By: Estes S.B. No. 1011

(In the Senate - Filed March 6, 2009; March 13, 2009, read first time and referred to Committee on Government Organization; April 8, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 0; April 8, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1011 By: Hegar

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Commission on Fire Protection.

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

SECTION 1. Section 419.003, Government Code, is amended to read as follows:

Sec. 419.003. SUNSET PROVISION. The Texas Commission on Fire Protection is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2021 [2009].

SECTION 2. Subsection (e), Section 419.004, Government Code, is amended to read as follows:

(e) A person may not be [is not eligible for appointment as] a public member of the commission if the person or the person's spouse:

(1) is registered, certified, or licensed by a regulatory agency in the field of fire protection [the commission];

(2) is employed by or participates in the management of a business entity or other organization regulated by [the commission] or receiving money [funds] from the commission;

(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by [the commission] or receiving money [funds] from the commission;

(4) uses or receives a substantial amount of tangible goods, services, or money [funds] from the commission, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses; or

(5) is employed in the field of [a member of a paid or volunteer] fire protection [department].

SECTION 3. Subsections (a) and (c), Section 419.005, Government Code, are amended to read as follows:

(a) It is a ground for removal from the commission that [if] a member:

(1) does not have at the time of taking office [appointment] the qualifications required by Section 419.004;

(2) does not maintain during service on the commission the qualifications required by Section 419.004;

(3) is ineligible for membership under [violates a prohibition established by] Section 419.006;

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term [for which the member is appointed because of illness or disability]; or

(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year without an excuse approved [unless the absence is excused] by majority vote of the commission.

(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the commission of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the commission, who shall then notify the governor and the attorney general that a potential ground for removal exists.

SECTION 4. Section 419.006, Government Code, is amended to read as follows:

Sec. 419.006. CONFLICT OF INTEREST. (a) In [An officer, employee, or paid consultant of a Texas trade association in the field of fire protection may not be a member of the commission or an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule.

[(b) A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of fire protection may not be a commission member and may not be a commission employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule.

[(c) For the purposes of] this section, "Texas trade association" means [a Texas trade association is] a [nonprofit,] cooperative[,] and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person may not be a member of the commission and may not be a commission employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of fire protection; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of fire protection.

(c) [(d)] A person may not be [serve as] a member of the commission or act as the general counsel to the commission or the agency if the person is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of the commission.

SECTION 5. Subsection (a), Section 419.007, Government Code, is amended to read as follows:

(a) The governor shall designate a member of the commission [fire protection instructor appointed under Section 419.004(a)(6) serves] as the presiding officer of the commission to serve in that capacity at the pleasure of [unless] the governor [designates another member as presiding officer]. The commission shall elect from among its members an assistant presiding officer and a secretary.

SECTION 6. Section 419.0071, Government Code, is amended to read as follows:

Sec. 419.0071. COMMISSION MEMBER TRAINING. (a) A [To be eligible to take office as a member of the commission, a] person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes [must complete at least one course of] a training program that complies with this section.

(b) The training program must provide [information to] the person with information regarding:

(1) the [enabling] legislation that created the commission;

(2) the programs, [operated by the commission;

[(3) the role and] functions, [of the commission;

[(4) the] rules, and [of the commission with an emphasis on the rules that relate to disciplinary and investigatory authority;

[(5) the current] budget of [for] the commission;

(3) [(6)] the results of the most recent formal audit of the commission;

(4) [(7)] the requirements of laws relating to [the:

[(A)] open meetings [law], public information [Chapter 551;

[(B) open records law, Chapter 552; and

[(C) administrative procedure law], and [Chapter 2001;

[(8) the requirements of the conflict] conflicts of interest [interests laws and other laws relating to public officials]; and

(5) [(9)] any applicable ethics policies adopted by the commission [agency] or the Texas Ethics Commission.

(c) A person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after[, as provided by the General Appropriations Act and as if] the person qualifies for office [were a member of the commission].

SECTION 7. Subsection (c), Section 419.008, Government Code, is amended to read as follows:

(c) The commission shall perform duties assigned by law to the Commission on Fire Protection Personnel Standards and Education [or to the Fire Department Emergency Board].

SECTION 8. Subsection (a), Section 419.0082, Government Code, is amended to read as follows:

(a) In adopting or amending a rule under Section 419.008(a) or any other law, the commission may [shall] seek the input of the fire fighter advisory committee and may request[, when appropriate, the funds allocation advisory committee. The commission shall permit] the [appropriate] advisory committee to review and comment on any proposed rule, including a proposed amendment to a rule, before the rule is adopted.

SECTION 9. Subchapter A, Chapter 419, Government Code, is amended by adding Section 419.0083 to read as follows:

Sec. 419.0083. NEGOTIATED RULEMAKING; ALTERNATIVE DISPUTE RESOLUTION. (a) The commission shall develop and implement a policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008 for the adoption of commission rules; and

(2) appropriate alternative dispute resolution procedures under Chapter 2009 to assist in the resolution of internal and external disputes under the commission's jurisdiction.

(b) The commission's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

(c) The commission shall designate a trained person to:

(1) coordinate the implementation of the policy adopted under Subsection (a);

(2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3) collect data concerning the effectiveness of those procedures, as implemented by the commission.

SECTION 10. Subsection (c), Section 419.009, Government Code, is amended to read as follows:

(c) The commission shall develop and implement policies that clearly separate the policy-making [define the respective] responsibilities of the commission and the management responsibilities of the executive director and the staff of the commission.

SECTION 11. Section 419.011, Government Code, is amended to read as follows:

Sec. 419.011. [PUBLIC INTEREST INFORMATION AND] COMPLAINTS. (a) The commission shall maintain a system to promptly and efficiently act on complaints filed with the commission. The commission shall maintain information about parties to the complaint, the subject matter of the complaint, a summary of the results of the review or investigation of the complaint, and its disposition.

(b) The commission shall make [prepare] information available [of public interest] describing its [the functions of the commission and the commission's] procedures for complaint investigation and resolution [by which complaints are filed with and resolved by the commission. The commission shall make the information available to the public and appropriate state agencies.

[(b) The commission shall keep a file about each written complaint filed with the commission that the commission has authority to resolve. The commission shall provide to the person filing the complaint and the persons or entities complained about the commission's policies and procedures pertaining to complaint investigation and resolution].

(c) The commission[, at least quarterly and until final disposition of the complaint,] shall periodically notify the [person filing the] complaint parties [and the persons or entities complained about] of the status of the complaint until final disposition [unless the notice would jeopardize an undercover investigation.

[(c) The commission shall keep information about each complaint filed with the commission. The information shall include:

[(1) the date the complaint is received;

[(2) the name of the complainant;

[(3) the subject matter of the complaint;

[(4) a record of all persons contacted in relation to the complaint;

[(5) a summary of the results of the review or investigation of the complaint; and

[(6) for complaints for which the agency took no action, an explanation of the reason the complaint was closed without action.

[(d) The commission shall comply with federal and state laws related to program and facility accessibility. The executive director shall also prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the commission's programs].

SECTION 12. Subchapter A, Chapter 419, Government Code, is amended by adding Section 419.012 to read as follows:

Sec. 419.012. TECHNOLOGICAL SOLUTIONS. The commission shall implement a policy requiring the commission to use appropriate technological solutions to improve the commission's ability to perform its functions. The policy must ensure that the public is able to interact with the commission on the Internet.

SECTION 13. Subsection (e), Section 419.023, Government Code, is amended to read as follows:

(e) On request by the commission, the [The] committee [periodically] shall review commission rules relating to fire protection personnel, fire departments, and other fire fighters and fire fighting organizations that are subject to regulation under this subchapter and recommend changes in the rules to the commission.

SECTION 14. Subsection (a), Section 419.026, Government Code, is amended to read as follows:

(a) The commission shall set and collect a fee [of not more than $35] for each certificate that the commission issues or renews under this subchapter, except that if a person holds more than one certificate the commission may collect only one fee each year for the renewal of those certificates. The commission by rule shall set the amount of the fee under this subsection in an amount designed to recover the commission's costs in connection with issuing certificates under this subchapter, including the cost to the commission of obtaining fingerprint-based criminal history record information under Section 419.0325. The employing agency or entity shall pay the [this] fee in the manner prescribed [as provided] by commission rule. The certificate must be renewed annually.

SECTION 15. Section 419.027, Government Code, is amended to read as follows:

Sec. 419.027. BIENNIAL INSPECTIONS. (a) At least biennially, the commission shall visit and inspect each institution or facility conducting courses for training fire protection personnel and recruits, each fire department, and each local governmental agency providing fire protection to determine if the department, agency, institution, or facility is complying with this chapter and commission rules.

(b) The commission may conduct risk-based inspections of institutions and facilities in addition to the inspections under Subsection (a). In determining whether to conduct an inspection of an institution or facility under this subsection, the commission shall consider:

(1) how recently the institution or facility has come under regulation;

(2) the institution's or facility's history of compliance with state law and commission rules;

(3) the number of complaints filed with the commission regarding the institution or facility during the last year;

(4) the number of paid personnel in the institution or facility;

(5) the frequency of fire responses;

(6) the institution's or facility's ability to inspect and maintain equipment; and

(7) any other factor the commission considers appropriate to assess an institution's or facility's safety risk.

SECTION 16. Subsections (a) and (d), Section 419.032, Government Code, are amended to read as follows:

(a) A fire department may not appoint a person to the fire department, except on a temporary or probationary basis, unless:

(1) the person:

(A) [(1)] has satisfactorily completed a preparatory program of training in fire protection at a school approved by the commission; and

(B) [(2)] meets the qualifications established by the commission under Subsection (b); and

(2) the commission has approved the person's fingerprint-based criminal history record information under Section 419.0325.

(d) The commission may certify persons who are qualified under this subchapter to be fire protection personnel. The commission shall adopt rules relating to presentation of evidence of satisfactory completion of a program or course of instruction in another jurisdiction equivalent in content and quality to that required by the commission for approved fire protection education and training programs in this state and shall issue to a person meeting the rules and the requirements of Section 419.0325 a certificate evidencing satisfaction of Subsections (a) and (b). The commission may waive any certification requirement, except those under Section 419.0325, for an applicant with a valid license from another state having certification requirements substantially equivalent to those of this state.

SECTION 17. Subchapter B, Chapter 419, Government Code, is amended by adding Section 419.0325 to read as follows:

Sec. 419.0325. CRIMINAL HISTORY RECORD INFORMATION APPROVAL REQUIRED FOR CERTIFICATION. (a) The commission may not certify a person as fire protection personnel unless the commission, after review, has approved fingerprint-based criminal history record information about the person obtained from the Department of Public Safety under Subchapter F, Chapter 411, and from the Federal Bureau of Investigation under Section 411.087.

(b) The applicant for certification or the fire department may submit the required fingerprint-based state and national criminal history record information to the commission. If neither the applicant nor the fire department submits the required criminal history record information to the commission, the commission shall obtain the required criminal history record information pursuant to Sections 411.087 and 411.1236.

(c) The commission by rule shall establish criteria for denying a person certification to be fire protection personnel based on the person's criminal history record information. The criteria must relate to a person's fitness to serve as fire protection personnel.

(d) Criminal history record information received by the commission is privileged and confidential and for commission use only.

SECTION 18. Subsections (a), (b), and (c), Section 419.034, Government Code, are amended to read as follows:

(a) A fire department or other employing entity may renew an unexpired certification by, [paying to the commission] before the expiration date of the certificate:

(1) submitting evidence satisfactory to the commission of completion of any required professional education; and

(2) paying to the commission the required renewal fee.

(b) If a person's certificate has been expired for 30 days or less, the fire department or other employing entity may renew the certificate by:

(1) submitting evidence satisfactory to the commission of completion of any required professional education; and

(2) paying to the commission the required renewal fee and a fee that is one-half of the certification fee for the certificate.

(c) If a person's certificate has been expired for longer than 30 days but less than one year, the fire department or other employing entity may renew the certificate by:

(1) submitting evidence satisfactory to the commission of completion of any required professional education; and

(2) paying to the commission all unpaid renewal fees and a fee that is equal to the certification fee.

SECTION 19. Section 419.036, Government Code, is amended by adding Subsections (c) and (d) to read as follows:

(c) A complaint case opened by the commission based on a violation found during an inspection conducted under Section 419.027 must be opened not later than the 30th day after the date the commission provides notice of the violation to the applicable department, agency, institution, or facility.

(d) The commission by rule shall create a matrix for determining penalty amounts and disciplinary actions for fire departments, training providers, and certified personnel who commit violations of this chapter or a rule adopted under this chapter. In developing the matrix, the commission shall consider the following factors:

(1) compliance history;

(2) seriousness of the violation;

(3) the safety threat to the public or fire personnel;

(4) any mitigating factors; and

(5) any other factors the commission considers appropriate.

SECTION 20. Subchapter B, Chapter 419, Government Code, is amended by adding Section 419.0366 to read as follows:

Sec. 419.0366. TRACKING AND ANALYSIS OF COMPLAINT AND VIOLATION DATA. (a) The commission shall develop and implement a method for tracking and categorizing the sources and types of complaints filed with the commission and of violations of this chapter or a rule adopted under this chapter.

(b) The commission shall analyze the complaint and violation data maintained under Subsection (a) to identify trends and areas that may require additional regulation or enforcement.

SECTION 21. Subchapter B, Chapter 419, Government Code, is amended by adding Section 419.048 to read as follows:

Sec. 419.048. FIRE PROTECTION PERSONNEL INJURY DATA; RECOMMENDATIONS TO REDUCE INJURIES. (a) Pursuant to Section 417.004, the commission and the commissioner of insurance, as necessary to allow the agencies to perform their statutory duties, shall transfer information between the two agencies, including injury information from the Texas Fire Incident Reporting System and workers' compensation data showing claims filed by fire protection personnel.

(b) Personally identifiable information received by the commission under this section relating to injured fire protection personnel is confidential. The commission may not release, and a person may not gain access to, any information that could reasonably be expected to reveal the identity of injured fire protection personnel.

(c) The commission shall evaluate information and data on fire protection personnel injuries and develop recommendations for reducing fire protection personnel injuries. The commission shall forward the recommendations to the state fire marshal not later than September 1 of each year for inclusion in the annual report required by Section 417.0075.

(d) The commission shall establish criteria for evaluating fire protection personnel injury information to determine the nature of injuries that the commission should investigate. Based on these investigations, the commission shall identify fire departments in need of assistance in reducing injuries and may provide assistance to those fire departments.

SECTION 22. Section 419.906, Government Code, is amended by adding Subsections (d) and (e) to read as follows:

(d) The commission may enter a default order if a fire department or training provider fails to take action to correct a violation found during an inspection conducted under this chapter or to request an informal settlement conference before the 61st day after the date the commission provides to the department or provider notice requiring the department or provider to correct the violation.

(e) Notwithstanding Section 419.0365, the commission may temporarily suspend a person's or regulated entity's certificate on a determination by a panel of the commission that continued activity by the person or entity would present an immediate threat to the public or to fire service trainees. The panel may hold a meeting for purposes of this subsection by teleconference call pursuant to Section 551.125. A person or regulated entity whose certificate is temporarily suspended under this subsection is entitled to a hearing before the commission not later than the 14th day after the date of the temporary suspension.

SECTION 23. Subchapter G, Chapter 614, Government Code, is amended by adding Section 614.105 to read as follows:

Sec. 614.105. SEPARATE ACCOUNT FOR MONEY FROM TEXAS COMMISSION ON FIRE PROTECTION. (a) The service shall maintain a separate account within the volunteer fire department assistance fund.

(b) The account shall contain money:

(1) previously appropriated to the Texas Commission on Fire Protection for the administration of the fire department emergency program and transferred to the service;

(2) received from the repayment of outstanding loans transferred to the service from the Texas Commission on Fire Protection fire department emergency program; and

(3) from any legislative appropriations for the purposes of Subsection (c).

(c) The money in the account may be used only to award grants for scholarships for the education and training of firefighters or for purchasing necessary firefighting equipment and facilities for:

(1) a municipal fire department with any number of paid personnel;

(2) a fire department operated by its members, some of whom are volunteers and some of whom are paid; or

(3) a volunteer fire department.

(d) The service shall administer all outstanding loans transferred from the Texas Commission on Fire Protection fire department emergency program and deposit money obtained as repayment of those loans to the credit of the account created under this section.

SECTION 24. (a) Subsections (b), (c), and (d), Section 419.0082, Government Code, are repealed.

(b) Subchapter C, Chapter 419, Government Code, is repealed.

SECTION 25. (a) As soon as practicable after the effective date of this Act, the governor shall designate a member of the Texas Commission on Fire Protection as the presiding officer of the commission pursuant to Section 419.007, Government Code, as amended by this Act.

(b) As soon as practicable after the effective date of this Act, the Texas Commission on Fire Protection shall adopt the rules required by Section 419.0325, Government Code, as added by this Act, and Sections 419.026 and 419.036, Government Code, as amended by this Act.

(c) Notwithstanding Section 419.048, Government Code, as added by this Act, the Texas Commission on Fire Protection is not required to submit its annual recommendations to the state fire marshal for inclusion in the report required by Section 417.0075, Government Code, before September 1, 2010.

SECTION 26. (a) As soon as practicable after the effective date of this Act, the Texas Commission on Fire Protection and the Texas Forest Service shall develop and enter into a memorandum of understanding regarding the transfer described in this section.

(b) In accordance with the transition plan developed by the Texas Commission on Fire Protection and the Texas Forest Service under Subsection (a) of this section, on January 1, 2010:

(1) the fire department emergency program under Subchapter C, Chapter 419, Government Code, is abolished;

(2) all money, loans and other contracts, leases, property, and obligations of the Texas Commission on Fire Protection related to the fire department emergency program are transferred to the Texas Forest Service; and

(3) the unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Fire Protection related to the fire department emergency program is transferred to the Texas Forest Service.

(c) Before January 1, 2010, the Texas Commission on Fire Protection may agree with the Texas Forest Service to transfer any property of the fire department emergency program to implement the transfer required by this Act.

SECTION 27. (a) Sections 419.004 and 419.006 and Subsection (a), Section 419.0071, Government Code, as amended by this Act, apply only to a person who is appointed or reappointed as a member of the Texas Commission on Fire Protection on or after the effective date of this Act. A person appointed or reappointed as a member of the commission before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(b) Section 419.005, Government Code, as amended by this Act, applies only to a ground for removal that occurs on or after the effective date of this Act. A ground for removal that occurs before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(c) Subsection (b), Section 419.0071, Government Code, as amended by this Act, applies only to a training program attended on or after the effective date of this Act. A training program attended before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(d) Subsection (c), Section 419.0071, Government Code, as amended by this Act, applies only to expenses incurred on or after the effective date of this Act. Expenses incurred before the effective date of this Act are governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(e) Section 419.0082, Government Code, as amended by this Act, applies to a rule adopted on or after the effective date of this Act. A rule adopted before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(f) Section 419.026, Government Code, as amended by this Act, applies only to a certificate issued or renewed on or after January 1, 2010. A certificate issued or renewed before January 1, 2010, is governed by the law in effect on the date the certificate was issued or renewed, and the former law is continued in effect for that purpose.

(g) Section 419.032, Government Code, as amended by this Act, and Section 419.0325, Government Code, as added by this Act, apply only to a person who applies for an initial certificate on or after January 1, 2010. A person who applies for an initial certificate before January 1, 2010, is governed, even in relation to the person's renewal of the certificate on or after that date, by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(h) Section 419.034, Government Code, as amended by this Act, applies to a certificate renewed on or after the effective date of this Act. A certificate renewed before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(i) Subsection (d), Section 419.906, Government Code, as added by this Act, applies only to an order pursuant to a violation that occurs on or after the effective date of this Act. An order pursuant to a violation that occurs before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

SECTION 28. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2009.

(b) The following changes in law take effect January 1, 2010:

(1) the repeal of Subchapter C, Chapter 419, Government Code;

(2) the amendment to Section 419.026, Government Code; and

(3) the amendment to Subchapter G, Chapter 614, Government Code.

* * * * *