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79R698 MXM-D
By: Whitmire S.B. No. 411
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of barbers and cosmetologists by the
Texas Board of Barbering and Cosmetology and the abolition of the
State Board of Barber Examiners and the Texas Cosmetology
Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. TEXAS BOARD OF BARBERING AND COSMETOLOGY
SECTION 1.01. Title 9, Occupations Code, is amended by
adding Chapter 1603 to read as follows:
CHAPTER 1603. TEXAS BOARD OF BARBERING AND COSMETOLOGY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1603.001. GENERAL DEFINITIONS. (a) In this chapter:
(1) "Board" means the Texas Board of Barbering and
Cosmetology.
(2) "Executive director" means the executive director
of the board.
(b) Unless the context clearly indicates otherwise, the
definitions in Chapters 1601 and 1602 apply to this chapter.
Sec. 1603.002. APPLICATION OF SUNSET ACT. (a) The Texas
Board of Barbering and Cosmetology 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, Chapter 1601, and Chapter 1602 expire September 1, 2009.
(b) In the review of the board by the Sunset Advisory
Commission, as required by this section, the commission shall limit
its review to the appropriateness of recommendations made by the
commission to the 79th Legislature. In the Sunset Advisory
Commission's report to the 81st Legislature, the commission may
include any recommendation it considers appropriate.
[Sections 1603.003-1603.050 reserved for expansion]
SUBCHAPTER B. TEXAS BOARD OF BARBERING AND COSMETOLOGY
Sec. 1603.051. BOARD; MEMBERSHIP. (a) The Texas Board of
Barbering and Cosmetology consists of nine members appointed by the
governor as follows:
(1) three barber members, one of whom must be a Class A
barber certificate holder, one of whom must be a barbershop permit
holder, and one of whom must be a barber school permit holder;
(2) three cosmetologist members, one of whom must be
an operator license holder, one of whom must be a beauty or
specialty shop license holder, and one of whom must be a private
beauty culture school license holder; and
(3) three public members.
(b) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointee.
Sec. 1603.052. MEMBER ELIGIBILITY. (a) To qualify as a
board member, a person must:
(1) be a United States citizen;
(2) be at least 25 years of age; and
(3) unless the person is a public member, have been
actively engaged in the field of barbering or cosmetology that is
the basis of the person's qualification for office under Section
1603.051 for not less than the five years preceding appointment.
(b) A person may not be a public member of the board if the
person or the person's spouse:
(1) is registered, certified, or licensed by a
regulatory agency in the field of barbering or cosmetology;
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving money from the board;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving money from the board; or
(4) uses or receives a substantial amount of tangible
goods, services, or money from the board, other than compensation
or reimbursement authorized by law for board membership,
attendance, or expenses.
(c) An operator license holder is not eligible for
appointment as a board member if the license holder has a direct or
indirect affiliation with or a financial or other interest in a
private beauty culture school or beauty shop.
(d) A beauty shop license holder is not eligible for
appointment as a board member if the license holder has a direct or
indirect affiliation with or a financial or other interest in a
private beauty culture school.
(e) A private beauty culture school license holder is not
eligible for appointment as a board member if the license holder has
a direct or indirect affiliation with or a financial or other
interest in a beauty shop.
Sec. 1603.053. 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 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.),
if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of barbering or
cosmetology; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of barbering or
cosmetology.
(c) A person may not be a member of the board or act as the
general counsel to the board if the person is required to register
as a lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession
related to the operation of the board.
Sec. 1603.054. TERMS; VACANCY. (a) Board members serve
staggered six-year terms, with three members' terms expiring on
February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor
shall appoint a replacement to fill the unexpired term.
Sec. 1603.055. 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 the
qualifications required by Section 1603.051;
(2) does not maintain during service on the board the
qualifications required by Section 1603.051;
(3) is ineligible for membership under Section
1603.052 or 1603.053;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved 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.
Sec. 1603.056. PER DIEM; REIMBURSEMENT. (a) A board member
is entitled to the per diem set by the General Appropriations Act.
(b) A board member is entitled to reimbursement for travel
expenses in accordance with the General Appropriations Act.
(c) A board member who seeks reimbursement for expenses
shall present a sworn, complete itemized statement of the number of
days engaged in the board's business and the amount of expenses
incurred by the member.
Sec. 1603.057. PRESIDING OFFICER. The governor shall
designate a public member of the board as the presiding officer of
the board to serve in that capacity at the will of the governor.
Sec. 1603.058. MEETINGS. (a) The board shall meet at least
once each year.
(b) The board may meet at other times at the call of the
presiding officer or as provided by board rule.
Sec. 1603.059. BOARD MEMBER 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, Chapters 1601 and 1602, and the
programs, functions, rules, and budget of the board;
(2) the results of the most recent formal audit of the
board;
(3) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest; and
(4) any applicable ethics policies adopted by the
board or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
[Sections 1603.060-1603.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
Sec. 1603.101. EXECUTIVE DIRECTOR. (a) The board shall
employ an executive director. The executive director is the
executive head of the board and performs its administrative duties.
(b) The board shall set the compensation of the executive
director.
Sec. 1603.102. PERSONNEL. The executive director may
employ personnel as necessary to implement this chapter.
Sec. 1603.103. DIVISION 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
board.
[Sections 1603.104-1603.150 reserved for expansion]
SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 1603.151. RULES. The board shall adopt rules
consistent with this chapter for:
(1) the administration of this chapter and the
operation of the board; and
(2) the administration of Chapters 1601 and 1602.
Sec. 1603.152. FEES. The board shall adopt fees in amounts
that are reasonable and necessary to provide sufficient revenue to
administer the programs under the board's authority, including
application, examination, inspection, certificate, license,
permit, and renewal fees.
Sec. 1603.153. SANITATION RULES. The board shall establish
sanitation rules to prevent the spread of an infectious or
contagious disease.
Sec. 1603.154. RULES RESTRICTING ADVERTISING OR
COMPETITIVE BIDDING. (a) The board may not adopt rules restricting
advertising or competitive bidding by a person regulated by the
board except to prohibit false, misleading, or deceptive practices
by that person.
(b) The board may not include in its rules to prohibit
false, misleading, or deceptive practices by a person regulated by
the board a rule that:
(1) restricts the use of any advertising medium;
(2) restricts the person's personal appearance or the
use of the person's voice in an advertisement;
(3) relates to the size or duration of an
advertisement by the person; or
(4) restricts the use of a trade name in advertising by
the person.
Sec. 1603.155. INSPECTION OF SCHOOLS, SHOPS, AND FACILITIES
BEFORE OPERATION. (a) Until the board determines, by inspection,
that the person has established the school, shop, or facility in
compliance with this chapter, Chapter 1601, or Chapter 1602, a
person may not operate a school, shop, or other facility licensed or
permitted under this chapter, Chapter 1601, or Chapter 1602.
(b) A school, shop, or other facility that is not approved
by the board on initial inspection may be reinspected.
(c) The school, shop, or other facility shall pay for each
inspection.
Sec. 1603.156. PERIODIC AND RISK-BASED INSPECTIONS. (a)
The board may enter and inspect at any time during business hours:
(1) the place of business of any person regulated
under this chapter, Chapter 1601, or Chapter 1602; or
(2) any place in which the board has probable cause to
believe that a certificate, license, or permit holder is practicing
illegally.
(b) At least once every two years, the board shall inspect:
(1) the place of business of each permit holder under
Chapter 1601; and
(2) each facility licensed under Subchapter G, Chapter
1602.
(c) The board may inspect the premises of any person
regulated under this chapter, Chapter 1601, or Chapter 1602 to
investigate a complaint at any time during business hours on
receipt of a formal written complaint that the person has violated
this chapter, Chapter 1601, or Chapter 1602.
(d) The board shall set priorities for inspections based on
the risk of:
(1) a sanitation violation; and
(2) a new violation due to the person's inspection and
complaint history.
(e) If an inspector discovers a violation of this chapter,
Chapter 1601, Chapter 1602, or a board rule, the inspector shall:
(1) provide written notice of the violation to the
violator on a form prescribed by the board; and
(2) file a complaint with the executive director.
Sec. 1603.157. USE OF TECHNOLOGY. The board shall
implement a policy requiring the board to use appropriate
technological solutions to improve the board's ability to perform
its functions. The policy must ensure that the public is able to
interact with the board on the Internet.
Sec. 1603.158. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES. (a) The board shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the board's
jurisdiction.
(b) The board's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
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 board.
Sec. 1603.159. RETENTION OF STUDENT RECORDS. The board may
not retain student records, including student transcripts, beyond
the time required by state law.
Sec. 1603.160. COMMITTEES. The board may appoint
committees that it considers necessary to carry out its duties.
[Sections 1603.161-1603.200 reserved for expansion]
SUBCHAPTER E. PUBLIC PARTICIPATION AND COMPLAINT PROCEDURES
Sec. 1603.201. PUBLIC INTEREST INFORMATION AND
PARTICIPATION. (a) 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 board.
(b) The board shall prepare information of public interest
describing the functions of the board. The board shall make the
information available to the public and appropriate state agencies.
(c) The board by rule shall establish methods by which
consumers and service recipients are notified of the name, mailing
address, and telephone number of the board for the purpose of
directing complaints to the board. The board may provide for that
notice:
(1) on each registration form, application, or written
contract for services of a person regulated under this chapter,
Chapter 1601, or Chapter 1602;
(2) on a sign prominently displayed in the place of
business of each person regulated under this chapter, Chapter 1601,
or Chapter 1602; or
(3) in a bill for service provided by a person
regulated under this chapter, Chapter 1601, or Chapter 1602.
Sec. 1603.202. COMPLAINT PROCEDURES. (a) The board shall
adopt a comprehensive procedure for receiving and adjudicating
complaints from consumers and service recipients. The procedures
must address each phase of the complaint process, including
complaint intake, preliminary evaluation, investigation,
adjudication, penalties, and public disclosure.
(b) The board shall maintain a system to promptly and
efficiently act on complaints filed with the board. The board shall
maintain:
(1) information about the parties to the complaint and
the subject matter of the complaint;
(2) a summary of the results of the review or
investigation of the complaint; and
(3) information about the disposition of the
complaint.
(c) The board shall make information available describing
its procedures for complaint investigation and resolution.
(d) The board shall periodically notify the parties of the
status of the complaint until final disposition of the complaint.
(e) If the board determines that it lacks jurisdiction to
resolve the complaint, the board shall notify the complainant in
writing that the board is closing the complaint because it lacks
jurisdiction.
Sec. 1603.203. ANALYSIS OF COMPLAINTS AND VIOLATIONS. (a)
The board shall develop and maintain a system to analyze the
processing, sources, and types of complaints filed with the board
and the types of violations that occur under this chapter, Chapter
1601, and Chapter 1602.
(b) Based on the information under Subsection (a), the board
shall analyze trends in violations and complaints that may require
further attention or technical assistance to help reduce the
frequency of those complaints and violations.
(c) The board shall annually compile a statistical analysis
of the complaints filed and violations occurring during the
preceding year, including:
(1) the number of complaints filed;
(2) a categorization of complaints filed according to
the basis of the complaint and the number of complaints in each
category;
(3) the number of complaints filed by board staff;
(4) the number of complaints filed by persons other
than board staff;
(5) the number of complaints filed over which the
board lacks jurisdiction;
(6) the average length of time required to close a
complaint or violation from the time the board receives the
complaint or otherwise initiates an investigation of a possible
violation until the complaint or violation is resolved by a final
order or penalty;
(7) the number of complaints resolved and the manner
in which they were resolved, including:
(A) the number of complaints dismissed and the
reasons for dismissal; and
(B) the number of complaints resulting in
disciplinary action and the type of disciplinary action taken; and
(8) the number of complaints filed that are
unresolved, the number of those complaints filed by board staff,
the number of those complaints filed by persons other than board
staff, and the average length of time that the unresolved
complaints have been on file.
Sec. 1603.204. INFORMAL SETTLEMENT CONFERENCE. The board
shall establish guidelines for an informal settlement conference
related to a complaint filed with the board.
[Sections 1603.205-1603.250 reserved for expansion]
SUBCHAPTER F. CERTIFICATE, LICENSE, AND PERMIT REQUIREMENTS
Sec. 1603.251. APPLICATION FORM; TIMING. (a) An
application for a certificate, license, or permit must be made on a
form prescribed and provided by the board.
(b) An application for an operator license, instructor
license, manicurist license, or facialist specialty license must be
filed with the board not later than the 10th day before the date set
for the applicable examination.
Sec. 1603.252. DUPLICATE CERTIFICATE, LICENSE, OR PERMIT.
The board shall issue a duplicate certificate, license, or permit
to an applicant who:
(1) submits an application for a duplicate
certificate, license, or permit to the board; and
(2) pays the required fee.
Sec. 1603.253. PROVISIONAL CERTIFICATE OR LICENSE. (a)
The board may issue a provisional certificate or license to an
applicant currently licensed in another jurisdiction who seeks a
certificate or license in this state and who:
(1) has been licensed in good standing in the
profession for which the person seeks the certificate or license
for at least two years in another jurisdiction, including a foreign
country, that has requirements substantially equivalent to the
requirements of this chapter, Chapter 1601, or Chapter 1602, as
appropriate; and
(2) has passed a national or other examination
recognized by the board relating to the practice of that
profession.
(b) A provisional certificate or license is valid until the
date the board approves or denies the provisional certificate or
license holder's application. The board shall issue a certificate
or license to the provisional certificate or license holder if:
(1) the provisional certificate or license holder is
eligible to hold a certificate or license under Chapter 1601 or
Chapter 1602; or
(2) the provisional certificate or license holder
passes the part of the examination under Chapter 1601 or Chapter
1602 that relates to the applicant's knowledge and understanding of
the laws and rules relating to the practice of the profession in
this state and:
(A) the board verifies that the provisional
certificate or license holder meets the academic and experience
requirements for the certificate or license; and
(B) the provisional certificate or license
holder satisfies any other certificate or license requirements.
(c) The board must approve or deny a provisional certificate
or license holder's application for a certificate or license not
later than the 180th day after the date the provisional certificate
or 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.
Sec. 1603.254. RECIPROCAL CERTIFICATE, LICENSE, OR PERMIT.
(a) A person who holds a license, certificate, or permit to
practice barbering or cosmetology from another state or country
that has standards or work experience requirements that are
substantially equivalent to the requirements of this chapter,
Chapter 1601, or Chapter 1602 may apply for a license, certificate,
or permit to perform the same acts of barbering or cosmetology in
this state that the person practiced in the other state or country.
(b) The person must:
(1) submit an application for the license,
certificate, or permit to the board; and
(2) pay fees in an amount prescribed by the board,
including any applicable license, certificate, or permit fee.
(c) A person issued a license, certificate, or permit under
this section:
(1) may perform the acts of barbering or cosmetology
stated on the license, certificate, or permit; and
(2) is subject to the renewal procedures and fees
provided in this chapter, Chapter 1601, or Chapter 1602 for the
performance of those acts of barbering or cosmetology.
[Sections 1603.255-1603.300 reserved for expansion]
SUBCHAPTER G. EXAMINATION REQUIREMENTS
Sec. 1603.301. WRITTEN EXAMINATION. The board shall select
a written examination for each examination required under this
chapter, Chapter 1601, or Chapter 1602. The written examination
must be:
(1) validated by an independent testing professional;
or
(2) purchased from a national testing service.
Sec. 1603.302. EXAMINATION APPLICATION FOR BARBERS. An
applicant for an examination for a certificate or license issued
under Chapter 1601 must submit to the board a sworn application on a
form prescribed and provided by the board accompanied by:
(1) two photographs of the applicant, one of which
accompanies the application and one of which is to be returned to
the applicant to be presented at the examination; and
(2) the appropriate examination fee.
Sec. 1603.303. EXAMINATION FREQUENCY. (a) The board shall
examine applicants for a Class A barber certificate and a teacher's
certificate at least four times annually, at times and places
designated by the board.
(b) The board shall administer examinations for
certificates and licenses issued under Chapter 1602 beginning the
first day of each month. If the first day of the month is a legal
holiday, the examination shall begin on the following day.
Sec. 1603.304. LOCATION OF EXAMINATION. (a) The board
shall announce the site of an examination for a certificate or
license issued under Chapter 1602 not later than six months before
the scheduled examination date.
(b) The board may not administer an examination in a board
member's school.
(c) An examination may not be held at a barber school or
barbershop owned, managed, or operated by a board member.
Sec. 1603.305. EARLY EXAMINATION. (a) The board, on
written request by a student, may provide for the early written
examination of an applicant for a Class A barber certificate, a
teacher's certificate, or an operator license who has completed at
least 1,000 hours of instruction in a board-approved training
program.
(b) A board inspector may administer an examination under
this section at barber schools or beauty culture schools throughout
the state.
Sec. 1603.306. EXAMINATION RESULTS. (a) The board shall
notify each examinee of the results of the examination not later
than the 30th day after the date an examination is administered. If
an examination is graded or reviewed by a national testing service,
the board shall notify each examinee of the results of the
examination not later than the 14th day after the date the board
receives the results from the testing service.
(b) If the notice of examination results graded or reviewed
by a national testing service will be delayed for longer than 90
days after the examination date, the board shall notify each
examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the
examination, the board shall provide to the person an analysis of
the person's performance on the examination.
[Sections 1603.307-1603.350 reserved for expansion]
SUBCHAPTER H. CERTIFICATE, LICENSE, AND PERMIT RENEWAL
Sec. 1603.351. CERTIFICATE, LICENSE, AND PERMIT EXPIRATION
AND RENEWAL. (a) A person who is otherwise eligible to renew a
certificate, license, or permit may renew the unexpired
certificate, license, or permit by paying the required renewal fee
to the board before the expiration date of the certificate,
license, or permit. A person whose certificate, license, or permit
has expired may not engage in activities that require a
certificate, license, or permit until the certificate, license, or
permit has been renewed.
(b) A person whose certificate, license, or permit has been
expired for 90 days or less may renew the certificate, license, or
permit by paying to the board a renewal fee that is equal to 1-1/2
times the normally required renewal fee.
(c) A person whose certificate, license, or permit has been
expired for more than 90 days but less than one year may renew the
certificate, license, or permit by paying to the board a renewal fee
that is equal to two times the normally required renewal fee.
(d) A person whose certificate, license, or permit has been
expired for one year or more may not renew the certificate, license,
or permit. The person may obtain a new certificate, license, or
permit by complying with the requirements and procedures, including
the examination requirements, for obtaining an original
certificate, license, or permit.
Sec. 1603.352. RENEWAL OF EXPIRED CERTIFICATE, LICENSE, OR
PERMIT BY OUT-OF-STATE PRACTITIONER. A person who held a
certificate, license, or permit 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 certificate, license, or permit without reexamination.
The person must pay to the board a fee that is equal to two times the
normally required renewal fee for the certificate, license, or
permit.
Sec. 1603.353. NOTICE OF CERTIFICATE, LICENSE, OR PERMIT
EXPIRATION. Not later than the 30th day before the date a person's
certificate, license, or permit is scheduled to expire, the board
shall send written notice of the impending expiration to the person
at the person's last known address according to the records of the
board.
Sec. 1603.354. DENIAL OF RENEWAL DUE TO ADMINISTRATIVE
PENALTY. The board may deny a person's request to renew a
certificate, license, or permit issued under this chapter, Chapter
1601, or Chapter 1602 if the person has not paid an administrative
penalty imposed under Subchapter K. This section does not apply if:
(1) the person's time to pay or request a hearing has
not expired under Section 1603.504;
(2) the person has requested a hearing under Section
1603.504, but the person's time to pay has not expired under Section
1603.507; or
(3) the penalty is stayed.
[Sections 1603.355-1603.400 reserved for expansion]
SUBCHAPTER I. PRACTICE PROVISIONS APPLICABLE TO
CHAPTERS 1601 AND 1602
Sec. 1603.401. MINIMUM CURRICULUM FOR SCHOOLS. The board
shall prescribe the minimum curriculum, including the subjects and
the number of hours in each subject, taught by a school licensed
under this chapter, Chapter 1601, or Chapter 1602, including a
private beauty culture school or a vocational cosmetology program
in a public school.
[Sections 1603.402-1603.450 reserved for expansion]
SUBCHAPTER J. DENIAL AND DISCIPLINARY PROCEDURES
Sec. 1603.451. DENIAL, SUSPENSION, OR REVOCATION. The
board shall deny an application for issuance or renewal of, or shall
suspend or revoke, a certificate, license, or permit if the
applicant or person holding the certificate, license, or permit:
(1) engages in gross malpractice;
(2) knowingly continues to practice while having an
infectious or contagious disease;
(3) knowingly makes a false or deceptive statement in
advertising;
(4) advertises, practices, or attempts to practice
under another person's name or trade name;
(5) engages in fraud or deceit in obtaining a
certificate, license, or permit; or
(6) engages in an act that violates this chapter,
Chapter 1601, or Chapter 1602 or a board rule or order.
Sec. 1603.452. PROBATION. (a) The board may place on
probation a person whose certificate, license, or permit is
suspended. If a suspension is probated, the board may require the
person to:
(1) report regularly to the board on matters that are
the basis of the probation;
(2) limit practice to the areas prescribed by the
board; or
(3) continue or 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.
(b) The board by rule shall adopt clear probation standards
and procedures, including procedures for:
(1) imposing appropriate probation requirements;
(2) notifying persons on probation of probation
requirements and the actions necessary to meet the requirements;
and
(3) tracking the progress of persons on probation.
Sec. 1603.453. ADMINISTRATIVE PROCEDURE. A hearing or an
appeal from a hearing under this subchapter is subject to Chapter
2001, Government Code.
[Sections 1603.454-1603.500 reserved for expansion]
SUBCHAPTER K. ADMINISTRATIVE PENALTIES
Sec. 1603.501. IMPOSITION OF PENALTY. The board may impose
an administrative penalty on a person regulated under this chapter,
Chapter 1601, or Chapter 1602 who violates one of those chapters or
a board rule or order.
Sec. 1603.502. AMOUNT OF PENALTY. (a) The amount of the
administrative penalty may not exceed $1,000 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.
Sec. 1603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the executive director determines that a violation has
occurred, the executive director may issue to the board a report
stating:
(1) the facts on which the determination is based; and
(2) the executive director's recommendation on the
imposition of an administrative 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 executive director shall give written notice of the
report to the person on whom the penalty may be imposed. The notice
may be given by certified mail. 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. 1603.504. 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 executive director's determination and
recommended administrative penalty; 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 executive director's
determination and recommended penalty, the board by order shall
approve the determination and impose the recommended penalty.
Sec. 1603.505. HEARING. (a) An administrative law judge of
the State Office of Administrative Hearings shall hold a hearing
requested under Section 1603.504.
(b) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the board a proposal
for decision as to the occurrence of the violation and the amount of
any proposed administrative penalty.
Sec. 1603.506. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for a decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) 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. 1603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the board's order
becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both; or
(3) without paying the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond
approved by the court for the amount of the penalty that 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) giving a copy of the affidavit to the
executive director by certified mail.
(c) If the executive director receives a copy of an
affidavit under Subsection (b)(2), the executive director may file
with the court a contest to the affidavit not later than the fifth
day after the date the copy is received.
(d) 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. 1603.508. COLLECTION OF PENALTY. If the person on whom
the administrative penalty is imposed does not pay the penalty and
the enforcement of the penalty is not stayed, the executive
director may refer the matter to the attorney general for
collection of the penalty.
Sec. 1603.509. DECISION BY COURT. (a) If the court
sustains the finding that a violation occurred, the court may
uphold or reduce the amount of the administrative 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. 1603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If,
after judicial review, the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order that the appropriate amount, plus accrued
interest, be remitted to the person if the person paid the penalty;
or
(2) order the release of the bond if the penalty is not
imposed or order the release of the bond after the person pays the
penalty if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate
charged on loans to depository institutions by the New York Federal
Reserve Bank. 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. 1603.511. ADMINISTRATIVE PROCEDURE. A proceeding
under this subchapter to impose an administrative penalty is a
contested case under Chapter 2001, Government Code.
[Sections 1603.512-1603.550 reserved for expansion]
SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1603.551. INJUNCTIVE RELIEF. (a) The board may bring
an action in a district court in Travis County to enjoin a person
from violating this chapter, Chapter 1601, Chapter 1602, or a board
rule.
(b) If a certificate, license, or permit holder commits a
violation of one of those chapters or a board rule and the violation
poses a serious threat to the public health, the board shall
initiate a suit for injunction and proceedings for suspension or
revocation of the certificate, license, or permit.
(c) In seeking an injunction under this section, the board
is not required to allege or prove:
(1) that an adequate remedy at law does not exist; or
(2) that substantial or irreparable damage would
result from the continued violation.
Sec. 1603.552. CIVIL PENALTY. (a) A barber, barber school,
or private beauty culture school that violates this chapter,
Chapter 1601, Chapter 1602, or a board rule is liable for a civil
penalty in addition to any injunctive relief or other remedy
provided by law.
(b) The amount of the civil penalty for a barber may not
exceed $25 a day for each violation.
(c) The amount of the civil penalty for a barber school or
private beauty culture school may not exceed $1,000 a day for each
violation.
(d) The attorney general may sue to collect the civil
penalty.
Sec. 1603.553. APPEAL BOND NOT REQUIRED. The board is not
required to give an appeal bond in a cause arising under this
chapter, Chapter 1601, or Chapter 1602.
Sec. 1603.554. ENFORCEMENT BY ATTORNEY GENERAL. The
attorney general shall represent the board in an action to enforce
this chapter, Chapter 1601, or Chapter 1602.
[Sections 1603.555-1603.600 reserved for expansion]
SUBCHAPTER M. BUSINESS IMPROVEMENT PLAN
Sec. 1603.601. BUSINESS IMPROVEMENT PLAN. (a) The board
shall adopt and implement a business improvement plan.
(b) The plan must demonstrate a commitment to and result in
significant improvement in:
(1) the elimination of any backlogs in inspection and
enforcement, including resolution of complaints and pending
enforcement cases; and
(2) the implementation of:
(A) legislation passed affecting the board;
(B) management recommendations by the Sunset
Advisory Commission; and
(C) recommendations of the State Auditor's
Office.
Sec. 1603.602. QUARTERLY REPORTS. (a) Not later than
December 1, 2005, the board shall provide to the Sunset Advisory
Commission and state auditor an initial assessment report regarding
the implementation of the business improvement plan. Additional
reports are due each quarter, beginning March 1, 2006.
(b) The board shall prepare the reports in a format
specified by the Sunset Advisory Commission and shall include in
the reports specific information demonstrating the progress made by
the board in implementing the goals and objectives of the business
improvement plan.
Sec. 1603.603. MANAGEMENT AUDIT. Not later than September
1, 2006, the state auditor shall conduct a management audit of the
board and deliver the audit report to the governor, the lieutenant
governor, the speaker of the house of representatives, and the
Sunset Advisory Commission. The audit report may include any
matter related to the management audit, but must include an
evaluation of:
(1) the board's business improvement plan, including
implementation of the plan; and
(2) compliance with the recommendations of the state
auditor and Sunset Advisory Commission.
Sec. 1603.604. EXPIRATION. This subchapter expires June 1,
2009.
ARTICLE 2. REGULATION OF BARBERING
SECTION 2.01. Section 1601.001(a)(3), Occupations Code, is
amended to read as follows:
(3) "Board" means the Texas [State] Board of Barbering
and Cosmetology [Barber Examiners].
SECTION 2.02. Section 1601.003, Occupations Code, is
amended to read as follows:
Sec. 1601.003. APPLICATION OF CHAPTER. This chapter does
not apply to a person who:
(1) does not represent or advertise to the public
directly or indirectly that the person is authorized by the board to
practice barbering; and
(2) is:
(A) a physician or registered nurse licensed in
this state and operating within the scope of the person's license;
(B) a commissioned or authorized medical or
surgical officer of the United States armed forces;
(C) a person regulated under Chapter 1602, if the
person practices within the scope of a permit, license, or
certificate issued by the board under that chapter [Texas
Cosmetology Commission]; or
(D) an inmate in the institutional division of
the Texas Department of Criminal Justice who performs barbering
during the person's incarceration.
SECTION 2.03. Section 1601.253(b), Occupations Code, is
amended to read as follows:
(b) The board shall issue a Class A barber certificate to an
applicant who:
(1) complies with the application requirements of this
chapter;
(2) passes the examination with an average grade of at
least 75 percent;
(3) pays the required [a] fee [not to exceed $100]; and
(4) possesses the other qualifications required by
this chapter.
SECTION 2.04. Sections 1601.254(a) and (c), Occupations
Code, are amended to read as follows:
(a) An applicant for a teacher's certificate must:
(1) be a Class A barber;
(2) have at least five years' experience as a
practicing barber in a barbershop, two years of which occurred in
the two years preceding the application date; and
(3) submit the required [an] examination fee [not to
exceed $100] with the application.
(c) The board shall issue a teacher's certificate to an
applicant who:
(1) passes the appropriate examination; and
(2) pays the required [a] certificate fee [not to
exceed:
[(A) $100, if the applicant fulfills the
certificate requirements during the period beginning November 1 of
an odd-numbered year and extending through October 31 of the
following year; or
[(B) $50, if the applicant fulfills the
certificate requirements during the period beginning November 1 of
an even-numbered year and extending through October 31 of the
following year].
SECTION 2.05. Sections 1601.256(b) and (d), Occupations
Code, are amended to read as follows:
(b) An applicant for a barber technician license must:
(1) be at least 16 years of age;
(2) have completed the seventh grade or the equivalent
of the seventh grade;
(3) have completed a course of instruction in a
board-approved training program consisting of not less than 300
hours in a period of not less than eight weeks; and
(4) submit the required [a $10 administration] fee
with the application.
(d) The board shall issue a barber technician license to an
applicant who:
(1) possesses the qualifications described by
Subsection (b);
(2) passes the appropriate examination;
(3) pays the required [a] license fee [not to exceed
$100]; and
(4) has not committed an act that is a ground for
denial of a license.
SECTION 2.06. Sections 1601.257(b) and (c), Occupations
Code, are amended to read as follows:
(b) An applicant for a manicurist license must:
(1) be at least 16 years of age;
(2) have completed the seventh grade or the equivalent
of the seventh grade;
(3) have completed a board-approved training program
consisting of 600 hours of instruction in manicuring; and
(4) submit the required [a $10 administration] fee
with the application.
(c) The board shall issue a manicurist license to an
applicant who:
(1) possesses the qualifications described by
Subsection (b);
(2) passes the appropriate examination;
(3) pays the required [a] license fee [not to exceed
$30]; and
(4) has not committed an act that is a ground for
denial of a license.
SECTION 2.07. Section 1601.260(a), Occupations Code, is
amended to read as follows:
(a) An applicant for a permit to be a student in a barber
school must:
(1) submit an enrollment application to the board in
the form prescribed by the board;
(2) have completed the seventh grade;
(3) satisfy other requirements specified by the board;
and
(4) submit with the application the required [a]
nonrefundable application fee [in an amount not to exceed $25].
SECTION 2.08. Section 1601.302(a), Occupations Code, is
amended to read as follows:
(a) A person who opens a new barbershop shall submit, not
later than the third day after the date the shop opens, an
application to the board for a temporary barbershop permit
accompanied by the required [an] inspection fee [not to exceed
$70].
SECTION 2.09. Section 1601.304(b), Occupations Code, is
amended to read as follows:
(b) An applicant for a manicurist specialty shop permit must
submit:
(1) an application that includes:
(A) the shop's address;
(B) the legal description of the premises for
which the permit is sought; and
(C) any other information required by the board;
and
(2) the required [an] inspection fee [in an amount not
to exceed $50].
SECTION 2.10. Section 1601.305, Occupations Code, is
amended to read as follows:
Sec. 1601.305. ISSUANCE OF MANICURIST SPECIALTY SHOP
PERMIT. The board shall issue a permanent manicurist specialty
shop permit to an applicant if:
(1) the applicant holds a manicurist license; and
(2) the shop meets the minimum health standards for
manicurist specialty shops set by the board, as determined by a
board inspection under Section 1603.155, and any other requirements
imposed by board rule.
SECTION 2.11. Section 1601.309, Occupations Code, is
amended to read as follows:
Sec. 1601.309. PRACTICE BY COSMETOLOGIST AT SPECIALTY SHOP
PROHIBITED. A person who holds a license, permit, or certificate
issued by the board under Chapter 1602 [Texas Cosmetology
Commission] may not practice under that authority at a specialty
shop regulated under this chapter.
SECTION 2.12. Section 1601.353(b), Occupations Code, is
amended to read as follows:
(b) An applicant for a barber school permit must submit to
the board:
(1) a detailed drawing and chart of the proposed
physical layout of the school, showing the departments, floor
space, equipment, lights, and outlets;
(2) photographs of the proposed site for the school,
including the interior and exterior of the building, rooms, and
departments;
(3) a detailed copy of the training program;
(4) a copy of the catalogue and promotional literature
of the school;
(5) a copy of the building lease or proposed building
lease if the building is not owned by the school;
(6) a sworn statement showing the ownership of the
school; and
(7) the required [a] permit fee [not to exceed
$1,000].
SECTION 2.13. Section 1601.402(c), Occupations Code, is
amended to read as follows:
(c) The board shall issue a renewal certificate or license
on receipt of a renewal application in the form prescribed by the
board, accompanied by a renewal fee in an amount equal to the
original certificate or license fee [but not to exceed $100].
SECTION 2.14. The heading to Section 1601.404, Occupations
Code, is amended to read as follows:
Sec. 1601.404. [RENEWAL OR] REINSTATEMENT OF EXPIRED
CERTIFICATE OR LICENSE BY RETIREE.
SECTION 2.15. Section 1601.404(c), Occupations Code, is
amended to read as follows:
(c) A Class A barber or license holder who retires from
practice and whose certificate or license has been expired for more
than five years may qualify for a new certificate or license by
applying to the board and by:
(1) making a proper showing to the board, supported by
a personal affidavit;
(2) paying the required [an] examination fee [not to
exceed $100];
(3) passing a satisfactory examination conducted by
the board; and
(4) paying the fee for an original certificate or
license.
SECTION 2.16. Section 1601.405(b), Occupations Code, is
amended to read as follows:
(b) The board shall issue a renewal certificate or license
on application and payment of the required [a] renewal fee not later
than the 90th day after the date the person is released or
discharged from active duty in the armed forces. [The renewal fee
is:
[(1) $10 if the application and payment are made
during the period beginning November 1 of an odd-numbered year and
ending October 31 of the following year; or
[(2) $5 if the application and payment are made during
the period beginning November 1 of an even-numbered year and ending
October 31 of the following year.]
SECTION 2.17. Section 1601.406, Occupations Code, is
amended to read as follows:
Sec. 1601.406. RENEWAL OF BARBERSHOP OR SPECIALTY SHOP
PERMIT. (a) A barbershop permit or specialty shop permit expires
on the second anniversary of the date of issuance [on July 1 of each
odd-numbered year].
(b) A barbershop permit holder may renew the permit by
paying the required [a] renewal fee [not to exceed $70].
(c) A specialty shop permit holder may renew the permit by
submitting to the board a renewal application accompanied by the
required [a] renewal fee [not to exceed $50].
SECTION 2.18. Section 1601.407, Occupations Code, is
amended to read as follows:
Sec. 1601.407. RENEWAL OF BARBER SCHOOL PERMIT. (a) A
barber school permit expires on the first anniversary [September 1]
of the date of issuance [each year].
(b) A barber school may renew its permit by paying the
required [a] renewal fee [not to exceed $300].
SECTION 2.19. Section 1601.454, Occupations Code, is
amended to read as follows:
Sec. 1601.454. PRACTICE AT FACILITY LICENSED OR PERMITTED
AS BARBER AND COSMETOLOGIST FACILITY [BY BOARD AND TEXAS
COSMETOLOGY COMMISSION]. (a) The board may not adopt rules to
restrict or prohibit practice by a Class A barber or manicurist in a
facility solely because the facility is licensed or permitted by
[both] the board under both this chapter and Chapter 1602 [and the
Texas Cosmetology Commission].
(b) If a facility has a license or permit under both this
chapter and Chapter 1602 [the board and the Texas Cosmetology
Commission license or permit the same facility], the board may not
adopt rules requiring separate treatment of the barbers and
cosmetologists practicing in the facility or of their customers,
including separate:
(1) work areas for barbers and cosmetologists;
(2) waiting areas for customers of the barbers and
cosmetologists; or
(3) restrooms for the barbers and cosmetologists
practicing in the facility or for their customers.
SECTION 2.20. Section 1601.502, Occupations Code, is
amended to read as follows:
Sec. 1601.502. SUPERVISION OF BARBERSHOP. A person may not
operate a barbershop unless:
(1) the shop is at all times under the exclusive
supervision and management of a Class A barber; and
(2) no person is practicing on the premises by
authority of a license, permit, or certificate issued by the board
under Chapter 1602 [Texas Cosmetology Commission], except as
allowed by other law.
SECTION 2.21. Sections 1601.561(a) and (b), Occupations
Code, are amended to read as follows:
(a) A barber school shall maintain [submit] a monthly
progress report [to the board] regarding each student attending the
school. The report must certify the daily attendance record of each
student and the number of credit hours earned by each student during
the previous month.
(b) On a student's completion of a prescribed course of
instruction, the school shall notify [certify to] the board that
the student has completed the required number of hours and is
eligible to take the appropriate examination.
ARTICLE 3. REGULATION OF COSMETOLOGY
SECTION 3.01. Section 1602.001(1), Occupations Code, is
amended to read as follows:
(1) "Board" ["Commission"] means the Texas Board of
Barbering and Cosmetology [Commission].
SECTION 3.02. The heading to Subchapter D, Chapter 1602,
Occupations Code, is amended to read as follows:
SUBCHAPTER D. ADDITIONAL POWERS AND DUTIES RELATED TO COSMETOLOGY
SECTION 3.03. Sections 1602.153(a) and (b), Occupations
Code, are amended to read as follows:
(a) The board [commission] may request and, if necessary,
compel by subpoena:
(1) the attendance of a witness for examination under
oath; and
(2) the production for inspection and copying of
records and other evidence relevant to the investigation of an
alleged violation of this chapter.
(b) If a person fails to comply with a subpoena issued under
this section, the board [commission], acting through the attorney
general, may file suit to enforce the subpoena in a district court
in Travis County or in the county in which a hearing conducted by
the board [commission] may be held.
SECTION 3.04. Section 1602.251(c), Occupations Code, is
amended to read as follows:
(c) A person licensed by the board [commission] may practice
cosmetology only at a facility operated by a person holding a beauty
shop license, private beauty culture school license, or other
license issued by the board [commission].
SECTION 3.05. Section 1602.254(b), Occupations Code, is
amended to read as follows:
(b) To be eligible for an operator license, an applicant
must:
(1) be at least 17 years of age;
(2) have obtained a high school diploma or the
equivalent of a high school diploma or have passed a valid
examination administered by a certified testing agency that
measures the person's ability to benefit from training; and
(3) have completed:
(A) 1,500 hours of instruction in a licensed
beauty culture school; or
(B) 1,000 hours of instruction in beauty culture
courses and 500 hours of related high school courses prescribed by
the board [commission] in a vocational cosmetology program in a
public school.
SECTION 3.06. Sections 1602.255(b) and (c), Occupations
Code, are amended to read as follows:
(b) To be eligible for an instructor license, an applicant
must:
(1) be at least 18 years of age;
(2) have completed the 12th grade or its equivalent;
(3) hold an operator license; and
(4) have completed:
(A) a course consisting of 750 hours of
instruction in cosmetology courses and methods of teaching in:
(i) a licensed private beauty culture
school; or
(ii) a vocational training program of a
publicly financed postsecondary institution; or
(B) at least:
(i) two years of verifiable experience as a
licensed operator; and
(ii) 250 hours of instruction in
cosmetology in a board-approved [commission-approved] training
program.
(c) The board [commission] shall adopt rules for the
licensing of specialty instructors to teach specialty courses in
the practice of cosmetology defined in Sections 1602.002(7), (9),
and (10).
SECTION 3.07. Section 1602.256(b), Occupations Code, is
amended to read as follows:
(b) To be eligible for a manicurist license, an applicant
must:
(1) be at least 17 years of age;
(2) have obtained a high school diploma or the
equivalent of a high school diploma or have passed a valid
examination administered by a certified testing agency that
measures the person's ability to benefit from training; and
(3) have completed 600 hours of instruction in
manicuring through a board-approved [commission-approved] training
program.
SECTION 3.08. Section 1602.257(b), Occupations Code, is
amended to read as follows:
(b) To be eligible for a facialist specialty license, an
applicant must:
(1) be at least 17 years of age;
(2) have obtained a high school diploma or the
equivalent of a high school diploma or have passed a valid
examination administered by a certified testing agency that
measures the person's ability to benefit from training; and
(3) have completed 750 hours of instruction in
facialist specialty through a board-approved [commission-approved]
training program.
SECTION 3.09. Section 1602.258(b), Occupations Code, is
amended to read as follows:
(b) To be eligible for a specialty certificate, an applicant
must:
(1) be at least 17 years of age;
(2) have obtained a high school diploma or the
equivalent of a high school diploma or have passed a valid
examination administered by a certified testing agency that
measures the person's ability to benefit from training; and
(3) have the necessary requisites as determined by the
board [commission] in the particular specialty for which
certification is sought, including training through a
board-approved [commission-approved] training program.
SECTION 3.10. Section 1602.263(b), Occupations Code, is
amended to read as follows:
(b) The person shall:
(1) submit an application for the license or
certificate to the board [commission];
(2) pay a fee in an amount prescribed by the board
[commission]; and
(3) pay the applicable license or certificate fee.
SECTION 3.11. Section 1602.264(a), Occupations Code, is
amended to read as follows:
(a) The board [commission] shall issue a temporary license
to a person who:
(1) holds a license in another state or country;
(2) submits an application for a temporary license to
the board [commission]; and
(3) pays the required fee.
SECTION 3.12. Sections 1602.266(a) and (b), Occupations
Code, are amended to read as follows:
(a) The board [commission] shall require a student enrolled
in a school of cosmetology in this state to hold a permit stating
the student's name and the name of the school. The permit shall be
displayed in a reasonable manner at the school.
(b) The board [commission] shall issue a student permit to
an applicant who submits an application to the board [commission]
for a student permit accompanied by the required fee.
SECTION 3.13. Sections 1602.267(b) and (d), Occupations
Code, are amended to read as follows:
(b) The board [commission] shall issue a shampoo apprentice
permit to an applicant who[:
[(1)] is at least 16 years of age[; and
[(2) submits a certificate of health as required by
Section 1602.253].
(d) The board [commission] shall adopt rules as necessary to
administer this section. The board [commission] may not require an
applicant to:
(1) complete any hours of instruction at a cosmetology
training program as a prerequisite for the issuance of a shampoo
apprentice permit; or
(2) pay a fee for a shampoo apprentice permit.
SECTION 3.14. Sections 1602.302(b) and (c), Occupations
Code, are amended to read as follows:
(b) An application for a beauty shop license must be
accompanied by the required inspection fee and:
(1) be on a form prescribed by the board [commission];
(2) contain proof of the particular requisites for a
beauty shop established by the board [commission]; and
(3) be verified by the applicant.
(c) The applicant is entitled to a beauty shop license if:
(1) the application complies with board [commission]
rules;
(2) the applicant pays the required license fee; and
(3) the applicant has not committed an act that
constitutes a ground for denial of a license.
SECTION 3.15. Sections 1602.303(b) and (c), Occupations
Code, are amended to read as follows:
(b) An application for a private beauty culture school
license must be accompanied by the required license fee and
inspection fee and:
(1) be on a form prescribed by the board [commission];
(2) be verified by the applicant;
(3) contain a detailed floor plan of the school
building divided into two separate areas, one area for instruction
in theory and one area for clinic work; and
(4) contain a statement that the building:
(A) is fireproof;
(B) is of permanent construction;
(C) contains a minimum of 3,500 square feet of
floor space;
(D) has separate restrooms for male and female
students; and
(E) contains, or will contain before classes
begin, the equipment established by board [commission] rule as
sufficient to properly instruct a minimum of 50 students.
(c) The applicant is entitled to a private beauty culture
school license if:
(1) the board [commission] determines that the
applicant is financially sound and capable of fulfilling the
school's commitments for training;
(2) the applicant's facilities pass an inspection
conducted by the board under Section 1603.155 [commission]; and
(3) the applicant has not committed an act that
constitutes a ground for denial of a license.
SECTION 3.16. Sections 1602.305(b) and (c), Occupations
Code, are amended to read as follows:
(b) An application for a specialty shop license must be
accompanied by the required inspection fee and:
(1) be on a form prescribed by the board [commission];
(2) contain proof of the particular requisites for a
specialty shop as established by the board [commission]; and
(3) be verified by the applicant.
(c) The applicant is entitled to a specialty shop license
if:
(1) the application complies with board [commission]
rules;
(2) the applicant pays the required license fee; and
(3) the applicant has not committed an act that
constitutes a ground for denial of a license.
SECTION 3.17. Sections 1602.306(b), (c), and (d),
Occupations Code, are amended to read as follows:
(b) An application for a booth rental license must:
(1) be on a form prescribed by the board [commission];
(2) contain information as required by board
[commission] rule; and
(3) be verified by the applicant.
(c) The applicant is entitled to a booth rental license if
the applicant:
(1) pays the application fee set by the board
[commission] in an amount reasonable and necessary to cover the
costs of administering the booth rental licensing program;
(2) complies with board [commission] rules; and
(3) has not committed an act that constitutes a ground
for denial of a license or certificate.
(d) The board [commission] shall adopt rules relating to the
information submitted for a booth rental license, including
information regarding the applicant's compliance with state and
federal tax laws.
SECTION 3.18. Section 1602.351(d), Occupations Code, is
amended to read as follows:
(d) The board [commission] may prorate a license or
certificate for the number of months the license or certificate is
valid.
SECTION 3.19. The heading to Section 1602.352, Occupations
Code, is amended to read as follows:
Sec. 1602.352. REQUIREMENT FOR FIRST [PROCEDURE FOR] RENEWAL
OF LICENSE [OR REINSTATEMENT].
SECTION 3.20. Section 1602.354, Occupations Code, is
amended to read as follows:
Sec. 1602.354. CONTINUING EDUCATION. The board
[commission will] by rule shall recognize, prepare, or administer
continuing education programs for the practice of cosmetology.
Participation in the programs is mandatory for all license
renewals.
SECTION 3.21. Section 1602.405, Occupations Code, is
amended to read as follows:
Sec. 1602.405. PRACTICE AT FACILITY LICENSED OR PERMITTED
AS BARBER AND COSMETOLOGIST FACILITY [BY COMMISSION AND STATE BOARD
OF BARBER EXAMINERS]. (a) The board [commission] may not adopt
rules to restrict or prohibit practice by a cosmetologist in a
facility solely because the facility is licensed or permitted by
[both] the board under both this chapter and Chapter 1601
[commission and the State Board of Barber Examiners].
(b) If a facility has a license or permit under both this
chapter and Chapter 1601 [the commission and the State Board of
Barber Examiners license the same facility], the board [commission]
may not adopt rules requiring separate treatment of the barbers and
cosmetologists practicing in the facility or of their customers,
including separate:
(1) work areas for barbers and cosmetologists;
(2) waiting areas for customers of the barbers and
cosmetologists; or
(3) restrooms for the barbers and cosmetologists
practicing in the facility or for their customers.
SECTION 3.22. Subchapter I, Chapter 1602, Occupations Code,
is amended by adding Section 1602.408 to read as follows:
Sec. 1602.408. SANITIZATION OF INSTRUMENTS. (a) This
section applies only to an establishment in which the practice of
cosmetology as defined by Section 1602.002(10) is performed.
(b) Instruments used in an establishment to which this
section applies must be sanitized by use of an autoclave.
SECTION 3.23. Section 1602.451(a), Occupations Code, is
amended to read as follows:
(a) The holder of a private beauty culture school license
shall:
(1) maintain a sanitary establishment;
(2) maintain on its staff and on duty during business
hours one full-time licensed instructor for each 25 students in
attendance;
(3) maintain a daily record of students' attendance;
(4) establish regular class and instruction hours and
grades;
(5) require a school term of not less than nine months
and not less than 1,500 hours instruction for a complete course in
cosmetology;
(6) require a school term of not less than 600 hours
instruction for a complete course in manicuring;
(7) hold examinations before issuing diplomas;
(8) maintain a copy of the school's curriculum in a
conspicuous place and verify that the curriculum is being followed;
(9) publish in the school's catalogue and enrollment
contract a description of the refund policy required under Section
1602.458; and
(10) [submit to the executive director the name of
each student within 10 days after the date the student enrolls in
the school and notify the executive director of the withdrawal or
graduation of a student not later than the 10th day after the date
the student withdraws or graduates; and
[(11)] provide the board [commission] with
information on:
(A) the current course completion rates of
students who attend a course of instruction offered by the school;
and
(B) job placement rates and employment rates of
students who complete the course of instruction.
SECTION 3.24. Section 1602.452, Occupations Code, is
amended to read as follows:
Sec. 1602.452. INFORMATION PROVIDED TO PROSPECTIVE
STUDENT. The holder of a private beauty culture school license
shall furnish each prospective student with:
(1) a course outline;
(2) a schedule of the tuition and other fees assessed;
(3) the refund policy required under Section 1602.458;
(4) the school grading policy and rules relating to
incomplete grades;
(5) the school rules of operation and conduct,
including rules relating to absences;
(6) the name, mailing address, and telephone number of
the board [commission] for the purpose of directing complaints to
the board [commission]; and
(7) the current rates of job placement and employment
of students who complete a course of training.
SECTION 3.25. Sections 1602.453(b), (c), and (d),
Occupations Code, are amended to read as follows:
(b) A school must submit to the board [commission] for
approval the course length and curriculum content for each course
offered by the school. The school may implement a course length and
curriculum content only after approval by the board [commission].
(c) Before issuing or renewing a license under this chapter,
the board [commission] shall require a school to account for each
course length and curriculum content.
(d) If a school manipulates a course length below or above
industry standards, the board [commission] shall place the school
on probation until:
(1) justification for the deviation is proven; or
(2) the course length is adjusted to meet industry
standards.
SECTION 3.26. Section 1602.454, Occupations Code, is
amended to read as follows:
Sec. 1602.454. STUDENT RECORD. A private beauty culture
school shall notify [send to] the board [commission a certified
copy of a student's record, indicating all course hours completed
by the student and whether the agreed tuition has been paid,] when a
[the] student[:
[(1)] graduates from a course of training offered by
the school and is eligible to take the appropriate examination[; or
[(2) withdraws or transfers from a course of training
without completion of the training].
SECTION 3.27. Section 1602.460(d), Occupations Code, is
amended to read as follows:
(d) The board [commission] may exempt a school from the
payment of interest if the school makes a good faith effort to
refund the tuition but is unable to locate the student. The school
shall provide to the board [commission] on request documentation of
the effort to locate the student.
SECTION 3.28. Section 1602.463(a), Occupations Code, is
amended to read as follows:
(a) If a private beauty culture school closes, the board
[commission] shall attempt to arrange for students enrolled in the
closed school to attend another private beauty culture school.
SECTION 3.29. Sections 1602.464(a) and (b), Occupations
Code, are amended to read as follows:
(a) If on January 1 of any year the amount in the private
beauty culture school tuition protection account is less than
$200,000, the board [commission] shall collect a fee from each
private beauty culture school during that year by applying a
percentage to the school's renewal fee at a rate that will bring the
balance of the account to $200,000.
(b) The comptroller shall invest the account in the same
manner as other state funds. Sufficient money from the account
shall be appropriated to the board [commission] for the purpose
described by Section 1602.463. The board [commission] shall
administer claims made against the account.
SECTION 3.30. Sections 1602.465(a), (b), and (c),
Occupations Code, are amended to read as follows:
(a) If the board [commission] has reasonable cause to
believe that a private beauty culture school has violated this
chapter or a rule adopted under this chapter, the board
[commission] may:
(1) order a peer review of the school; or
(2) suspend the admission of students to the school.
(b) The peer review shall be conducted by a peer review team
consisting of knowledgeable persons selected by the board
[commission]. The board [commission] shall attempt to provide a
balance on each team between members assigned to the team who are
from this state and those who are from other states.
(c) The team shall provide the board [commission] with an
objective assessment of the content of the school's curriculum and
its application.
ARTICLE 4. CONFORMING AMENDMENTS
SECTION 4.01. Section 232.002, Family Code, is amended to
read as follows:
Sec. 232.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER.
The following are licensing authorities subject to this chapter:
(1) Department of Agriculture;
(2) [Texas Commission on Alcohol and Drug Abuse;
[(3)] Texas Alcoholic Beverage Commission;
(3) [(4)] Texas Appraiser Licensing and Certification
Board;
(4) [(5)] Texas Board of Architectural Examiners;
(5) [(6)] Texas [State] Board of Barbering and
Cosmetology [Barber Examiners];
(6) [(7)] Texas Board of Chiropractic Examiners;
(7) [(8)] Comptroller of Public Accounts;
(8) [(9) Texas Cosmetology Commission;
[(10)] Court Reporters Certification Board;
(9) [(11)] State Board of Dental Examiners;
(10) [(12)] Texas State Board of Examiners of
Dietitians;
(11) [(13)] Texas Funeral Service Commission;
(12) [(14) Texas] Department of State Health Services
[Health];
(13) [(15) Texas] Department of Aging and Disability
[Human] Services;
(14) [(16)] Texas Board of Professional Land
Surveying;
(15) [(17)] Texas Department of Licensing and
Regulation;
(16) [(18)] Texas State Board of Examiners of Marriage
and Family Therapists;
(17) [(19)] Texas State Board of Medical Examiners;
(18) [(20)] Midwifery Board;
(19) [(21)] Texas Commission on Environmental
Quality;
(20) [(22)] Board of Nurse Examiners;
(21) [(23)] Texas Board of Occupational Therapy
Examiners;
(22) [(24)] Texas Optometry Board;
(23) [(25)] Parks and Wildlife Department;
(24) [(26)] Texas State Board of Examiners of
Perfusionists;
(25) [(27)] Texas State Board of Pharmacy;
(26) [(28)] Texas Board of Physical Therapy
Examiners;
(27) [(29)] Texas State Board of Plumbing Examiners;
(28) [(30)] Texas State Board of Podiatric Medical
Examiners;
(29) [(31)] Polygraph Examiners Board;
(30) [(32)] Texas [Commission on] Private Security
Board;
(31) [(33)] Texas State Board of Examiners of
Professional Counselors;
(32) [(34)] Texas Board of Professional Engineers;
(33) [(35)] Department of Family and Protective [and
Regulatory] Services;
(34) [(36)] Texas State Board of Examiners of
Psychologists;
(35) [(37)] Texas State Board of Public Accountancy;
(36) [(38)] Department of Public Safety of the State
of Texas;
(37) [(39)] Public Utility Commission of Texas;
(38) [(40)] Railroad Commission of Texas;
(39) [(41)] Texas Real Estate Commission;
(40) [(42)] State Bar of Texas;
(41) [(43)] Texas State Board of Social Worker
Examiners;
(42) [(44)] State Board of Examiners for
Speech-Language Pathology and Audiology;
(43) [(45)] Texas Structural Pest Control Board;
(44) [(46)] Board of Tax Professional Examiners;
(45) [(47)] Secretary of State;
(46) [(48)] Supreme Court of Texas;
(47) [(49)] Texas Transportation Commission;
(48) [(50)] State Board of Veterinary Medical
Examiners;
(49) [(51)] Texas Ethics Commission;
(50) [(52)] Advisory Board of Athletic Trainers;
(51) [(53)] State Committee of Examiners in the
Fitting and Dispensing of Hearing Instruments;
(52) [(54)] Texas Board of Licensure for Professional
Medical Physicists;
(53) [(55)] Texas Department of Insurance;
(54) [(56)] Texas Board of Orthotics and Prosthetics;
(55) [(57)] savings and loan commissioner;
(56) [(58)] Texas Juvenile Probation Commission; and
(57) [(59)] Texas Lottery Commission under Chapter
466, Government Code.
SECTION 4.02. Section 411.122(d), Government Code, is
amended to read as follows:
(d) The following state agencies are subject to this
section:
(1) Texas Appraiser Licensing and Certification
Board;
(2) Texas Board of Architectural Examiners;
(3) Texas [State] Board of Barbering and Cosmetology
[Barber Examiners];
(4) Texas Board of Chiropractic Examiners;
(5) [Texas Cosmetology Commission;
[(6)] State Board of Dental Examiners;
(6) [(7)] Texas Board of Professional Engineers;
(7) [(8)] Texas Funeral Service Commission;
(8) [(9)] Texas Board of Professional Geoscientists;
(9) [(10) Texas] Department of State Health Services,
except as provided by Section 411.110, and agencies attached to the
department, including:
(A) Texas State Board of Examiners of Dietitians;
(B) Texas State Board of Examiners of Marriage
and Family Therapists;
(C) Midwifery Board;
(D) Texas State Board of Examiners of
Perfusionists;
(E) Texas State Board of Examiners of
Professional Counselors;
(F) Texas State Board of Social Worker Examiners;
(G) State Board of Examiners for Speech-Language
Pathology and Audiology;
(H) Advisory Board of Athletic Trainers;
(I) State Committee of Examiners in the Fitting
and Dispensing of Hearing Instruments;
(J) Texas Board of Licensure for Professional
Medical Physicists; and
(K) Texas Board of Orthotics and Prosthetics;
(10) [(11)] Texas Board of Professional Land
Surveying;
(11) [(12)] Texas Department of Licensing and
Regulation, except as provided by Section 411.093;
(12) [(13)] Texas Commission on Environmental
Quality;
(13) [(14)] Texas Board of Occupational Therapy
Examiners;
(14) [(15)] Texas Optometry Board;
(15) [(16)] Texas State Board of Pharmacy;
(16) [(17)] Texas Board of Physical Therapy
Examiners;
(17) [(18)] Texas State Board of Plumbing Examiners;
(18) [(19)] Texas State Board of Podiatric Medical
Examiners;
(19) [(20)] Polygraph Examiners Board;
(20) [(21)] Texas State Board of Examiners of
Psychologists;
(21) [(22)] Texas Real Estate Commission;
(22) [(23)] Board of Tax Professional Examiners;
(23) [(24)] Texas Department of Transportation;
(24) [(25)] State Board of Veterinary Medical
Examiners;
[(26) Board of Vocational Nurse Examiners;]
(25) [(27)] Texas Department of Housing and Community
Affairs;
(26) [(28)] secretary of state;
(27) [(29)] state fire marshal;
(28) [(30)] Texas Education Agency; and
(29) [(31)] Department of Agriculture.
SECTION 4.03. Section 2054.352(a), Government Code, is
amended to read as follows:
(a) The following licensing entities shall participate in
the system established under Section 2054.353[, as added by Chapter
353, Acts of the 77th Legislature, Regular Session, 2001]:
(1) Texas [State] Board of Barbering and Cosmetology
[Barber Examiners];
(2) Texas Board of Chiropractic Examiners;
(3) [Texas Cosmetology Commission;
[(4)] Court Reporters Certification Board;
(4) [(5)] State Board of Dental Examiners;
(5) [(6)] Texas Funeral Service Commission;
(6) [(7)] Texas Board of Professional Land Surveying;
(7) [(8)] Texas State Board of Medical Examiners;
(8) [(9)] Board of Nurse Examiners;
(9) [(10)] Texas Optometry Board;
(10) [(11)] Texas Structural Pest Control Board;
(11) [(12)] Texas State Board of Pharmacy;
(12) [(13)] Executive Council of Physical Therapy and
Occupational Therapy Examiners;
(13) [(14)] Texas State Board of Plumbing Examiners;
(14) [(15)] Texas State Board of Podiatric Medical
Examiners;
(15) [(16)] Board of Tax Professional Examiners;
(16) [(17)] Polygraph Examiners Board;
(17) [(18)] Texas State Board of Examiners of
Psychologists;
(18) [(19)] State Board of Veterinary Medical
Examiners;
(19) [(20)] Texas Real Estate Commission;
(20) [(21)] Texas Appraiser Licensing and
Certification Board;
(21) [(22)] Texas Department of Licensing and
Regulation;
(22) [(24)] Texas State Board of Public Accountancy;
(23) [(25)] State Board for Educator Certification;
(24) [(26)] Texas Board of Professional Engineers;
(25) [(27) Texas] Department of State Health
Services;
(26) [(28)] Texas Board of Architectural Examiners;
(27) [(29)] Texas Racing Commission;
(28) [(30)] Commission on Law Enforcement Officer
Standards and Education; and
(29) [(31)] Texas [Commission on] Private Security
Board.
ARTICLE 5. REPEALER
SECTION 5.01. The following laws are repealed:
(1) Subchapters B, C, D, E, and O, Chapter 1601,
Occupations Code;
(2) Subchapters B, C, E, and K, Chapter 1602,
Occupations Code; and
(3) Sections 1601.004, 1601.252, 1601.261, 1601.262,
1601.263, 1601.264, 1601.266, 1601.356, 1601.402(d), 1601.403,
1601.404(a) and (b), 1601.408, 1601.601, 1601.651, 1601.654,
1602.004, 1602.151, 1602.152, 1602.154, 1602.155, 1602.252,
1602.253, as amended by Chapter 1282, Acts of the 78th Legislature,
Regular Session, 2003, 1602.259, 1602.260, 1602.261, 1602.264,
1602.265, 1602.303(d), 1602.304(b), 1602.352(b)-(f), 1602.407,
1602.551, 1602.552, 1602.553, and 1602.555, Occupations Code.
ARTICLE 6. TRANSITION AND EFFECTIVE DATE
SECTION 6.01. (a) The State Board of Barber Examiners and
the Texas Cosmetology Commission are abolished but continue in
existence until September 1, 2006, for the sole purpose of
transferring obligations, property, employees, rights, powers, and
duties to the Texas Board of Barbering and Cosmetology created
under Chapter 1603, Occupations Code, as added by this Act. The
Texas Board of Barbering and Cosmetology assumes all of the
obligations, property, employees, rights, powers, and duties of the
State Board of Barber Examiners and the Texas Cosmetology
Commission, as they exist immediately before the effective date of
this Act. All unexpended funds appropriated to the State Board of
Barber Examiners and the Texas Cosmetology Commission are
transferred to the Texas Board of Barbering and Cosmetology. The
transfer of the obligations, property, employees, rights, powers,
and duties of the State Board of Barber Examiners and the Texas
Cosmetology Commission to the Texas Board of Barbering and
Cosmetology must be completed not later than September 1, 2006.
(b) All rules of the State Board of Barber Examiners and the
Texas Cosmetology Commission are continued in effect as rules of
the Texas Board of Barbering and Cosmetology until superseded by a
rule of the Texas Board of Barbering and Cosmetology. A
certificate, license, or permit issued by the State Board of Barber
Examiners or the Texas Cosmetology Commission is continued in
effect as provided by the law in effect immediately before the
effective date of this Act. A complaint, investigation, contested
case, or other proceeding pending on the effective date of this Act
is continued without change in status after the effective date of
this Act.
(c) A reference in another law or an administrative rule to
the State Board of Barber Examiners or the Texas Cosmetology
Commission means the Texas Board of Barbering and Cosmetology.
SECTION 6.02. (a) In making the initial appointments to
the Texas Board of Barbering and Cosmetology, the governor shall
appoint:
(1) one person described by Section 1603.051(a)(1),
Occupations Code, as added by this Act, one person described by
Section 1603.051(a)(2), Occupations Code, as added by this Act, and
one public member to serve terms expiring February 1, 2007;
(2) one person described by Section 1603.051(a)(1),
Occupations Code, as added by this Act, one person described by
Section 1603.051(a)(2), Occupations Code, as added by this Act, and
one public member to serve terms expiring February 1, 2009; and
(3) one person described by Section 1603.051(a)(1),
Occupations Code, as added by this Act, one person described by
Section 1603.051(a)(2), Occupations Code, as added by this Act, and
one public member to serve terms expiring February 1, 2011.
(b) Not later than March 1, 2005, each initial board member
appointed under this section must complete the training required by
Section 1603.059, Occupations Code, as added by this Act. Before
March 1, 2005, Section 1603.059(a) does not apply to an initial
board member.
SECTION 6.03. Not later than the 90th day after the date
that a majority of the members of the Texas Board of Barbering and
Cosmetology are appointed under Section 6.02 of this article and
qualify for office, the board shall appoint an executive director
under Section 1603.101, Occupations Code, as added by this Act. A
person who is the executive director of the State Board of Barber
Examiners or the Texas Cosmetology Commission on, or within one
year preceding, the effective date of this Act, is not eligible to
be employed as the initial executive director under this section.
SECTION 6.04. This Act takes effect September 1, 2005.