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