81R3744 JAM-D

By: Patrick, Dan S.B. No. 854

A BILL TO BE ENTITLED

AN ACT

relating to the operation and regulation of massage establishments; imposing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 455.151, Occupations Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) Unless the person is exempt from the licensing requirement, a person may not act as a massage therapist without proof of licensure satisfactory to the department.

SECTION 2. Section 455.205, Occupations Code, is amended by adding Subsection (f) to read as follows:

(f) A massage establishment may not have on its premises any sexual device that can be used for sexual gratification. A massage establishment may be assessed an administrative penalty under Subchapter G of $1,000 for each item on its premises that violates this subsection.

SECTION 3. Chapter 455, Occupations Code, is amended by adding Subchapter E-1 to read as follows:

SUBCHAPTER E-1. OPERATION OF MASSAGE ESTABLISHMENTS

Sec. 455.221. HOURS OF OPERATION. (a) A massage establishment may provide services only between the hours of 8 a.m. and 10 p.m.

(b) A massage establishment that violates this section may be assessed an administrative penalty under Subchapter G of $1,000 for each violation. Each hour the massage establishment is open in violation of Subsection (a) constitutes a separate violation for purposes of imposing a penalty.

Sec. 455.222. SLEEPING QUARTERS PROHIBITED. (a) An owner or operator of a massage establishment may not permit a person to sleep in a room used as part of the establishment.

(b) A person may not act as a massage therapist or be employed in a massage establishment in a room used as sleeping quarters.

(c) A person who violates this section may be assessed an administrative penalty under Subchapter G of not less than $500 or more than $2,000 for each violation.

Sec. 455.223. CRIMINAL HISTORY RECORD CHECK. (a) An owner or operator of a massage establishment shall conduct a criminal history record check on a person who is:

(1) an applicant for a position of employment at a massage establishment to whom an offer of employment is made; or

(2) an employee of the massage establishment.

(b) A criminal history record check under this section is in addition to the criminal background check conducted under Section 455.1525.

(c) An owner or operator of a massage establishment may not knowingly employ in a massage establishment a person who has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication for an offense involving prostitution or another sexual offense.

Sec. 455.224. EMPLOYEE WITH CERTAIN COMMUNICABLE DISEASE PROHIBITED. (a) An owner or operator of a massage establishment may not knowingly employ in a massage establishment a person with a communicable skin disease or a venereal disease.

(b) A person who knows the person has a communicable skin disease or a venereal disease may not work in a massage establishment.

Sec. 455.225. RECORD OF EMPLOYEES. (a) A massage establishment shall maintain on the premises:

(1) a record for each employee that contains the name, address, date of birth, state identification number or social security number, job function, and a photograph of the employee; and

(2) a daily register that contains the name, date of birth, state identification number or social security number, and job function of each employee present at the establishment that day.

(b) The massage establishment shall preserve the daily register required by Subsection (a)(2) for 90 days after the date the register was made.

(c) On request, a massage establishment shall permit a peace officer of this state or an official of the department to inspect during the establishment's normal business hours any record required by this section. The inspecting officer or official shall inform the establishment of the officer's status as a peace officer or an official of the department.

SECTION 4. Section 455.302(a), Occupations Code, is amended to read as follows:

(a) Except as otherwise provided by this chapter, the [The] amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

SECTION 5. Subchapter G, Chapter 455, Occupations Code, is amended by adding Sections 455.3021 and 455.3022 to read as follows:

Sec. 455.3021. ADMINISTRATIVE PENALTY FOR CERTAIN VIOLATIONS. An owner or operator of a massage establishment who fails to conduct a background check required by Section 455.223(a) or employs a person in violation of Section 455.223(c) or 455.224(a) may be assessed an administrative penalty under this subchapter of not less than $500 or more than $2,000. Each day a violation continues or occurs constitutes a separate violation for purposes of imposing a penalty.

Sec. 455.3022. ADMINISTRATIVE PENALTY FOR RECORDKEEPING VIOLATIONS. A massage establishment that violates Section 455.225 may be assessed an administrative penalty under this subchapter in the amount of:

(1) $1,000 for each record required under Section 455.225(a)(1) that is missing; and

(2) $500 for each register required under Section 455.225(a)(2) that is missing.

SECTION 6. Section 455.352, Occupations Code, is amended by adding Subsection (a-2) and amending Subsections (c), (d), and (e) to read as follows:

(a-2) A person commits an offense if the person violates Section 455.151(a-1). An offense under this subsection is a Class C misdemeanor, unless:

(1) the actor has previously been convicted one time of an offense under this subsection, in which event it is a Class B misdemeanor;

(2) the actor has previously been convicted two times of an offense under this subsection, in which event it is a Class A misdemeanor; or

(3) the actor has previously been convicted three or more times of an offense under this subsection, in which event the offense is a state jail felony.

(c) An owner or operator of a massage school commits an offense if the person knowingly violates Section 455.151(a), 455.159, 455.203(a) or (c), 455.204(b) or (c), [or] 455.205(b), (c), or (d), or 455.353(b).

(d) Except as provided by Subsections (a-1), (a-2), (b), and (e), an offense under this section is a Class C misdemeanor.

(e) Except as provided by Subsections (a-1), (a-2), and (b), if [If] it is shown at the trial of an offense under this section that the defendant has been previously convicted of an offense under this section, the offense is a Class A misdemeanor.

SECTION 7. Section 455.353, Occupations Code, is amended to read as follows:

Sec. 455.353. ENFORCEMENT BY PEACE OFFICERS. (a) A peace officer of this state, including a peace officer employed by a political subdivision of the state, may enforce this chapter.

(b) During normal business hours a peace officer may enter a massage establishment to conduct an inspection and an owner or operator of a massage establishment may not deny entrance to the massage establishment to a peace officer conducting an inspection.

SECTION 8. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.1183 to read as follows:

Sec. 411.1183. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: EMPLOYER AT MASSAGE ESTABLISHMENT. (a) In this section, "massage establishment" has the meaning assigned by Section 455.001, Occupations Code.

(b) An owner or operator of a massage establishment is entitled to obtain from the department criminal history record information maintained by the department that pertains to a person who is:

(1) an applicant for a position of employment at a massage establishment to whom an offer of employment is made; or

(2) an employee of the massage establishment.

(c) Criminal history record information obtained under Subsection (b) may not be released or disclosed to any person except on court order or with the written consent of the person who is the subject of the criminal history record information.

SECTION 9. The change in law made by this Act applies only to a violation or an offense committed on or after the effective date of this Act. A violation or an offense committed before the effective date of this Act is covered by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose. For purposes of this section, a violation or an offense was committed before the effective date of this Act if any element of the violation or offense was committed before that date.

SECTION 10. This Act takes effect September 1, 2009.