
(c) For purposes of this section [and Section 15 of this
article], violations are of a similar nature if the violations
consist of the same or a similar course of conduct, action, or
practice, regardless of the number of times the conduct, act, or
practice determined to be a violation of this article occurred.
SECTION 18.008. The following laws are repealed:
(1) Subdivision (2), Section 2, Article 9035, Revised
Statutes; and
(2) Section 15, Article 9035, Revised Statutes.
SECTION 18.009. The changes in law made by this article
applying to members of the Vehicle Protection Product Warrantor
Advisory Board do not affect the entitlement of a member serving on
the board immediately before September 1, 2003, to continue to
serve and function as a member of the board for the remainder of the
member's term. Those changes in law apply only to a member
appointed on or after September 1, 2003.
ARTICLE 19. WATER WELL DRILLERS
SECTION 19.001. Section 1901.001, Occupations Code, is
amended by adding Subdivisions (7-a) and (7-b) to read as follows:
(7-a) "Executive director" means the executive
director of the department.
(7-b) "Groundwater conservation district" means a
district to which Chapter 36, Water Code, applies.
SECTION 19.002. Section 1901.051, Occupations Code, is
amended to read as follows:
Sec. 1901.051. LICENSING. (a) The department, with the
advice of the council, shall prepare licensing examinations.
(b) The department shall [and] evaluate the qualifications
of license applicants.
(c) [(b)] The executive director [commissioner] shall issue
licenses to applicants who qualify.
SECTION 19.003. Section 1901.052, Occupations Code, is
amended to read as follows:
Sec. 1901.052. RULES. (a) The commission [commissioner,
with advice and comment from the Texas Natural Resource
Conservation Commission,] shall adopt rules as necessary to enforce
this chapter, including rules governing:
(1) license applications;
(2) qualifications of applicants;
(3) standards of conduct for drillers, including
standards for marking well drilling rigs and equipment; and
(4) procedures and practices before the department.
(b) The commission [commissioner] may not adopt a rule under
this chapter that:
(1) regulates the installation or repair of well pumps
and equipment by:
(A) a person on property the person owns or
controls for the person's own use;
(B) an employee of a person described by
Paragraph (A); or
(C) a person who is not hired or compensated and
who acts on behalf of a person described by Paragraph (A); or
(2) requires a person who owns or controls property or
possesses a well to complete, repair, or retrofit the well to any
standard other than a standard in effect at the time the well was
originally completed unless the well is found to be a threat to
public health and safety or to water quality.
SECTION 19.004. Subsection (a), Section 1901.101,
Occupations Code, is amended to read as follows:
(a) The Texas Water Well Drillers Advisory Council consists
of nine members appointed by the presiding officer of the
commission, with the commission's approval, [department] as
follows:
(1) six members who are drillers experienced in the
well drilling business and familiar with well drilling, completion,
and plugging methods and techniques; and
(2) three public members.
SECTION 19.005. Section 1901.105, Occupations Code, is
amended to read as follows:
Sec. 1901.105. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, [council] shall
appoint [elect] a member of the council to serve as presiding
officer of the council for two years [by a majority vote at the
first meeting each year].
SECTION 19.006. Subsections (a) and (d), Section 1901.109,
Occupations Code, are amended to read as follows:
(a) The council may propose rules for adoption by the
commission [commissioner] relating to the regulation of drillers
registered under this chapter.
(d) The council shall assist the commission [department] in
evaluating continuing education programs.
SECTION 19.007. Subsection (b), Section 1901.152,
Occupations Code, is amended to read as follows:
(b) An applicant must pay to the department an [a
nonrefundable] examination fee at the time the application is
submitted.
SECTION 19.008. Section 1901.162, Occupations Code, is
amended to read as follows:
Sec. 1901.162. WAIVER FOR APPLICANT LICENSED IN ANOTHER
STATE. The commission [commissioner] may adopt rules allowing
waiver of a license requirement for an applicant who is licensed in
another state that has license requirements substantially
equivalent to those of this state.
SECTION 19.009. Subsection (a), Section 1901.251,
Occupations Code, is amended to read as follows:
(a) Each driller who drills, deepens, or otherwise alters a
water well in this state shall make and keep a legible and accurate
well log in accordance with rules adopted by the commission and on
forms prescribed by the executive director [commissioner]. The
well log shall be recorded at the time of drilling, deepening, or
otherwise altering the well and must contain:
(1) the depth, thickness, and character of the strata
penetrated;
(2) the location of water-bearing strata;
(3) the depth, size, and character of casing
installed; and
(4) any other information required by rules adopted by
the commission [commissioner].
SECTION 19.010. Subsection (b), Section 1901.252,
Occupations Code, is amended to read as follows:
(b) The commission [commissioner] shall adopt rules
specifying the manner for marking a rig.
SECTION 19.011. Section 1901.253, Occupations Code, is
amended to read as follows:
Sec. 1901.253. COMPLETING WATER WELL. A driller shall
complete a well under standards and procedures adopted by the
commission [commissioner].
SECTION 19.012. Subsection (b), Section 1901.254,
Occupations Code, is amended to read as follows:
(b) The driller shall ensure that the well is plugged,
repaired, or properly completed under standards and procedures
adopted by the commission [commissioner].
SECTION 19.013. Section 1901.255, Occupations Code, is
amended by amending Subsections (c) and (d) and adding Subsection
(e) to read as follows:
(c) Not later than the 180th day after the date a landowner
or other person who possesses an abandoned or deteriorated well
learns of its condition, the landowner or other person shall have
the well plugged or capped under standards and procedures adopted
by the commission [commissioner].
(d) Not later than the 30th day after the date the well is
plugged, a [A] driller, licensed pump installer, or well owner who
plugs an abandoned or deteriorated well shall submit a plugging
report to:
(1) the board of directors of the groundwater
conservation district in which the well is located, if the well is
located in the boundaries of a groundwater conservation district;
and
(2) the executive director [commissioner not later
than the 30th day after the date the well is plugged].
(e) The department or the groundwater conservation district
in which the well is located shall furnish plugging report forms on
request. The executive director shall prescribe the content of the
forms.
SECTION 19.014. Subchapter F, Chapter 1901, Occupations
Code, is amended by adding Section 1901.256 to read as follows:
Sec. 1901.256. ENFORCEMENT BY GROUNDWATER CONSERVATION
DISTRICT. (a) This section applies only to a violation related to
a well located in the boundaries of the groundwater conservation
district seeking to bring an action under this section.
(b) A groundwater conservation district shall enforce
compliance with Section 1901.255 related to wells located in the
boundaries of the district.
(c) A groundwater conservation district may bring an action
to enjoin a person from violating Section 1901.255.
(d) A groundwater conservation district may enforce by
injunction or other appropriate remedy in a court any rule,
decision, determination, or order adopted or entered under this
chapter that is related to Section 1901.255.
(e) A groundwater conservation district may bring an action
to recover a civil penalty under Section 1901.401 for a violation of
this chapter or a rule adopted under this chapter related to Section
1901.255.
(f) The groundwater conservation district may bring the
action in the county in which:
(1) the offending activity occurred; or
(2) the person engaging in the activity resides.
SECTION 19.015. Subchapter F, Chapter 1901, Occupations
Code, is amended by adding Section 1901.257 to read as follows:
Sec. 1901.257. MEMORANDUM OF UNDERSTANDING REGARDING
ABANDONED WELLS. (a) In this section, "abandoned well" and
"deteriorated well" have the meanings assigned by Section 1901.255.
(b) The Texas Commission on Environmental Quality and the
department shall by rule adopt or revise a joint memorandum of
understanding to coordinate the efforts of the department,
groundwater conservation districts, and the field offices of the
Texas Commission on Environmental Quality relating to
investigative procedures for referrals of complaints regarding
abandoned and deteriorated wells.
(c) Each groundwater conservation district in which an
abandoned or deteriorated well is located shall join the memorandum
of understanding adopted under Subsection (b).
SECTION 19.016. Section 1901.301, Occupations Code, is
amended to read as follows:
Sec. 1901.301. GROUNDS FOR DISCIPLINARY ACTION. The
commission [commissioner] may discipline a person under Section
51.353 for a violation of this chapter or a rule adopted under this
chapter, including:
(1) an intentional misstatement or misrepresentation
of a fact on an application or well log or to a person for whom a
well is being drilled, deepened, or otherwise altered;
(2) the failure to keep, deliver, or send a well log as
required by Section 1901.251;
(3) the failure to advise a person for whom a well is
being drilled that:
(A) injurious water has been encountered;
(B) the water is a pollution hazard; and
(C) the well must be immediately plugged in an
acceptable manner; or
(4) the failure to complete a well in accordance with
standards and procedures adopted by the commission [commissioner].
SECTION 19.017. The following laws are repealed:
(1) Subdivision (2), Section 1901.001, Occupations
Code;
(2) Subsection (e), Section 1901.109, Occupations
Code;
(3) Subsection (b), Section 1901.155, Occupations
Code;
(4) Section 1901.156, Occupations Code;
(5) Section 1901.157, Occupations Code;
(6) Section 1901.160, Occupations Code;
(7) Section 1901.205, Occupations Code;
(8) Section 1901.302, Occupations Code;
(9) Section 1901.303, Occupations Code;
(10) Section 1901.304, Occupations Code; and
(11) Subchapter H, Chapter 1901, Occupations Code.
SECTION 19.018. The changes in law made to Section
1901.255, Occupations Code, by this article do not affect the
status of a complaint, investigation, or other proceeding that
commenced before September 1, 2003. A groundwater conservation
district, as appropriate and without a change in status, assumes
the position of the executive director of the Texas Department of
Licensing and Regulation in an action or proceeding relating to a
well located in the boundaries of that groundwater conservation
district.
SECTION 19.019. The changes in law made by this article
applying to members of the Texas Water Well Drillers Advisory
Council do not affect the entitlement of a member serving on the
council immediately before September 1, 2003, to continue to serve
and function as a member of the council for the remainder of the
member's term. Those changes in law apply only to a member
appointed on or after September 1, 2003.
ARTICLE 20. WATER WELL PUMP INSTALLERS
SECTION 20.001. Section 1902.001, Occupations Code, is
amended by adding Subdivision (4-a) to read as follows:
(4-a) "Executive director" means the executive
director of the department.
SECTION 20.002. Section 1902.051, Occupations Code, is
amended to read as follows:
Sec. 1902.051. LICENSING. (a) The department, with the
advice of the council, shall prepare licensing examinations.
(b) The department shall [and] evaluate the qualifications
of license applicants.
(c) [(b)] The executive director [commissioner] shall issue
licenses to applicants who qualify.
SECTION 20.003. Section 1902.052, Occupations Code, is
amended to read as follows:
Sec. 1902.052. RULES. (a) The commission [commissioner]
shall adopt rules as necessary to enforce this chapter.
(b) The commission [commissioner] may not adopt a rule under
this chapter that:
(1) regulates the installation or repair of well pumps
and equipment by:
(A) a person on property the person owns or
controls for the person's own use;
(B) an employee of a person described by
Paragraph (A); or
(C) a person who is not hired or compensated and
who acts on behalf of a person described by Paragraph (A); or
(2) requires a person who owns or controls property or
possesses a well to complete, repair, or retrofit the well to any
standard other than a standard in effect at the time the well was
originally completed unless the well is found to be a threat to
public health and safety or to water quality.
SECTION 20.004. Subsection (b), Section 1902.152,
Occupations Code, is amended to read as follows:
(b) An applicant must pay to the department an [a
nonrefundable] examination fee at the time the application is
submitted.
SECTION 20.005. Section 1902.162, Occupations Code, is
amended to read as follows:
Sec. 1902.162. WAIVER FOR APPLICANT LICENSED IN ANOTHER
STATE. The commission [commissioner] may adopt rules allowing
waiver of a license requirement for an applicant who is licensed in
another state that has license requirements substantially
equivalent to those of this state.
SECTION 20.006. Section 1902.251, Occupations Code, is
amended to read as follows:
Sec. 1902.251. INSTALLING AND REPAIRING PUMPS. An
installer shall install or repair pumps under standards and
procedures adopted by the commission [commissioner] with the advice
of the council.
SECTION 20.007. Subsection (b), Section 1902.252,
Occupations Code, is amended to read as follows:
(b) To avoid injury or pollution, the installer shall repair
or properly complete the well under standards and procedures
adopted by the commission [commissioner].
SECTION 20.008. The following laws are repealed:
(1) Subdivision (2), Section 1902.001, Occupations
Code;
(2) Section 1902.101, Occupations Code;
(3) Subsection (b), Section 1902.155, Occupations
Code;
(4) Section 1902.156, Occupations Code;
(5) Section 1902.157, Occupations Code;
(6) Section 1902.160, Occupations Code;
(7) Section 1902.204, Occupations Code; and
(8) Subchapters G and H, Chapter 1902, Occupations
Code.
ARTICLE 21. WEATHER MODIFICATION; OCCUPATIONAL REGULATION
SECTION 21.001. Section 1.01, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended by amending Subdivision (1) and adding
Subdivision (2-a) to read as follows:
(1) "Commission" ["Commissioner"] has the meaning
assigned by Section 51.001, Occupations Code.
(2-a) "Executive director" means the executive
director of the department.
SECTION 21.002. Article 1, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended by adding Section 1.02 to read as
follows:
Sec. 1.02. APPLICABILITY OF OTHER LAW. Sections 51.404 and
51.405, Occupations Code, do not apply to this article.
SECTION 21.003. Section 1.11, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.11. RULES. The commission [department] may adopt
rules necessary to:
(1) exercise the powers and perform the duties under
this article;
(2) establish procedures and conditions for the
issuance of licenses and permits under this article; and
(3) establish standards and instructions to govern the
carrying out of research or projects in weather modification and
control that the commission [department] considers necessary or
desirable to minimize danger to health or property.
SECTION 21.004. Section 1.13, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.13. ADVISORY COMMITTEES. The commission
[department] may establish advisory committees to advise the
commission [department] and to make recommendations to the
commission [department] concerning legislation, policies,
administration, research, and other matters related to the
department's duties, powers, or functions under this article. If
the commission establishes an advisory committee under this
section, the presiding officer of the commission, with the
commission's approval, shall appoint a member of the committee to
serve as the presiding officer of the committee for a two-year term.
SECTION 21.005. Section 1.16, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.16. INTERSTATE COMPACTS. The commission
[commissioner] may represent the state in matters pertaining to
plans, procedures, or negotiations for interstate compacts
relating to weather modification and control.
SECTION 21.006. Subsection (b), Section 1.18, Chapter 376,
Acts of the 77th Legislature, Regular Session, 2001 (Article 165c,
Vernon's Texas Civil Statutes), is amended to read as follows:
(b) The department with approval of the commission
[commissioner] may conduct and may contract for research and
development activities relating to the purposes of this section.
SECTION 21.007. Section 1.31, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.31. LICENSE AND PERMIT REQUIRED. Except as provided
by rule of the commission [department] under Section 1.32 of this
article, a person may not engage in activities for weather
modification and control:
(1) without a weather modification license and weather
modification permit issued by the department; or
(2) in violation of any term or condition of the
license or permit.
SECTION 21.008. Section 1.32, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.32. EXEMPTIONS. (a) The commission [department] by
rule, to the extent it considers exemptions practical, shall
provide for exempting the following activities from the license and
permit requirements of this article:
(1) research, development, and experiments conducted
by state and federal agencies, institutions of higher learning, and
bona fide nonprofit research organizations;
(2) laboratory research and experiments;
(3) activities of an emergent nature for protection
against fire, frost, sleet, or fog; and
(4) activities normally conducted for purposes other
than inducing, increasing, decreasing, or preventing precipitation
or hail.
(b) The commission [department] by rule may modify or revoke
an exemption.
SECTION 21.009. Subsection (v), Section 1.41, Chapter 376,
Acts of the 77th Legislature, Regular Session, 2001 (Article 165c,
Vernon's Texas Civil Statutes), is amended to read as follows:
(v) The commission [department] by rule shall define hail
suppression as used in this section, using the most current
scientifically accepted technological concepts.
SECTION 21.010. Section 1.64, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.64. PROCEDURES. The commission [department] by rule
shall establish procedures for public notice and any public hearing
under this subchapter.
SECTION 21.011. Section 1.65, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.65. HEARINGS. A hearing under this article
[subchapter] shall be conducted in accordance with the hearing
rules adopted by the commission [department] and the applicable
provisions of Chapter 51, Occupations Code, and Chapter 2001,
Government Code.
SECTION 21.012. Section 1.66, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.66. CONSENT. If a permit holder or license holder
requests or consents to the revocation or suspension of the permit
or license, the commission [commissioner] may revoke or suspend the
permit or license without a hearing.
SECTION 21.013. The following laws are repealed:
(1) Section 1.34, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes);
(2) Section 1.38, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes); and
(3) Section 1.68, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes).
ARTICLE 22. WEATHER MODIFICATION; CONTROL GRANT PROGRAM
SECTION 22.001. Section 20.001, Agriculture Code, as added
by Chapter 376, Acts of the 77th Legislature, Regular Session,
2001, is amended to read as follows:
Sec. 20.001. FINDINGS. The legislature finds that weather
modification and control activities may have a significant impact
on Texas agriculture. The legislature further finds that the Texas
Department of Licensing and Regulation [Agriculture] is the proper
state agency to administer grants to political subdivisions for
weather modification and control activities.
SECTION 22.002. Section 20.002, Agriculture Code, as added
by Chapter 376, Acts of the 77th Legislature, Regular Session,
2001, is amended to read as follows:
Sec. 20.002. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Commission" means the Texas Commission of
Licensing and Regulation.
(2) "Department" means the Texas Department of
Licensing and Regulation.
(3) "Weather[, "weather] modification and control"
means changing or controlling, or attempting to change or control,
by artificial methods the natural development of atmospheric cloud
forms or precipitation forms that occur in the troposphere.
SECTION 22.003. Section 20.004, Agriculture Code, as added
by Chapter 376, Acts of the 77th Legislature, Regular Session,
2001, is amended to read as follows:
Sec. 20.004. RULES. The commission [department] may adopt
rules necessary to administer this chapter.
SECTION 22.004. (a) On the effective date of this Act, in
accordance with the General Appropriations Act enacted by the 78th
Legislature:
(1) all powers, duties, obligations, rights, and
contracts of the Department of Agriculture associated with the
weather modification and control grant program are transferred to
the Texas Department of Licensing and Regulation;
(2) all authority to fill full-time equivalent
positions to administer the weather modification and control grant
program and all unspent and unobligated appropriations to and other
money held by the Department of Agriculture in connection with the
program are transferred to the Texas Department of Licensing and
Regulation; and
(3) all files, records, equipment, and other property
of the Department of Agriculture that are used by that agency in
connection with the administration of the weather modification and
control grant program become the property of the Texas Department
of Licensing and Regulation, but remain in the same location unless
moved in accordance with the memorandum of understanding adopted
under Subsection (b) of this section.
(b) The Department of Agriculture and the Texas Department
of Licensing and Regulation shall adopt a memorandum of
understanding not later than the 30th day after the effective date
of this Act that provides for the transfer, by that date, of any
files, records, equipment, property, and personnel necessary to
accomplish the transfer of the weather modification and control
grant program from the Department of Agriculture to the Texas
Department of Licensing and Regulation.
ARTICLE 23. VALET PARKING SERVICES FINANCIAL RESPONSIBILITY
SECTION 23.001. Section 2, Article 9035, Revised Statutes,
is amended by adding Subdivision (10) to read as follows:
(10) "Vehicle protection service" means a valet
parking service as defined by Section 686.001(3), Transportation
Code.
SECTION 23.002. Subtitle H, Title 7, Transportation Code,
is amended by adding Chapter 686 to read as follows:
CHAPTER 686. VALET PARKING SERVICES
Sec. 686.001. DEFINITIONS. In this chapter:
(1) "Financial responsibility" means the ability to
respond in damages for liability for an accident that:
(A) occurs after the effective date of the
document evidencing the establishment of the financial
responsibility; and
(B) arises out of the operation of a motor
vehicle by an employee of a valet parking service.
(2) "Public accommodation" means any:
(A) inn, hotel, or motel;
(B) restaurant, cafeteria, or other facility
principally engaged in selling food for consumption on the
premises;
(C) bar, nightclub, or other facility engaged in
selling alcoholic beverages for consumption on the premises;
(D) motion picture house, theater, concert hall,
stadium, or other place of exhibition or entertainment; or
(E) other facility used by or open to members of
the public.
(3) "Valet parking service" means a parking service
through which the motor vehicles of patrons of a public
accommodation are parked for a fee by a third party who is not an
employee of the public accommodation.
Sec. 686.002. REQUIREMENT OF FINANCIAL RESPONSIBILITY FOR
VALET PARKING SERVICES. A person may not operate a valet parking
service unless financial responsibility for each employee who
operates a motor vehicle for the service is established through:
(1) a motor vehicle liability or comprehensive general
liability and garage insurance policy in an amount established by
Section 686.004;
(2) a surety bond filed under Section 601.121; or
(3) a deposit in the amount of $450,000 under Section
601.122, notwithstanding any other amount prescribed by that
section.
Sec. 686.003. EVIDENCE OF FINANCIAL RESPONSIBILITY.
(a) The owner or operator of a valet parking service shall provide
evidence of financial responsibility in the same manner as required
under Section 601.053.
(b) In addition to complying with Subsection (a), an owner
or operator of a valet parking service shall exhibit, for public
inspection, evidence of financial responsibility at a public
accommodation whose patrons use the service.
Sec. 686.004. MINIMUM COVERAGE AMOUNTS. (a) The minimum
amounts of motor vehicle liability insurance coverage required to
establish financial responsibility under this chapter are:
(1) $100,000 for bodily injury to or death of one
person in one accident;
(2) $300,000 for bodily injury to or death of two or
more persons in one accident, subject to the amount provided by
Subdivision (1) for bodily injury to or death of one of the persons;
and
(3) $50,000 for damage to or destruction of property
of others in one accident.
(b) The comprehensive general liability insurance must be
on a broad form and provide limits of liability for bodily injury
and property damage of not less than $300,000 combined single limit
or the equivalent.
(c) The garage insurance must provide limits of liability
for bodily injury and property damage of not less than $300,000
combined single limit, or the equivalent, and must provide the
following coverages:
(1) comprehensive and collision coverage for physical
damage;
(2) coverage for vehicle storage; and
(3) coverage for a vehicle driven by or at the
direction of the valet parking service.
Sec. 686.005. COMMON LAW DEFENSES. In an action against an
owner or operator of a valet parking service that has not
established financial responsibility as required by this chapter to
recover damages for personal injuries, death, or property damage
sustained in a motor vehicle accident arising out of the operation
of a valet parking service, it is not a defense that the party who
brings the action:
(1) was guilty of contributory negligence; or
(2) assumed the risk of injury, death, or property
damage.
Sec. 686.006. OPERATION OF MOTOR VEHICLE IN VIOLATION OF
FINANCIAL RESPONSIBILITY REQUIREMENT; OFFENSE. (a) A person
commits an offense if the person, while in the course and scope of
the person's employment with a valet parking service, operates a
motor vehicle of a patron of the service without the financial
responsibility required by this chapter.
(b) Except as provided by Subsections (c) and (d), an
offense under this section is a misdemeanor punishable by a fine of
not less than $175 or more than $350.
(c) If a person has been previously convicted of an offense
under this section, an offense under this section is a misdemeanor
punishable by a fine of not less than $350 or more than $1,000.
(d) If the court determines that a person who has not been
previously convicted of an offense under this section is
economically unable to pay the fine, the court may reduce the fine
to not less than $175.
Sec. 686.007. DEFENSE: FINANCIAL RESPONSIBILITY IN EFFECT
AT TIME OF ALLEGED OFFENSE. It is a defense to prosecution under
Section 686.002 that the person charged produces one of the
documents listed in Section 601.053 that was valid at the time the
offense is alleged to have occurred.
SECTION 23.003. (a) Except as provided in Subsection (d)
of this section, this article takes effect March 1, 2004.
(b) The Texas Commission of Licensing and Regulation shall
analyze the potential financial impact of Chapter 686,
Transportation Code, as added by this article, on prices paid by
consumers who use valet parking services. Not later than January 1,
2004, the commission shall report to the secretary of state for
publication in the Texas Register whether the commission's analysis
concludes that implementation of Chapter 686, Transportation Code,
would result in an increase of more than 25 percent in the average
price paid by a consumer for valet parking services.
(c) Not later than February 1, 2004, the secretary of state
shall publish the conclusion of the Texas Commission of Licensing
and Regulation's analysis in the Texas Register.
(d) If the Texas Commission of Licensing and Regulation
concludes that implementation of Chapter 686, Transportation Code,
as added by this article, would result in an increase of more than
25 percent in the average price paid by a consumer for valet parking
services, this article has no effect.
ARTICLE 24. RENTAL-PURCHASE AGREEMENTS
SECTION 24.001. Section 35.71, Business & Commerce Code, is
amended by adding Subdivision (3-a) to read as follows:
(3-a) "Loss damage waiver" means a merchant's
agreement not to hold a consumer liable for loss from all or part of
any damage to merchandise.
SECTION 24.002. Subsection (c), Section 35.72, Business &
Commerce Code, is amended to read as follows:
(c) A rental-purchase agreement may not contain a
provision:
(1) requiring a confession of judgment;
(2) authorizing a merchant or an agent of the
merchant to commit a breach of the peace in the repossession of
merchandise;
(3) waiving a defense, counterclaim, or right the
consumer may have against the merchant or an agent of the merchant;
(4) requiring the purchase of insurance or a loss
damage waiver from the merchant to cover the merchandise;
(5) requiring the payment of a late charge or
reinstatement fee unless a periodic payment is delinquent for more
than seven days if the payment is due monthly, or is delinquent for
more than three days if the payment is due more frequently than
monthly, and the charge or fee is in an amount equal to not more than
the lesser of five percent of the delinquent payment or $5, and not
less than $2; or
(6) requiring a payment at the end of the scheduled
rental-purchase term in excess of or in addition to a regular
periodic payment in order to acquire ownership of the merchandise.
In no event shall the consumer be required to pay a sum greater than
the total amount to be paid to acquire ownership, as disclosed in
Subsection (g)(3) of this section.
SECTION 24.003. Subchapter F, Chapter 35, Business &
Commerce Code, is amended by adding Sections 35.721 and 35.722 to
read as follows:
Sec. 35.721. LOSS DAMAGE WAIVER. (a) In addition to other
charges permitted by this subchapter, a consumer may contract for a
loss damage waiver. A loss damage waiver is not insurance.
(b) A merchant may not sell a loss damage waiver unless the
consumer agrees to the waiver in writing. A merchant may not impose
or require the purchase of a loss damage waiver as a mandatory
charge.
(c) A loss damage waiver may exclude loss or damage to the
merchandise that is caused by an unexplained disappearance or
abandonment of the merchandise, or any other damage that is
intentionally caused by the consumer or that results from the
consumer's wilful or wanton misconduct.
(d) A loss damage waiver agreement must include a statement
of the total charge for the loss damage waiver.
(e) A merchant may charge a periodic fee for a loss damage
waiver that may not exceed 10 percent of the periodic rental
payment.
(f) A contract that offers a loss damage waiver must include
the following notice:
"This contract offers an optional loss damage waiver for an
additional charge to cover your responsibility for loss of or
damage to the merchandise. You do not have to purchase this
coverage. Before deciding whether or not to purchase this loss
damage waiver, you may consider whether your homeowners' or
casualty insurance policy affords you coverage for loss of or
damage to rental merchandise and the amount of the deductible you
would pay under your policy."
(g) A merchant may not sell a loss damage waiver unless the
form of the contract containing the waiver has been approved by the
Texas Department of Licensing and Regulation.
(h) The Texas Commission of Licensing and Regulation shall
by rule:
(1) provide the method for annual submission of all
contracts, including amendments to a contract, that contain a loss
damage waiver, for review by the Texas Department of Licensing and
Regulation; and
(2) set a reasonable fee to be paid by the merchant for
the review of contract forms under Subdivision (1) and for the
administration of this subchapter by the Texas Department of
Licensing and Regulation.
Sec. 35.722. ENFORCEMENT; INVESTIGATION; HEARING. (a) In
this section:
(1) "Commission" means the Texas Commission of
Licensing and Regulation.
(2) "Department" means the Texas Department of
Licensing and Regulation.
(b) The department shall enforce Section 35.721 and may, as
necessary, investigate a merchant who has one or more contracts
that include a loss damage waiver.
(c) A person may file a complaint alleging a violation of
Section 35.721 with the department. The department shall
investigate the alleged violation on receipt of the complaint, and
may inspect any record relevant to the complaint.
(d) If, as a result of an investigation, the department
determines that a violation may have occurred, the commission shall
provide an opportunity for a hearing in the manner provided for a
contested case under Chapter 2001, Government Code.
(e) If, after opportunity for hearing, the commission
determines that the merchant has violated Section 35.721, the
commission may:
(1) impose an administrative penalty under Chapter 51,
Occupations Code; or
(2) award the complainant damages in an amount up to
the amount of the contract price for the merchandise.
SECTION 24.004. The change in law made by this article
applies only to a rental-purchase agreement entered into on or
after the effective date of this Act. A rental-purchase agreement
entered into before the effective date of this Act is governed by
the law in effect on the date the rental-purchase agreement was
entered into, and the former law is continued in effect for that
purpose.
ARTICLE 25. ON-LINE LICENSE INFORMATION
SECTION 25.001. Subchapter I, Chapter 2054, Government
Code, as added by Chapter 353, Acts of the 77th Legislature, Regular
Session, 2001, is amended by adding Sections 2054.255 and 2054.256
to read as follows:
Sec. 2054.255. CHANGE OF ADDRESS AND OTHER INFORMATION.
(a) The system adopted under Section 2054.253, as added by Chapter
353, Acts of the 77th Legislature, Regular Session, 2001, must
allow a person regulated by one or more licensing authorities to
file a single change of address on-line with the department. The
department shall provide the new address to each appropriate
licensing authority.
(b) The department may expand the system to include
additional categories of updated information that license holders
may need to provide to more than one licensing authority.
(c) If the department uses TexasOnline to implement the
system, the department may recover costs incurred under this
section as provided by Section 2054.252, as added by Chapter 342,
Acts of the 77th Legislature, Regular Session, 2001.
Sec. 2054.256. SHARING OF INFORMATION. (a) Each licensing
authority shall electronically share information regarding license
holders, especially information regarding disciplinary
information, with other licensing authorities to the extent it is
feasible to do so and allowed by other law, under appropriate
controls for the privacy, security, accuracy, and, when applicable,
confidentiality of the information.
(b) A licensing authority may only use information it
receives electronically under this section for regulatory
purposes.
ARTICLE 26. GENERAL CONFORMING AMENDMENTS
SECTION 26.001. Section 57.044, Government Code, is amended
to read as follows:
Sec. 57.044. COURT INTERPRETER LICENSE. To qualify for a
court interpreter license under this subchapter, an individual must
apply on a form prescribed by the executive director [commissioner]
and demonstrate, in the manner required by the executive director
[commissioner], reasonable proficiency in interpreting English and
court proceedings for individuals who can hear but who do not
comprehend English or communicate in English.
SECTION 26.002. Subsections (a) and (c), Section 57.046,
Government Code, are amended to read as follows:
(a) The executive director [commissioner] shall prepare
examinations under this subchapter that test an applicant's
knowledge, skill, and efficiency in interpreting under this
subchapter.
(c) Examinations shall be offered in the state at least
twice a year at times and places designated by the executive
director [commissioner].
SECTION 26.003. The heading to Section 57.047, Government
Code, is amended to read as follows:
Sec. 57.047. [COMMISSIONER AND] DEPARTMENT DUTIES;
INSPECTIONS.
SECTION 26.004. Subsection (a), Section 57.047, Government
Code, is amended to read as follows:
(a) The executive director [commissioner] shall enforce
this subchapter.
SECTION 26.005. Section 754.020, Health and Safety Code, is
amended to read as follows:
Sec. 754.020. DEPOSIT OF FEES. Fees collected under this
subchapter shall be deposited to the credit of an account in the
general revenue fund that may be used by the executive director
[commissioner] only to administer and enforce this subchapter and
to reimburse expenses of board members provided by this subchapter.
SECTION 26.006. Section 754.021, Health and Safety Code, is
amended to read as follows:
Sec. 754.021. LIST OF INSPECTORS; PERSONNEL. The executive
director [commissioner] may:
(1) compile a list of ASME-QEI-1 certified inspectors
who are registered with the department to perform an inspection
under this subchapter; and
(2) employ personnel as necessary to enforce this
subchapter.
SECTION 26.007. Section 754.022, Health and Safety Code, is
amended to read as follows:
Sec. 754.022. NOTICE OF NONCOMPLIANCE. If the executive
director [commissioner] learns of a situation of noncompliance
under Section 754.019, the executive director [commissioner] shall
send notice by certified mail of the noncompliance and the actions
required to remedy the noncompliance to the record owner of the real
property on which the equipment that is the subject of the
noncompliance is located.
SECTION 26.008. Subsections (a), (c), and (d), Section
755.023, Health and Safety Code, are amended to read as follows:
(a) The executive director [commissioner] shall appoint a
chief inspector of boilers to administer the boiler program. The
chief inspector must:
(1) be a resident of this state and a citizen of the
United States;
(2) have at least five years' experience in the
construction, installation, inspection, operation, maintenance, or
repair of boilers; and
(3) pass a written examination that demonstrates the
necessary ability to judge the safety of boilers.
(c) As needed, the executive director [commissioner] shall
appoint persons with qualifications similar to those of the chief
inspector to serve as deputy inspectors.
(d) The executive director [commissioner] may employ
clerical assistants as necessary to carry out this chapter.
SECTION 26.009. Subsections (a), (b), (f), and (g), Section
755.024, Health and Safety Code, are amended to read as follows:
(a) To be an authorized inspector, a person must obtain a
commission as a boiler inspector from the executive director
[commissioner] and must be continuously employed by an inspection
agency.
(b) The executive director [commissioner], by written
examination, shall determine the qualifications of an applicant for
a commission to be an authorized inspector.
(f) After proper investigation, the executive director
[commissioner] may accept an inspection commission issued to a
person by any other jurisdiction that has a written examination
equal to that of this state.
(g) For good cause, the executive director [commissioner]
may rescind a commission issued by this state.
SECTION 26.010. Subsections (a), (f), and (g), Section
755.025, Health and Safety Code, are amended to read as follows:
(a) The executive director [commissioner] shall require
each boiler to be inspected internally and externally at the time of
initial installation and at subsequent intervals as provided by
this section. The executive director [commissioner] may provide
that the inspection be performed by any inspector.
(f) The executive director [commissioner] shall designate
the manner of inspection for nuclear boilers, the form of the
inspection report, and the information to be reported. The
executive director [commissioner] and the owner of a nuclear boiler
shall establish the intervals of inspection for the boiler.
(g) The executive director [commissioner] may authorize the
inspection of a boiler at any reasonable time if the executive
director [commissioner] determines that the boiler may be in an
unsafe condition. The executive director [commissioner] shall
notify the inspection agency that insures that boiler and request
the authorized inspector employed by that agency to participate
with the chief inspector or a deputy inspector in a joint inspection
of the boiler not later than the 20th day after the date on which the
executive director [commissioner] notifies the inspection agency.
An additional charge may not be made for the joint inspection.
SECTION 26.011. Subsections (a), (c), (d), and (e), Section
755.026, Health and Safety Code, are amended to read as follows:
(a) With the approval of the executive director
[commissioner] and the inspection agency that has jurisdiction for
the power boiler, the interval between internal inspections may be
extended to a period not exceeding a total of 48 months. For other
unfired steam boilers or steam collection or liberation drums of
process steam generators, the inspection interval may be extended
to the next scheduled downtime of the boiler, but not exceeding a
total of 84 months.
(c) The executive director [commissioner] and the
inspection agency may grant an additional extension for a period
not exceeding 120 days to the inspection interval covered by the
boiler's certificate of operation on receipt of a request for
extension stating that an emergency exists. Before the extension
may be granted, the inspection agency must make an external
inspection of the boiler, and the conditions imposed under
Subsection (b) must be met.
(d) If an extended period between internal inspections is
approved by the executive director [commissioner] and the
inspection agency, the executive director [commissioner] shall
issue a new certificate of operation for the extended period of
operation.
(e) If the interval between internal inspections of a gas
fired boiler is extended under Subsection (a), the executive
director [commissioner] and inspection agency shall require that an
inspection of the gas regulator or pressure reducing valve that
services the boiler be performed as part of the next regularly
scheduled external certificate inspection of the boiler to verify
proper venting of gas to a safe point of discharge.
SECTION 26.012. Subsections (a) and (c), Section 755.027,
Health and Safety Code, are amended to read as follows:
(a) Not later than the 30th day after the date on which a
certificate inspection is performed by an authorized inspector, the
inspection agency employing the authorized inspector shall file a
report with the executive director [commissioner] in the manner
specified by the executive director [department].
(c) An inspection agency shall notify the executive
director [commissioner] in writing of the cancellation or
expiration of any insurance policy issued by that agency to cover a
boiler located in this state, and shall include in the notice the
reason for the cancellation or expiration. The notice must state
the date the policy was issued and the date on which the
cancellation or expiration takes effect.
SECTION 26.013. Section 755.028, Health and Safety Code, is
amended to read as follows:
Sec. 755.028. SPECIAL INSPECTIONS. The executive director
[commissioner] may provide a special inspection service to the
owners, operators, and manufacturers of boilers. The service may
include surveys required for certification to construct, assemble,
or repair boilers or pressure vessels.
SECTION 26.014. Subsection (a), Section 755.029, Health and
Safety Code, is amended to read as follows:
(a) The executive director [commissioner] shall issue to
the owner or operator of a boiler a certificate of operation for the
boiler if after a certificate inspection:
(1) the boiler is found to be in a safe condition for
operation; and
(2) the owner or operator has paid the fees assessed
under Section 755.030.
SECTION 26.015. Section 755.042, Health and Safety Code, is
amended to read as follows:
Sec. 755.042. PROSECUTION; INJUNCTION. (a) A prosecution
may not be maintained if the issuance or renewal of a certificate of
operation has been requested for a boiler but has not been acted on.
However, the executive director [commissioner] may petition a
district court for an injunction to restrain the operation of the
boiler until the condition restraining its use is corrected and a
certificate of operation is issued if the executive director
[commissioner] determines that the operation of the boiler without
a certificate of operation constitutes a serious menace to the life
and safety of the persons in or about the premises. The attorney
general or the district or county attorney may bring the suit, and
venue is in the county in which the boiler is located or in Travis
County. It is not necessary for the prosecutor to verify the
pleadings or for the state to execute a bond.
(b) The executive director's [commissioner's] affidavit
that a certificate of operation or an application for a certificate
does not exist for a boiler, and the affidavit of the chief
inspector or a deputy inspector that the operation of the boiler
constitutes a menace to the life and safety of persons in or about
the premises, are sufficient proof to warrant the immediate
issuance of a temporary restraining order.
SECTION 26.016. Subsection (a), Section 91.003, Labor Code,
is amended to read as follows:
(a) Each state agency that in performing duties under other
law affects the regulation of staff leasing services shall
cooperate with the department[, the commissioner,] and other state
agencies as necessary to implement and enforce this chapter.
SECTION 26.017. Subsection (c), Section 91.015, Labor Code,
is amended to read as follows:
(c) Before denying a license application, the department
shall provide written notice to an applicant specifying the reasons
for the denial. The department shall provide the applicant at least
30 days after the date of the notice to address the reasons for the
denial. For good cause and on a showing of a good faith effort to
remedy the reasons for the denial, the executive director
[commissioner] may grant an additional 30 days to remedy the
reasons for denial.
SECTION 26.018. Section 91.048, Labor Code, is amended to
read as follows:
Sec. 91.048. REQUIRED INFORMATION. Each license holder
shall:
(1) maintain adequate books and records regarding the
license holder's duties and responsibilities;
(2) maintain and make available at all times to the
executive director [commissioner] the following information, which
shall be treated as proprietary and confidential and is exempt from
disclosure to persons other than other governmental agencies having
a reasonable, legitimate purpose for obtaining the information:
(A) the correct name, address, and telephone
number of each client company;
(B) each client company contract; and
(C) a listing by classification code as described
in the "Standard Industrial Classification Manual" published by the
United States Office of Management and Budget, of each client
company;
(3) notify the department of any addition or deletion
of a controlling person as listed on the license application or
renewal form by providing the name of the person not later than the
45th day after the date on which the person is added or deleted as a
controlling person; and
(4) provide a biographical history to the department
in connection with the addition of a new controlling person.
SECTION 26.019. Subsection (a), Section 91.062, Labor Code,
is amended to read as follows:
(a) The executive director [commissioner] may notify the
attorney general of a violation of this chapter. The attorney
general may apply to a district court in Travis County for
permission to file for quo warranto relief, injunctive relief, or
both.
SECTION 26.020. Subsection (a), Section 92.014, Labor Code,
is amended to read as follows:
(a) The department shall issue a temporary common worker
employer license to a person who meets the application requirements
established by the executive director [commissioner] and pays the
application and registration fees set by the commission.
SECTION 26.021. Subsection (a), Section 92.031, Labor Code,
is amended to read as follows:
(a) A person commits an offense if the person knowingly or
intentionally violates:
(1) this chapter;
(2) a rule adopted under this chapter; or
(3) an administrative order adopted [by the
commissioner] under this chapter.
SECTION 26.022. Subsections (a) and (c), Section 1152.154,
Occupations Code, are amended to read as follows:
(a) An applicant for registration must file an application
with the department on a printed form prescribed by the executive
director [commissioner].
(c) The department shall refund the registration fee if the
executive director [commissioner] does not approve the
application.
SECTION 26.023. Section 1152.156, Occupations Code, is
amended to read as follows:
Sec. 1152.156. ELIGIBILITY TO REGISTER AS PROPERTY TAX
CONSULTANT. (a) In addition to satisfying the requirements of
Section 1152.155, an applicant for registration as a property tax
consultant must:
(1) complete at least 15 classroom hours of
educational courses approved by the executive director
[commissioner], including at least four hours of instruction on
laws and legal issues in this state related to property tax
consulting services; or
(2) if the person is eligible for registration under
Section 1152.155(b), submit to the commission evidence that the
applicant has completed at least four classroom hours of
educational programs or courses on the laws and legal issues in this
state related to property tax consulting services.
(b) The executive director [commissioner] may give
appropriate credit to an initial applicant for:
(1) educational courses on principles of law related
to property tax consulting services completed by the applicant not
more than two years before the date of application; and
(2) educational programs or courses completed by the
applicant on:
(A) property taxation;
(B) the property tax system;
(C) property tax administration;
(D) ethical standards; or
(E) general principles of appraisal, accounting,
or law as they relate to property tax consulting services.
SECTION 26.024. Section 1152.159, Occupations Code, is
amended to read as follows:
Sec. 1152.159. CREDITS FOR SENIOR PROPERTY TAX CONSULTANT
APPLICANTS. (a) The executive director [commissioner] shall
grant credit to an applicant for registration as a senior property
tax consultant as follows:
(1) two credits for each year the applicant completed
at an institution of higher education that meets program and
accreditation standards comparable to those for public
institutions of higher education as determined by the Texas Higher
Education Coordinating Board, not to exceed six credits;
(2) four credits to an applicant who holds a bachelor's
degree or equivalent from an institution of higher education
described by Subdivision (1); and
(3) one credit for each year in excess of five years
that the applicant's primary occupation involved the performance or
supervision of property tax consulting services or property
appraisal, assessment, or taxation, not to exceed 10 credits.
(b) The executive director [commissioner] may grant
additional credits to an applicant for registration as a senior
property tax consultant for:
(1) successful completion of educational programs or
courses on:
(A) property taxation;
(B) the property tax system;
(C) property tax administration;
(D) ethical standards; or
(E) general principles of appraisal, accounting,
and law as they relate to property tax consulting services;
(2) completion of other educational programs or
courses; or
(3) advanced or postgraduate educational achievement,
occupational experience, professional licenses, or professional
designations obtained from recognized associations, institutes, or
organizations.
(c) The executive director [commissioner] may assign not
less than one credit or more than five credits to a program or
course described by Subsection (b)(1). In determining the amount
of credit for the program or course, the executive director
[commissioner] shall consider:
(1) the nature of the program or course;
(2) the number of actual instructional hours in the
program or course;
(3) whether an examination is required for successful
completion of the program or course; and
(4) other factors the executive director
[commissioner] determines appropriate.
SECTION 26.025. Section 1152.162, Occupations Code, is
amended to read as follows:
Sec. 1152.162. ISSUANCE OF CERTIFICATE OF REGISTRATION.
(a) The executive director [commissioner] shall act on an initial
application for registration filed under Section 1152.154 not later
than the 31st day after the date the department receives the
application.
(b) The executive director [commissioner] shall issue to an
applicant who qualifies for registration the appropriate
certificate of registration.
SECTION 26.026. Section 1202.055, Occupations Code, is
amended to read as follows:
Sec. 1202.055. SECRETARY; PERSONNEL. The executive
director [commissioner] shall:
(1) act as secretary of the council; and
(2) provide personnel from the department necessary to
perform staff functions for the council.
SECTION 26.027. Subsections (b) and (c), Section 1202.105,
Occupations Code, are amended to read as follows:
(b) The executive director [commissioner] shall recommend
qualified third-party inspectors and design review agencies to the
council.
(c) The executive director [commissioner] shall publish a
list of all approved inspectors and design review agencies.
SECTION 26.028. Subdivision (12), Section 1302.002,
Occupations Code, is amended to conform to Section 1, Chapter 790,
Acts of the 77th Legislature, Regular Session, 2001, to read as
follows:
(12) "Mechanical integrity" means the condition of a
product, a system, or equipment installed in accordance with its
intended purpose and according to:
(A) standards at least as strict as the standards
provided by:
(i) the Uniform Mechanical Code [published
jointly by the International Conference of Building Officials and
the International Association of Plumbing and Mechanical
Officials, or their successor organizations]; and [or]
(ii) the International [Standard]
Mechanical Code [published by the Southern Building Code Congress
International, Inc., or its successor organization];
(B) all other applicable codes; and
(C) the manufacturer's specifications.
SECTION 26.029. Section 1302.102, Occupations Code, is
amended to read as follows:
Sec. 1302.102. INSURANCE REQUIREMENTS. (a) The executive
director [commissioner] shall set insurance requirements for a
license holder under this chapter.
(b) The executive director [commissioner] may waive the
insurance requirements for a license holder who does not engage in
air conditioning and refrigeration contracting for the public.
SECTION 26.030. Section 1302.151, Occupations Code, is
amended to read as follows:
Sec. 1302.151. CONSUMER INTEREST INFORMATION. (a) The
executive director [commissioner] shall prepare information of
consumer interest describing:
(1) the functions performed by the executive director
[commissioner] under this chapter; and
(2) the rights of a consumer affected by this chapter.
(b) The information must describe the procedure by which a
consumer complaint is filed with and resolved by the executive
director [commissioner].
(c) The executive director [commissioner] shall make the
information available to the public.
SECTION 26.031. Section 1302.203, Occupations Code, is
amended to read as follows:
Sec. 1302.203. EX OFFICIO MEMBERS. The executive director
[commissioner] and the chief administrator of this chapter serve as
ex officio, nonvoting members of the advisory board.
SECTION 26.032. Subsection (a), Section 1302.253,
Occupations Code, is amended to read as follows:
(a) The executive director [commissioner] shall issue a
Class A or Class B air conditioning and refrigeration contractor
license.
SECTION 26.033. Subsections (a) and (c), Section 1302.256,
Occupations Code, are amended to read as follows:
(a) An applicant for a license must submit a verified
application on a form prescribed by the executive director
[commissioner].
(c) The application must be accompanied by:
(1) a statement containing evidence satisfactory to
the executive director [commissioner] of the applicant's practical
experience required by Section 1302.255(a)(2); and
(2) the examination fee.
SECTION 26.034. Section 1302.257, Occupations Code, is
amended to read as follows:
Sec. 1302.257. EXAMINATIONS. (a) The executive director
[commissioner] shall prescribe:
(1) a separate examination for each class of license;
and
(2) within each class of license, a separate
examination for:
(A) an environmental air conditioning
endorsement; and
(B) a commercial refrigeration and process
cooling or heating endorsement.
(b) The executive director [commissioner] shall prescribe
the method and content of an examination administered under this
chapter and shall set compliance requirements for the examination.
To obtain an endorsement, an applicant must pass the examination
for the endorsement.
(c) The examination shall be offered on a monthly basis or
more frequently as determined by the executive director
[commissioner].
(d) The examination shall be offered at locations within the
state as determined by the executive director [commissioner]. The
examination may be offered by computer at locations within the
state as determined by the executive director [commissioner].
SECTION 26.035. Subsection (a), Section 1302.260,
Occupations Code, is amended to read as follows:
(a) On payment of the license fee, the executive director
[commissioner] shall issue an air conditioning and refrigeration
contractor license to an applicant who:
(1) meets the requirements of this subchapter;
(2) provides evidence of insurance coverage required
by the executive director [commissioner] in accordance with this
chapter; and
(3) passes the applicable examination.
SECTION 26.036. Subsection (b), Section 1302.303,
Occupations Code, is amended to read as follows:
(b) The municipality shall report a violation of the
ordinance to the executive director [commissioner] not later than
the 10th day after the date the municipality acts to enforce the
ordinance.
SECTION 26.037. Section 1302.451, Occupations Code, is
amended to read as follows:
Sec. 1302.451. EMERGENCY AND CEASE AND DESIST ORDERS.
(a) The executive director [commissioner] may issue an emergency
order as necessary to enforce this chapter if the executive
director [commissioner] determines that an emergency exists
requiring immediate action to protect the public health and safety.
(b) The executive director [commissioner] may issue the
emergency order without notice and hearing or with any notice and
hearing the executive director [commissioner] considers
practicable under the circumstances. The executive director
[commissioner] shall set the time and place for a hearing to affirm,
modify, or set aside an emergency order that was issued without a
hearing.
(c) The executive director [commissioner] may issue a cease
and desist order.
SECTION 26.038. Section 1304.007, Occupations Code, is
amended to read as follows:
Sec. 1304.007. GENERAL INVESTIGATIVE POWER OF EXECUTIVE
DIRECTOR [COMMISSIONER]. (a) The executive director
[commissioner] may investigate a provider, administrator, or other
person as necessary to enforce this chapter and protect service
contract holders in this state.
(b) On request of the executive director [commissioner], a
provider shall make the records required by Section 1304.155
available to the executive director [commissioner] as necessary to
enable the executive director [commissioner] to reasonably
determine compliance with this chapter.
SECTION 26.039. Section 1304.102, Occupations Code, is
amended to read as follows:
Sec. 1304.102. APPLICATION FOR REGISTRATION. (a) An
applicant for registration must submit an application to the
executive director [commissioner].
(b) The application must:
(1) be in the form prescribed by the executive
director [commissioner]; and
(2) include evidence satisfactory to the executive
director [commissioner] of compliance with the applicable
financial security requirements prescribed by Section 1304.151.
SECTION 26.040. Section 1304.104, Occupations Code, is
amended to read as follows:
Sec. 1304.104. INFORMATION CONCERNING NUMBER OF SERVICE
CONTRACTS SOLD. Information concerning the number of service
contracts sold by a provider that is submitted under Section
1304.103:
(1) is a trade secret to which Section 552.110,
Government Code, applies; and
(2) may be used only by the executive director
[commissioner] and the department in developing the tiered fee
schedule under Section 1304.103.
SECTION 26.041. Subsection (b), Section 1304.152,
Occupations Code, is amended to read as follows:
(b) The insurer may not cancel the policy until the insurer
delivers to the provider a written notice of cancellation that
complies with the notice requirements prescribed by Articles
21.49-2A and 21.49-2B, Insurance Code, for cancellation of an
insurance policy under those articles. The provider shall forward
a copy of the cancellation notice to the executive director
[commissioner] not later than the 15th business day after the date
the notice is delivered to the provider. Cancellation of the policy
does not reduce the insurer's responsibility for a service contract
issued by the provider and insured under the policy before the date
of the cancellation.
SECTION 26.042. Subsections (b) and (d), Section 1304.155,
Occupations Code, are amended to read as follows:
(b) The records required by this section may be maintained
in an electronic medium or through other recordkeeping technology.
If a record is not in a hard copy, the provider must be able to
reformat the record into a legible hard copy at the request of the
executive director [commissioner].
(d) A provider that discontinues business in this state
shall retain its records until the provider furnishes the executive
director [commissioner] with proof satisfactory to the executive
director [commissioner] that the provider has discharged all
obligations to service contract holders in this state.
SECTION 26.043. Section 1304.202, Occupations Code, is
amended to read as follows:
Sec. 1304.202. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
executive director [commissioner] may institute an action under
Section 51.352 for injunctive relief to restrain a violation or a
threatened violation of this chapter or an order issued or rule
adopted under this chapter.
(b) In addition to the injunctive relief provided by
Subsection (a), the executive director [commissioner] may
institute an action for a civil penalty as provided by Section
51.352. The amount of a civil penalty assessed under this section
may not exceed:
(1) $2,500 for each violation; or
(2) $50,000 in the aggregate for all violations of a
similar nature.
SECTION 26.044. 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 26.045. Subsection (a), Section 1802.051,
Occupations Code, is amended to read as follows:
(a) A person may not act as an auctioneer or associate
auctioneer in an auction held in this state unless the person is an
individual who holds a license issued by the executive director
[commissioner] under this chapter.
SECTION 26.046. 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 fee; and
(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 26.047. Subsections (a) and (b), Section 1802.055,
Occupations Code, are amended to read as follows:
(a) An individual who establishes that the individual is
eligible for an auctioneer's license may apply to the executive
director [commissioner] to take the license examination. The
application must be accompanied by the examination fee.
(b) On receipt of an examination application and fee, the
executive director [commissioner] shall furnish the applicant
with:
(1) study materials and references on which the
examination will be based; and
(2) a schedule specifying the dates and places the
examination will be offered.
SECTION 26.048. Subsections (b) and (c), Section 1802.056,
Occupations Code, are amended 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.
SECTION 26.049. Subsection (a), Section 1802.152,
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 26.050. Subsection (b), Section 1802.155,
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 26.051. Section 1802.156, Occupations Code, is
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.
SECTION 26.052. Subsections (a) and (b), Section 1802.205,
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 26.053. Subsection (a), Section 1802.206,
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 26.054. Section 1802.208, Occupations Code, is
amended to read as follows:
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 26.055. Subsection (b), Section 1901.051,
Occupations Code, is amended to read as follows:
(b) The executive director [commissioner] shall issue
licenses to applicants who qualify.
SECTION 26.056. Section 1901.151, Occupations Code, is
amended to read as follows:
Sec. 1901.151. LICENSE REQUIRED. A person may not act or
offer to act as a driller unless the person holds a license issued
by the executive director [commissioner] under this chapter and
rules adopted under this chapter.
SECTION 26.057. Section 1901.402, Occupations Code, is
amended to read as follows:
Sec. 1901.402. INJUNCTION AND OTHER ENFORCEMENT
PROVISIONS. (a) The executive director [commissioner] may bring
an action to enjoin a person from violating this chapter.
(b) The executive director [commissioner] may enforce by
injunction or other appropriate remedy in a court any rule,
decision, determination, or order adopted or entered under this
chapter.
SECTION 26.058. Section 1901.403, Occupations Code, is
amended to read as follows:
Sec. 1901.403. VENUE. The executive director
[commissioner] may bring an action in:
(1) Travis County; or
(2) the county in which:
(A) the offending activity occurred; or
(B) the person engaging in the activity resides.
SECTION 26.059. Subsection (b), Section 1901.404,
Occupations Code, is amended to read as follows:
(b) At the request of the executive director
[commissioner], 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.
SECTION 26.060. Section 1902.151, Occupations Code, is
amended to read as follows:
Sec. 1902.151. LICENSE REQUIRED. A person may not act or
offer to act as an installer unless the person holds a license
issued by the executive director [commissioner] under rules adopted
under this chapter.
SECTION 26.061. Section 1902.402, Occupations Code, is
amended to read as follows:
Sec. 1902.402. INJUNCTION AND OTHER ENFORCEMENT
PROVISIONS. (a) The executive director [commissioner] may bring
an action to enjoin a person from violating this chapter.
(b) The executive director [commissioner] may enforce by
injunction or other appropriate remedy in a court any rule,
decision, determination, or order adopted or entered under this
chapter.
SECTION 26.062. Section 1902.403, Occupations Code, is
amended to read as follows:
Sec. 1902.403. VENUE. The executive director
[commissioner] may bring an action in:
(1) Travis County; or
(2) the county in which:
(A) the offending activity occurred; or
(B) the person engaging in the activity resides.
SECTION 26.063. Subsection (b), Section 1902.404,
Occupations Code, is amended to read as follows:
(b) At the request of the executive director
[commissioner], 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.
SECTION 26.064. Section 2052.053, Occupations Code, is
amended to read as follows:
Sec. 2052.053. INVESTIGATIVE AUTHORITY. (a) The
executive director [commissioner] shall investigate allegations of
activity that may violate this chapter.
(b) The executive director [commissioner] may enter, at a
reasonable time, a place of business or an establishment in which
activity alleged to violate this chapter may occur. The executive
director [commissioner] is not required to give advance notice
before entering.
SECTION 26.065. Section 2052.102, Occupations Code, is
amended to read as follows:
Sec. 2052.102. BOXING PROMOTER LICENSE APPLICATION
REQUIREMENTS. (a) An applicant for a boxing promoter's license
under this chapter must apply on a form furnished by the executive
director [commissioner].
(b) An application must be accompanied by:
(1) a license fee in an amount set by the commission;
and
(2) a surety bond:
(A) subject to approval by the executive director
[commissioner]; and
(B) conditioned on the applicant's payment of the
tax imposed under Section 2052.151.
(c) The executive director [commissioner] shall establish
the amount of the surety bond required under Subsection (b). The
bond amount may not be less than $300.
SECTION 26.066. Subsection (a), Section 2052.108,
Occupations Code, is amended to read as follows:
(a) An application for a license under Section 2052.107 must
be made on a form furnished by the executive director
[commissioner].
SECTION 26.067. Section 2052.111, Occupations Code, is
amended to read as follows:
Sec. 2052.111. DENIAL OF APPLICATION. The executive
director [commissioner] may deny an application for a license if:
(1) the applicant does not meet the qualifications for
the license; or
(2) after conducting an investigation and a hearing,
the executive director [commissioner] determines that the
applicant has violated this chapter or a rule adopted under this
chapter.
SECTION 26.068. Subsection (b), Section 2052.203,
Occupations Code, is amended to read as follows:
(b) The elimination tournament boxing promoter of a local,
regional, or championship elimination tournament is not required to
require that each elimination tournament contestant wear headgear
approved by the department if the promoter under department rules
notifies the executive director [commissioner] of the decision not
to use the approved headgear.
SECTION 26.069. Section 2052.308, Occupations Code, is
amended to read as follows:
Sec. 2052.308. APPEAL. (a) The petitioner or executive
director [commissioner] may appeal a final judgment of a court
conducting a review under this subchapter in the same manner as a
civil action.
(b) The executive director [commissioner] is not required
to file an appeal bond.
SECTION 26.070. Subsection (a), Section 2501.053,
Occupations Code, is amended to read as follows:
(a) Not later than the 30th day before the date a personnel
service begins operating in this state, the owner of the service
must file notice with the executive director [commissioner].
SECTION 26.071. Subsection (a), Section 2501.055,
Occupations Code, is amended to read as follows:
(a) On receipt of a notice filed under Section 2501.053, the
executive director [commissioner] shall issue to the owner a
certificate of authority to do business as a personnel service not
later than the 15th day after the date the notice is filed if the
owner:
(1) pays the filing fee required for the certificate;
and
(2) complies with the requirements of Section
2501.054.
SECTION 26.072. Section 2501.057, Occupations Code, is
amended to read as follows:
Sec. 2501.057. RENEWAL OF CERTIFICATE. The executive
director [commissioner] shall issue a renewal of a certificate of
authority on the receipt of:
(1) a renewal notice from the owner that contains the
information required by Section 2501.053;
(2) a renewal fee; and
(3) security that complies with Section 2501.054.
SECTION 26.073. The heading to Subchapter D, Chapter 2501,
Occupations Code, is amended to read as follows:
SUBCHAPTER D. ENFORCEMENT [BY COMMISSIONER]
SECTION 26.074. Section 2501.151, Occupations Code, is
amended to read as follows:
Sec. 2501.151. ENFORCEMENT. (a) The executive director
[commissioner] shall enforce Section 2501.102 and may investigate a
personnel service as necessary to enforce that section.
(b) The attorney general shall assist the executive
director [commissioner] on request.
SECTION 26.075. Subsection (a), Section 2501.253,
Occupations Code, is amended to read as follows:
(a) In addition to the amount awarded to a complainant under
Section 2501.154(b), the executive director [commissioner] may
impose on the personnel service an administrative penalty equal to
two times the amount awarded under that subsection. A penalty
collected under this section shall be deposited in the state
treasury.
SECTION 26.076. Subsections (a) and (b), Section 2502.052,
Occupations Code, are amended to read as follows:
(a) To obtain a certificate of authority, an owner must:
(1) file with the executive director [commissioner] a
sworn application accompanied by the required application fee; and
(2) file with the department security that complies
with Section 2502.053.
(b) The application must be in the form prescribed by the
executive director [commissioner] and include:
(1) the address of the principal location of the
career counseling service;
(2) the assumed name, if any, under which the career
counseling service will operate;
(3) the name and address of each owner; and
(4) a statement that the owner has read and is familiar
with this chapter.
SECTION 26.077. Subsection (a), Section 2502.053,
Occupations Code, is amended to read as follows:
(a) Before the executive director [commissioner] may issue
a certificate of authority to an owner, the owner must file with the
department a bond in the amount of $10,000 that is:
(1) executed by a surety company authorized to do
business in this state;
(2) payable to the state; and
(3) conditioned on the faithful performance of the
owner's obligations under this chapter.
SECTION 26.078. Subsections (a) and (b), Section 2502.054,
Occupations Code, are amended to read as follows:
(a) The executive director [commissioner] shall issue a
certificate of authority to do business as a career counseling
service to an applicant who meets the requirements of this
subchapter.
(b) The executive director [commissioner] shall process a
certificate application not later than the 15th day after the date
the application is filed.
SECTION 26.079. Section 2502.251, Occupations Code, is
amended to read as follows:
Sec. 2502.251. ENFORCEMENT. (a) The executive director
[commissioner] shall enforce this chapter and may investigate a
career counseling service as necessary.
(b) The attorney general shall assist the executive
director [commissioner] on request.
SECTION 26.080. Section 2502.301, Occupations Code, is
amended to read as follows:
Sec. 2502.301. ADMINISTRATIVE PENALTY. In addition to the
amount awarded to a complainant under Section 2502.254(b), the
executive director [commissioner] may impose on the career
counseling service an administrative penalty equal to two times the
amount awarded under that subsection. A penalty collected under
this section shall be deposited in the state treasury.
SECTION 26.081. Section 7, Article 9035, Revised Statutes,
is amended to read as follows:
Sec. 7. FINANCIAL SECURITY REQUIREMENTS. (a) To ensure
the adequate performance of a warrantor's obligations to a
consumer, each warrantor shall comply with financial security
requirements by:
(1) insuring its vehicle protection products under a
reimbursement insurance policy issued by an insurer authorized to
engage in the business of insurance in this state or under a surplus
lines insurance policy issued by an insurer eligible to place
coverage in this state as regulated under Chapter 981 [Article
1.14-2], Insurance Code; or
(2) providing any other form of comparable financial
security approved by the executive director [commissioner].
(b) The department may not require any other financial
security requirements or financial standards for warrantors.
(c) Vehicle protection services must abide by the financial
responsibility requirements provided by Chapter 686,
Transportation Code. The department may coordinate with the Texas
Department of Insurance to assure consistency with the standard
proof of motor vehicle liability insurance form prescribed by
Section 601.081, Transportation Code.
SECTION 26.082. Section 1.14, Chapter 376, Acts of the 77th
Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1.14. PERSONNEL. The executive director
[commissioner] may, as provided by the General Appropriations Act,
appoint and fix the compensation of any personnel, including
specialists and consultants, necessary to perform duties and
functions under this article.
SECTION 26.083. Subsection (e), Section 1.41, Chapter 376,
Acts of the 77th Legislature, Regular Session, 2001 (Article 165c,
Vernon's Texas Civil Statutes), is amended to read as follows:
(e) On written request of at least 25 qualified voters
residing in the target area or operational area mentioned in the
notice requesting an election accompanied by unsigned petitions,
the county clerk of each county within the target area or
operational area shall certify and mark for identification
petitions for circulation. An application for a petition seeking
an election to disapprove the issuance of a permit must be headed:
"Application for Election to Disapprove a Weather Modification
Permit." The application shall contain a statement just ahead of
the signatures of the applicants stating the following: "It is the
hope, purpose, and intent of the applicants whose signatures appear
on this application to see disapproved the issuance of a permit for
weather modification, including hail suppression." An application
for a petition seeking an election to approve the issuance of a
permit shall be headed: "Application for Election to Approve a
Weather Modification Permit." The application shall contain a
statement just ahead of the signatures of the applicants as
follows: "It is the hope, purpose, and intent of the applicants
whose signatures appear on this petition to see approved the
issuance of a permit for weather modification, including hail
suppression." On the return to the county clerks of petitions
signed by at least 10 percent of the qualified voters residing in
each county within the target area or operational area in the notice
requesting an election, the commissioners court of each county
shall call and hold an election. Notice under Chapter 111, Local
Government Code, of the commissioners court meeting to call and
hold the election is not required. The date of the election shall
be determined by the commissioners court in accordance with this
section, notwithstanding Sections 41.004 and 41.0041, Election
Code. The petition must be filed with the clerk of each county
within 30 days immediately following the first publication of
notice. The election must be held within 45 days after the date the
petition is received to determine whether or not the qualified
voters in the target area or operational area approve the issuance
of the permit. Immediately on calling the election, the clerk of
each county within the target area or operational area shall notify
the executive director [commissioner] of the date of the election.
Except as otherwise provided in this article, elections must be
held in accordance with the Election Code.
ARTICLE 27. GENERAL TRANSITION; EFFECTIVE DATE
SECTION 27.001. The changes in law made by this Act
regarding the powers and duties of the executive director of the
Texas Department of Licensing and Regulation that are transferred
to the Texas Commission of Licensing and Regulation do not affect
the status of a complaint, investigation, or other proceeding. A
rule or form adopted by the executive director before the effective
date of this Act remains in effect as a rule or form of the
department until amended or changed.
SECTION 27.002. Except as otherwise provided in this Act,
this Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 279 passed the Senate on
May 5, 2003, by a viva-voce vote; May 21, 2003, Senate refused to
concur in House amendments and requested appointment of Conference
Committee; May 24, 2003, House granted request of the Senate;
June 1, 2003, Senate adopted Conference Committee Report by a
viva-voce vote.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 279 passed the House, with
amendments, on May 16, 2003, by a non-record vote; May 24, 2003,
House granted request of the Senate for appointment of Conference
Committee; June 1, 2003, House adopted Conference Committee Report
by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor