By: Cook of Navarro, et al. H.B. No. 2458

(Senate Sponsor - Brimer)

(In the Senate - Received from the House April 24, 2007; April 26, 2007, read first time and referred to Committee on Government Organization; May 11, 2007, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 0; May 11, 2007, sent to printer.)

COMMITTEE SUBSTITUTE FOR H.B. No. 2458 By: Brimer

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Structural Pest Control Board.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1951.007, Occupations Code, is amended to read as follows:

Sec. 1951.007. APPLICATION OF SUNSET ACT. The Texas Structural Pest Control Board 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, 2011 [2007].

SECTION 2. Section 1951.056(a), Occupations Code, is amended to read as follows:

(a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to a person acting as a beekeeper, as defined by Section 131.001, Agriculture Code, who:

(1) is registered with the board and with the chief apiary inspector as provided by Subchapter C, Chapter 131, Agriculture Code;

(2) does not use pesticides or electrical devices other than conventional bee smokers or equipment as defined by Section 131.001, Agriculture Code; and

(3) collects, removes, or destroys honey bees [not attached to a dwelling or structure occupied by the public].

SECTION 3. Sections 1951.103(a), (b), and (d), Occupations Code, are amended to read as follows:

(a) In this section, "Texas trade association" means a [nonprofit,] cooperative[,] and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person [An officer, employee, or paid consultant of a Texas trade association in the field of pest control] may not be a member of the board and may not be a board [an] 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 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 pest control; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of pest control [of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule].

(d) A person may not be [serve as] a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board.

SECTION 4. Section 1951.105, Occupations Code, is amended to read as follows:

Sec. 1951.105. PRESIDING OFFICER. The governor shall designate a public member of the board as presiding officer. The presiding officer serves in that capacity at the pleasure of the governor.

SECTION 5. Sections 1951.106(a) and (c), Occupations Code, are amended to read as follows:

(a) It is a ground for removal from the board that a member:

(1) does not have at the time of taking office [appointment] the qualifications required by Section 1951.101 [or 1951.102, as applicable];

(2) does not maintain during service on the board the qualifications required by Section 1951.101 [or 1951.102, as applicable];

(3) is ineligible for membership under [violates a prohibition established by] Section 1951.102 or 1951.103;

(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 [of the board] that the member is eligible to attend during a calendar year without an excuse approved [unless that absence is excused] by a majority vote of the board.

(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists.

SECTION 6. Subchapter C, Chapter 1951, Occupations Code, is amended by adding Sections 1951.108 and 1951.109 to read as follows:

Sec. 1951.108. 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, functions, rules, and budget of the board;

(3) the results of the most recent formal audit of the board;

(4) the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and

(5) 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.

Sec. 1951.109. BOARD COMMITTEES. (a) The board may appoint committees to assist the board with its functions under this chapter.

(b) Only a member of the board may serve as a member of a board committee.

SECTION 7. Section 1951.154, Occupations Code, is amended to read as follows:

Sec. 1951.154. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate [define] the policymaking [respective] responsibilities of the board and the management responsibilities of the executive director and the staff of the board.

SECTION 8. Section 1951.201, Occupations Code, is amended to read as follows:

Sec. 1951.201. SOLE LICENSING AUTHORITY; FEES. (a) The board is the sole authority in this state for licensing persons engaged in the business of structural pest control.

(b) The board shall establish fees under this chapter in amounts reasonable and necessary to cover the costs of administering this chapter.

SECTION 9. Section 1951.207(a), Occupations Code, is amended to read as follows:

(a) The board by rule shall adopt a policy that:

(1) requires a business holding a structural pest control business license to be inspected by a field inspector at least once:

(A) in the business's first year of operation; and

(B) every four [two] years after the first year of operation;

(2) provides for additional inspections based on a schedule of risk-based inspections using the following criteria:

(A) the type and nature of the business;

(B) whether there has been a prior violation by the business;

(C) the inspection history of the business;

(D) any history of complaints involving the business; and

(E) any other factor determined by the board by rule [initiating inspections more frequently than once every two years for a business or an applicator that has violated this chapter or a rule adopted under this chapter]; and

(3) provides that the executive director may waive the inspection requirement on a case-by-case basis if an emergency arises or to accommodate complaint investigation schedules.

SECTION 10. Section 1951.212, Occupations Code, is amended by amending Subsections (c), (d), and (e) and adding Subsections (f) and (g) to read as follows:

(c) The board shall include in standards adopted under this section[:

[(1)] a requirement to use the least toxic methods available to control pests, rodents, insects, and weeds[; and

[(2) a list of products that a school district is allowed to use in its applications].

(d) The board by rule shall establish categories of pesticides that a school district is allowed to apply. For each category, the board shall specify:

(1) the minimum distance a school district must maintain between an area where pesticides are being applied and an area where students are present at the time of application;

(2) the minimum amount of time a school district is required to wait before allowing students to enter an indoor or outdoor area in a school building or on school grounds for normal academic instruction or organized extracurricular activities after pesticides have been applied;

(3) the requirements for posting notice of the indoor and outdoor use of pesticides;

(4) the requirements for obtaining approval before applying the pesticide; and

(5) the requirements for maintaining records of the application of pesticides [board shall require that a pesticide may be applied to a school building or on school grounds only when students are not expected to be present for normal academic instruction or organized extracurricular activities for at least 12 hours after the application].

(e) Each [A] school district shall:

(1) adopt an integrated pest management program that incorporates the standards established by the board under this section;

(2) designate an integrated pest management coordinator for the district; and

(3) report to the board not later than the 90th day after the date the district designates or replaces an integrated pest management coordinator the name, address, telephone number, and e-mail address of the district's current coordinator.

(f) Each person who is designated as the integrated pest management coordinator for a school district shall successfully complete six hours of continuing education in integrated pest management every three years.

(g) The board shall inspect each school district at least once every five years for compliance with this section and may conduct additional inspections based on a schedule of risk-based inspections using the following criteria:

(1) whether there has been a prior violation by the school district;

(2) the inspection history of the school district;

(3) any history of complaints involving the school district; and

(4) any other factor determined by the board by rule.

SECTION 11. Subchapter E, Chapter 1951, Occupations Code, is amended by adding Sections 1951.213, 1951.214, 1951.215, and 1951.216 to read as follows:

Sec. 1951.213. ADVISORY COMMITTEES. (a) The board may establish advisory committees to advise the board in administering this chapter.

(b) The board shall adopt rules governing:

(1) the purpose, role, responsibility, and goals of the committees;

(2) size and quorum requirements for the committees;

(3) qualification of members, which may include requirements for experience or geographic location;

(4) appointment procedures for the committees;

(5) terms of service;

(6) training requirements;

(7) a process to regularly evaluate the continuing need for each committee; and

(8) a requirement that the committees comply with Chapter 551, Government Code.

Sec. 1951.214. 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. 1951.215. ALTERNATIVE RULEMAKING AND 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 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. 1951.216. COMPLIANCE WITH SUNSET RECOMMENDATIONS. (a) The board shall:

(1) comply with and implement the management action recommendations regarding the board adopted by the Sunset Advisory Commission on January 10, 2007, as a result of its review of the board; and

(2) report to the Sunset Advisory Commission not later than November 1, 2008, the information the Sunset Advisory Commission requires regarding the board's implementation of the recommendations under Subdivision (1).

(b) This section expires June 1, 2009.

SECTION 12. Section 1951.252, Occupations Code, is amended by amending Subsections (b) and (c) and adding Subsections (d) through (g) to read as follows:

(b) The board shall maintain a system to promptly and efficiently act on complaints filed with the board. The board shall maintain information about parties to the complaint, the subject matter of the complaint, a summary of the results of the review or investigation of the complaint, and its disposition [keep an information file about each complaint filed with the board that the board has authority to resolve].

(c) The agency shall periodically notify the complaint parties of the status of the complaint until final disposition [If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint] unless the notice would jeopardize an undercover investigation.

(d) The board shall provide to a license holder against whom a complaint has been filed under this chapter:

(1) the allegations made against the license holder in the complaint; and

(2) on the license holder's request, any information obtained by the board in its investigation of the complaint.

(e) The board shall provide the information required under Subsection (d) in a timely manner to allow the license holder time to respond to the complaint.

(f) The board may allow an authorized employee of the board to dismiss a complaint if an investigation demonstrates that:

(1) a violation did not occur; or

(2) the subject of the complaint is outside the board's jurisdiction.

(g) An employee who dismisses a complaint under Subsection (f) shall report the dismissal to the board in a public meeting. The report must include a sufficient explanation of the reason the complaint was dismissed.

SECTION 13. Section 1951.254(d), Occupations Code, is amended to read as follows:

(d) The public information program must:

(1) include the adoption and distribution, in a manner that the board considers appropriate, of a standard complaint form; [and]

(2) inform prospective applicants for licensing under this chapter about the qualifications and requirements for licensing;

(3) inform applicants, license holders, and the public on the board's Internet website, in board brochures, and on any other available information resource about the board's enforcement process, including each step in the complaint investigation and resolution process, from initial filing through final appeal; and

(4) inform license holders that a license holder may obtain information about a complaint made against the license holder and may obtain on request a copy of the complaint file.

SECTION 14. Subchapter F, Chapter 1951, Occupations Code, is amended by adding Section 1951.255 to read as follows:

Sec. 1951.255. ENFORCEMENT INFORMATION. (a) The board shall make available to the public information about each final enforcement action taken by the board against a person. The board shall provide this information on its Internet website and in other appropriate publications.

(b) The board may determine the format in which it will provide the information required under this section.

SECTION 15. Section 1951.309, Occupations Code, is amended to read as follows:

Sec. 1951.309. FEE FOR INITIAL OR RENEWAL LICENSE. (a) An applicant for an initial or renewal structural pest control business license or for an initial or renewal endorsement of license under Section 1951.306 must submit with the person's application a fee in an amount established by board rule for:

(1) a [fee of not more than $180, as determined by the board, for each] license or endorsement; and

(2) [a fee of not more than $84, as determined by the board, for] a license for each technician the applicant employs.

(b) An applicant for an initial or renewal certified applicator's license must deliver with the person's application a fee in an amount established by board rule for:

(1) a [fee of not more than $112.50, as determined by the board, for each] license; and

(2) [a fee of not more than $84, as determined by the board, for] a license for each technician the applicant employs.

SECTION 16. Sections 1951.310(b) and (c), Occupations Code, are amended to read as follows:

(b) If the person files a renewal application with the board not later than the 30th day after the date the person's license expires, the person must pay a [late] renewal fee that is equal to 1-1/2 times the normally required renewal fee [of $37.50].

(c) If the person files a renewal application with the board later than the 30th day but not later than the 60th day after the date the person's license expires, the person must pay a [late] renewal fee that is equal to two times the normally required renewal fee [of $75].

SECTION 17. Section 1951.311, Occupations Code, is amended to read as follows:

Sec. 1951.311. REPLACEMENT LICENSE; FEE. The board shall issue to a license holder whose license has been lost or destroyed or whose name has been changed a replacement license if the license holder submits to the board:

(1) an appropriate application; and

(2) a fee in an amount established by board rule [of not more than $30, as determined by the board].

SECTION 18. Section 1951.353(b), Occupations Code, is amended to read as follows:

(b) The board may charge a fee in an amount established by rule [not to exceed $75] for each course considered for approval under Section 1951.352.

SECTION 19. Section 1951.403, Occupations Code, is amended to read as follows:

Sec. 1951.403. EXAMINATION FEE. Each time a person applies to take an examination for a license, the person shall pay the board an examination fee, in an amount established [of not more than $50, as determined] by [the] board rule, for each category of examination to be taken. Except as provided by board rule, an examination fee is not refundable.

SECTION 20. Subchapter I, Chapter 1951, Occupations Code, is amended by adding Section 1951.406 to read as follows:

Sec. 1951.406. EXAMINATION POLICY. (a) The board shall develop a written policy governing licensing examinations under this subchapter that prescribes:

(1) procedures to improve the design and construction of examinations;

(2) procedures for administering the examinations; and

(3) the process for evaluating examinations in use.

(b) The policy must include:

(1) a procedure for seeking assistance in the development of examinations from experts in:

(A) structural pest control;

(B) structural pest control education; and

(C) examination creation and validation;

(2) a schedule that provides for examination revision and maintenance, including the regular update of examinations;

(3) a procedure to routinely analyze and validate examinations;

(4) a procedure for the development of a bank of questions for each examination;

(5) guidelines for developing examinations from the bank of questions;

(6) the number and type of questions for each examination; and

(7) a requirement that the person responsible for examination development make periodic reports on examination issues to the board.

SECTION 21. Subchapter K, Chapter 1951, Occupations Code, is amended by adding Section 1951.506 to read as follows:

Sec. 1951.506. EMERGENCY SUSPENSION. (a) The board or a three-member panel of board members designated by the board shall temporarily suspend the license of a person licensed under this chapter if the board or panel determines from the evidence or information presented to it that continued practice by the person would constitute a continuing and imminent threat to the public welfare or environment.

(b) A license may be suspended under this section without notice or hearing on the complaint if:

(1) action is taken to initiate proceedings for a hearing before the State Office of Administrative Hearings simultaneously with the temporary suspension; and

(2) a hearing is held as soon as practicable under this chapter and Chapter 2001, Government Code.

(c) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine if there is probable cause to believe that a continuing and imminent threat to the public welfare or environment still exists. A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension.

(d) A three-member panel of the board may meet by telephone conference call in accordance with Chapter 551, Government Code, to consider an emergency suspension under this section if the threat to the public welfare or environment is imminent and it is impossible to convene the panel at one location in a timely manner.

SECTION 22. Section 1951.551, Occupations Code, is amended to read as follows:

Sec. 1951.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person who violates this chapter, [or] a rule adopted or order issued under this chapter, or a cease and desist order issued under Section 1951.604 [by the board].

SECTION 23. Subchapter M, Chapter 1951, Occupations Code, is amended by adding Sections 1951.604 and 1951.605 to read as follows:

Sec. 1951.604. CEASE AND DESIST ORDER. If it appears to the board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of structural pest control, the board after notice and opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity.

Sec. 1951.605. STOP USE ORDER. (a) If the board has reason to believe that a person licensed under this chapter is using or is in possession of a pesticide that is in violation of Chapter 76, Agriculture Code, the board may issue and enforce a written or printed order to stop the use of the pesticide. The board shall present the order to the owner or custodian of the pesticide. The person who receives the order may not use the pesticide until the board determines that the pesticide:

(1) is in compliance with this chapter; or

(2) does not present a hazard to the public health, safety, or welfare.

(b) This section does not limit the right of the board to proceed as authorized by another section of this chapter, including in the assessment of an administrative penalty under this chapter.

(c) A person may appeal an order issued under this section in the manner provided by Subchapters K and L.

SECTION 24. The following provisions of the Occupations Code are repealed:

(1) Section 1951.103(c);

(2) Section 1951.158;

(3) Section 1951.212(b);

(4) Section 1951.254(b); and

(5) Section 1951.351(d).

SECTION 25. The change in law made by this Act with respect to conduct that is grounds for imposition of a disciplinary sanction, including an emergency suspension or a cease and desist order, applies only to conduct that occurs on or after September 1, 2007. Conduct that occurs before September 1, 2007, is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 26. The changes in law made by this Act by the enactment of Section 1951.108, Occupations Code, and the amendment of Sections 1951.103 and 1951.106, Occupations Code, regarding the prohibitions on, qualifications of, and training for members of the Texas Structural Pest Control Board do not affect the entitlement of a member serving on the board immediately before September 1, 2007, to continue to serve and function as a member of the board for the remainder of the member's term. The changes in law described by this section apply only to a member appointed on or after September 1, 2007.

SECTION 27. Not later than March 1, 2008, the Texas Structural Pest Control Board shall adopt rules and policies required under:

(1) Section 1951.207(a)(2), Occupations Code, as amended by this Act;

(2) Section 1951.212(d), Occupations Code, as amended by this Act; and

(3) Section 1951.406, Occupations Code, as added by this Act.

SECTION 28. Not later than March 1, 2008, each school district shall provide the name, address, telephone number, and e-mail address of the district's integrated pest management coordinator to the Texas Structural Pest Control Board as required by Section 1951.212(e), Occupations Code, as amended by this Act.

SECTION 29. This Act takes effect September 1, 2007.

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