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A BILL TO BE ENTITLED
|
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AN ACT
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|
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relating to the continuation and functions of the Texas Structural |
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Pest Control Board. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1951.007, Occupations Code, is amended |
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to read as follows: |
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Sec. 1951.007. APPLICATION OF SUNSET ACT. The Texas |
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Structural Pest Control Board is subject to Chapter 325, Government |
|
Code (Texas Sunset Act). Unless continued in existence as provided |
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by that chapter, the board is abolished and this chapter expires |
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September 1, 2011 [2007]. |
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SECTION 2. Section 1951.056(a), Occupations Code, is |
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amended to read as follows: |
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(a) Except as provided by Sections 1951.212 and |
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1951.457(c), this chapter does not apply to a person acting as a |
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beekeeper, as defined by Section 131.001, Agriculture Code, who: |
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(1) is registered with the board and with the chief |
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apiary inspector as provided by Subchapter C, Chapter 131, |
|
Agriculture Code; |
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(2) does not use pesticides or electrical devices |
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other than conventional bee smokers or equipment as defined by |
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Section 131.001, Agriculture Code; and |
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(3) collects, removes, or destroys honey bees [not
|
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attached to a dwelling or structure occupied by the public]. |
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SECTION 3. Sections 1951.103(a), (b), and (d), Occupations |
|
Code, are amended to read as follows: |
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(a) In this section, "Texas trade association" means a |
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[nonprofit,] cooperative[,] and voluntarily joined statewide |
|
association of business or professional competitors in this state |
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designed to assist its members and its industry or profession in |
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dealing with mutual business or professional problems and in |
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promoting their common interest. |
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(b) A person [An officer, employee, or paid consultant of a
|
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Texas trade association in the field of pest control] may not be a |
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member of the board and may not be a board [an] employee employed in |
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a "bona fide executive, administrative, or professional capacity" |
|
as that phrase is used for purposes of establishing an exemption to |
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the overtime provisions of the Fair Labor Standards Act of 1938 (29 |
|
U.S.C. Section 201 et seq.) if: |
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(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 |
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[of the board who is exempt from the state's position
|
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classification plan or is compensated at or above the amount
|
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prescribed by the General Appropriations Act for step 1, salary
|
|
group A17, of the position classification salary schedule]. |
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(d) A person may not be [serve as] a member of the board or |
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act as the general counsel to the board if the person is required to |
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register as a lobbyist under Chapter 305, Government Code, because |
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of the person's activities for compensation on behalf of a |
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profession related to the operation of the board. |
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SECTION 4. Section 1951.105, Occupations Code, is amended |
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to read as follows: |
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Sec. 1951.105. PRESIDING OFFICER. The governor shall |
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designate a public member of the board as presiding officer. The |
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presiding officer serves in that capacity at the pleasure of the |
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governor. |
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SECTION 5. Sections 1951.106(a) and (c), Occupations Code, |
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are amended to read as follows: |
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(a) It is a ground for removal from the board that a member: |
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(1) does not have at the time of taking office |
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[appointment] the qualifications required by Section 1951.101 [or
|
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1951.102, as applicable]; |
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(2) does not maintain during service on the board the |
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qualifications required by Section 1951.101 [or 1951.102, as
|
|
applicable]; |
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(3) is ineligible for membership under [violates a
|
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prohibition established by] Section 1951.102 or 1951.103; |
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(4) cannot, because of illness or disability, |
|
discharge the member's duties for a substantial part of the member's |
|
term; or |
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(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
|
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that absence is excused] by a majority vote of the board. |
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(c) If the executive director has knowledge that a potential |
|
ground for removal exists, the executive director shall notify the |
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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. |
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SECTION 6. Subchapter C, Chapter 1951, Occupations Code, is |
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amended by adding Sections 1951.108 and 1951.109 to read as |
|
follows: |
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Sec. 1951.108. TRAINING. (a) A person who is appointed to |
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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 |
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the board until the person completes a training program that |
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complies with this section. |
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(b) The training program must provide the person with |
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information regarding: |
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(1) this chapter; |
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(2) the programs, functions, rules, and budget of the |
|
board; |
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(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 |
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regardless of whether the attendance at the program occurs before |
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or after the person qualifies for office. |
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Sec. 1951.109. BOARD COMMITTEES. (a) The board may appoint |
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committees to assist the board with its functions under this |
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chapter. |
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(b) Only a member of the board may serve as a member of a |
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board committee. |
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SECTION 7. Section 1951.154, Occupations Code, is amended |
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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 |
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board is the sole authority in this state for licensing persons |
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engaged in the business of structural pest control. |
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(b) The board shall establish fees under this chapter in |
|
amounts reasonable and necessary to cover the costs of |
|
administering this chapter. |
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SECTION 9. Section 1951.207(a), Occupations Code, is |
|
amended to read as follows: |
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(a) The board by rule shall adopt a policy that: |
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(1) requires a business holding a structural pest |
|
control business license to be inspected by a field inspector at |
|
least once: |
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(A) in the business's first year of operation; |
|
and |
|
(B) every four [two] years after the first year |
|
of operation; |
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(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. |
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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: |
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(c) The board shall include in standards adopted under this |
|
section[:
|
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[(1)] a requirement to use the least toxic methods |
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available to control pests, rodents, insects, and weeds[; and
|
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[(2)
a list of products that a school district is
|
|
allowed to use in its applications]. |
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(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: |
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(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; |
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(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
|
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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]. |
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(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. |
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SECTION 11. Subchapter E, Chapter 1951, Occupations Code, |
|
is amended by adding Sections 1951.213, 1951.214, 1951.215, and |
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1951.216 to read as follows: |
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Sec. 1951.213. ADVISORY COMMITTEES. (a) The board may |
|
establish advisory committees to advise the board in administering |
|
this chapter. |
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(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. |
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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. |
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SECTION 29. This Act takes effect September 1, 2007. |
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|
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* * * * * |