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A BILL TO BE ENTITLED
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AN ACT
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relating to the powers and duties of the Texas Department of |
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Licensing and Regulation, including the power to issue emergency |
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orders and temporary and emergency licenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 51.001, Occupations Code, is amended by |
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amending Subdivision (1) and adding Subdivision (1-a) to read as |
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follows: |
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(1) "Advisory board" means a board, committee, |
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council, or other entity with multiple members that has as its |
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primary function advising the commission or department. |
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(1-a) "Commission" means the Texas Commission of |
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Licensing and Regulation. |
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SECTION 2. Subchapter D, Chapter 51, Occupations Code, is |
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amended by adding Sections 51.209 and 51.210 to read as follows: |
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Sec. 51.209. ADVISORY BOARDS; REMOVAL OF ADVISORY BOARD |
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MEMBER. (a) This section applies to any advisory board appointed |
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to advise the commission or department regarding a program subject |
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to regulation by the department. |
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(b) An advisory board member who was appointed by the |
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presiding officer of the commission with the commission's approval |
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may be removed from the advisory board by the presiding officer with |
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the commission's approval on any of the following grounds: |
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(1) the member does not have at the time of becoming a |
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member of the advisory board the qualifications required by the law |
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or rule authorizing appointment of the member; |
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(2) the member does not maintain during service on the |
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advisory board the qualifications required by the law or rule |
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authorizing appointment of the member; |
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(3) the member cannot, because of illness or |
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disability, discharge the member's duties for a substantial part of |
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the member's term; or |
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(4) the member is absent from more than half of the |
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regularly scheduled advisory board meetings that the member is |
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eligible to attend during a calendar year without an excuse |
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approved by a majority vote of the advisory board. |
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(c) The validity of an action of an advisory board is not |
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affected by the fact that it is taken when a ground for removal of a |
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member exists. |
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Sec. 51.210. METHOD OF MAKING PAYMENTS. (a) The |
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commission may authorize payment of regulatory fees, fines, |
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penalties, and charges for goods and services through: |
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(1) an electronic payment method; or |
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(2) a credit card issued by a financial institution |
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chartered by a state or the United States or issued by a nationally |
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recognized credit organization approved by the commission. |
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(b) A payment by a method under this section may be made in |
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person, by telephone, or through the Internet. |
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(c) The commission may require a person who makes a payment |
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to the department through an electronic payment method or credit |
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card to pay a discount or service charge in an amount reasonable and |
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necessary to reimburse the commission for the costs involved in |
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processing the payment. |
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(d) The commission may adopt rules as necessary to implement |
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this section. |
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SECTION 3. Subchapter G, Chapter 51, Occupations Code, is |
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amended by adding Sections 51.3511, 51.3512, and 51.3513 to read as |
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follows: |
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Sec. 51.3511. ISSUANCE OF EMERGENCY ORDERS. (a) If the |
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executive director determines that an emergency exists requiring |
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immediate action to protect the public health and safety, the |
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executive director may issue an emergency order to: |
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(1) suspend or revoke a license or other authorization |
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issued under a program regulated by the department; or |
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(2) halt operation of an unsafe facility or unsafe |
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equipment that is subject to regulation by the department. |
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(b) The executive director may issue an emergency order with |
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or without notice and hearing as the executive director considers |
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practicable under the circumstances. |
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(c) If an emergency order is issued under this section |
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without a hearing, the executive director shall set the time and |
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place for a hearing conducted by the State Office of Administrative |
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Hearings to affirm, modify, or set aside the emergency order not |
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later than the 10th day after the date the order was issued. The |
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order shall be affirmed to the extent that reasonable cause existed |
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to issue the order. |
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(d) The commission by rule may prescribe procedures for the |
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determination and appeal of an emergency order issued under this |
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section, including a rule allowing the commission to affirm, |
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modify, or set aside a decision made by the State Office of |
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Administrative Hearings under Subsection (c). |
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(e) A proceeding under this section is a contested case |
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under Chapter 2001, Government Code. |
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Sec. 51.3512. SUBPOENAS. (a) The department may issue a |
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subpoena as provided by this section. |
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(b) The department may request and, if necessary, compel by |
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subpoena: |
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(1) 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, a law |
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establishing a regulatory program administered by the department, |
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or a rule adopted or order issued by the commission or executive |
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director; and |
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(2) the attendance of a witness for examination under |
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oath. |
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(c) A subpoena under this section may be issued throughout |
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this state and may be served by any person designated by the |
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commission or the executive director. |
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(d) The department, acting through the attorney general, |
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may bring an action to enforce a subpoena issued under this section |
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against a person who fails to comply with the subpoena. |
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(e) Venue for an action brought under this section is in a |
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district court in: |
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(1) Travis County; or |
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(2) any county in which the department may hold a |
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hearing. |
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(f) The court shall order compliance with the subpoena if |
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the court finds that good cause exists to issue the subpoena. |
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Sec. 51.3513. CEASE AND DESIST ORDER. The executive |
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director may issue a cease and desist order if the executive |
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director determines that the action is necessary to prevent a |
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violation of: |
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(1) this chapter; |
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(2) a law establishing a regulatory program |
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administered by the department; or |
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(3) a rule adopted or order issued by the commission or |
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the executive director. |
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SECTION 4. Section 51.352(a), Occupations Code, is amended |
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to read as follows: |
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(a) The attorney general or the executive director may |
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institute an action for injunctive relief to restrain a violation |
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by and to collect a civil penalty from a person that appears to be in |
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violation of or threatening to violate a law establishing a |
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regulatory program administered by the department or a rule or |
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order of the commission or executive director related to the |
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regulatory program. A civil penalty assessed under this subsection |
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may not exceed $5,000 per day for each violation. |
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SECTION 5. The heading to Section 51.353, Occupations Code, |
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is amended to read as follows: |
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Sec. 51.353. LICENSE DENIAL; ADMINISTRATIVE SANCTIONS. |
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SECTION 6. Section 51.353(a), Occupations Code, is amended |
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to read as follows: |
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(a) The commission shall deny, revoke, suspend, or refuse to |
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renew a license or shall reprimand a license holder for a violation |
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of this chapter, a law establishing a regulatory program |
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administered by the department, or a rule or order of the commission |
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or the executive director. |
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SECTION 7. Subchapter G, Chapter 51, Occupations Code, is |
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amended by adding Sections 51.355 and 51.356 to read as follows: |
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Sec. 51.355. LICENSE ELIGIBILITY OF PERSON WHOSE LICENSE |
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HAS BEEN REVOKED. A person whose license has been revoked by order |
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of the commission or executive director is not eligible for a new |
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license until the first anniversary of the date of the revocation. |
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Sec. 51.356. DEFERRED ADJUDICATION; LICENSE SUSPENSION, |
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LICENSE REVOCATION, OR DENIAL OR REFUSAL TO RENEW LICENSE. (a) The |
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commission may deny, suspend, revoke, or refuse to renew a license |
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or other authorization issued by a program regulated by the |
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department if the commission determines that a deferred |
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adjudication makes the person holding or seeking the license unfit |
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for the license. |
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(b) In making a determination under Subsection (a), the |
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commission shall consider the factors set forth in Sections 53.022 |
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and 53.023 and the guidelines issued by the department under |
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Section 53.025. |
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SECTION 8. Subchapter H, Chapter 51, Occupations Code, is |
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amended by adding Sections 51.4011 and 51.4012 to read as follows: |
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Sec. 51.4011. INACTIVE STATUS. (a) Not later than the |
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10th day before the expiration date of a license issued by the |
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department, the license holder may place the license on inactive |
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status by: |
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(1) submitting an application for inactive status to |
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the department on a form prescribed by the department; and |
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(2) paying the required fee. |
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(b) Except as provided by Subsection (f), a person whose |
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license is on inactive status is not required to complete |
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continuing education required under this chapter, a law |
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establishing a program regulated by the department, or a rule |
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adopted by the commission. |
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(c) A person whose license is on inactive status may reapply |
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for inactive status before the expiration date of the license. The |
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person must pay the required fee. |
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(d) A person whose license is on inactive status may not |
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engage in any activity for which the license is required. |
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(e) A license holder may not employ a person whose license |
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is on inactive status. |
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(f) A person whose license is on inactive status may return |
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the license to active status by: |
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(1) applying to the department for active status on a |
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form prescribed by the department; |
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(2) paying the required fee; and |
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(3) providing evidence satisfactory to the department |
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that the person has completed the number of hours of continuing |
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education that would otherwise have been required for a renewal of |
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an active license for the preceding license period. |
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(g) The commission may set fees and adopt rules as necessary |
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to implement this section. |
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Sec. 51.4012. LICENSE ELIGIBILITY REQUIREMENTS REGARDING |
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APPLICANT'S BACKGROUND; DETERMINATION LETTER. (a) |
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Notwithstanding any other law, the commission may determine that a |
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person is not eligible for a license based on the person's criminal |
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history or other information that indicates that the person lacks |
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the honesty, trustworthiness, and integrity to hold a license |
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issued by the department. |
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(b) Before applying for a license from the department, a |
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person may request that the department issue a letter determining |
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whether the person would be eligible for a license under Subsection |
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(a) of this section, Section 51.356, or Chapter 53. To obtain a |
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determination letter, a person must file a request on a form |
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prescribed by the department and pay the required fee. |
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(c) Not later than the 30th day after the date the |
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department makes its determination, the department shall issue the |
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determination letter to the person. |
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(d) The department has the same powers to investigate a |
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request filed under this section as the department has to |
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investigate a person applying for a license. |
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(e) A determination letter issued under this section that is |
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adverse to a person does not prevent the person from subsequently |
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applying for a license. |
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(f) The department is not bound by its determination that |
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the person would be eligible if, after the issuance of the |
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determination letter, the department determines there has been a |
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change in a person's circumstances or discovers a previously |
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undiscovered fact. |
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(g) A determination under this section is not a contested |
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case under Chapter 2001, Government Code. |
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SECTION 9. Subchapter H, Chapter 51, Occupations Code, is |
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amended by adding Sections 51.407 and 51.408 to read as follows: |
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Sec. 51.407. TEMPORARY LICENSE. (a) The commission by rule |
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may provide for the issuance of a temporary license to an applicant |
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who: |
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(1) submits to the executive director an application |
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on a form prescribed by the executive director; |
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(2) meets preliminary qualifications established by |
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commission rule; and |
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(3) pays any required fees. |
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(b) A temporary license issued under this section expires on |
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the 21st day after the date of issuance and may not be renewed. |
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(c) A temporary license holder is subject to: |
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(1) this chapter; |
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(2) any law applicable to the activity for which the |
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license is required; and |
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(3) any rule of the commission or the executive |
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director applicable to the license. |
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Sec. 51.408. EMERGENCY LICENSE. (a) The executive |
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director may issue an emergency license to a person who meets |
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eligibility requirements provided by: |
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(1) a law establishing a regulatory program |
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administered by the department; or |
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(2) a rule adopted to implement this section. |
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(b) An emergency license issued under this section expires |
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on the date indicated by the executive director, but not later than |
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the 90th day after the date the license is issued. |
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(c) The emergency license holder may engage in the |
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activities authorized by the type of license only: |
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(1) during a period in which a state of disaster has |
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been declared and the following recovery period; and |
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(2) in an area designated as a disaster area under |
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Chapter 418, Government Code. |
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SECTION 10. (a) Except as provided by Subsection (b) of |
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this section, this Act takes effect September 1, 2009. |
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(b) Sections 51.4011 and 51.4012, Occupations Code, as |
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added by this Act, take effect May 1, 2010. |