78R11547 MXM-D
By: Jackson S.B. No. 279
Substitute the following for S.B. No. 279:
By: Raymond C.S.S.B. No. 279
A BILL TO BE ENTITLED
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 Texas Department of
Insurance and the Texas Commission on Environmental Quality and
including certain functions transferred from the department to the
Department of Public Safety.
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. Section 51.052(a), Occupations Code, is
amended to read as follows:
(a) The commission consists of five [six] members appointed
by the governor with the advice and consent of the senate.
SECTION 1.004. Section 51.053(b), 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. Section 51.055(a), 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. Section 51.056(a), 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. Sections 51.057(a) and (c), 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.
Sec. 51.453. TELEPHONE LISTING. A licensing entity shall
list the toll-free telephone number of the information system with
the entity's regular telephone number.
Sec. 51.454. FEES. The department shall charge licensing
entities fees in amounts sufficient to cover the cost of
implementing this subchapter, including fees on a subscription
basis, on the basis of each transaction, or on another service
basis.
SECTION 1.022. (a) Except as provided by Subsection (b) of
this section, 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) To implement the changes in law made by this article to
the composition of the Texas Commission of Licensing and Regulation
under Section 51.052(a), Occupations Code, of the two positions
that have terms scheduled to expire on February 1, 2005, one of the
positions is abolished on September 1, 2003. On or before September
1, 2003, the two members whose terms are scheduled to expire on
February 1, 2005, shall determine by unanimous agreement or by lot
which of the two positions shall be abolished on September 1, 2003,
and shall inform the presiding officer of the Texas Commission of
Licensing and Regulation of that determination.
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 Section 51.302(c), Occupations Code, as added by this
article.
SECTION 1.026. Section 51.053(c), 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. Section 1302.204(a), 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. Section 1302.205(b), 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. Section 1302.354(b), 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. Section 1302.355(c), 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) Section 1302.002(8), 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 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 3.002. 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 3.003. Sections 5A(c)-(h) and (j), 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 3.004. 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 3.005. Article 9102, Revised Statutes, is amended
by adding Section 9 to read as follows:
Sec. 9. COMPLAINTS. (a) 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 is not eligible for final
disposition until the commission determines that:
(1) the building or facility has been brought into
compliance or cannot be brought into compliance; or
(2) the building or facility is exempt from compliance
by statute or rule.
(b) If the building or facility cannot be brought into
compliance or if the building or facility is exempt, the department
shall, before final disposition of the complaint, notify the person
filing the complaint that the building or facility cannot be
brought into compliance or provide a reference to any rule or law
that states an applicable exemption.
SECTION 3.006. The following laws are repealed:
(1) Section 4(3), Article 9102, Revised Statutes; and
(2) Section 5A(i), Article 9102, Revised Statutes.
SECTION 3.007. 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. Sections 1802.059(a), (b), and (d),
Occupations Code, are amended to read as follows:
(a) An applicant for an auctioneer's license who is not a
resident of this state but is licensed as an auctioneer in another
state must submit to the executive director [commissioner]:
(1) a license application;
(2) a certified copy of the auctioneer's license
issued to the applicant by the state or political subdivision in
which the applicant resides; and
(3) proof that the state or political subdivision in
which the applicant is licensed has competency standards equivalent
to or stricter than those of this state.
(b) The executive director [commissioner] shall accept the
applicant's auctioneer's license submitted under Subsection (a)(2)
as proof of the applicant's professional competence and waive the
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. Sections 1802.102(a) and (b), Occupations
Code, are amended to read as follows:
(a) The advisory board consists of five members appointed as
follows:
(1) three members who are licensed auctioneers
appointed by the 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. Section 1802.103(a), Occupations Code, is
amended to read as follows:
(a) The members appointed under Section 1802.102(a)(1)
serve two-year terms that expire on September 1. If a vacancy
occurs during the term of such a member, the 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. Section 1802.153(a), 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. Sections 1802.202(a) and (b), Occupations
Code, are amended to read as follows:
(a) A person who deals with an auctioneer licensed under
this chapter and who is aggrieved by an action of the auctioneer as
a result of a violation of a contract made with the auctioneer may
initiate a claim against the fund by[:
[(1)] filing with the department a [sworn] complaint
against the auctioneer[; and
[(2) paying to the department a filing fee of $50].
(b) The executive director [commissioner] may not pay a
claim against an auctioneer who was not licensed at the time of the
transaction on which the claim is based.
SECTION 4.011. Section 1802.203(c), Occupations Code, is
amended to read as follows:
(c) After the hearing, the hearings examiner shall prepare a
proposal for decision for the 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. Section 1802.209(a), 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. Section 1802.303(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person violates a
provision of this chapter or a rule adopted by the commission
[commissioner] under this chapter for which a penalty is not
provided.
SECTION 4.019. The following laws are repealed:
(1) Section 1802.001(7), 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. BACKFLOW PREVENTION ASSEMBLY TESTERS
SECTION 5.001. Section 341.034(c), Health and Safety Code,
is amended to read as follows:
(c) A person who repairs or tests the installation or
operation of backflow prevention assemblies must hold a license
issued by the Texas Department of Licensing and Regulation
[commission] under Chapter 51, Occupations [37, Water] Code.
SECTION 5.002. (a) On November 1, 2003:
(1) all functions and activities relating to Section
341.034(c), Health and Safety Code, performed by the Texas
Commission on Environmental Quality immediately before that date
are transferred to the Texas Department of Licensing and
Regulation;
(2) a rule or form adopted by the Texas Commission on
Environmental Quality that relates to Section 341.034(c), Health
and Safety Code, is a rule or form of the Texas Department of
Licensing and Regulation and remains in effect until amended or
replaced by that department;
(3) a license or other document issued by the Texas
Commission on Environmental Quality that relates to Section
341.034(c), Health and Safety Code, is considered a license or
other document issued by the Texas Department of Licensing and
Regulation and remains in effect until amended or replaced by that
department;
(4) a reference in law or an administrative rule to the
Texas Commission on Environmental Quality that relates to Section
341.034(c), Health and Safety Code, means the Texas Department of
Licensing and Regulation;
(5) a complaint, investigation, or other proceeding
before the Texas Commission on Environmental Quality that is
related to Section 341.034(c), Health and Safety Code, is
transferred without change in status to the Texas Department of
Licensing and Regulation, and the Texas Department of Licensing and
Regulation assumes, as appropriate and without a change in status,
the position of the Texas Commission on Environmental Quality in an
action or proceeding to which the Texas Commission on Environmental
Quality is a party;
(6) all money, contracts, leases, property, and
obligations of the Texas Commission on Environmental Quality
related to Section 341.034(c), Health and Safety Code, are
transferred to the Texas Department of Licensing and Regulation;
(7) all property in the custody of the Texas
Commission on Environmental Quality related to Section 341.034(c),
Health and Safety Code, is transferred to the Texas Department of
Licensing and Regulation; and
(8) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Commission on
Environmental Quality related to Section 341.034(c), Health and
Safety Code, is transferred to the Texas Department of Licensing
and Regulation.
(b) Before November 1, 2003, the Texas Commission on
Environmental Quality may agree with the Texas Department of
Licensing and Regulation to transfer any property of the Texas
Commission on Environmental Quality to the Texas Department of
Licensing and Regulation to implement the transfer required by this
article.
(c) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Commission on
Environmental Quality shall continue to perform functions and
activities under Section 341.034(c), Health and Safety Code, as if
that section had not been amended by this Act, and the former law is
continued in effect for that purpose.
ARTICLE 6. BOILERS
SECTION 6.001. 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 6.002. Sections 755.011(b) and (d), 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 6.003. 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 6.004. 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 6.005. 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 6.006. 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 6.007. Section 755.030(a), 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 6.008. 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 6.009. 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 6.010. Sections 755.041(b) and (d), 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 6.011. Section 755.043(a), 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 6.012. 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 6.013. 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 6.014. The following laws are repealed:
(1) Sections 755.024(c), (d), (e), and (h), Health and
Safety Code; and
(2) Section 755.031, Health and Safety Code.
SECTION 6.015. 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 7. CAREER COUNSELING SERVICES
SECTION 7.001. 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 7.002. 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 7.003. 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 7.004. Section 2502.202(b), 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 7.005. Section 2502.203(a), 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 7.006. 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 7.007. Sections 2502.253(a) and (c), 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 7.008. 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 7.009. 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 7.010. Sections 2502.057 and 2502.101, Occupations
Code, are repealed.
ARTICLE 8. COMBATIVE SPORTS
SECTION 8.001. Section 2052.002, Occupations Code, is
amended by amending Subdivision (4) and adding Subdivision (8-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].
(8-a) "Executive director" means the executive
director of the department.
SECTION 8.002. 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 8.003. 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 8.004. 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.
SECTION 8.005. 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 8.006. 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 8.007. 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 8.008. The following laws are repealed:
(1) Section 2052.104, Occupations Code;
(2) Section 2052.112, Occupations Code; and
(3) Section 2052.301, Occupations Code.
ARTICLE 9. COURT INTERPRETERS
SECTION 9.001. 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 9.002. Sections 57.042(a), (c), (e), and (g),
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 9.003. Sections 57.043(a) and (b), 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 9.004. 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 9.005. Section 57.041(3), Government Code, is
repealed.
SECTION 9.006. 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 10. CUSTOMER SERVICE INSPECTORS
SECTION 10.001. Section 341.034(d), Health and Safety Code,
is amended to read as follows:
(d) A person who inspects homes and businesses to identify
potential or actual cross-connections or other contaminant hazards
in public water systems must hold a license issued by the Texas
Department of Licensing and Regulation [commission] under Chapter
51, Occupations [37, Water] Code, unless the person is licensed by
the Texas State Board of Plumbing Examiners as a plumbing inspector
or water supply protection specialist.
SECTION 10.002. (a) On November 1, 2003:
(1) all functions and activities relating to Section
341.034(d), Health and Safety Code, performed by the Texas
Commission on Environmental Quality immediately before that date
are transferred to the Texas Department of Licensing and
Regulation;
(2) a rule or form adopted by the Texas Commission on
Environmental Quality that relates to Section 341.034(d), Health
and Safety Code, is a rule or form of the Texas Department of
Licensing and Regulation and remains in effect until amended or
replaced by that department;
(3) a license or other document issued by the Texas
Commission on Environmental Quality that relates to Section
341.034(d), Health and Safety Code, is considered a license or
other document issued by the Texas Department of Licensing and
Regulation and remains in effect until amended or replaced by that
department;
(4) a reference in law or an administrative rule to the
Texas Commission on Environmental Quality that relates to Section
341.034(d), Health and Safety Code, means the Texas Department of
Licensing and Regulation;
(5) a complaint, investigation, or other proceeding
before the Texas Commission on Environmental Quality that is
related to Section 341.034(d), Health and Safety Code, is
transferred without change in status to the Texas Department of
Licensing and Regulation, and the Texas Department of Licensing and
Regulation assumes, as appropriate and without a change in status,
the position of the Texas Commission on Environmental Quality in an
action or proceeding to which the Texas Commission on Environmental
Quality is a party;
(6) all money, contracts, leases, property, and
obligations of the Texas Commission on Environmental Quality
related to Section 341.034(d), Health and Safety Code, are
transferred to the Texas Department of Licensing and Regulation;
(7) all property in the custody of the Texas
Commission on Environmental Quality related to Section 341.034(d),
Health and Safety Code, is transferred to the Texas Department of
Licensing and Regulation; and
(8) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Commission on
Environmental Quality related to Section 341.034(d), Health and
Safety Code, is transferred to the Texas Department of Licensing
and Regulation.
(b) Before November 1, 2003, the Texas Commission on
Environmental Quality may agree with the Texas Department of
Licensing and Regulation to transfer any property of the Texas
Commission on Environmental Quality to the Texas Department of
Licensing and Regulation to implement the transfer required by this
article.
(c) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Commission on
Environmental Quality shall continue to perform functions and
activities under Section 341.034(d), Health and Safety Code, as if
that section had not been amended by this Act, and the former law is
continued in effect for that purpose.
ARTICLE 11. ELEVATORS, ESCALATORS, AND RELATED EQUIPMENT
SECTION 11.001. Section 754.011, Health and Safety Code, is
amended by adding Subdivision (6-a) to read as follows:
(6-a) "Executive director" means the executive
director of the department.
SECTION 11.002. Sections 754.012(a)-(c), Health and Safety
Code, are amended to read as follows:
(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
buildings having fewer than six stories and having an elevator, an
escalator, or related equipment;
(4) a representative of owners or managers of
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 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.
SECTION 11.003. Section 754.013, Health and Safety Code, is
amended to read as follows:
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) any other matter considered relevant by the
commission [commissioner].
SECTION 11.004. The heading to Section 754.014, Health and
Safety Code, is amended to read as follows:
Sec. 754.014. STANDARDS ADOPTED BY COMMISSION
[COMMISSIONER].
SECTION 11.005. Sections 754.014(a)-(h) and (j), Health
and Safety Code, are amended to read as follows:
(a) The commission [commissioner] shall adopt standards for
the installation, 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.
(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 that was in effect 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) On written request, the executive director
[commissioner] shall grant a delay for compliance with the
applicable ASME Code A17.1 or the 1994 ASME Code A17.3 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.
(f) On written request, the executive director
[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 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 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.
(h) 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.
(j) The executive director [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 particular building. A delay may not be
granted indefinitely but must be granted to a specified time.
SECTION 11.006. Section 754.015, Health and Safety Code, is
amended to read as follows:
Sec. 754.015. RULES. (a) The commission [commissioner] by
rule shall provide for:
(1) the inspection and certification once each
calendar year of elevators, escalators, and related equipment
covered by standards adopted under this subchapter;
(2) the enforcement of those standards;
(3) the certification of qualified persons as
inspectors for the purposes of this subchapter; and
(4) the form of the inspection report and certificate
of compliance.
(b) The commission [commissioner] by rule may not require
that:
(1) inspection be made more often than once per year of
elevators, escalators, and related equipment; or
(2) persons post a bond or furnish insurance as a
condition of certification[; and
[(3) inspection reports or certificates of compliance
be placed in locations other than one provided in Section
754.019(4)].
SECTION 11.007. Section 754.016, Health and Safety Code, is
amended to read as follows:
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. The inspection
report shall be on forms designated by the executive director
[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 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).
SECTION 11.008. Sections 754.017(b) and (c), Health and
Safety Code, are amended to read as follows:
(b) The commission [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 is not required to be ASME-QEI-1 certified.
(c) The executive director [commissioner] may charge a
[$15] fee to certified inspectors for registering with the
department.
SECTION 11.009. Sections 754.019(a), (b), (d), and (e),
Health and Safety Code, are amended to read as follows:
(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 by an ASME-QEI-1 certified inspector in accordance with
the commission's [commissioner's] rules;
(2) obtain inspection reports [an inspection report]
from the inspector evidencing that all elevators, escalators, and
related equipment in a building on the real property 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 a [$20] filing fee for each
report, plus a fee [$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; and
(5) display the inspection report at the locations
designated in Subdivision (4) until a certificate of compliance is
issued by the executive director [commissioner].
(b) When an inspection report is filed with the executive
director [commissioner], the owner shall submit to the executive
director [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.
(d) For the purpose of determining timely filing under
Subsection (a)(3), an inspection report and fee are considered
filed on the date of mailing by United States mail if properly
addressed to the executive director [commissioner].
(e) If the inspection report and fee required by Subsection
(a)(3) are not timely filed, the executive director [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.
SECTION 11.010. Section 754.023, Health and Safety Code, is
amended to read as follows:
Sec. 754.023. INVESTIGATION; LICENSE PROCEEDINGS;
INJUNCTION. (a) If there is good cause for the executive director
[commissioner] to believe that an elevator, an escalator, or
related equipment on real property 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 [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
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 the registration of any ASME-QEI-1 certified inspector for:
(1) obtaining registration with the executive
director [commissioner] by fraud or false representation;
(2) falsifying any inspection report submitted to the
executive director [commissioner]; or
(3) violating this subchapter or a rule adopted under
this subchapter.
(d) 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.
(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.
SECTION 11.011. Subchapter B, Chapter 754, Health and
Safety Code, is amended by adding Section 754.025 to read as
follows:
Sec. 754.025. APPLICABILITY OF OTHER LAW. Sections 51.401
and 51.404, Occupations Code, do not apply to this subchapter.
SECTION 11.012. The following laws are repealed:
(1) Section 754.011(5), Health and Safety Code; and
(2) Section 754.019(f), Health and Safety Code.
SECTION 11.013. Not later than March 1, 2004, the Texas
Commission of Licensing and Regulation shall adopt the rules
required by Sections 754.016 and 754.019(a), Health and Safety
Code, as amended by this article.
SECTION 11.014. 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 Act. An inspection report or
certificate issued before the effective date of this Act 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 11.015. The changes in law made by this article
applying to members of the elevator 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 12. INDUSTRIALIZED HOUSING AND BUILDINGS
SECTION 12.001. 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 12.002. Section 1202.003(a), Occupations Code, is
amended 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 permanent
site and erected or installed on a permanent foundation system.
SECTION 12.003. 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 12.004. 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 12.005. Section 1202.104(a), 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 or 1202.206.
SECTION 12.006. 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 12.007. 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 12.008. 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 12.009. Section 1202.156(b), 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 12.010. 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 12.011. 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 12.012. 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 12.013. 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 12.014. Section 1202.301(b), 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 12.015. 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 12.016. Section 1202.351(b), 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 12.017. The following laws are repealed:
(1) Section 1202.001(2), Occupations Code; and
(2) Section 1202.103, Occupations Code.
ARTICLE 13. IRRIGATORS
SECTION 13.001. Section 1903.001, Occupations Code, is
amended by amending Subdivisions (1) and (3) and adding Subdivision
(2-a) to read as follows:
(1) "Commission" means the Texas [Natural Resource
Conservation] Commission of Licensing and Regulation.
(2-a) "Department" means the Texas Department of
Licensing and Regulation.
(3) "Executive director" means the executive director
of the department [commission].
SECTION 13.002. Section 1903.151(a), Occupations Code, is
amended to read as follows:
(a) The Texas Irrigators Advisory Council consists of nine
members appointed by the presiding officer of the commission, with
the commission's approval, as follows:
(1) six members who are irrigators, residents of this
state, experienced in the irrigation business, and familiar with
irrigation methods and techniques; and
(2) three public members.
SECTION 13.003. Section 1903.155, Occupations Code, is
amended to read as follows:
Sec. 1903.155. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, [council] shall
appoint a council member to serve for two years as [elect a]
presiding officer of the council [by a majority vote at the first
meeting each fiscal year].
SECTION 13.004. The following laws are repealed:
(1) Section 1903.052, Occupations Code;
(2) Section 1903.055, Occupations Code;
(3) Subchapter C, Chapter 1903, Occupations Code;
(4) Subchapter E, Chapter 1903, Occupations Code;
(5) Section 1903.255, Occupations Code;
(6) Section 1903.304, Occupations Code;
(7) Section 1903.351, Occupations Code;
(8) Section 1903.352, Occupations Code; and
(9) Sections 1903.353(b) and (c), Occupations Code.
SECTION 13.005. (a) On November 1, 2003:
(1) all functions and activities relating to Chapter
1903, Occupations Code, performed by the Texas Commission on
Environmental Quality immediately before that date are transferred
to the Texas Department of Licensing and Regulation;
(2) a rule or form adopted by the Texas Commission on
Environmental Quality that relates to Chapter 1903, Occupations
Code, is a rule or form of the Texas Department of Licensing and
Regulation and remains in effect until amended or replaced by that
department;
(3) a license or other document issued by the Texas
Commission on Environmental Quality that relates to Chapter 1903,
Occupations Code, is considered a license or other document issued
by the Texas Department of Licensing and Regulation and remains in
effect until amended or replaced by that department;
(4) a reference in law or an administrative rule to the
Texas Commission on Environmental Quality that relates to Chapter
1903, Occupations Code, means the Texas Department of Licensing and
Regulation;
(5) a complaint, investigation, or other proceeding
before the Texas Commission on Environmental Quality that is
related to Chapter 1903, Occupations Code, is transferred without
change in status to the Texas Department of Licensing and
Regulation, and the Texas Department of Licensing and Regulation
assumes, as appropriate and without a change in status, the
position of the Texas Commission on Environmental Quality in an
action or proceeding to which the Texas Commission on Environmental
Quality is a party;
(6) all money, contracts, leases, property, and
obligations of the Texas Commission on Environmental Quality
related to Chapter 1903, Occupations Code, are transferred to the
Texas Department of Licensing and Regulation;
(7) all property in the custody of the Texas
Commission on Environmental Quality related to Chapter 1903,
Occupations Code, is transferred to the Texas Department of
Licensing and Regulation; and
(8) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Commission on
Environmental Quality related to Chapter 1903, Occupations Code, is
transferred to the Texas Department of Licensing and Regulation.
(b) Before November 1, 2003, the Texas Commission on
Environmental Quality may agree with the Texas Department of
Licensing and Regulation to transfer any property of the Texas
Commission on Environmental Quality to the Texas Department of
Licensing and Regulation to implement the transfer required by this
article.
(c) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Commission on
Environmental Quality shall continue to perform functions and
activities under Chapter 1903, 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 14. PERSONNEL EMPLOYMENT SERVICES
SECTION 14.001. 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 14.002. 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 14.003. Sections 2501.153(a) and (c), 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 14.004. 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 14.005. Sections 2501.058 and 2501.155,
Occupations Code, are repealed.
ARTICLE 15. PROPERTY TAX CONSULTANTS
SECTION 15.001. 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 15.002. 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 15.003. 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 15.004. Sections 1152.102(a) and (b), 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 15.005. Section 1152.104(b), 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 15.006. 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 15.007. 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 15.008. Section 1152.155(a), 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 15.009. 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 15.010. 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 15.011. Section 1152.202(a), 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 15.012. 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 15.013. 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 15.014. The following laws are repealed:
(1) Section 1152.001(2), Occupations Code;
(2) Section 1152.161, Occupations Code;
(3) Section 1152.163, Occupations Code;
(4) Sections 1152.202(b) and (c), Occupations Code;
and
(5) Effective March 1, 2004, Section 1152.203,
Occupations Code.
SECTION 15.015. 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 15.016. 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 16. SERVICE CONTRACT PROVIDERS
SECTION 16.001. 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 16.002. 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 16.003. Section 1304.052(a), 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 16.004. Section 1304.053(b), 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 16.005. Section 1304.054, Occupations Code, is
amended to read as follows:
Sec. 1304.054. PRESIDING OFFICER. The presiding officer of
the commission [commissioner] shall designate one member of the
advisory board to serve as presiding officer of the board for two
years.
SECTION 16.006. Sections 1304.103(a) and (b), 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 16.007. 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 16.008. Sections 1304.151(a)-(c) and (e),
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 16.009. Section 1304.201(a), 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 16.010. The following laws are repealed:
(1) Section 1304.002(3), Occupations Code; and
(2) Section 1304.201(b), Occupations Code.
SECTION 16.011. 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 17. STAFF LEASING SERVICES
SECTION 17.001. 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 17.002. Sections 91.002(a) and (b), 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 17.003. 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 17.004. Section 91.016(b), 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 17.005. Section 91.017(a), 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 17.006. Sections 91.018(b) and (d), 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 17.007. Section 91.019(a), 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 17.008. 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 17.009. Section 91.041(c), 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 17.010. The following laws are repealed:
(1) Section 91.001(5), Labor Code; and
(2) Section 91.021, Labor Code.
SECTION 17.011. The change in law made by this article to
Section 91.016(b), 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 section as it existed
immediately before that date, and that law is continued in effect
for that purpose.
ARTICLE 18. TALENT AGENCIES
SECTION 18.001. 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 18.002. 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 18.003. 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 18.004. 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 18.005. 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 18.006. Section 2105.105(b), 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 18.007. The following laws are repealed:
(1) Sections 2105.055(b) and (c), Occupations Code;
(2) Sections 2105.056(a), (b), and (c), Occupations
Code; and
(3) Section 2105.252, Occupations Code.
ARTICLE 19. TEMPORARY COMMON WORKER EMPLOYERS
SECTION 19.001. 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 19.002. 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 19.003. Section 92.022(c), 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 19.004. The following laws are repealed:
(1) Section 92.002(2), Labor Code; and
(2) Sections 92.015(b) and (c), Labor Code.
ARTICLE 20. TRANSPORTATION SERVICE PROVIDERS
SECTION 20.001. Section 2401.001(2), Occupations Code, is
amended to read as follows:
(2) "Department" means the [Texas] Department of
Public Safety [Licensing and Regulation].
SECTION 20.002. 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 20.003. 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 20.004. 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 20.005. 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 20.006. The following laws are repealed:
(1) Section 2401.001(1), 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 20.007. (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;
(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 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 21. UNDERGROUND STORAGE TANK OPERATORS
SECTION 21.001. Section 26.451, Water Code, is amended by
adding Subdivision (3-a) to read as follows:
(3-a) "Department" means the Texas Department of
Licensing and Regulation.
SECTION 21.002. Sections 26.452(a) and (b), Water Code, are
amended to read as follows:
(a) A person who offers to undertake, represents that the
person is able to undertake, or undertakes to install, repair, or
remove an underground storage tank must hold a registration issued
by the department [commission] under Chapter 51, Occupations Code
[37]. If the person is a partnership or joint venture, it need not
register in its own name if each partner or joint venture is
registered.
(b) An underground storage tank contractor must have an
on-site supervisor who is licensed by the department [commission]
under Chapter 51, Occupations Code, [37] at the site at all times
during the critical junctures of the installation, repair, or
removal.
SECTION 21.003. Section 26.456(a), Water Code, is amended
to read as follows:
(a) A person supervising the installation, repair, or
removal of an underground storage tank must hold a license issued by
the department [commission] under Chapter 51, Occupations Code
[37].
SECTION 21.004. (a) On November 1, 2003:
(1) all functions and activities relating to
Subchapter K, Chapter 26, Water Code, performed by the Texas
Commission on Environmental Quality immediately before that date
are transferred to the Texas Department of Licensing and
Regulation;
(2) a rule or form adopted by the Texas Commission on
Environmental Quality that relates to Subchapter K, Chapter 26,
Water Code, is a rule or form of the Texas Department of Licensing
and Regulation and remains in effect until amended or replaced by
that department;
(3) a license or other document issued by the Texas
Commission on Environmental Quality that relates to Subchapter K,
Chapter 26, Water Code, is considered a license or other document
issued by the Texas Department of Licensing and Regulation and
remains in effect until amended or replaced by that department;
(4) a reference in law or an administrative rule to the
Texas Commission on Environmental Quality that relates to
Subchapter K, Chapter 26, Water Code, means the Texas Department of
Licensing and Regulation;
(5) a complaint, investigation, or other proceeding
before the Texas Commission on Environmental Quality that is
related to Subchapter K, Chapter 26, Water Code, is transferred
without change in status to the Texas Department of Licensing and
Regulation, and the Texas Department of Licensing and Regulation
assumes, as appropriate and without a change in status, the
position of the Texas Commission on Environmental Quality in an
action or proceeding to which the Texas Commission on Environmental
Quality is a party;
(6) all money, contracts, leases, property, and
obligations of the Texas Commission on Environmental Quality
related to Subchapter K, Chapter 26, Water Code, are transferred to
the Texas Department of Licensing and Regulation;
(7) all property in the custody of the Texas
Commission on Environmental Quality related to Subchapter K,
Chapter 26, Water Code, is transferred to the Texas Department of
Licensing and Regulation; and
(8) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Commission on
Environmental Quality related to Subchapter K, Chapter 26, Water
Code, is transferred to the Texas Department of Licensing and
Regulation.
(b) Before November 1, 2003, the Texas Commission on
Environmental Quality may agree with the Texas Department of
Licensing and Regulation to transfer any property of the Texas
Commission on Environmental Quality to the Texas Department of
Licensing and Regulation to implement the transfer required by this
article.
(c) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Commission on
Environmental Quality shall continue to perform functions and
activities under Subchapter K, Chapter 26, Water Code, as if that
subchapter had not been amended by this Act, and the former law is
continued in effect for that purpose.
ARTICLE 22. VEHICLE PROTECTION PRODUCT WARRANTORS
SECTION 22.001. 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 22.002. 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 22.003. 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 22.004. Sections 5(a)-(g), 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 [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 [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 [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 22.005. Sections 6(c) and (d), 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 22.006. Section 10(e), 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 22.007. Sections 16(a) and (c), 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 22.008. The following laws are repealed:
(1) Section 2(2), Article 9035, Revised Statutes; and
(2) Section 15, Article 9035, Revised Statutes.
SECTION 22.009. 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 23. WATER TREATMENT SPECIALISTS
SECTION 23.001. Section 341.034(e), Health and Safety Code,
is amended to read as follows:
(e) Unless the person is licensed by the Texas State Board
of Plumbing Examiners, a person must hold a license issued by the
Texas Department of Licensing and Regulation [commission] under
Chapter 51, Occupations [37, Water] Code, if, under a contract, the
person:
(1) installs, exchanges, connects, maintains, or
services potable water treatment equipment and appliances in public
or private water systems; or
(2) analyzes water to determine how to treat influent
or effluent water, alter or purify water, or add or remove a
mineral, chemical, or bacterial content or substance as part of the
complete installation, exchange, connection, maintenance, or
service of potable water treatment equipment and appliances.
SECTION 23.002. Section 341.101, Health and Safety Code, is
amended by amending Subdivision (1) and adding Subdivision (1-a) to
read as follows:
(1) "Commission" means the Texas [Natural Resource
Conservation] Commission of Licensing and Regulation.
(1-a) "Department" means the Texas Department of
Licensing and Regulation.
SECTION 23.003. Section 341.103, Health and Safety Code, is
amended to read as follows:
Sec. 341.103. CERTIFICATION REQUIRED. A person may not
engage in water treatment unless the person first obtains a
certificate from the department [commission] under the program
established under this subchapter.
SECTION 23.004. Section 341.104, Health and Safety Code, is
amended to read as follows:
Sec. 341.104. APPLICATION FOR CERTIFICATION. A person
desiring to obtain certification under the program established
under this subchapter shall file with the department [commission]:
(1) an application in the form prescribed by the
department [commission] and containing the information required by
the department [commission]; and
(2) the appropriate certification fee.
SECTION 23.005. Section 341.105(a), Health and Safety Code,
is amended to read as follows:
(a) On receipt of an application that meets department
[commission] requirements and the required fee, the department
[commission] shall issue to a person who meets department
[commission] standards for certification a certificate stating
that the person is qualified to install, exchange, service, and
repair residential, commercial, or industrial water treatment
facilities.
SECTION 23.006. Section 3, Chapter 504, Acts of the 77th
Legislature, Regular Session, 2001, is repealed.
SECTION 23.007. (a) On November 1, 2003:
(1) all functions and activities relating to Section
341.034(e), Health and Safety Code, or Subchapter G, Chapter 341,
Health and Safety Code, performed by the Texas Commission on
Environmental Quality immediately before that date are transferred
to the Texas Department of Licensing and Regulation;
(2) a rule or form adopted by the Texas Commission on
Environmental Quality that relates to Section 341.034(e), Health
and Safety Code, or Subchapter G, Chapter 341, Health and Safety
Code, is a rule or form of the Texas Department of Licensing and
Regulation and remains in effect until amended or replaced by that
department;
(3) a license or other document issued by the Texas
Commission on Environmental Quality that relates to Section
341.034(e), Health and Safety Code, or Subchapter G, Chapter 341,
Health and Safety Code, is considered a license or other document
issued by the Texas Department of Licensing and Regulation and
remains in effect until amended or replaced by that department;
(4) a reference in law or an administrative rule to the
Texas Commission on Environmental Quality that relates to Section
341.034(e), Health and Safety Code, or Subchapter G, Chapter 341,
Health and Safety Code, means the Texas Department of Licensing and
Regulation;
(5) a complaint, investigation, or other proceeding
before the Texas Commission on Environmental Quality that is
related to Section 341.034(e), Health and Safety Code, or
Subchapter G, Chapter 341, Health and Safety Code, is transferred
without change in status to the Texas Department of Licensing and
Regulation, and the Texas Department of Licensing and Regulation
assumes, as appropriate and without a change in status, the
position of the Texas Commission on Environmental Quality in an
action or proceeding to which the Texas Commission on Environmental
Quality is a party;
(6) all money, contracts, leases, property, and
obligations of the Texas Commission on Environmental Quality
related to Section 341.034(e), Health and Safety Code, or
Subchapter G, Chapter 341, Health and Safety Code, are transferred
to the Texas Department of Licensing and Regulation;
(7) all property in the custody of the Texas
Commission on Environmental Quality related to Section 341.034(e),
Health and Safety Code, or Subchapter G, Chapter 341, Health and
Safety Code, is transferred to the Texas Department of Licensing
and Regulation; and
(8) the unexpended and unobligated balance of any
money appropriated by the legislature for the Texas Commission on
Environmental Quality related to Section 341.034(e), Health and
Safety Code, or Subchapter G, Chapter 341, Health and Safety Code,
is transferred to the Texas Department of Licensing and Regulation.
(b) Before November 1, 2003, the Texas Commission on
Environmental Quality may agree with the Texas Department of
Licensing and Regulation to transfer any property of the Texas
Commission on Environmental Quality to the Texas Department of
Licensing and Regulation to implement the transfer required by this
article.
(c) In the period beginning on the effective date of this
Act and ending on November 1, 2003, the Texas Commission on
Environmental Quality shall continue to perform functions and
activities under Section 341.034(e), Health and Safety Code, or
Subchapter G, Chapter 341, Health and Safety Code, as if those
provisions had not been amended by this Act, and the former law is
continued in effect for that purpose.
ARTICLE 24. WATER WELL DRILLERS
SECTION 24.001. 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 24.002. 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 24.003. 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 24.004. Section 1901.101(a), 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 24.005. Section 1901.105, Occupations Code, is
amended to read as follows:
Sec. 1901.105. PRESIDING OFFICER. The presiding officer of
the commission [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 24.006. Sections 1901.109(a) and (d), 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 24.007. Section 1901.152(b), 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 24.008. 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 24.009. Section 1901.251(a), 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 24.010. Section 1901.252(b), Occupations Code, is
amended to read as follows:
(b) The commission [commissioner] shall adopt rules
specifying the manner for marking a rig.
SECTION 24.011. 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 24.012. Section 1901.254(b), 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 24.013. 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 24.014. 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 24.015. 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 24.016. 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 24.017. The following laws are repealed:
(1) Section 1901.001(2), Occupations Code;
(2) Section 1901.109(e), Occupations Code;
(3) Section 1901.155(b), 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 24.018. 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 24.019. 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 25. WATER WELL PUMP INSTALLERS
SECTION 25.001. 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 25.002. 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 25.003. 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 25.004. Section 1902.152(b), 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 25.005. 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 25.006. 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 25.007. Section 1902.252(b), 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 25.008. The following laws are repealed:
(1) Section 1902.001(2), Occupations Code;
(2) Section 1902.101, Occupations Code;
(3) Section 1902.155(b), 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 26. WEATHER MODIFICATION
SECTION 26.001. 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 26.002. 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 26.003. 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 26.004. 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 26.005. 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 26.006. Section 1.18(b), 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 26.007. 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 26.008. 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 26.009. Section 1.41(v), 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 26.010. 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 26.011. 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 Chapters 51, Occupations Code, and [Chapter] 2001,
Government Code.
SECTION 26.012. 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 26.013. 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 27. CONFORMING AMENDMENTS RELATED TO CERTAIN PROGRAMS
TRANSFERRED FROM THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
SECTION 27.001. The heading to Chapter 37, Water Code, is
amended to read as follows:
CHAPTER 37. OCCUPATIONAL LICENSING AND REGISTRATION PROGRAMS
ADMINISTERED BY TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
SECTION 27.002. Section 37.002, Water Code, is amended to
read as follows:
Sec. 37.002. RULES. The commission shall adopt any rules
necessary to:
(1) establish occupational licenses and registrations
prescribed by Sections 26.0301 and [,] 26.3573 [, 26.452, 26.456,
and 34.007] of this code and Sections 341.033, 341.034(a) and (b)
[341.034], 361.027, and 366.071, Health and Safety Code;
(2) establish classes and terms of occupational
licenses and registrations; and
(3) administer the provisions of this chapter and
other laws governing occupational licenses and registrations under
the commission's jurisdiction.
SECTION 27.003. Section 37.003, Water Code, is amended to
read as follows:
Sec. 37.003. LICENSE OR REGISTRATION REQUIRED. A person
may not engage in a business, occupation, or profession described
by Section 26.0301 or [,] 26.3573 [, 26.452, 26.456, or 34.007] of
this code or Section 341.033, 341.034(a) or (b) [341.034], 361.027,
366.014, or 366.071, Health and Safety Code, unless the person
holds the appropriate license or registration issued by the
commission.
SECTION 27.004. Subtitle F, Title 2, Water Code, is amended
by adding Chapter 38 to read as follows:
CHAPTER 38. OCCUPATIONAL LICENSING PROGRAMS ADMINISTERED BY TEXAS
DEPARTMENT OF LICENSING AND REGULATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 38.001. DEFINITIONS. In this chapter, terms have the
meanings assigned by Section 51.001, Occupations Code.
[Sections 38.002-38.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES
Sec. 38.051. ADMINISTRATION. The department shall
administer this chapter.
Sec. 38.052. RULES. The commission shall adopt any rules
necessary to:
(1) establish occupational licenses prescribed by
Sections 26.452 and 26.456 of this code and Sections 341.034(c),
(d), and (e), Health and Safety Code; and
(2) establish classes and terms of occupational
licenses.
Sec. 38.053. CONTRACTS. The department may contract with
persons to provide services required by this chapter. The
department may authorize contractors to collect reasonable fees for
the services provided.
Sec. 38.054. COMPLIANCE INFORMATION. In administering this
chapter, the department may require a person to provide information
about any other occupational license held by the person, including:
(1) the state in which the license was issued;
(2) the current status of the license; and
(3) whether the license was ever denied, suspended,
revoked, surrendered, or withdrawn.
Sec. 38.055. ROSTER OF LICENSE HOLDERS. The department
shall maintain and make available to the public a roster of persons
who hold licenses issued under this chapter.
[Sections 38.056-38.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 38.101. LICENSE REQUIRED. A person may not engage in a
business, occupation, or profession described by Section 26.452 or
26.456 of this code or Section 341.034(c), (d), or (e), Health and
Safety Code, unless the person holds the appropriate license.
Sec. 38.102. QUALIFICATIONS. The commission may establish
qualifications for each license issued under this chapter.
Sec. 38.103. ISSUANCE AND DENIAL OF LICENSES. (a) The
commission shall establish requirements and uniform procedures for
issuing licenses under this chapter.
(b) After notice and hearing, the commission may deny an
application for a license by an applicant who:
(1) has a record in the preceding five years of
continuing violations of statutes or rules adopted under statutes;
(2) has engaged in fraud or deceit in obtaining or
applying for a license;
(3) has demonstrated gross negligence, incompetence,
or misconduct in the performance of activities authorized by a
license;
(4) made an intentional misstatement or
misrepresentation of fact in information required to be maintained
or submitted to the commission by the license holder;
(5) failed to keep and transmit records as required by
a statute or a rule adopted under a statute; or
(6) at the time the application is submitted, is
indebted to the state for a fee, penalty, or tax imposed by a
statute or a rule adopted under a statute.
Sec. 38.104. RENEWAL OF LICENSE. The commission shall
establish requirements and uniform procedures for renewing
licenses.
Sec. 38.105. LICENSING EXAMINATIONS. (a) The department
shall prescribe the content of licensing examinations. The
department shall base the examinations on laws, rules, job duties,
and standards relating to licenses issued under this chapter.
(b) The department shall determine the location and
frequency of examinations.
(c) The department shall ensure that an otherwise qualified
person with a physical, mental, or developmental disability is
provided with a reasonable opportunity to take a licensing
examination.
ARTICLE 28. GENERAL CONFORMING AMENDMENTS
SECTION 28.001. 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 28.002. Sections 57.046(a) and (c), 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 28.003. The heading to Section 57.047, Government
Code, is amended to read as follows:
Sec. 57.047. [COMMISSIONER AND] DEPARTMENT DUTIES;
INSPECTIONS.
SECTION 28.004. Section 57.047(a), Government Code, is
amended to read as follows:
(a) The executive director [commissioner] shall enforce
this subchapter.
SECTION 28.005. 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 28.006. 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 28.007. 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 28.008. Sections 755.023(a), (c), and (d), 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 28.009. Sections 755.024(a), (b), (f), and (g),
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 28.010. Sections 755.025(a), (f), and (g), 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 28.011. Sections 755.026(a), (c), (d), and (e),
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 28.012. Sections 755.027(a) and (c), 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 28.013. 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 28.014. Section 755.029(a), 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 28.015. 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 28.016. Section 91.003(a), 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 28.017. Section 91.015(c), 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 28.018. 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 28.019. Section 91.062(a), 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 28.020. Section 92.014(a), 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 28.021. Section 92.031(a), 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 28.022. Sections 1152.154(a) and (c), 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 28.023. 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 28.024. 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 28.025. 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 28.026. 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 28.027. Sections 1202.105(b) and (c), 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 28.028. Section 1302.002(12), 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 28.029. 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 28.030. 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 28.031. 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 28.032. Section 1302.253(a), 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 28.033. Sections 1302.256(a) and (c), 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 28.034. 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 28.035. Section 1302.260(a), 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 28.036. Section 1302.303(b), 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 28.037. 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 28.038. 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 28.039. 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 28.040. 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 28.041. Section 1304.152(b), 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 28.042. Sections 1304.155(b) and (d), 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 28.043. 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 28.044. 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 28.045. Section 1802.051(a), 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 28.046. 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 28.047. Sections 1802.055(a) and (b), 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 28.048. Sections 1802.056(b) and (c), 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 28.049. Section 1802.152(a), Occupations Code, is
amended to read as follows:
(a) The department is the manager of the fund and shall:
(1) administer the fund without appropriation;
(2) maintain books and records as required by the
executive director [commissioner];
(3) appear at hearings or judicial proceedings; and
(4) invest and reinvest the fund's assets as
instructed by the executive director [commissioner].
SECTION 28.050. Section 1802.155(b), Occupations Code, is
amended to read as follows:
(b) If the fund contains insufficient assets to pay the
consumer:
(1) the department shall record the time and date an
order for payment to a consumer was received; and
(2) the executive director [commissioner] shall pay
consumers for whom an order is recorded under Subdivision (1) as
funds become available in the order of the recorded time and date of
the order.
SECTION 28.051. 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 28.052. Sections 1802.205(a) and (b), Occupations
Code, are amended to read as follows:
(a) If the department's determination under Section
1802.202 is not disputed by the auctioneer or the aggrieved party,
the executive director [commissioner] shall pay the claim from the
fund, subject to Section 1802.206.
(b) If a hearing is held on the department's determination,
the executive director [commissioner] shall pay to the aggrieved
party the amount of actual damages determined by the executive
director [commissioner].
SECTION 28.053. Section 1802.206(a), Occupations Code, is
amended to read as follows:
(a) The executive director [commissioner] may not pay a
single aggrieved party more than $10,000.
SECTION 28.054. 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 28.055. Section 1901.051(b), Occupations Code, is
amended to read as follows:
(b) The executive director [commissioner] shall issue
licenses to applicants who qualify.
SECTION 28.056. 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 28.057. 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 28.058. 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 28.059. Section 1901.404(b), 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 28.060. 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 28.061. 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 28.062. 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 28.063. Section 1902.404(b), 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 28.064. 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 28.065. 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 28.066. Section 2052.108(a), 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 28.067. 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) 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.
SECTION 28.068. 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 28.069. Section 2052.203(b), 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 28.070. Sections 2052.252(b) and (e), Occupations
Code, are amended to read as follows:
(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 28.071. Section 2052.302, Occupations Code, is
amended to read as follows:
Sec. 2052.302. FORFEITURE OF PURSE. The executive director
[commissioner] may order a boxer or manager to forfeit to this state
a purse in an amount of not more than $1,000 for violating this
chapter or a rule adopted under this chapter.
SECTION 28.072. Sections 2052.304(a) and (b), Occupations
Code, are amended to read as follows:
(a) A person may seek review of a decision or an order of the
executive director [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 executive director [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) The filing of a petition for review under Subsection (a)
does not stay the effect of the decision or order of the executive
director [commissioner] that is the subject of the petition. The
executive director [commissioner] or the district court in which
the petition for review is filed may order a stay on appropriate
terms.
SECTION 28.073. Section 2052.305, Occupations Code, is
amended to read as follows:
Sec. 2052.305. SERVICE OF PROCESS. A petition for review
filed under Section 2052.304 must be served on:
(1) the executive director [commissioner]; and
(2) all parties of record to a hearing before the
executive director [commissioner] that relates to the matter for
which the petition for review is filed.
SECTION 28.074. Section 2052.306(a), Occupations Code, is
amended to read as follows:
(a) On receipt of a petition for review served under Section
2052.305, the executive director [commissioner], not later than the
date on which the answer to the petition must be filed or the date on
which the record is made available to the executive director
[commissioner], whichever date is later, shall certify to the
district court in which the petition is filed the record of the
proceedings to which the petition relates.
SECTION 28.075. Section 2052.307, Occupations Code, is
amended to read as follows:
Sec. 2052.307. JUDICIAL REVIEW. (a) A district court
reviewing a decision or an order of the executive director
[commissioner] under this subchapter shall try the action without a
jury in the same manner as a civil action, except that evidence is
not admissible unless the evidence was presented at the hearing or
noticed in the record of the hearing before the executive director
[commissioner]. The petitioner has the burden of proof in the
action.
(b) The court may:
(1) affirm the decision or order of the executive
director [commissioner]; or
(2) remand the matter to the executive director
[commissioner] for further proceedings.
SECTION 28.076. 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 28.077. Section 2151.101(a), Occupations Code, is
amended to read as follows:
(a) A person may not operate an amusement ride unless the
person:
(1) has had the amusement ride inspected at least once
a year by an insurer or a person with whom the insurer has
contracted;
(2) obtains a written certificate from the insurer or
person with whom the insurer has contracted stating that the
amusement ride:
(A) has been inspected;
(B) meets the standards for insurance coverage;
and
(C) is covered by the insurance required by
Subdivision (3);
(3) has an insurance policy currently in effect
written by an insurance company authorized to do business in this
state or by a surplus lines insurer, as defined by Chapter 981
[Article 1.14-2], Insurance Code, or has an independently procured
policy subject to Chapter 101 [Article 1.14-1], Insurance Code,
insuring the owner or operator against liability for injury to
persons arising out of the use of the amusement ride in an amount of
not less than:
(A) $100,000 per occurrence with a $300,000
annual aggregate for Class A amusement rides; and
(B) $1,000,000 per occurrence for Class B
amusement rides;
(4) files with the executive director [commissioner],
as required by this chapter, the inspection certificate and the
insurance policy or a photocopy of the certificate or policy
authorized by the executive director [commissioner]; and
(5) files with each sponsor, lessor, landowner, or
other person responsible for the amusement ride being offered for
use by the public a photocopy of the inspection certificate and the
insurance policy required by this subsection.
SECTION 28.078. Section 2501.053(a), 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 28.079. Section 2501.055(a), 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 28.080. 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 28.081. The heading to Subchapter D, Chapter 2501,
Occupations Code, is amended to read as follows:
SUBCHAPTER D. ENFORCEMENT [BY COMMISSIONER]
SECTION 28.082. 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 28.083. Section 2501.253(a), 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 28.084. Sections 2502.052(a) and (b), 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 28.085. Section 2502.053(a), 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 28.086. Sections 2502.054(a) and (b), 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 28.087. 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 28.088. 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 28.089. Section 7(a), Article 9035, Revised
Statutes, is amended to read as follows:
(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].
SECTION 28.090. 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 28.091. Section 1.41(e), 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.
SECTION 28.092. The changes in law made by this article to
Section 755.024, Health and Safety Code, regarding the terminology
used to identify a commission or license issued by the Texas
Department of Licensing and Regulation, do not affect the validity
of a commission or license issued by the department under that
section.
ARTICLE 29. GENERAL TRANSITION; EFFECTIVE DATE
SECTION 29.001. 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 29.002. This Act takes effect September 1, 2003.