81R26276 MCK-F
 
  By: Geren, Solomons H.B. No. 2105
 
  Substitute the following for H.B. No. 2105:
 
  By:  Chisum C.S.H.B. No. 2105
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of certain licensing agents; providing a
  penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle A, Title 3, Alcoholic Beverage Code, is
  amended by adding Chapter 39 to read as follows:
  CHAPTER 39. LICENSING AGENCY PERMIT
         Sec. 39.01.  AUTHORIZED ACTIVITIES. The holder of a
  licensing agency permit may:
               (1)  subject to Section 39.02, enter into an agreement
  with an applicant for a license or permit issued under this code to
  provide agreed upon services to the applicant with respect to
  obtaining or renewing a permit or license issued under this code;
               (2)  charge and collect a separate payment for services
  provided to the applicant;
               (3)  receive and hold in trust for an applicant:
                     (A)  fees and surcharges required to be submitted
  with an application for a permit or license; and
                     (B)  funds to obtain a bond related to a permit or
  license; and
               (4)  submit to the commission or assessor and collector
  of taxes the permit or license application and fees, surcharges,
  and any bond received or obtained on behalf of an applicant.
         Sec. 39.02.  WRITTEN AGREEMENTS. (a)  An agreement
  described by Section 39.01(1) must be in writing. The commission by
  rule may establish the minimum terms and conditions of the
  agreement.
         (b)  The commission may adopt a standard form agreement for
  use by licensing agency permit holders that meets the requirements
  of this chapter. The commission shall publish any standard form
  agreement on the commission's Internet website.
         Sec. 39.03.  ELIGIBILITY FOR PERMIT. (a) An individual is
  eligible for a licensing agency permit if the individual:
               (1)  is at least 18 years of age;
               (2)  is a citizen of the United States or is lawfully
  present in the United States and authorized to engage in the work
  authorized under this chapter; and
               (3)  is not disqualified under Section 39.07 or another
  provision of this code.
         (b)  A legal entity is eligible for a licensing agency permit
  if each officer, owner, director, and manager of the entity meets
  the qualifications provided by Subsection (a).
         Sec. 39.04.  REQUIRED TRAINING. (a)  Not later than the 90th
  day after the date a licensing agency permit is issued, the
  individual holding the permit or each officer, owner, director, and
  manager of the entity that holds the permit must:
               (1)  successfully complete a licensing agency employee
  training course as provided by Section 39.05; and
               (2)  obtain a licensing agency employee training course
  certificate of completion issued by the commission.
         (b)  An employee or agent of a licensing agency permit holder
  who engages in an activity described by Section 39.01 must hold a
  current licensing agency employee training course certificate of
  completion issued by the commission.
         (c)  An employee or agent of a licensing agency permit holder
  who is not engaged in processing permit or license applications is
  not required to hold a certificate described by Subsection (b).
         Sec. 39.05.  LICENSING AGENCY EMPLOYEE TRAINING COURSE.  
  (a)  The commission shall develop and implement a licensing agency
  employee training course. The course must include instruction
  regarding:
               (1)  permits and licenses issued by the commission and
  the activities authorized for each permit and license;
               (2)  the requirements and procedures for filing permit
  and license applications, fees, surcharges, and bonds with the
  commission; and
               (3)  the fiduciary duties owed by a licensing agency to
  an applicant on whose behalf the licensing agency acts and to the
  commission.
         (b)  The commission by rule shall adopt a fee to be collected
  from each person enrolled in a licensing agency employee training
  course.
         (c)  The commission shall issue a certificate of completion
  to each person who successfully completes the licensing agency
  employee training course.
         (d)  A certificate of completion issued under this section
  expires on the second anniversary of the date the certificate is
  issued.
         Sec. 39.06.  FEE. (a) The annual fee for a licensing agency
  permit is $1,500.
         (b)  No local fee is authorized for a permit issued under
  this chapter.
         Sec. 39.07.  REFUSAL OR DENIAL OF PERMIT. (a) The
  commission or administrator may refuse an individual's original or
  renewal application for a permit under this chapter, with or
  without a hearing, if the commission or administrator has reason to
  believe and finds that the individual:
               (1)  fails to meet or maintain the minimum
  qualifications for a permit under this chapter; or
               (2)  holds or held a direct or indirect interest in a
  permit or license issued by the commission that was canceled for
  cause during the 12 months preceding the date the application was
  filed with the commission.
         (b)  The commission or administrator may refuse a legal
  entity's original or renewal application for a permit under this
  chapter, with or without a hearing, if the commission or
  administrator has reason to believe and finds that:
               (1)  the legal entity fails to meet or maintain the
  minimum qualifications for a permit under this chapter; or
               (2)  any owner, officer, director, shareholder, or
  manager of the legal entity held or had a direct or indirect
  interest in a permit or license issued by the commission that was
  canceled for cause during the 12 months preceding the date the
  application was filed with the commission.
         (c)  The commission or administrator shall refuse an
  original or renewal application for a permit under this chapter,
  with or without a hearing, if the commission or administrator has
  reason to believe and finds that the applicant:
               (1)  failed to submit the required application, fee, or
  bond;
               (2)  is an individual and five years have not elapsed
  since the termination of a sentence, probation, deferred
  adjudication, or parole of the individual for a misdemeanor
  involving moral turpitude or a felony; or
               (3)  is a legal entity and five years have not elapsed
  since the termination of a sentence, probation, deferred
  adjudication, or parole of any owner, officer, director,
  shareholder, or manager of the legal entity for a misdemeanor
  involving moral turpitude or a felony.
         Sec. 39.08.  APPLICABILITY OF OTHER CODE PROVISIONS. Except
  as provided by the commission by rule, the provisions of this code
  and commission rules generally applicable to permits apply to an
  application for or permit issued under this chapter.
         Sec. 39.09.  LICENSING AGENCY BOND. (a) An applicant for a
  licensing agency permit must file a bond with the commission in an
  amount set by the commission in accordance with this section and
  conditioned on the licensing agency permit holder's compliance with
  this chapter.
         (b)  The commission shall adopt rules to:
               (1)  implement the requirements of this section;
               (2)  establish a claims procedure for persons entitled
  to make a claim against a bond;
               (3)  establish a procedure for the commission to
  approve claims and allocate and distribute all or part of a bond to
  satisfy an approved claim; and
               (4)  establish a procedure to ensure that a bond is
  restored and maintained in the amount required by the commission
  following distribution of all or part of a bond.
         (c)  Subject to Subsection (d), the commission shall
  determine the initial amount of the bond for each licensing agency
  permit holder based on the applicant's good faith estimate of the
  licensing agency's gross revenue from engaging in activities under
  this chapter.
         (d)  The commission may not require a bond in an amount that
  exceeds $200,000.
         (e)  Subject to Subsection (d), the commission may adjust the
  amount of a bond whenever necessary to maintain the bond amount and
  to reflect a change in condition or risk including:
               (1)  the actual gross revenues of the permit holder;
               (2)  the permit holder's history of claims against a
  bond; or
               (3)  the permit holder's history of compliance with
  this code and commission rules.
         Sec. 39.10.  CANCELLATION OR SUSPENSION OF PERMIT. In
  addition to the grounds for cancellation or suspension of a permit
  under Section 11.61, the commission or administrator may cancel or
  suspend an original or renewal licensing agency permit if it is
  found after notice and hearing that:
               (1)  the permit holder failed to enter into a written
  agreement with an applicant for an original or renewal license or
  permit issued by the commission under this code, as required by
  Section 39.02;
               (2)  the permit holder failed to provide an agreed upon
  service to an applicant on whose behalf the permit holder agreed to
  act;
               (3)  the permit holder charged and collected a fee for a
  service that was not provided or collected a fee in excess of the
  agreed upon fee;
               (4)  the permit holder failed to hold in trust
  application fees or surcharges received on behalf of an applicant
  or any funds received to obtain a bond on behalf of an applicant;
               (5)  the permit holder failed to submit to the
  commission or assessor and collector of taxes a permit or license
  application or fees, surcharges, or any bond required to be
  submitted with an application received or obtained on behalf of an
  applicant;
               (6)  the permit holder employed or compensated one or
  more employees who violated a provision of this chapter or a
  commission rule; or
               (7)  the permit holder employed or compensated a person
  to engage in activities described by Section 39.01 who did not have
  a current licensing agency employee certification.
         Sec. 39.11.  OFFENSE. (a)  A person commits an offense if
  the person:
               (1)  misrepresents that the person is authorized to
  engage in activities under this chapter when the person is not; or
               (2)  does not hold a permit issued under this chapter
  and is not exempt under Section 39.12 and:
                     (A)  offers to engage in activities described by
  Section 39.01; or
                     (B)  engages in activities described by Section
  39.01.
         (b)  An offense under this section is a Class B misdemeanor.
         Sec. 39.12.  EXEMPTION. The following persons may engage in
  an activity described by Section 39.01 without obtaining a permit
  under this chapter:
               (1)  an attorney licensed in this state or another
  state;
               (2)  a person working under the supervision of a
  licensed attorney;
               (3)  a person who is engaged in the activity
  exclusively on behalf of an applicant for a permit or license in
  which the person holds or has a direct or indirect interest; or
               (4)  an agent or employee of an applicant for a license
  or permit who is engaged in the activity exclusively on behalf of
  the applicant.
         SECTION 2.  On or before July 1, 2010, the Texas Alcoholic
  Beverage Commission shall adopt all rules necessary to implement
  Chapter 39, Alcoholic Beverage Code, as added by this Act.
         SECTION 3.  A person is not required to hold a permit under
  Chapter 39, Alcoholic Beverage Code, as added by this Act, before
  September 1, 2010, to engage in activity regulated by that chapter.
         SECTION 4.  (a)  Except as provided by Subsection (b) of this
  section, this Act takes effect September 1, 2009.
         (b)  Section 39.11, Alcoholic Beverage Code, as added by this
  Act, takes effect September 1, 2010.