BILL ANALYSIS

 

 

 

H.B. 2033

By: Kolkhorst

Public Safety

Committee Report (Unamended)

 

 

 

BACKGROUND AND PURPOSE

 

The Polygraph Examiners Board (the Board) aims to protect the public from untrained practice by testing and licensing polygraph examiners and by taking enforcement action against violators of the Polygraph Examiners Act.  Housed within the Department of Public Safety since 1981, the Board employs two staff and operates with a budget of about $103,000.  In fiscal year 2008, the Board licensed 247 examiners and reported receiving 10 jurisdictional complaints, all of which the Board dismissed.

 

The Board is subject to the Sunset Act and will be abolished on September 1, 2009, unless continued by the Legislature.  The Sunset review found that regulation of polygraph examiners continues to be needed.  However, the Board’s ability to protect the public is compromised by the real and potential conflicts of interest inherent in the Board’s processes and administrative placement, ineffective enforcement, and the small size of the agency and number of licensees.  The Sunset Commission therefore recommended abolishing the Board and transferring its functions to the Texas Department of Licensing and Regulation, and made several other statutory modifications that are contained in this legislation.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that rulemaking authority is expressly granted to the Texas Commission of Licensing and Regulation in SECTION 7 of this bill.  Rulemaking authority is expressly granted to the Texas Commission of Licensing and Regulation  in SECTION 9 of this bill.  Rulemaking authority previously delegated to the Polygraph Examiners Board is transferred to the Texas Commission of Licensing and Regulation in SECTIONS 9 and 14 of this bill.  SECTION 29 provides that all rules of the Polygraph Examiners Board are continued in effect as rules of the Texas Commission of Licensing and Regulation.

 

ANALYSIS

 

Abolish and Transfer

 

H.B. 2033 amends the Occupations Code to abolish the Polygraph Examiners Board and transfer its functions to the Texas Department of Licensing and Regulation (TDLR).  The bill creates an advisory committee to advise the Texas Commission of Licensing and Regulation on the specific offenses for which a conviction would prohibit a person from having a polygraph license, administering and enforcing the Polygraph Act, and other matters.  The bill requires the presiding officer of the Texas Commission of Licensing and Regulation to appoint members of the advisory committee as soon as possible after the effective date of the bill.  H.B. 2033 provides transition language for the abolishment of the Polygraph Examiners Board by continuing the agency until January 1, 2010 for the purpose of transferring obligations, property, full-time equivalent positions, rights, powers, and duties to TDLR.  The bill requires the Board and TDLR to enter into a memorandum of understanding regarding the transfer of functions which must include a timetable with specific steps and deadlines.  The bill repeals provisions pertaining to the Board’s sunset date; Board powers and duties; and Board member eligibility, removal, and compensation.    

 

Conform Licensing and Enforcement Functions to Commonly Applied Licensing Practices

 

H.B. 2033 eliminates notarization requirements for individuals applying for a polygraph license.

 

The bill specifies that a person may qualify for a polygraph license if the person has not been convicted of an offense that directly relates to the duties and responsibilities of a polygraph examiner.  The bill also requires TDLR to take disciplinary action against a licensee, or deny a license to an applicant, who is convicted of an offense that directly relates to the duties and responsibilities of a polygraph examiner.  The bill requires the Texas Commission of Licensing and Regulation to establish by rule those specific offenses.    

 

The bill requires written contracts for a polygraph examiner’s services and waivers of liability signed by the subject of a polygraph exam to contain information about how to file a complaint with TDLR, along with TDLR’s name, mailing address, and phone number. 

 

H.B. 2033 specifies that appeals of disciplinary action to district court be reviewed under the substantial evidence standard. 

 

The bill removes fee caps from statute.

 

The bill repeals the following statutory provisions.

 

 

EFFECTIVE DATE

 

September 1, 2009.