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A BILL TO BE ENTITLED
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AN ACT
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relating to the licensing and regulation of structural pest control |
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by the Department of Agriculture and the abolition of the Texas |
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Structural Pest Control Board. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. CHANGES TO THE TEXAS STRUCTURAL PEST CONTROL ACT |
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SECTION 1.01. Section 1951.002, Occupations Code, is |
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amended by amending Subdivision (14) and adding Subdivisions (5-a), |
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(5-b), and (6-a) to read as follows: |
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(5-a) "Commissioner" means the commissioner of |
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agriculture. |
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(5-b) "Committee" means the structural pest control |
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advisory committee. |
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(6-a) "Department" means the Department of |
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Agriculture. |
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(14) "State-limited-use pesticide" means a pesticide |
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classified for restricted or limited use by the commissioner [of
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agriculture]. |
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SECTION 1.02. Section 1951.053, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.053. PERSON PERFORMING PEST CONTROL WORK |
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OTHERWISE REGULATED BY DEPARTMENT [OF AGRICULTURE]. (a) Except as |
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provided by Sections 1951.212 and 1951.457(c), this chapter does |
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not apply to: |
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(1) a person who performs pest control work on growing |
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plants, trees, shrubs, grass, or other horticultural plants if the |
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person: |
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(A) holds a florist or nursery registration |
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certificate from the department [Department of Agriculture] under |
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Section 71.043, Agriculture Code, other than a registration |
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certificate that permits the sale, lease, or distribution of |
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nursery products or floral items only at a temporary market; and |
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(B) holds a commercial or noncommercial |
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applicator license from the department and issued under Chapter 76, |
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Agriculture Code, [Department of Agriculture] that covers the pest |
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control work; or |
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(2) a person who performs pest control work on growing |
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plants, trees, shrubs, grass, or other horticultural plants or |
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rights-of-way if the person: |
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(A) is employed by a political subdivision or a |
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cemetery; |
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(B) is engaged in pest control work or vegetation |
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management for the political subdivision or cemetery; |
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(C) holds a commercial or noncommercial |
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applicator license from the department and issued under Chapter 76, |
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Agriculture Code, [Department of Agriculture] that covers pest |
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control work or is under the direct supervision of a person who |
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holds a commercial or noncommercial applicator license from the |
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department and issued under Chapter 76, Agriculture Code, |
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[Department of Agriculture] that covers pest control work; and |
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(D) complies with annual continuing education |
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required by the department [Department of Agriculture]. |
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(b) A person described by Subsection (a) is not considered |
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to be engaged in the business of structural pest control. |
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(c) Neither this section nor any other law shall prohibit a |
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political subdivision from reducing the number of hours of training |
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or other requirements for an employee conducting larval mosquito |
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control on property owned or controlled by the political |
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subdivision using biological pesticides approved for general use by |
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the [Texas] Department of State Health Services, provided the |
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employee is given instructions adequate to ensure the safe and |
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effective use of such pesticides. |
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SECTION 1.03. Section 1951.055(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 who uses pest |
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control chemicals that are for household use and are available for |
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purchase in retail food stores, such as aerosol bombs and spray |
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cans, if the insecticide is used in accordance with the label |
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directions on the insecticide or with department [board] rules or |
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guidelines or as provided by Section 1951.303 and is: |
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(1) used by the owner of a building or the owner's |
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employee or agent in an area occupied by the owner in a residential |
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building; or |
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(2) used in a place that is vacant, unused, and |
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unoccupied. |
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SECTION 1.04. 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, |
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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 1.05. The heading to Subchapter C, Chapter 1951, |
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Occupations Code, is amended to read as follows: |
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SUBCHAPTER C. [TEXAS] STRUCTURAL PEST CONTROL ADVISORY COMMITTEE |
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[BOARD] |
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SECTION 1.06. Section 1951.101, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.101. COMMITTEE [BOARD] MEMBERSHIP. (a) The |
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committee [Texas Structural Pest Control Board] consists of the |
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[nine] members appointed by the commissioner, including: |
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(1) experts in structural pest control; and |
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(2) representatives of the public. |
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(b) Members of the committee serve at the pleasure of the |
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commissioner [Six members are appointed by the governor with the
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advice and consent of the senate as follows:
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[(1)three members who:
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[(A) have been engaged in the business of
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structural pest control for at least the five years preceding the
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date of appointment; and
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[(B) are not representatives of the same business
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entity; and
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[(2)three public members]. |
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(c) Service on the committee by a state officer or employee |
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is an additional duty of the member's office or employment [The
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commissioner of agriculture, the commissioner of public health, and
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the chair of the Department of Entomology at Texas A&M University or
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their designated representatives are also members of the board]. |
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(d) Appointments to the committee [board] shall be made |
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without regard to the race, color, disability, sex, religion, age, |
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or national origin of the appointee. |
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SECTION 1.07. Section 1951.102, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.102. ELIGIBILITY OF PUBLIC MEMBERS. A person is |
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not eligible for appointment as a public member of the committee |
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[board] if: |
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(1) the person is licensed under this chapter; or |
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(2) the person or the person's spouse: |
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(A) is registered, certified, or licensed by an |
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occupational regulatory agency in the field of pest control; |
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(B) is employed by or participates in the |
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management of a business entity or other organization regulated by |
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the department [board] or receiving funds from the department |
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[board]; |
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(C) owns or controls, directly or indirectly, |
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more than a 10 percent interest in a business entity or other |
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organization regulated by the department [board] or receiving funds |
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from the department [board]; or |
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(D) uses or receives a substantial amount of |
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tangible goods, services, or funds from the department [board], |
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other than compensation or reimbursement authorized by law for |
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committee [board] membership, attendance, or expenses. |
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SECTION 1.08. Section 1951.103, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.103. MEMBERSHIP [AND EMPLOYEE] RESTRICTIONS. (a) |
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In this section, "Texas trade association" means a [nonprofit,] |
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cooperative[,] and voluntarily joined statewide association of |
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business or professional competitors in this state designed to |
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assist its members and its industry or profession in dealing with |
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mutual business or professional problems and in promoting their |
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common interest. |
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(b) A person may not be a member of the committee if: |
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(1) the person is an officer, employee, or paid |
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consultant of a Texas trade association in the field of pest |
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control; or |
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(2) the person's spouse is an officer, manager, or paid |
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consultant of a Texas trade association in the field of pest control |
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[An officer, employee, or paid consultant of a Texas trade
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association in the field of pest control may not be a member of the
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board and may not be an employee of the board who is exempt from the
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state's position classification plan or is compensated at or above
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the amount prescribed by the General Appropriations Act for step 1,
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salary group A17, of the position classification salary schedule]. |
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(c) A person may not be a member of the committee if the |
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person is required to register as a lobbyist under Chapter 305, |
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Government Code, because of the person's activities for |
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compensation on behalf of a profession related to the operation of |
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the department [who is the spouse of an officer, manager, or paid
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consultant of a Texas trade association in the field of pest control
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may not be a member of the board and may not be an employee of the
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board who is exempt from the state's position classification plan
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or is compensated at or above the amount prescribed by the General
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Appropriations Act for step 1, salary group A17, of the position
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classification salary schedule]. |
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[(d) A person may not serve as a member of the board or act
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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 1.09. Section 1951.104, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.104. DUTIES OF COMMITTEE [TERMS]. The committee |
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shall: |
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(1) gather and provide information relating to the |
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practice of structural pest control at the request of the |
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department or the commissioner; and |
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(2) advise the department and the commissioner on: |
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(A) the education and curricula requirements for |
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applicants; |
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(B) the content of examinations under this |
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chapter; |
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(C) proposed rules and standards on technical |
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issues related to structural pest control and rules related to |
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enforcement; and |
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(D) other issues affecting the practice of |
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structural pest control [Appointed members of the board serve
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staggered six-year terms, with the terms of one business and one
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public member expiring February 1 of each odd-numbered year]. |
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SECTION 1.10. Section 1951.105, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.105. RULES GOVERNING COMMITTEE [PRESIDING
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OFFICER]. The department shall adopt rules for the operation of the |
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committee, including rules governing: |
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(1) the purpose, role, responsibility, and goals of |
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the committee; |
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(2) the size of and quorum requirements for the |
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committee; |
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(3) the qualifications required for members of the |
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committee, which may include experience and geographic |
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representation requirements; |
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(4) the appointment process for the committee; |
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(5) the members' terms; |
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(6) the training requirements; |
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(7) a process to regularly evaluate the effectiveness |
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of the committee; and |
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(8) a requirement that the committee comply with |
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Chapter 551, Government Code [The governor shall designate a member
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of the board as presiding officer. The presiding officer serves in
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that capacity at the pleasure of the governor]. |
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SECTION 1.11. The heading to Section 1951.106, Occupations |
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Code, is amended to read as follows: |
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Sec. 1951.106. APPLICABILITY OF OTHER LAW TO COMMITTEE |
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[GROUNDS FOR REMOVAL]. |
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SECTION 1.12. Section 1951.106(a), Occupations Code, is |
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amended to read as follows: |
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(a) Section 2110.008, Government Code, does not apply to the |
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committee [It is a ground for removal from the board that a member:
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[(1) does not have at the time of appointment the
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qualifications required by Section 1951.101 or 1951.102, as
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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
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applicable;
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[(3) violates a prohibition established by Section
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1951.103;
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[(4) cannot, because of illness or disability,
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discharge the member's duties for a substantial part of the member's
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term; or
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[(5) is absent from more than half of the regularly
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scheduled meetings of the board that the member is eligible to
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attend during a calendar year unless that absence is excused by a
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majority vote of the board]. |
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SECTION 1.13. The heading to Subchapter E, Chapter 1951, |
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Occupations Code, is amended to read as follows: |
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SUBCHAPTER E. [BOARD] POWERS AND DUTIES OF DEPARTMENT RELATING TO |
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STRUCTURAL PEST CONTROL |
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SECTION 1.14. Section 1951.201, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.201. SOLE LICENSING AUTHORITY; FEES. (a) The |
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department [board] is the sole authority in this state for |
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licensing persons engaged in the business of structural pest |
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control. |
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(b) The department shall establish fees under this chapter |
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in amounts reasonable and necessary to cover the costs of |
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administering the department's programs and activities under this |
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chapter. |
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SECTION 1.15. Section 1951.202, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.202. BYLAWS. The department [board] shall adopt |
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bylaws governing the conduct of the department's [board's] affairs |
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under this chapter. |
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SECTION 1.16. Section 1951.203, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.203. STANDARDS AND CRITERIA FOR LICENSES. The |
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department [board] shall develop standards and criteria for |
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issuing: |
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(1) a structural pest control business license to a |
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person engaged in the business of structural pest control; |
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(2) a certified commercial applicator's license to an |
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individual engaged in the business of structural pest control; |
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(3) a certified noncommercial applicator's license to |
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an individual; and |
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(4) a technician license to an individual. |
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SECTION 1.17. Sections 1951.204(a), (b), and (c), |
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Occupations Code, are amended to read as follows: |
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(a) As part of an investigation under this chapter, the |
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commissioner [The board] may request and, if necessary, compel by |
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subpoena: |
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(1) the attendance of witnesses for examination under |
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oath; and |
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(2) the production for inspection and copying of |
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records, documents, and other evidence relevant to the |
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investigation of an alleged violation of this chapter. |
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(b) The commissioner [board], acting through the attorney |
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general, may bring an action to enforce a subpoena issued under |
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Subsection (a) against a person who fails to comply with the |
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subpoena. |
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(c) Venue for an action brought under Subsection (b) is in a |
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district court in: |
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(1) Travis County; or |
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(2) the county in which the alleged violation occurred |
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[board may hold a hearing]. |
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SECTION 1.18. Section 1951.205, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.205. ENVIRONMENTAL RULES. (a) The department |
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[board] shall adopt rules governing the methods and practices of |
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structural pest control that the department [board] determines are |
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necessary to protect the public's health and welfare and prevent |
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adverse effects on human life and the environment. |
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(b) A rule relating to the use of economic poisons must |
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comply with applicable standards of the federal government and the |
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commissioner [of agriculture] governing the use of such substances. |
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SECTION 1.19. Section 1951.206, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.206. RULES RESTRICTING ADVERTISING OR |
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COMPETITIVE BIDDING. (a) Except as provided by Subsection (b), the |
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department [board] may not adopt a rule restricting advertising or |
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competitive bidding by a person regulated by the department under |
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this chapter [board]. |
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(b) The department [board] may adopt rules restricting |
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advertising or competitive bidding to prohibit false, misleading, |
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or deceptive practices by a person regulated by the department |
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under this chapter [board]. A rule adopted under this subsection |
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may not: |
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(1) restrict the use of any medium for advertising; |
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(2) restrict a person's personal appearance or use of a |
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person's voice in an advertisement; |
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(3) relate to the size or duration of an advertisement |
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by a person; or |
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(4) restrict a person's advertisement under a trade |
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name. |
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SECTION 1.20. Section 1951.207, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.207. INSPECTION OF LICENSE HOLDERS. (a) The |
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department [board] by rule shall adopt a policy that: |
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(1) requires a business holding a structural pest |
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control business license to be inspected by a field inspector at |
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least once: |
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(A) in the business's first year of operation; |
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and |
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(B) every four [two] years after the first year |
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of operation; |
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(2) provides for additional inspections based on a |
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schedule of risk-based inspections using the following criteria: |
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(A) the type and nature of the business; |
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(B) whether there has been a prior violation by |
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the business; |
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(C) the inspection history of the business; |
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(D) any history of complaints involving the |
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business; and |
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(E) any other factor determined by the department |
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by rule [initiating inspections more frequently than once every two
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years for a business or an applicator that has violated this chapter
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or a rule adopted under this chapter]; and |
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(3) provides that the department [executive director] |
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may waive the inspection requirement on a case-by-case basis if an |
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emergency arises or to accommodate complaint investigation |
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schedules. |
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(b) The department [board] by rule shall adopt a policy and |
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guidelines for conducting an investigation under this chapter, |
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including: |
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(1) procedures for investigating a complaint |
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concerning misuse of pesticides, including contamination by |
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pesticides and human exposure to pesticides; |
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(2) the circumstances in which a case should be |
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referred to the: |
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(A) [Department of Agriculture;
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[(B)Texas] Department of State Health Services; |
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(B) [(C)] Texas Commission on Environmental |
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Quality [Natural Resource Conservation Commission]; or |
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(C) [(D)] United States Environmental Protection |
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Agency; |
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(3) recommendations to consumers and applicators |
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regarding cleanup after a spill or misapplication; and |
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(4) procedures for residue sampling, including the |
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circumstances in which to take a residue sample and the time in |
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which the sample should be taken. |
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SECTION 1.21. Section 1951.208, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.208. MISAPPLICATION OF PESTICIDES. (a) If an |
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investigation shows that a misapplication of pesticides has |
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occurred on the premises of a consumer, the department [board] |
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shall immediately notify the consumer and the applicator of the |
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misapplication. |
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(b) On a finding of misapplication, the department [board] |
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shall keep records of health injuries and property damages |
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resulting from the misapplication reported to the department |
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[board] by a: |
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(1) certified applicator; |
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(2) physician; |
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(3) person holding a structural pest control business |
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license; |
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(4) technician; |
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(5) consumer; or |
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(6) state agency. |
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SECTION 1.22. Section 1951.209, Occupations Code, is |
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amended to read as follows: |
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Sec. 1951.209. AVAILABILITY OF CERTAIN INFORMATION. The |
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department [board] may make available to the [Texas] Department of |
|
State Health Services under the occupational condition reporting |
|
program established under Chapter 84, Health and Safety Code, any |
|
information the department [board] receives concerning an exposure |
|
to a pesticide caused by a person licensed under this chapter that |
|
results in a medically verifiable illness. The department [board] |
|
and the executive commissioner of the Health and Human Services |
|
Commission [Texas Board of Health] shall adopt joint rules for |
|
making that information available to the [Texas] Department of |
|
State Health Services. The rules must require the department |
|
[board] to make that information available to an institution of |
|
higher education that conducts research in urban entomology, |
|
epidemiology, or other areas related to structural pest control. |
|
SECTION 1.23. Section 1951.210, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.210. PRETREATMENT INSPECTION SERVICE; FEES; |
|
LIABILITY. (a) The department [board] may provide a pretreatment |
|
inspection service to consumers. A pretreatment inspection is |
|
limited to a determination of whether there is an infestation of |
|
pests on the premises inspected. |
|
(b) On the request of a consumer, the department [board] may |
|
make available an inspector employed by the department [board] to |
|
inspect the premises of the consumer if the consumer has obtained, |
|
from at least two pest control companies: |
|
(1) a determination that there is an infestation of |
|
pests on the premises; and |
|
(2) an estimate of the cost of the treatment. |
|
(c) The department [board] shall charge a fee for a |
|
pretreatment inspection in an amount sufficient to pay the cost of |
|
providing the service. |
|
(d) The department [board] is not liable for any damages |
|
that may arise as a result of an inspection made under this section |
|
that is subsequently found to be incorrect. |
|
SECTION 1.24. Section 1951.211, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.211. CONSULTATION WITH INTEGRATED PEST |
|
MANAGEMENT TECHNIQUES EXPERT. The department [board] may contract |
|
with [the Department of Agriculture or] an institution of higher |
|
education for the services of an expert in integrated pest |
|
management to consult with the department [board], department [the
|
|
board's] staff, license holders, and the public regarding |
|
integrated pest management techniques. |
|
SECTION 1.25. Section 1951.212, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.212. INTEGRATED PEST MANAGEMENT PROGRAMS FOR |
|
SCHOOL DISTRICTS. (a) The department [board] shall establish |
|
standards for an integrated pest management program for the use of |
|
pesticides, herbicides, and other chemical agents to control pests, |
|
rodents, insects, and weeds at the school buildings and other |
|
facilities of school districts. |
|
(b) The department [board] shall use an existing advisory |
|
committee or create a new advisory committee to assist the |
|
department [board] in developing the standards for the integrated |
|
pest management program. In developing the standards, the advisory |
|
committee shall consult with a person knowledgeable in the area of |
|
integrated pest management in schools. |
|
(c) The department [board] shall include in standards |
|
adopted under this section[:
|
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[(1)] a requirement to use the least toxic methods |
|
available to control pests, rodents, insects, and weeds[; and
|
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[(2) a list of products that a school district is
|
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allowed to use in its applications]. |
|
(d) The department by rule shall establish categories of |
|
pesticides that a school district is allowed to apply. For each |
|
category, the department 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 department [board] |
|
under this section; |
|
(2) designate an integrated pest management |
|
coordinator for the district; and |
|
(3) report to the department 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 department 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 department by |
|
rule. |
|
SECTION 1.26. Section 1951.251, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.251. PUBLIC INTEREST INFORMATION. (a) The |
|
department [board] shall prepare information of public interest |
|
describing the functions of the department under this chapter |
|
[board] and the procedures by which complaints are filed with and |
|
resolved by the department under this chapter [board]. |
|
(b) The department [board] shall make the information |
|
available to the public and appropriate state agencies. |
|
SECTION 1.27. Section 1951.252, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.252. COMPLAINTS. (a) The department [board] by |
|
rule shall establish methods by which consumers and service |
|
recipients are notified of the name, mailing address, and telephone |
|
number of the department [board] for the purpose of directing |
|
complaints to the department under this chapter [board]. The |
|
department [board] may provide for that notice: |
|
(1) on each license form, application, or written |
|
contract for services of a person regulated under this chapter; |
|
(2) on a sign prominently displayed in the place of |
|
business of each person regulated under this chapter; or |
|
(3) in a bill for services provided by a person |
|
regulated under this chapter. |
|
(b) The department [board] shall keep an information file |
|
about each complaint filed with the department under this chapter |
|
[board] that the department [board] has authority to resolve. |
|
(c) If a written complaint is filed with the department |
|
under this chapter [board] that the department [board] has |
|
authority to resolve, the department [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 department 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 department in its investigation of the complaint. |
|
(e) The department 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 commissioner may allow an authorized employee of the |
|
department 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 |
|
department's jurisdiction under this chapter. |
|
(g) An employee who dismisses a complaint under Subsection |
|
(f) shall report the dismissal to the commissioner. The report must |
|
include a sufficient explanation of the reason the complaint was |
|
dismissed. |
|
SECTION 1.28. Section 1951.253, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.253. PUBLIC PARTICIPATION. (a) The department |
|
[board] shall develop and implement policies that provide the |
|
public with a reasonable opportunity to appear before the |
|
department [board] and to speak on any issue under the [board's] |
|
jurisdiction of the department under this chapter. |
|
(b) The department [board] shall prepare and maintain a |
|
written plan that describes how a person who does not speak English |
|
or who has a physical, mental, or developmental disability can be |
|
provided reasonable access to the department's [board's] programs |
|
under this chapter. |
|
SECTION 1.29. Section 1951.254, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.254. PUBLIC INFORMATION PROGRAM. (a) The |
|
department [board] shall establish a public information program as |
|
provided by this section and Sections 1951.453-1951.456 to inform |
|
the public about the practice and regulation of structural pest |
|
control. |
|
(b) The department [board] may create a public information |
|
program advisory committee to assist in the development of a public |
|
information program. |
|
(c) The department [board] shall make available to the |
|
public and other appropriate state agencies the information |
|
compiled as part of the program. |
|
(d) The public information program must: |
|
(1) include the adoption and distribution, in a manner |
|
that the department [board] considers appropriate, of a standard |
|
[complaint] form for complaints under this chapter; [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 department's Internet website, in department brochures, and |
|
on any other available information resource about the department's |
|
enforcement process under this chapter, including each step in the |
|
complaint investigation and resolution process, from initial |
|
filing thorough 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. |
|
(e) The department [board] shall develop a clear, factual, |
|
and balanced information sheet of one or more pages containing |
|
information on: |
|
(1) the pest control industry; |
|
(2) chemicals used in structural pest control; |
|
(3) general health and safety issues relating to |
|
structural pest control; |
|
(4) precautions to take before, during, and after |
|
application; |
|
(5) steps to take if a misapplication, including an |
|
underapplication or an overapplication, is suspected; and |
|
(6) any other matters determined by the department |
|
[board]. |
|
(f) The information sheet must include: |
|
(1) the names and telephone numbers of the department |
|
[board, the Department of Agriculture,] and the [Texas] Department |
|
of State Health Services; |
|
(2) the telephone number of any pesticide hotline |
|
established by a state or federal agency or by a state university; |
|
(3) a statement of a consumer's rights under Chapter |
|
39, Business & Commerce Code, to cancel a home solicitation |
|
transaction; and |
|
(4) information concerning the availability of any |
|
pretreatment inspection service that may be provided by the |
|
department [board] under Section 1951.210. |
|
(g) The department [board] shall develop a sign to be posted |
|
in the area of an indoor treatment that contains: |
|
(1) the date of the planned treatment; and |
|
(2) any other information required by the department |
|
[board]. |
|
SECTION 1.30. Subchapter F, Chapter 1951, Occupations Code, |
|
is amended by adding Section 1951.255 to read as follows: |
|
Sec. 1951.255. ENFORCEMENT INFORMATION. (a) The |
|
department shall make available to the public information about |
|
each final enforcement action taken by the department against a |
|
person under this chapter. The department shall provide this |
|
information on its Internet website and in other appropriate |
|
publications. |
|
(b) The department may determine the format in which it will |
|
provide the information required under this section. |
|
SECTION 1.31. Section 1951.301(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) A person may not engage in the business of structural |
|
pest control unless the person: |
|
(1) meets the standards set by the department under |
|
this chapter [board]; and |
|
(2) holds a structural pest control business license |
|
issued under this chapter. |
|
SECTION 1.32. Section 1951.302, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.302. CERTIFIED COMMERCIAL APPLICATOR'S LICENSE. |
|
The department [board] must determine that an individual is |
|
competent to use or supervise the use of a restricted-use pesticide |
|
or state-limited-use pesticide covered by the individual's |
|
certified commercial applicator's license. |
|
SECTION 1.33. Section 1951.303(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) In this section, "incidental use situation" means a |
|
pesticide application, including treating wasps in an area adjacent |
|
to a utility meter, treating fire ants in a transformer box, or the |
|
treating of ants by a janitor or clerical employee in a break area, |
|
that: |
|
(1) is on an occasional, isolated, site-specific |
|
basis; |
|
(2) is incidental to the performance of a primary duty |
|
that is not pest control by an employee; and |
|
(3) involves the use of general use pesticides after |
|
instruction, as provided by rules adopted by the department |
|
[board]. |
|
SECTION 1.34. Section 1951.304, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.304. TECHNICIAN LICENSE. The department [board] |
|
may designate different classes or categories for technicians. |
|
SECTION 1.35. Section 1951.305, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.305. APPLICATION. (a) A person must apply for a |
|
license under this chapter on a form prescribed and provided by the |
|
department [board]. |
|
(b) Each applicant must provide the information the |
|
department [board] requires to determine the applicant's |
|
qualifications. |
|
SECTION 1.36. Section 1951.306, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.306. WAIVER FOR APPLICANT LICENSED IN ANOTHER |
|
STATE. (a) The department [board] may waive any license |
|
requirement under this chapter for an applicant who holds a license |
|
issued by another state that has license requirements substantially |
|
equivalent to those of this state. |
|
(b) The department [board] may issue an endorsement of |
|
license to a person who: |
|
(1) establishes residence in this state; and |
|
(2) has been determined by the department [board] to |
|
meet the qualifications of a certified applicator by taking the |
|
appropriate examination in another state. |
|
SECTION 1.37. Section 1951.307, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.307. LICENSE RENEWAL. A person may renew a |
|
license by submitting an application to the department [board] and |
|
paying the required renewal fees. |
|
SECTION 1.38. Section 1951.308(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) The department [board] by rule may adopt a system under |
|
which licenses expire on various dates during the year. |
|
SECTION 1.39. 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 department 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 department 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 1.40. Section 1951.310, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.310. LATE RENEWAL OF LICENSE. (a) The department |
|
[board] may retroactively renew a license issued under this |
|
chapter. |
|
(b) If the person files a renewal application with the |
|
department [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 |
|
department [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]. |
|
(d) A person who applies for a renewal license after the |
|
60th day after the date the person's license expires must be |
|
reexamined by the department [board] to obtain a license. |
|
SECTION 1.41. Section 1951.311, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.311. REPLACEMENT LICENSE; FEE. The department |
|
[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 department [board]: |
|
(1) an appropriate application; and |
|
(2) a fee in an amount established by department rule |
|
[of not more than $30, as determined by the board]. |
|
SECTION 1.42. Sections 1951.312(a) through (d), |
|
Occupations Code, are amended to read as follows: |
|
(a) The department [board] may not issue or renew a |
|
structural pest control business license until the license |
|
applicant: |
|
(1) files with the department [board] a policy or |
|
contract of insurance, approved as sufficient by the department |
|
[board], in an amount not less than $200,000 for bodily injury and |
|
property damage coverage, with a minimum total aggregate of |
|
$300,000 for all occurrences, insuring the applicant against |
|
liability for damage to persons or property occurring as a result of |
|
operations performed in the course of the business of structural |
|
pest control on premises or any other property under the |
|
applicant's care, custody, or control; |
|
(2) in the case of an applicant who has an unexpired |
|
and uncanceled insurance policy or contract on file with the |
|
department [board], files with the department [board] a certificate |
|
or other evidence from an insurance company stating that: |
|
(A) the policy or contract insures the applicant |
|
against liability for acts and damage as described in Subdivision |
|
(1); and |
|
(B) the amount of insurance coverage is in the |
|
amount approved by the department [board]; |
|
(3) files with the department [board] a bond, |
|
certificate of deposit, or other proof acceptable to the department |
|
[board] of sufficient funds in an amount not less than $300,000 for |
|
payment of claims of damage to persons or property occurring as a |
|
result of operations performed negligently in the course of the |
|
business of structural pest control on premises or any other |
|
property under the applicant's care, custody, or control; or |
|
(4) files with the department [board] evidence |
|
satisfactory to the department [board] of coverage under a general |
|
liability insurance policy, in an amount not less than $200,000 for |
|
bodily injury and property damage coverage, with a minimum total |
|
aggregate of $300,000 for all occurrences, if the applicant |
|
operates solely as a wood treater who treats wood on commercial |
|
property owned by the applicant. |
|
(b) A structural pest control business license holder shall |
|
at all times maintain the insurance policy or contract or the |
|
security described by Subsection (a)(3) in the amount approved by |
|
the department [board]. Failure to renew the policy or contract or |
|
maintain it or the security in the required amount is a ground for |
|
suspension or revocation of the license and a violation of this |
|
section. |
|
(c) The department [board] by rule may require different |
|
amounts of insurance coverage for different classifications of |
|
operations under this chapter. |
|
(d) The department [board] may adopt insurance requirements |
|
for certified noncommercial applicators or technicians. |
|
SECTION 1.43. Section 1951.313, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.313. MEMORANDUM OF AGREEMENT. The department |
|
[board] may enter into a memorandum of agreement with a political |
|
subdivision other than an institution of public or private |
|
education concerning licensing requirements. |
|
SECTION 1.44. Section 1951.314, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.314. LICENSE NOT TRANSFERABLE. A license issued |
|
by the department under this chapter [board] is not transferable. |
|
SECTION 1.45. Section 1951.351, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.351. TECHNICIAN TRAINING PROGRAM. (a) The |
|
department [board] shall: |
|
(1) develop or approve a training program for licensed |
|
technicians and for applicants to become licensed technicians; and |
|
(2) require that an applicant for a technician license |
|
complete the training program. |
|
(b) The department [board] shall develop the educational |
|
and training materials for the training program with the Texas |
|
Agricultural Extension Service or any other institution of higher |
|
education. The department [board] shall publish and distribute, in |
|
conjunction with the Texas Agricultural Extension Service, the |
|
materials developed as a part of the training program. |
|
(c) The training program must include instruction in: |
|
(1) recognition of pests and pest damage; |
|
(2) pesticide labels and label comprehension; |
|
(3) pesticide safety; |
|
(4) environmental protection; |
|
(5) procedures for the immediate reporting of spills |
|
and misapplications; |
|
(6) application equipment and techniques; |
|
(7) pesticide formulations and actions; |
|
(8) emergency procedures and pesticide cleanup; |
|
(9) state and federal law relating to structural pest |
|
control; |
|
(10) basic principles of mathematics, chemistry, |
|
toxicology, and entomology; |
|
(11) nonchemical pest control techniques, including |
|
biological, mechanical, and prevention techniques; and |
|
(12) any other topic the department [board] considers |
|
necessary. |
|
(d) The department [board] may create a technician training |
|
program advisory committee to assist the department [board] in |
|
developing the training program required by this section. |
|
(e) The department [board] may approve a training program |
|
that has not been developed by the department [board] if the program |
|
meets the standards adopted by the department [board] for the |
|
program. Completion of a training program approved by the |
|
department [board] under this subsection satisfies Subsection |
|
(a)(2). |
|
SECTION 1.46. Section 1951.352, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.352. NEW DEVELOPMENTS; PROOF OF STUDY. If the |
|
department [board] determines that new developments in pest control |
|
have occurred that are so significant that proper knowledge of the |
|
developments is necessary to protect the public, the department |
|
[board] may require of each applicant proof of study by: |
|
(1) attending approved training courses; or |
|
(2) taking additional examinations on the new |
|
developments only. |
|
SECTION 1.47. Section 1951.353, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.353. FEES RELATED TO TRAINING PROGRAMS. (a) The |
|
department [board] may charge a fee to a person to purchase or |
|
borrow materials developed for the technician training program |
|
under Section 1951.351. The department [board] shall set the fee in |
|
an amount that will recover the costs of the program. |
|
(b) The department [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 1.48. Section 1951.401, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.401. EXAMINATION FOR CERTIFIED APPLICATOR'S |
|
LICENSE. The department [board] may require a person to qualify for |
|
a certified applicator's license by passing an examination |
|
demonstrating the person's competence in the field of structural |
|
pest control. |
|
SECTION 1.49. Section 1951.402, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.402. EXAMINATION FOR TECHNICIAN LICENSE. The |
|
department [board] shall require an applicant for a technician |
|
license to pass an examination developed and administered by the |
|
department [board] or a person designated by the department |
|
[board]. |
|
SECTION 1.50. 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 |
|
department [board] an examination fee [of not more than $50], in an |
|
amount established [as determined] by [the] department rule |
|
[board], for each category of examination to be taken. Except as |
|
provided by department [board] rule, an examination fee is not |
|
refundable. |
|
SECTION 1.51. Section 1951.404, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.404. LIST OF STUDY MATERIALS AND SEMINARS. The |
|
department [board] shall make public a list of study materials and |
|
educational seminars that are available to help applicants |
|
successfully complete any examination administered under this |
|
chapter. |
|
SECTION 1.52. Section 1951.405, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.405. EXAMINATION RESULTS. (a) Not later than the |
|
30th day after the date a licensing examination is administered |
|
under this chapter, the department [board] shall notify each |
|
examinee of the results of the examination. If an examination is |
|
graded or reviewed by a national testing service, the department |
|
[board] shall notify each examinee of the results of the |
|
examination not later than the 14th day after the date the |
|
department [board] receives the results from the testing service. |
|
(b) If notice of the results of an examination graded or |
|
reviewed by a national testing service will be delayed for more than |
|
90 days after the examination date, the department [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 a |
|
licensing examination administered under this chapter, the |
|
department [board] shall provide to the person an analysis of the |
|
person's performance on the examination. |
|
SECTION 1.53. Subchapter I, Chapter 1951, Occupations Code, |
|
is amended by adding Section 1951.406 to read as follows: |
|
Sec. 1951.406. EXAMINATION POLICY. (a) The department |
|
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 commissioner. |
|
SECTION 1.54. Section 1951.451, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.451. CONTRACT FOR PEST CONTROL SERVICES. A |
|
written contract under which a license holder under this chapter |
|
agrees to perform structural pest control services in this state |
|
must include: |
|
(1) the department's [board's] mailing address and |
|
telephone number; and |
|
(2) a statement that the department [board] has |
|
jurisdiction over individuals licensed under this chapter. |
|
SECTION 1.55. Section 1951.452, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.452. RECORDS OF LICENSE HOLDER. (a) The |
|
department [board] may require each license holder to make records, |
|
as prescribed by the department [board], of the license holder's |
|
use of pesticides. |
|
(b) Subject to Subsection (c), a record required under |
|
Subsection (a) shall be: |
|
(1) maintained for at least two years on the license |
|
holder's business premises; and |
|
(2) made available for inspection by the department |
|
[board] and its authorized agents during normal business hours. |
|
(c) A certified noncommercial applicator shall maintain |
|
required records on the premises of the person's employer for at |
|
least two years. The records shall be made available for inspection |
|
by the department [board] and its authorized agents during the |
|
employer's normal operating hours. |
|
SECTION 1.56. Sections 1951.456(a), (b), and (d), |
|
Occupations Code, are amended to read as follows: |
|
(a) The department [board] shall develop a policy to |
|
implement and enforce Sections 1951.453-1951.455. |
|
(b) Under rules adopted by the department [board], a |
|
requirement under Sections 1951.453-1951.455 that notice of a |
|
treatment be given at least 48 hours before the treatment may be |
|
waived for emergency treatments. |
|
(d) For the purposes of Sections 1951.453-1951.455, a |
|
treatment is an indoor treatment even though the treatment may |
|
include an outside perimeter treatment of the building if the |
|
primary purpose of the treatment is to treat the inside of the |
|
building. The department [board] shall by rule define a perimeter |
|
treatment and shall adopt the definitions provided in federal law. |
|
SECTION 1.57. Section 1951.457(c), Occupations Code, is |
|
amended to read as follows: |
|
(c) The department [board] may adopt rules to require the |
|
distribution of a pest control information sheet for an outdoor |
|
treatment other than an outdoor treatment described by this section |
|
if the department [board] determines that the distribution or |
|
posting, or both, would protect the public's health, safety, and |
|
welfare. |
|
SECTION 1.58. Section 1951.501, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.501. DISCIPLINARY POWERS OF COMMISSIONER |
|
RELATING TO STRUCTURAL PEST CONTROL [BOARD]. (a) In this section, |
|
"parent company" means an individual or a partnership, corporation, |
|
or other business entity holding one or more structural pest |
|
control business licenses. |
|
(b) On a determination that an applicant or structural pest |
|
control business license holder under a parent company has |
|
substantially failed to comply with the standards and rules |
|
established by the department under this chapter [board], after |
|
notice and a hearing, the commissioner [board] may refuse to: |
|
(1) examine the applicant; |
|
(2) issue a license to the applicant; or |
|
(3) issue a business license to the parent company. |
|
(c) On a determination that a person has violated this |
|
chapter or a [board] rule adopted by the department under this |
|
chapter, the commissioner [board] may: |
|
(1) revoke the person's license; |
|
(2) suspend the person's license; |
|
(3) place on probation a person whose license has been |
|
suspended; or |
|
(4) reprimand a license holder. |
|
(d) The commissioner [board] may require a person whose |
|
license suspension is probated to: |
|
(1) report regularly to the department [board] on |
|
matters that are the basis of the probation; |
|
(2) limit practice to the areas prescribed by the |
|
department [board]; or |
|
(3) continue or renew professional education until the |
|
license holder attains a degree of skill satisfactory to the |
|
department [board] in those areas that are the basis of the |
|
probation. |
|
SECTION 1.59. Section 1951.502, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.502. RIGHT TO HEARING. (a) If the commissioner |
|
[board] proposes to suspend or revoke a person's license, the |
|
person is entitled to a hearing before the commissioner [board] or a |
|
hearings officer appointed by the commissioner [board]. |
|
(b) The commissioner [board] shall establish procedures by |
|
which a decision to suspend or revoke a license is made by or is |
|
appealable to the commissioner [board]. |
|
SECTION 1.60. Sections 1951.503(a) and (b), Occupations |
|
Code, are amended to read as follows: |
|
(a) An applicant or license holder may appeal from an order |
|
or other action of the commissioner under this chapter [board] by |
|
bringing an action in a district court of Travis County. |
|
(b) Notice of appeal must be filed not later than the 30th |
|
day after the date the commissioner [board] issues the order. |
|
SECTION 1.61. Sections 1951.504(a), (b), (c), and (e), |
|
Occupations Code, are amended to read as follows: |
|
(a) A settlement of a contested case under Chapter 2001, |
|
Government Code, must be approved by the commissioner [board]. |
|
(b) The department [board] by rule shall establish |
|
guidelines for the settlement of a contested case under Chapter |
|
2001, Government Code. |
|
(c) The commissioner [board] may authorize the department |
|
[its representatives] to conduct informal settlement negotiations |
|
between the department [board] and a license holder to resolve a |
|
complaint, other than a complaint involving a misapplication, by a |
|
consumer against the license holder. |
|
(e) The department [board] by rule shall establish |
|
guidelines for the informal settlement of consumer complaints as |
|
provided by Subsections (c) and (d). |
|
SECTION 1.62. Sections 1951.505(b) and (c), Occupations |
|
Code, are amended to read as follows: |
|
(b) A person whose license is revoked may not apply for a new |
|
license until the first anniversary of the effective date of the |
|
revocation. A new license may not be issued without the approval of |
|
the department [board]. |
|
(c) If the commissioner [board] revokes the license of a |
|
certified applicator in one category, the commissioner [board] may |
|
place the applicator on probation for any other category in which |
|
the applicator is licensed. |
|
SECTION 1.63. Subchapter K, Chapter 1951, Occupations Code, |
|
is amended by adding Section 1951.506 to read as follows: |
|
Sec. 1951.506. EMERGENCY SUSPENSION. (a) The commissioner |
|
shall temporarily suspend the license of a person licensed under |
|
this chapter if the commissioner determines from the evidence or |
|
information presented to the commissioner 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. |
|
SECTION 1.64. Section 1951.551, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The |
|
commissioner [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 1.65. Section 1951.552(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) In determining the amount of the penalty, the |
|
commissioner [board] shall consider: |
|
(1) the seriousness of the violation, including: |
|
(A) the nature, circumstances, extent, and |
|
gravity of any prohibited act; and |
|
(B) the hazard or potential hazard created to the |
|
health or safety of the public; |
|
(2) the economic damage to property or the environment |
|
caused by the violation; |
|
(3) the history of previous violations; |
|
(4) the amount necessary to deter future violations; |
|
(5) efforts to correct the violation; and |
|
(6) any other matter that justice may require. |
|
SECTION 1.66. Section 1951.553, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. |
|
(a) If, after investigation of a possible violation and the facts |
|
surrounding that possible violation, the commissioner [executive
|
|
director] determines that a violation has occurred, the |
|
commissioner [executive director] may issue a violation report: |
|
(1) stating the facts on which the conclusion that a |
|
violation occurred is based; |
|
(2) recommending that an administrative penalty under |
|
this subchapter be imposed on the person charged; and |
|
(3) recommending the amount of the proposed penalty. |
|
(b) The commissioner [executive director] must base the |
|
recommended amount of the proposed penalty on the seriousness of |
|
the violation determined after considering the factors set forth in |
|
Section 1951.552(b). |
|
(c) Not later than the 14th day after the date on which the |
|
report is issued, the commissioner [executive director] shall give |
|
written notice of the report to the person charged. The notice must |
|
include: |
|
(1) a brief summary of the charges; |
|
(2) a statement of the amount of the penalty |
|
recommended; and |
|
(3) a statement of the right of the person charged to a |
|
hearing on the occurrence of the violation, the amount of the |
|
penalty, or both. |
|
SECTION 1.67. Section 1951.554, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) |
|
Not later than the 20th day after the date the person receives the |
|
notice, the person may: |
|
(1) accept the commissioner's [executive director's] |
|
determination, including the recommended administrative penalty; |
|
or |
|
(2) make a written request for a hearing on the |
|
determination. |
|
(b) If the person charged accepts the commissioner's |
|
[executive director's] determination, the commissioner [board] |
|
shall issue an order approving the determination and ordering the |
|
payment of the recommended penalty. |
|
SECTION 1.68. Section 1951.555, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.555. HEARING; DECISION BY COMMISSIONER [BOARD]. |
|
(a) If the person requests a hearing or fails to respond in a timely |
|
manner to the notice, the commissioner [board] shall set a hearing |
|
and give notice of the hearing. |
|
(b) The hearing shall be held by a hearings examiner |
|
designated by the commissioner [board]. The hearings examiner |
|
shall make findings of fact and conclusions of law and promptly |
|
issue to the commissioner [board] a proposal for a decision as to |
|
the occurrence of the violation, including a recommendation as to |
|
the amount of any proposed administrative penalty. |
|
(c) Based on the findings of fact, conclusions of law, and |
|
recommendations of the hearings examiner, the commissioner [board] |
|
by order may: |
|
(1) determine that a violation occurred and impose a |
|
penalty; or |
|
(2) determine that a violation did not occur. |
|
(d) A proceeding under this section is subject to Chapter |
|
2001, Government Code. |
|
SECTION 1.69. Section 1951.556, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.556. NOTICE OF ORDER. The commissioner [board] |
|
shall give notice of the order to the person. The notice must |
|
include: |
|
(1) the findings of fact and conclusions of law, |
|
separately stated; |
|
(2) the amount of any administrative penalty imposed; |
|
(3) a statement of the person's right to judicial |
|
review of the commissioner's [board's] order; and |
|
(4) any other information required by law. |
|
SECTION 1.70. Section 1951.557, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. |
|
(a) Not later than the 30th day after the date the commissioner's |
|
[board's] order becomes final, the person shall: |
|
(1) pay the administrative penalty; or |
|
(2) file a petition for judicial review contesting the |
|
fact of the violation, the amount of the penalty, or both. |
|
(b) Within the period prescribed by Subsection (a), a person |
|
who acts under Subsection (a)(2) may stay enforcement of the |
|
penalty by: |
|
(1) paying the penalty to the department [board] for |
|
placement in an escrow account; |
|
(2) giving the department [board] a supersedeas bond |
|
in a form approved by the department [board] that: |
|
(A) is for the amount of the penalty; and |
|
(B) is effective until judicial review of the |
|
commissioner's [board's] order is final; or |
|
(3) filing with the department [board] an affidavit |
|
stating that the person is financially unable to either pay the |
|
penalty or give the bond. |
|
(c) A person who fails to take action as provided by this |
|
section waives the right to judicial review of the commissioner's |
|
[board's] order. |
|
SECTION 1.71. Section 1951.558, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.558. COLLECTION OF PENALTY. If the person does |
|
not pay the administrative penalty and the enforcement of the |
|
penalty is not stayed, the department [board] may refer the matter |
|
to the attorney general for collection of the penalty. |
|
SECTION 1.72. Section 1951.559(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) If, after judicial review, the administrative penalty |
|
is reduced or is not upheld by the court, the department [board] |
|
shall: |
|
(1) remit the appropriate amount, plus accrued |
|
interest, to the person against whom the penalty is imposed, if the |
|
person paid the penalty; or |
|
(2) execute a release of the bond, if the person gave a |
|
supersedeas bond. |
|
SECTION 1.73. Section 1951.601, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.601. ENFORCEMENT ACTION FOR MISAPPLICATION OF |
|
PESTICIDES. If the commissioner [board] finds that an applicator |
|
has misapplied pesticides, the commissioner [board] shall |
|
institute an enforcement action against the applicator. The |
|
department [board] by rule shall adopt a policy to implement this |
|
section. |
|
SECTION 1.74. Section 1951.602, Occupations Code, is |
|
amended to read as follows: |
|
Sec. 1951.602. CIVIL PENALTY; INJUNCTION. (a) A person who |
|
violates this chapter or a rule, license, or order of the |
|
commissioner [board] is subject to a civil penalty of not less than |
|
$50 or more than $2,000 for each act of violation and for each day of |
|
violation. |
|
(b) If it appears that a person has violated or is |
|
threatening to violate this chapter or a rule, license, or order of |
|
the commissioner [board], the commissioner [board, or the executive
|
|
director if authorized by the board,] may have a civil action |
|
instituted in a district court for: |
|
(1) injunctive relief to restrain the person from |
|
continuing the violation or threat of violation; |
|
(2) the assessment and recovery of a civil penalty |
|
under Subsection (a); or |
|
(3) both injunctive relief and the civil penalty. |
|
(c) On application for injunctive relief and a finding that |
|
a person is violating or threatening to violate this chapter or a |
|
rule, license, or order of the commissioner [board], the district |
|
court shall grant injunctive relief as the facts warrant. |
|
(d) At the request of the commissioner [board, or the
|
|
executive director if authorized by the board], the attorney |
|
general shall institute and conduct an action in the name of the |
|
state for the injunctive relief, to recover the civil penalty, or |
|
both. |
|
SECTION 1.75. Subchapter M, Chapter 1951, Occupations Code, |
|
is amended by adding Section 1951.604 to read as follows: |
|
Sec. 1951.604. CEASE AND DESIST ORDER. If it appears to the |
|
commissioner 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 commissioner after notice and |
|
opportunity for a hearing may issue a cease and desist order |
|
prohibiting the person from engaging in the activity. |
|
SECTION 1.76. Subchapter M, Chapter 1951, Occupations Code, |
|
is amended by adding Section 1951.605 to read as follows: |
|
Sec. 1951.605. STOP USE, STOP DISTRIBUTION, OR REMOVAL |
|
ORDER. (a) If the department 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 |
|
department may issue and enforce a written or printed order to stop |
|
the use or distribution of the pesticide or requiring the pesticide |
|
to be removed and secured from further distribution. The |
|
department shall present the order to the owner or custodian of the |
|
pesticide. The person who receives the order may not sell, |
|
distribute, or use the pesticide until the department 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 department |
|
or commissioner 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 1.77. The following provisions of the Occupations |
|
Code are repealed: |
|
(1) Section 1951.002(2); |
|
(2) Section 1951.007; |
|
(3) Sections 1951.106(b) and (c); |
|
(4) Section 1951.107; and |
|
(5) Subchapter D, Chapter 1951. |
|
ARTICLE 2. CONFORMING AMENDMENTS |
|
SECTION 2.01. Section 88.215(b), Education Code, is amended |
|
to read as follows: |
|
(b) The advisory committee consists of 11 [12] members |
|
appointed as follows: |
|
(1) one representative of Texas A & M University |
|
appointed by the director of the Texas Agricultural Experiment |
|
Station; |
|
(2) one representative of Texas Tech University |
|
appointed by the dean of the College of Agriculture of Texas Tech |
|
University; |
|
(3) one representative of The University of Texas |
|
appointed by the vice president for research of The University of |
|
Texas System; |
|
(4) one representative of the Department of |
|
Agriculture appointed by the commissioner of agriculture; |
|
(5) one representative of the Parks and Wildlife |
|
Department appointed by the director of the department; |
|
(6) one representative of the Public Utility |
|
Commission of Texas appointed by the executive director of the |
|
commission; |
|
(7) one representative of municipal governments |
|
appointed by the governor; |
|
(8) one representative of the general public appointed |
|
by the governor; |
|
(9) one representative of the agribusiness industry |
|
appointed by the governor; |
|
(10) [one representative of the Texas Structural Pest
|
|
Control Board appointed by the executive director of the board;
|
|
[(11)] one representative of the chemical industry |
|
appointed by the Texas Chemical Council; and |
|
(11) [(12)] one representative of the oil and gas |
|
industry appointed by the Texas Mid-Continent Oil and Gas |
|
Association. |
|
SECTION 2.02. 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 Alcoholic Beverage Commission; |
|
(3) Texas Appraiser Licensing and Certification |
|
Board; |
|
(4) Texas Board of Architectural Examiners; |
|
(5) Texas Board of Chiropractic Examiners; |
|
(6) Comptroller of Public Accounts; |
|
(7) Court Reporters Certification Board; |
|
(8) State Board of Dental Examiners; |
|
(9) Texas State Board of Examiners of Dietitians; |
|
(10) Texas Funeral Service Commission; |
|
(11) Department of State Health Services; |
|
(12) Department of Aging and Disability Services; |
|
(13) Texas Board of Professional Land Surveying; |
|
(14) Texas Department of Licensing and Regulation; |
|
(15) Texas State Board of Examiners of Marriage and |
|
Family Therapists; |
|
(16) Texas [State Board of] Medical Board [Examiners]; |
|
(17) Midwifery Board; |
|
(18) Texas Commission on Environmental Quality; |
|
(19) Board of Nurse Examiners; |
|
(20) Texas Board of Occupational Therapy Examiners; |
|
(21) Texas Optometry Board; |
|
(22) Parks and Wildlife Department; |
|
(23) Texas State Board of Examiners of Perfusionists; |
|
(24) Texas State Board of Pharmacy; |
|
(25) Texas Board of Physical Therapy Examiners; |
|
(26) Texas State Board of Plumbing Examiners; |
|
(27) Texas State Board of Podiatric Medical Examiners; |
|
(28) Polygraph Examiners Board; |
|
(29) Texas Private Security Board; |
|
(30) Texas State Board of Examiners of Professional |
|
Counselors; |
|
(31) Texas Board of Professional Engineers; |
|
(32) Department of Family and Protective Services; |
|
(33) Texas State Board of Examiners of Psychologists; |
|
(34) Texas State Board of Public Accountancy; |
|
(35) Department of Public Safety of the State of |
|
Texas; |
|
(36) Public Utility Commission of Texas; |
|
(37) Railroad Commission of Texas; |
|
(38) Texas Real Estate Commission; |
|
(39) State Bar of Texas; |
|
(40) Texas State Board of Social Worker Examiners; |
|
(41) State Board of Examiners for Speech-Language |
|
Pathology and Audiology; |
|
(42) [Texas Structural Pest Control Board;
|
|
[(43)] Board of Tax Professional Examiners; |
|
(43) [(44)] Secretary of State; |
|
(44) [(45)] Supreme Court of Texas; |
|
(45) [(46)] Texas Transportation Commission; |
|
(46) [(47)] State Board of Veterinary Medical |
|
Examiners; |
|
(47) [(48)] Texas Ethics Commission; |
|
(48) [(49)] Advisory Board of Athletic Trainers; |
|
(49) [(50)] State Committee of Examiners in the |
|
Fitting and Dispensing of Hearing Instruments; |
|
(50) [(51)] Texas Board of Licensure for Professional |
|
Medical Physicists; |
|
(51) [(52)] Texas Department of Insurance; |
|
(52) [(53)] Texas Board of Orthotics and Prosthetics; |
|
(53) [(54)] savings and mortgage lending [loan] |
|
commissioner; |
|
(54) [(55)] Texas Juvenile Probation Commission; and |
|
(55) [(56)] Texas Lottery Commission under Chapter |
|
466, Government Code. |
|
SECTION 2.03. 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: |
|
(1) Texas Board of Chiropractic Examiners; |
|
(2) Court Reporters Certification Board; |
|
(3) State Board of Dental Examiners; |
|
(4) Texas Funeral Service Commission; |
|
(5) Texas Board of Professional Land Surveying; |
|
(6) Texas [State Board of] Medical Board [Examiners]; |
|
(7) Board of Nurse Examiners; |
|
(8) Texas Optometry Board; |
|
(9) Department of Agriculture, for licenses issued |
|
under Chapter 1951, Occupations Code [Texas Structural Pest Control
|
|
Board]; |
|
(10) Texas State Board of Pharmacy; |
|
(11) Executive Council of Physical Therapy and |
|
Occupational Therapy Examiners; |
|
(12) Texas State Board of Plumbing Examiners; |
|
(13) Texas State Board of Podiatric Medical Examiners; |
|
(14) Board of Tax Professional Examiners; |
|
(15) Polygraph Examiners Board; |
|
(16) Texas State Board of Examiners of Psychologists; |
|
(17) State Board of Veterinary Medical Examiners; |
|
(18) Texas Real Estate Commission; |
|
(19) Texas Appraiser Licensing and Certification |
|
Board; |
|
(20) Texas Department of Licensing and Regulation; |
|
(21) Texas State Board of Public Accountancy; |
|
(22) State Board for Educator Certification; |
|
(23) Texas Board of Professional Engineers; |
|
(24) Department of State Health Services; |
|
(25) Texas Board of Architectural Examiners; |
|
(26) Texas Racing Commission; |
|
(27) Commission on Law Enforcement Officer Standards |
|
and Education; and |
|
(28) Texas Private Security Board. |
|
SECTION 2.04. Section 411.101, Government Code, is |
|
repealed. |
|
ARTICLE 3. TRANSITION AND EFFECTIVE DATE |
|
SECTION 3.01. (a) The Texas Structural Pest Control Board |
|
is abolished but continues in existence until March 1, 2008, for the |
|
sole purpose of transferring obligations, property, full-time |
|
equivalent positions, rights, powers, and duties to the Department |
|
of Agriculture. The Department of Agriculture assumes all of the |
|
obligations, property, full-time equivalent positions, rights, |
|
powers, and duties of the Texas Structural Pest Control Board, as it |
|
exists immediately before the effective date of this Act. All |
|
unexpended funds appropriated to the Texas Structural Pest Control |
|
Board are transferred to the Department of Agriculture. The |
|
transfer of the obligations, property, full-time equivalent |
|
positions, rights, powers, and duties of the Texas Structural Pest |
|
Control Board to the Department of Agriculture must be completed |
|
not later than March 1, 2008. |
|
(b) All rules of the Texas Structural Pest Control Board are |
|
continued in effect as rules of the Department of Agriculture until |
|
superseded by a rule of the Department of Agriculture. A |
|
certificate, license, or permit issued by the Texas Structural Pest |
|
Control Board 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. An |
|
inspection or other activity conducted by the Texas Structural Pest |
|
Control Board is considered to be an inspection or activity |
|
conducted by the Department of Agriculture. |
|
(c) A reference in another law or an administrative rule to |
|
the Texas Structural Pest Control Board means the Department of |
|
Agriculture. |
|
SECTION 3.02. (a) The Texas Structural Pest Control Board, |
|
in cooperation with and at the direction of the Department of |
|
Agriculture, shall complete all necessary computer programming and |
|
other tasks to ensure that the agency numbers assigned by the |
|
comptroller to the board and the department are not necessary for |
|
any fiscal year after 2007, except to complete earlier fiscal year |
|
revenue and expenditure transactions and reporting. The number |
|
assigned by the comptroller to the Department of Agriculture shall |
|
be used to record transactions related to the regulation of |
|
structural pest control beginning in fiscal year 2008. |
|
(b) Not later than July 1, 2007, the Texas Structural Pest |
|
Control Board shall request that the comptroller grant the |
|
Department of Agriculture inquiry-only security access to the |
|
uniform statewide accounting system, the state property accounting |
|
system, the uniform statewide payroll system, and the human |
|
resources information system for the board. The Department of |
|
Agriculture and the comptroller may coordinate implementation of |
|
this section. |
|
(c) Not later than July 15, 2007, the Department of |
|
Agriculture shall provide to the Texas Structural Pest Control |
|
Board detailed information regarding the board's responsibilities |
|
under Subsection (a) of this section. |
|
SECTION 3.03. 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 3.04. Not later than September 1, 2008, the |
|
Department of Agriculture shall adopt rules and policies required |
|
under: |
|
(1) Section 1951.105, Occupations Code, as amended by |
|
this Act; |
|
(2) Section 1951.207(a)(2), Occupations Code, as |
|
amended by this Act; |
|
(3) Section 1951.212(d), Occupations Code, as amended |
|
by this Act; and |
|
(4) Section 1951.406, Occupations Code, as added by |
|
this Act. |
|
SECTION 3.05. Not later than September 1, 2008, the |
|
commissioner of agriculture shall appoint the initial members of |
|
the structural pest control advisory committee under Section |
|
1951.101, Occupations Code, as amended by this Act. |
|
SECTION 3.06. Not later than September 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 Department of Agriculture as required by Section |
|
1951.212(e), Occupations Code, as amended by this Act. |
|
SECTION 3.07. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2007. |
|
(b) Section 3.02 of this Act takes effect immediately if |
|
this Act receives a vote of two-thirds of all the members elected to |
|
each house, as provided by Section 39, Article III, Texas |
|
Constitution. If this Act does not receive the vote necessary for |
|
immediate effect, Section 3.02 does not take effect. |