By: Jackson S.B. No. 282
Substitute the following for S.B. No. 282:
By: Wise C.S.S.B. No. 282
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas State Board
of Plumbing Examiners; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) Section 1301.002, Occupations Code, is
amended by amending Subdivision (4) and adding Subdivision (1-a) to
read as follows:
(1-a) "Executive director" means the executive
director of the Texas State Board of Plumbing Examiners.
(4) "Plumber's apprentice" means a person other than a
master plumber, journeyman plumber, or tradesman plumber-limited
license holder who, as the person's principal occupation, learns
about and assists in the installation of plumbing, has fulfilled
the requirements of and is registered by the board, and works under
the supervision of a master plumber and the direct supervision of a
licensed plumber.
(b) In accordance with Subsection (c), Section 311.031,
Government Code, which gives effect to a substantive amendment
enacted by the same legislature that codifies the amended statute,
the text of Subdivision (4), Section 1301.002, Occupations Code, as
set out in this section, gives effect to changes made by Section 1,
Chapter 504, Acts of the 77th Legislature, Regular Session, 2001.
SECTION 2. Section 1301.003, Occupations Code, is amended
to read as follows:
Sec. 1301.003. APPLICATION OF SUNSET ACT. The Texas State
Board of Plumbing Examiners is subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the board is abolished and this chapter expires
September 1, 2015 [2003].
SECTION 3. Subsection (c), Section 1301.151, Occupations
Code, is amended to read as follows:
(c) Appointments to the board shall be made without regard
to the race, color, disability [creed], sex, religion, age, or
national origin of the appointee.
SECTION 4. Section 1301.153, Occupations Code, is amended
to read as follows:
Sec. 1301.153. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(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 [or employee] of the board
and may not be a board 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 the field of building
construction [industry]; or
(2) the person's spouse [related within the second
degree by consanguinity or affinity, as determined under Chapter
573, Government Code, to a person who] is an officer, manager
[employee], or paid consultant of a Texas trade association in the
field of building construction [regulated industry].
(c) [(b)] A person may not be [serve as] a member of the
board or act as the general counsel to the board or the agency 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 agency.
SECTION 5. Section 1301.156, Occupations Code, is amended
to read as follows:
Sec. 1301.156. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from the board that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 1301.151 or
1301.152;
(2) does not maintain during service on the board the
qualifications required by Section 1301.151 or 1301.152;
(3) is ineligible for membership under [violates a
prohibition prescribed by] Section 1301.153; [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 [fails to attend at least]
half of the regularly scheduled board meetings that the member is
eligible to attend during a calendar year without an excuse
approved by a majority vote of the board.
(b) The validity of an action of the board is not affected by
the fact that it is taken when a ground for removal of a board member
exists.
(c) If the executive director has knowledge that a potential
ground for removal exists, the executive director shall notify the
presiding officer of the board of the potential ground. The
presiding officer shall then notify the governor and the attorney
general that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
executive director shall notify the next highest ranking officer of
the board, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
SECTION 6. Section 1301.157, Occupations Code, is amended
to read as follows:
Sec. 1301.157. OFFICERS. (a) The governor shall designate
a member of the board as the presiding officer of the board to serve
in that capacity at the pleasure of the governor.
(b) The board shall elect a [presiding officer and a]
secretary from its membership.
SECTION 7. Subchapter C, Chapter 1301, Occupations Code, is
amended by adding Section 1301.159 to read as follows:
Sec. 1301.159. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the board may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the board until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter;
(2) the programs operated by the agency;
(3) the role and functions of the agency;
(4) the rules of the agency, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the agency;
(6) the results of the most recent formal audit of the
agency;
(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
agency or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 8. The heading to Subchapter D, Chapter 1301,
Occupations Code, is amended to read as follows:
SUBCHAPTER D. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL
SECTION 9. Section 1301.201, Occupations Code, is amended
to read as follows:
Sec. 1301.201. EXECUTIVE DIRECTOR AND STAFF. (a) The
board shall employ an executive director as the executive head of
the agency.
(b) The board may employ personnel as necessary to
administer this chapter. The board may determine the compensation
and duties of its employees and the terms of their employment.
SECTION 10. Subsection (b), Section 1301.203, Occupations
Code, is amended to read as follows:
(b) A field representative may:
(1) conduct on-site license checks to determine
compliance with this chapter;
(2) investigate consumer complaints filed under
Section 1301.303;
(3) assist municipal plumbing inspectors in enforcing
this chapter; [and]
(4) issue citations as provided by Section 1301.502;
and
(5) in the performance of the field representative's
other duties under this chapter, check the license, registration,
or endorsement of a person regulated by the Texas Department of
Licensing and Regulation in accordance with the memorandum of
understanding adopted under Section 1301.259 and report any
noncompliance to that agency.
SECTION 11. Subchapter D, Chapter 1301, Occupations Code,
is amended by adding Sections 1301.205 through 1301.208 to read as
follows:
Sec. 1301.205. 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 equal employment opportunity to ensure that
all personnel decisions 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
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the agency 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 agency's personnel is in accordance with state and federal
law and a description of reasonable methods to achieve compliance
with state and federal law.
(c) The policy statement must:
(1) be updated 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.
Sec. 1301.206. EMPLOYEE INCENTIVE PROGRAM. The executive
director or the executive director's designee shall provide to
agency employees information and training on the benefits and
methods of participation in the state employee incentive program.
Sec. 1301.207. STANDARDS OF CONDUCT. The executive
director or the executive director's designee shall provide to
members of the board and to agency 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.
Sec. 1301.208. SEPARATION OF RESPONSIBILITIES. The board
shall develop and implement policies that clearly separate the
policy-making responsibilities of the board and the management
responsibilities of the executive director and the staff of the
agency.
SECTION 12. Subchapter E, Chapter 1301, Occupations Code,
is amended by adding Sections 1301.258 through 1301.262 to read as
follows:
Sec. 1301.258. BOARD COMMITTEES. (a) The board may create
committees to assist the board in exercising its powers and duties.
(b) The presiding officer of the board shall appoint the
members of the committees. Except as provided by Subsection (c),
each committee member must be a member of the board.
(c) The presiding officer may appoint only members of the
agency staff to an enforcement committee that reviews complaints
and license registration and reviews endorsement applications
submitted by applicants who have a criminal conviction history
affected by Chapter 53.
Sec. 1301.259. MEMORANDUM OF UNDERSTANDING. (a) The board
and the Texas Department of Licensing and Regulation shall enter
into a memorandum of understanding to improve services and
coordinate the functions of each agency.
(b) The memorandum of understanding must:
(1) require each agency to share:
(A) information technology to support the
regulation and enforcement of occupational licenses; and
(B) information on regulatory practices for
licensed occupations, including policy issues that affect the
regulation of licensed occupations, standardization of complaint
and enforcement techniques, and model licensing techniques;
(2) authorize enforcement officers from each agency to
check licenses, registrations, or endorsements held by persons
practicing occupations regulated by the other agency and report
noncompliance to that agency; and
(3) state the circumstances when a joint investigation
between the board and the Texas Department of Licensing and
Regulation is appropriate.
Sec. 1301.260. POLICY ON TECHNOLOGICAL SOLUTIONS. The
board shall develop and implement a policy requiring the executive
director and agency employees to research and propose appropriate
technological solutions to improve the agency's ability to perform
its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the agency on the Internet;
(2) ensure that persons who want to use the agency's
services are able to:
(A) interact with the agency 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
agency's planning processes.
Sec. 1301.261. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The board shall develop and implement a
policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of agency 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 agency's
jurisdiction.
(b) The agency'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 board shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training 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 agency.
Sec. 1301.262. PLUMBING INSPECTOR CODE OF CONDUCT. The
board by rule shall establish a code of conduct for licensed
plumbing inspectors. The code of conduct shall require a plumbing
inspector to enforce this chapter and board rules in a consistent
manner across job sites.
SECTION 13. Subchapter F, Chapter 1301, Occupations Code,
is amended by adding Section 1301.3015 to read as follows:
Sec. 1301.3015. PUBLIC PARTICIPATION. The board shall
develop and implement policies that provide the public with a
reasonable opportunity to appear before the board and to speak on
any issue under the jurisdiction of the agency.
SECTION 14. Section 1301.303, Occupations Code, is amended
to read as follows:
Sec. 1301.303. COMPLAINTS. (a) The board may investigate
an alleged violation of this chapter by a person who:
(1) is licensed under this chapter; or
(2) performs plumbing without holding a license under
this chapter.
(b) The board shall maintain a [keep an information] file on
[about] each written complaint filed with the board. The file must
include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the agency;
(3) the subject matter of the complaint;
(4) the name of any municipality and the county in
which the conduct that is the subject of the complaint occurred;
(5) the name of each person contacted in relation to
the complaint;
(6) a summary of the results of the review or
investigation of the complaint; and
(7) an explanation of the reason the file was closed,
if the agency closed the file without taking action other than to
investigate the complaint [relating to a person licensed under this
chapter].
(c) The agency shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the agency's policies and procedures relating to complaint
investigation and resolution.
(d) The [If a written complaint is filed with the board
relating to a person licensed under this chapter, the] board, at
least quarterly and until final disposition of the complaint, shall
notify the person filing the complaint and each person who is a
subject of [parties to] the complaint of the status of the
investigation [complaint] unless the notice would jeopardize an
undercover investigation.
(e) The board by rule shall assign priorities and prescribe
investigative procedures for investigations of complaints based
on:
(1) the severity of the conduct alleged in the
complaint; and
(2) the degree of harm to public health, safety, or
property.
(f) The board shall maintain information about complaints,
including source, type, and geographical area, to identify and
address regulatory problem areas and focus enforcement in those
areas.
SECTION 15. Subchapter F, Chapter 1301, Occupations Code,
is amended by adding Section 1301.304 to read as follows:
Sec. 1301.304. INVESTIGATION OF COMPLAINTS. (a) The
enforcement committee or an employee designated by the enforcement
committee may investigate an alleged violation of this chapter or a
board rule that is reported to the board.
(b) The enforcement committee shall determine whether a
person has committed the violation and shall recommend appropriate
sanctions to the board or, if the enforcement committee determines
that the complaint is without merit, dismissal of the complaint.
(c) The board shall conduct joint investigations with the
Texas Department of Licensing and Regulation as circumstances
require.
SECTION 16. Section 1301.351, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) A license holder who is supervising and controlling
under Subsection (a)(2) the work of a person engaged in the business
of plumbing in the construction of a new one-family or two-family
dwelling in an unincorporated area of the state must have training
and management responsibility for, and shall review and inspect,
the person's work. The license holder is not required to provide
continuous or uninterrupted on-the-job oversight of the person's
work.
SECTION 17. Subchapter G, Chapter 1301, Occupations Code,
is amended by adding Sections 1301.3521 and 1301.3522 to read as
follows:
Sec. 1301.3521. EXAMINATION FEE REFUND. (a) The board
shall refund the examination fee paid by an applicant who:
(1) provides advance notice of the applicant's
inability to take the examination; or
(2) is unable to take the examination because of an
emergency.
(b) The board shall adopt rules that establish the required
notification period and the emergency situations that warrant a
refund.
Sec. 1301.3522. EXAMINATION REVIEW COURSE. (a) The board
shall develop a review course in English and Spanish to assist
license applicants in preparation for each license examination
offered by the board. If the board provides the review course, the
board may charge a fee to an applicant who applies to take the
review course.
(b) The board may provide the review course training
materials to private course providers for a fee determined by the
board.
SECTION 18. Subchapter G, Chapter 1301, Occupations Code,
is amended by adding Section 1301.3541 to read as follows:
Sec. 1301.3541. APPRENTICE REGISTRATION REQUIREMENTS. The
board by rule may adopt registration requirements for plumber's
apprentices, including training and education requirements.
SECTION 19. Section 1301.358, Occupations Code, is amended
to read as follows:
Sec. 1301.358. OUT-OF-STATE APPLICANTS; PROVISIONAL
LICENSE. (a) The board may waive any prerequisite to obtaining a
license [requirement under this chapter] for an applicant after
reviewing the applicant's credentials and determining that the
applicant [who] holds a license issued by another jurisdiction
[state] that has licensing requirements substantially equivalent
to those [the requirements] of this state.
(b) The board may issue a provisional license to an
applicant currently licensed in another jurisdiction who seeks a
license in this state and who:
(1) has been licensed in good standing as a plumber for
at least two years in another jurisdiction, including a foreign
country, that has licensing requirements substantially equivalent
to the requirements of this chapter;
(2) has passed a national or other examination
recognized by the board relating to the practice of plumbing; and
(3) is sponsored by a person licensed by the board
under this chapter with whom the provisional license holder will
practice during the time the person holds a provisional license.
(c) The board may waive the requirement of Subsection (b)(3)
for an applicant if the board determines that compliance with that
subdivision would be a hardship to the applicant.
(d) A provisional license is valid until the date the board
approves or denies the provisional license holder's application for
a license. The board shall issue a license under this chapter to
the provisional license holder if:
(1) the provisional license holder is eligible to be
licensed under Subsection (a); or
(2) the provisional license holder passes the part of
the examination under Section 1301.352 that relates to the
applicant's knowledge and understanding of the laws and rules
relating to the practice of plumbing in this state and:
(A) the board verifies that the provisional
license holder meets the academic and experience requirements for a
license under this chapter; and
(B) the provisional license holder satisfies any
other licensing requirements under this chapter.
(e) The board must approve or deny a provisional license
holder's application for a license not later than the 180th day
after the date the provisional license is issued. The board may
extend the 180-day period if the results of an examination have not
been received by the board before the end of that period.
(f) The board may establish a fee for provisional licenses
in an amount reasonable and necessary to cover the cost of issuing
the license.
SECTION 20. (a) Section 1301.403, Occupations Code, is
amended to read as follows:
Sec. 1301.403. PROCEDURE FOR RENEWAL. (a) A person who is
otherwise eligible to renew a license, endorsement, or registration
may renew an unexpired license, endorsement, or registration by
paying the required renewal fee to the agency [board] before the
expiration date of the license, endorsement, or registration. A
person whose license, endorsement, or registration has expired may
not engage in activities that require a license, endorsement, or
registration until the license, endorsement, or registration has
been renewed.
(b) A person whose license or endorsement has been expired
for 90 days or less may renew the license or endorsement by paying
to the agency a renewal fee that is equal to 1-1/2 times the
normally [board the] required renewal fee [and a fee equal to half
of the examination fee for the license or endorsement]. A person
whose registration has been expired for 90 days or less may renew
the registration by paying to the board a renewal fee that is equal
to 1-1/2 times the normally required renewal fee [and a fee equal to
half of the registration fee].
(c) A person whose license or endorsement has been expired
for more than 90 days but less than two years may renew the license
or endorsement by paying to the agency a renewal fee that is equal
to two times the normally required renewal fee [board all unpaid
renewal fees and a fee that is equal to the examination fee for the
license or endorsement]. A person whose registration has been
expired for more than 90 days but less than two years may renew the
registration by paying to the board a renewal fee that is equal to
two times the normally required renewal fee [all unpaid renewal
fees and a fee that is equal to the registration fee].
(d) A person whose license, endorsement, or registration
has been expired for two years or more may not renew the license,
endorsement, or registration. The person may obtain a new license,
endorsement, or registration by [submitting to reexamination and]
complying with the requirements and procedures, including the
examination requirements, for obtaining an original license,
endorsement, or registration.
(e) A person who held a license, endorsement, or
registration in this state, moved to another state, and is
currently holding a license, endorsement, or registration and has
been in practice in the other state for the two years preceding the
date of application may obtain a new license, endorsement, or
registration without reexamination. The person must pay to the
agency a fee that is equal to two times the normally required
renewal fee for the license, endorsement, or registration.
(f) Not later than the 30th day before the date a person's
license, endorsement, or registration is scheduled to expire, the
agency shall send written notice of the impending expiration to the
person at the person's last known address according to the records
of the agency.
(b) In accordance with Subsection (c), Section 311.031,
Government Code, which gives effect to a substantive amendment
enacted by the same legislature that codifies the amended statute,
the text of Section 1301.403, Occupations Code, as set out in this
section, gives effect to changes made by Section 14, Chapter 504,
Acts of the 77th Legislature, Regular Session, 2001.
SECTION 21. (a) Section 1301.451, Occupations Code, is
amended to read as follows:
Sec. 1301.451. DISCIPLINARY POWERS OF BOARD. (a) The
board shall revoke, suspend, or refuse to renew a license,
endorsement, or registration or shall reprimand a holder of a
license, endorsement, or registration for a violation of this
chapter or a rule of the board [On determining that a person who
holds a license or endorsement or is registered under this chapter
engaged in conduct for which the person is subject to disciplinary
action under Section 1301.452, the board shall:
[(1) revoke or suspend the person's license,
endorsement, or registration;
[(2) probate suspension of the person's license,
endorsement, or registration; or
[(3) reprimand the person].
(b) A person whose license, endorsement, or registration
has been revoked may not apply for a new license, endorsement, or
registration before the first anniversary of the date of
revocation.
(c) The board may place on probation a person whose license,
endorsement, or registration is suspended. If a license,
endorsement, or registration suspension is probated, the board may
require the person:
(1) to report regularly to the agency on matters that
are the basis of the probation;
(2) to limit practice to the areas prescribed by the
board; or
(3) to continue or review professional education until
the person attains a degree of skill satisfactory to the board in
those areas that are the basis of the probation.
(d) The board by rule shall:
(1) adopt written guidelines to ensure that probation
is administered consistently; and
(2) develop a system to track compliance with the
probation requirements.
(b) In accordance with Subsection (c), Section 311.031,
Government Code, which gives effect to a substantive amendment
enacted by the same legislature that codifies the amended statute,
the text of Section 1301.451, Occupations Code, as set out in this
section, gives effect to changes made by Section 12, Chapter 504,
Acts of the 77th Legislature, Regular Session, 2001.
SECTION 22. Subchapter I, Chapter 1301, Occupations Code,
is amended by adding Sections 1301.4521 and 1301.4522 to read as
follows:
Sec. 1301.4521. CONSEQUENCES OF CRIMINAL CONVICTION.
(a) The board shall adopt rules in compliance with the guidelines
authorized by Chapter 53 relating to criminal convictions.
(b) The board shall adopt a method to review the agency's
compliance with Chapter 53 and the rules adopted under this
section.
Sec. 1301.4522. REVIEW OF APPLICATION. (a) The
enforcement committee may approve, without board approval, the
application for a license, endorsement, or registration of a person
who has a criminal conviction if the enforcement committee finds
that the criminal conviction does not directly relate to the duties
and responsibilities of the business of plumbing in accordance with
the rules adopted by the board under Section 1301.4521.
(b) If the enforcement committee determines that a person is
ineligible for a license, endorsement, or registration based on the
person's criminal conviction, the person may request a hearing
before an administrative law judge of the State Office of
Administrative Hearings to review the enforcement committee's
determination.
(c) After receipt of the administrative law judge's
proposed findings of fact and conclusions of law, the board shall
determine the applicant's eligibility. The board shall provide an
applicant who is denied a license a written statement containing
the reasons for the board's action.
(d) An applicant who has a criminal conviction may appear
before the board or the enforcement committee to present
information relating to the applicant's criminal conviction.
SECTION 23. Section 1301.502, Occupations Code, is amended
to read as follows:
Sec. 1301.502. CITATION. (a) A field representative,
water district plumbing inspector, or, within the jurisdiction of
the municipality, municipal plumbing inspector may issue a citation
to a person who engages in conduct described by Section 1301.508.
(b) The board shall adopt guidelines relating to the
circumstances when a field representative may issue a citation.
The guidelines must encourage the use of other enforcement
measures, including imposition of administrative penalties, before
the issuance of a citation.
SECTION 24. Subchapter J, Chapter 1301, Occupations Code,
is amended by adding Sections 1301.5045 and 1301.5071 to read as
follows:
Sec. 1301.5045. CEASE AND DESIST ORDER. (a) If it appears
to the board that a person is violating this chapter or a rule
adopted under this chapter, the board, after notice and opportunity
for a hearing, may issue a cease and desist order prohibiting the
person from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under Subchapter N.
Sec. 1301.5071. INFORMAL SETTLEMENT CONFERENCE;
RESTITUTION. (a) The board by rule shall establish procedures
under which an informal settlement conference is conducted to
resolve a complaint against a person licensed under this chapter.
(b) Subject to Subsection (c), the board may order a person
licensed under this chapter to pay restitution to a person as
provided in an agreement resulting from an informal settlement
conference instead of or in addition to assessing an administrative
penalty under Subchapter N.
(c) The amount of restitution ordered as provided by an
agreement resulting from an informal settlement conference may not
exceed the amount the person paid to the license holder for a
service regulated by this chapter. The board may not require
payment of other damages or estimate harm in a restitution order.
SECTION 25. Chapter 1301, Occupations Code, is amended by
adding Subchapters M and N to read as follows:
SUBCHAPTER M. INTERAGENCY COOPERATION AND REGULATION
Sec. 1301.651. DEFINITION. In this subchapter, "local
workforce development board" means a board created under Subchapter
F, Chapter 2308, Government Code.
Sec. 1301.652. PUBLIC EDUCATION EFFORT. (a) The board and
the Texas Workforce Commission shall, through the local workforce
development boards, coordinate efforts to educate the public about
the plumbing profession and the resources available to employers
for the recruitment and training of plumbers, including providing:
(1) each local workforce development board with:
(A) information about the licensing requirements
for the plumbing profession; and
(B) available statistical data regarding
plumbing; and
(2) a link to each agency's Internet site and to the
Internet sites of other local workforce development boards.
(b) The board may, during public and industry awareness
seminars, raise awareness of the career ladder in the plumbing
industry and the opportunities that plumbing apprenticeships
offer.
(c) This section applies to the extent that the plumbing
profession is designated as an occupation in demand by a local
workforce development board.
SUBCHAPTER N. ADMINISTRATIVE PENALTY
Sec. 1301.701. IMPOSITION OF PENALTY. The board may impose
an administrative penalty on a person who violates this chapter or a
rule or order adopted under this chapter.
Sec. 1301.702. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $5,000 for each violation.
Each day a violation continues or occurs is a separate violation for
purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstance, extent, and
gravity of any prohibited act; and
(B) the hazard or potential hazard created to the
health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require.
(c) The board by rule or through procedures adopted by the
board and published in the Texas Register shall develop a
standardized penalty schedule based on the criteria listed in
Subsection (b).
Sec. 1301.703. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the enforcement committee determines that a violation
occurred, the enforcement committee may issue to the board a report
stating:
(1) the facts on which the determination is based; and
(2) the committee's recommendation on the imposition
of the penalty, including a recommendation on the amount of the
penalty.
(b) Not later than the 14th day after the date the report is
issued, the enforcement committee shall give written notice of the
report to the person.
(c) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 1301.704. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Not later than the 20th day after the date the person receives
the notice, the person in writing may:
(1) accept the determination and recommended penalty
of the enforcement committee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the enforcement committee, the board by order shall
approve the determination and impose the recommended penalty.
Sec. 1301.705. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
enforcement committee shall set a hearing and give written notice
of the hearing to the person. An administrative law judge of the
State Office of Administrative Hearings shall hold the hearing.
(b) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the board a proposal
for a decision about the occurrence of the violation and the amount
of a proposed penalty.
Sec. 1301.706. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for a decision,
the board by order may:
(1) find that a violation occurred and impose a
penalty; or
(2) find that a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 1301.707. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
Not later than the 30th day after the date the board's order becomes
final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
Sec. 1301.708. STAY OF ENFORCEMENT OF PENALTY. (a) Within
the 30-day period prescribed by Section 1301.707, a person who
files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
enforcement committee by certified mail.
(b) If the enforcement committee receives a copy of an
affidavit under Subsection (a)(2), the executive director may file
with the court, not later than the fifth day after the date the copy
is received, a contest to the affidavit.
(c) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 1301.709. DECISION BY COURT. (a) If the court
sustains the finding that a violation occurred, the court may
uphold or reduce the amount of the penalty and order the person to
pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 1301.710. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the penalty and if the amount of the penalty is
reduced or the penalty is not upheld by the court, the court shall
order, when the court's judgment becomes final, that the
appropriate amount plus accrued interest be remitted to the person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
Sec. 1301.711. RELEASE OF BOND. (a) If the person gave a
supersedeas bond and the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, the
release of the bond.
(b) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 1301.712. COLLECTION OF PENALTY. (a) If the person
does not pay the penalty and the enforcement of the penalty is not
stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 1301.713. ADMINISTRATIVE PROCEDURE. A proceeding to
impose the penalty is considered to be a contested case under
Chapter 2001, Government Code.
SECTION 26. Section 51.351, Occupations Code, is amended by
adding Subsections (c) and (d) to read as follows:
(c) A department employee may check the license,
registration, or endorsement of a person regulated by the Texas
State Board of Plumbing Examiners in accordance with the memorandum
of understanding under Section 1301.259 and report any
noncompliance to that agency.
(d) The department shall conduct joint investigations with
the Texas State Board of Plumbing Examiners as circumstances
require.
SECTION 27. Section 2308.303, Government Code, is amended
by adding Subsections (e) and (f) to read as follows:
(e) A board shall educate the public about the plumbing
profession and the resources available to employers for the
recruitment and training of plumbers as provided by Section
1301.652, Occupations Code.
(f) These educational efforts may be conducted to the extent
that the plumbing profession is designated as an occupation in
demand by a board.
SECTION 28. (a) Not later than January 1, 2004, the Texas
State Board of Plumbing Examiners shall adopt the rules required by
Section 1301.4521, Occupations Code, as added by this Act.
(b) Not later than September 1, 2004, the Texas State Board
of Plumbing Examiners shall:
(1) adopt the written guidelines required by
Subsection (d), Section 1301.451, Occupations Code, as added by
this Act; and
(2) adopt the administrative penalty schedule
required by Section 1301.702, Occupations Code, as added by this
Act.
(c) The changes in law made by Section 1301.153, Occupations
Code, as amended by this Act, and Section 1301.159, Occupations
Code, as added by this Act, in the prohibitions on or qualifications
of members of the Texas State Board of Plumbing Examiners do not
affect the entitlement of a member serving on the Texas State Board
of Plumbing Examiners immediately before September 1, 2003, to
continue to serve and function as a member of the Texas State Board
of Plumbing Examiners for the remainder of the member's term. Those
changes in law apply only to a member appointed on or after
September 1, 2003.
(d) The change in law made by this Act to Chapter 1301,
Occupations Code, relating to the investigation of a complaint
applies only to a complaint filed with the Texas State Board of
Plumbing Examiners on or after the effective date of this Act. A
complaint filed with the board before the effective date of this Act
is governed by the law as it existed immediately before that date,
and the former law is continued in effect for that purpose.
SECTION 29. To the extent of any conflict, this Act prevails
over another Act of the 78th Legislature, Regular Session, 2003,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 30. This Act takes effect September 1, 2003.