By: Zaffirini S.B. No. 43

(Murr)

A BILL TO BE ENTITLED

AN ACT

relating to the Judicial Branch Certification Commission; authorizing fees; providing penalties.

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

SECTION 1. Section 57.002(b-1), Government Code, is amended to read as follows:

(b-1) A licensed court interpreter appointed by a court under Subsection (a) or (b) must hold a license that includes the appropriate designation under Section 157.101(d) [57.043(d)] that indicates the interpreter is permitted to interpret in that court.

SECTION 2. Section 151.001(7), Government Code, is amended to read as follows:

(7) "Regulated person" means a person, firm, or other business entity, who holds a certification, registration, or license issued by the commission.

SECTION 3. Sections 152.053(b), (c), and (d), Government Code, are amended to read as follows:

(b) A person is not eligible for appointment as a member of the commission, or as a member of an advisory board or committee that serves the commission, if the person or the person's spouse:

(1) is employed by or participates in the management of a business entity or other organization receiving funds from the commission;

(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving funds from the commission; or

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

(c) A person may not serve as a member of the commission, or as a member of an advisory board or committee that serves the commission, or act as the general counsel to the commission 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.

(d) A person may not be a member of the commission, a member of an advisory board or committee that serves the commission, or [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 legal profession; or

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

SECTION 4. Section 152.056, Government Code, is amended to read as follows:

Sec. 152.056. PRESIDING OFFICER. The supreme court shall designate a member of the commission as presiding officer of the commission to serve in that capacity at the pleasure of the supreme court. The presiding officer may designate a member of the commission to preside over a meeting of the commission in the absence of the presiding officer.

SECTION 5. The heading to Section 152.109, Government Code, is amended to read as follows:

Sec. 152.109. NOTICE OF COMPLAINT PROCESS [COMPLAINTS].

SECTION 6. Sections 152.111(a) and (c), Government Code, are amended to read as follows:

(a) The commission may adopt a policy allowing office employees to dismiss a complaint [complaints] that:

(1) clearly does [do] not allege misconduct; [or]

(2) is [are] not within the commission's jurisdiction; or

(3) alleges misconduct that took place more than five years before the date the complaint was filed.

(c) A person who files a complaint that is dismissed under this section may, not later than the 30th day after the date of notice of the dismissal, request in writing that the commission reconsider the complaint.

SECTION 7. Section 152.201, Government Code, is amended by adding Subsection (c-1) and amending Subsection (d) to read as follows:

(c-1) A passing score on an applicable examination is valid for purposes of certification, registration, or licensing for a period of two years after the date of the examination. A person who does not apply to become certified, licensed, or registered before the expiration of the two-year period must repeat and pass the examination.

(d) If requested in writing by a person who fails an examination, the commission shall furnish the person with an analysis of the person's performance on the examination. A person may not view a copy of the examination.

SECTION 8. Subchapter E, Chapter 152, Government Code, is amended by adding Section 152.2015 to read as follows:

Sec. 152.2015. CERTIFICATION, REGISTRATION, AND LICENSING FEE AND RENEWAL. (a) A person, firm, or business entity must pay the commission an initial fee and any other required fee to receive a certification, registration, or license from the commission.

(b) A regulated person who is otherwise eligible to renew a certification, registration, or license may renew an unexpired certification, registration, or license by paying the required renewal fee to the commission before the expiration date. A regulated person whose certification, registration, or license has expired may not engage in any applicable regulated activity until the certification, registration, or license has been renewed.

(c) A regulated person whose certification, registration, or license has been expired for 90 days or fewer may renew the certification, registration, or license by paying to the commission a renewal fee that is equal to one and one-half times the normally required renewal fee.

(d) A regulated person whose certification, registration, or license has been expired for more than 90 days but less than one year may renew the certification, registration, or license by paying to the commission a renewal fee that is equal to twice the normally required renewal fee.

(e) Except as provided by Subsection (f), a person, firm, or business entity may not renew an expired certification, registration, or license one year or more after expiration. The person, firm, or business entity may obtain a new certification, registration, or license by complying with the requirements and procedures, including the examination requirements, for obtaining an original certification, registration, or license.

(f) A person may, without examination, renew a certification, registration, or license which has been expired for one year or longer, if:

(1) before applying for renewal, the person had moved to another state or jurisdiction;

(2) at the time of applying for renewal, the person is certified, registered, or licensed in good standing in the other state or jurisdiction to practice the profession for which the expired certification, registration, or license is required;

(3) the person has been in practice in that profession in that state for one year or more preceding the date the person applies for renewal; and

(4) the person pays to the commission a fee that is equal to twice the normally required renewal fee for the certification, registration, or license.

(g) Not later than the 30th day before the date a regulated person's certification, registration, or license is scheduled to expire, the commission shall send written notice of the impending expiration to the regulated person at the person's last known address according to the records of the commission.

SECTION 9. Section 152.205(c), Government Code, is amended to read as follows:

(c) After publishing the code of ethics, the commission shall propose to the supreme court a rule stating that a person who violates the code of ethics is subject to commission enforcement [an administrative penalty assessed] under Chapter 153.

SECTION 10. Subchapter A, Chapter 153, Government Code, is amended by adding Section 153.0001 to read as follows:

Sec. 153.0001. FILING COMPLAINT. (a) To file a complaint with the commission against a regulated person or another person alleged to have unlawfully engaged in conduct regulated under this subchapter, a person must:

(1) have personal knowledge of the alleged violation;

(2) complete a complaint form provided by the commission;

(3) sign the completed complaint form; and

(4) attach any pertinent documentary evidence to the complaint form.

(b) On receipt of a properly executed complaint, the commission shall furnish a copy of the complaint and any attachments to the person who is the subject of the complaint.

(c) This section does not preclude the commission, an advisory board of the commission, or a court of this state from filing a complaint.

SECTION 11. Section 153.003, Government Code, is amended to read as follows:

Sec. 153.003. CEASE AND DESIST ORDER. (a) The director may issue a temporary cease and desist order for the duration of an investigation and disciplinary action by the commission if the director determines that the action is necessary to prevent a violation of:

(1) this subtitle;

(2) a law establishing a regulatory program administered by the commission; or

(3) a rule adopted under this subtitle or order issued by the commission or the director.

(b) A cease and desist order may require a person to cease and desist from committing a violation listed under Subsection (a) or from engaging in any practice regulated by the commission as necessary to prevent the violation.

(c) A person to whom a cease and desist order is issued may file a written request for a hearing before the commission. The person must file the hearing request not later than the 10th day after the date of receipt of the order. The commission must conduct the hearing not later than the 30th day after the date of the hearing request.

SECTION 12. Section 153.004, Government Code, is amended by adding Subsection (c) to read as follows:

(c) On the commission's motion, or on the recommendation of commission staff, the commission may conduct a hearing to inquire into a suspension. If the commission determines that a person has not corrected the deficiencies that were the grounds of the suspension or has not complied with the conditions imposed by the commission, the commission may revoke or take other disciplinary action against the person's certification, registration, or license.

SECTION 13. Sections 153.051, 153.053, and 153.054, Government Code, are amended to read as follows:

Sec. 153.051. IMPOSITION OF PENALTY. (a) The commission may impose an administrative penalty on a person [regulated under this subtitle] who violates:

(1) this subtitle;

(2) a statute establishing a regulatory program administered by the commission;

(3) [or] a rule or standard adopted under this subtitle; or

(4) an order issued by the commission or director under this subtitle.

(b) A proceeding under this subchapter imposing an administrative penalty may be combined with a proceeding to impose an administrative sanction otherwise imposed under this subtitle. [If an administrative sanction is imposed in a proceeding under this subchapter, the requirements of this subchapter apply to the imposition of the sanction.]

Sec. 153.053. REPORT AND NOTICE OF VIOLATION, PENALTY, AND SANCTION. (a) The commission shall[:

[(1)] appoint a committee of advisory board members to review a complaint, make the initial written determination on whether a violation occurred, and impose [recommend the imposition of] a penalty, a sanction, or both for violations. The committee shall state the committee's written determination as proposed findings of fact and conclusions of law, separately stated.

(b) The committee shall[;

[(2) review the determination and recommendation of the committee and accept or revise as necessary the determination and recommendation; and

[(3)] give to the person who is the subject of the complaint reviewed under Subsection (a) written notice by certified mail of the committee's [commission's] determination on whether a violation occurred and each [recommended] penalty or sanction, if any.

(c) [(b)] The notice required under Subsection (b) [(a)] must:

(1) include a brief summary of the alleged violation;

(2) state the amount of any [recommended] penalty;

(3) state any [recommended] sanction; and

(4) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, the imposition of the sanction, or any combination.

Sec. 153.054. PENALTY PAID, SANCTION ACCEPTED, OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice sent under Section 153.053, the person in writing may:

(1) accept the determination of the committee appointed under Section 153.053 [commission] and the imposition of the [recommended] penalty or sanction as an agreed order to be presented to the commission; or

(2) [make a] request [for] a hearing before the commission on the occurrence of the violation, the imposition or amount of the penalty, the imposition of the sanction, or any combination.

(b) If the person accepts the determination and [recommended] penalty or sanction as an agreed order [or if the person fails to respond to the notice], the commission [by order] shall review the proposed agreed order and accept, revise, or reject it or remand the matter to the committee for further review. The commission shall give to the person written notice of the commission's determination under this subsection. If the commission revises or rejects the proposed agreed order, the person may:

(1) accept the commission's determination, penalty, or sanction; or

(2) request a hearing not later than the 20th day after the date of receiving notice of the commission's determination.

(c) If the person fails to respond to the notice sent under Section 153.053, the commission may issue a default order to approve the determination of the committee and impose or revise the committee's proposed penalty, sanction, or both [approve the determination and impose the recommended penalty or sanction].

SECTION 14. Sections 153.055(c), (d), (e), and (g), Government Code, are amended to read as follows:

(c) The commission shall adopt, revise, or reject the committee's [make] findings of fact and conclusions of law and promptly issue an order on the occurrence of the violation, the amount of any penalty imposed, and the imposition of any sanction. The commission shall give the person notice of the order.

(d) On approval of the supreme court, the commission may adopt rules governing the hearing, including rules on appearance by telephone. To the extent not inconsistent with this subchapter or commission rules, the Texas Rules of Civil Procedure, including discovery rules, apply to the hearing, except that the commission may deviate from those rules as necessary for a full and fair adjudication and determination of fact or law.

(e) The presiding officer of the commission may hold prehearing conferences. The presiding officer may issue orders, including scheduling orders, and may designate the discovery control plan or otherwise limit or modify discovery before a hearing.

(g) On request of the commission, at least one member of the applicable advisory board committee shall attend the hearing to consult with the commission on the reasons for the advisory board committee's determination and proposed penalty or sanction [recommendations] under Section 153.053(a).

SECTION 15. Section 153.056, Government Code, is amended to read as follows:

Sec. 153.056. OPTIONS FOLLOWING DECISION: PAY, ACCEPT, OR APPEAL. Not later than the 30th day after the date the order of the commission imposing an administrative penalty or sanction under Section 153.055 becomes final, the person shall:

(1) accept the obligation to pay the penalty or accept the sanction; or

(2) file an appeal of the commission's order contesting the findings of fact, the conclusions of law, the occurrence of the violation, the imposition or amount of the penalty, the imposition of the sanction, or any combination.

SECTION 16. Section 153.058(f), Government Code, is amended to read as follows:

(f) If the special committee sustains the finding that a violation occurred, the special committee may:

(1) uphold or reduce the amount of any penalty and order the person to pay the full or reduced amount of the penalty; and

(2) uphold or reduce any other sanction and order the imposition of the sanction.

SECTION 17. Subchapter B, Chapter 153, Government Code, is amended by adding Section 153.060 to read as follows:

Sec. 153.060. REISSUANCE OF CERTIFICATE, REGISTRATION, OR LICENSE. (a) The commission may reissue a certificate, registration, or license that has been revoked or that the commissioner has refused to renew as a disciplinary sanction if the individual who was subject to the revocation or nonrenewal applies in writing to the commission and establishes good cause to justify reissuance of the certificate, registration, or license. The applicant has the burden of proving:

(1) the correction of the grounds for the revocation or the commission's refusal to renew the certificate, registration, or license;

(2) good faith efforts to correct, resolve, or otherwise cure the damages arising from the grounds for the revocation or the refusal to renew the certificate, registration, or license;

(3) that reissuance would not pose a threat to public health, safety, and welfare; and

(4) any other rehabilitative efforts.

(b) The commission may impose conditions on the revocation or refusal to renew a certificate, registration, or license that may include:

(1) prohibiting a person from applying for reissuance for a specified period; and

(2) imposing some or all prerequisites for initial certification, registration, or licensure as a prerequisite for reissuance.

(c) The commission may impose appropriate probationary conditions for a specified period on the practice of a person whose certificate, registration, or license is reissued.

SECTION 18. Section 154.101(g), Government Code, is amended to read as follows:

(g) The commission may enforce this section by seeking an injunction or by filing a complaint against a person who is not certified by the supreme court. The commission may seek the injunction in the district court of the county in which that person resides or in Travis County. Said action for an injunction shall be in addition to any other action, proceeding, or remedy authorized by law. The commission shall be represented by the attorney general, [and/or] the county or district attorney of this state, or counsel designated and empowered by the commission.

SECTION 19. Section 154.106(a), Government Code, is amended to read as follows:

(a) A shorthand reporting firm or an affiliate office may not assume or use the title or designation "court recording firm," "court reporting firm," or "shorthand reporting firm" or any abbreviation, title, designation, words, letters, sign, card, or device tending to indicate that the firm is a court reporting firm or shorthand reporting firm, or offer services as a court reporting firm or shorthand reporting firm, unless the firm and its affiliate offices are registered with the commission on a form prescribed by the commission as required by this subchapter.

SECTION 20. Sections 154.107(b) and (c), Government Code, are amended to read as follows:

(b) A certification or registration expires [at 12:01 a.m.] on the last day of the month in which [January 1 following] the second anniversary of the date on which it was issued occurs unless the certification or registration is renewed on or before that day. [Thereafter, the certification or registration expires at 12:01 a.m. of each second January 1 unless renewed.]

(c) On each renewal of the certification or registration, a fee is charged in accordance with Section 152.2015. A firm or the affiliate office of a firm that may not renew an expired registration as described by Section 152.2015(e) must pay all unpaid renewal and late fees charged for the expired registration, in addition to complying with all registration requirements and procedures, in order to obtain a new registration under Section 152.2015(e) [A person who is otherwise eligible to renew a certification or registration may renew an unexpired certification or registration by paying the required renewal fee to the commission before the expiration date of the certification or registration. A person whose certification or registration has expired may not engage in activities that require a certification or registration until the certification or registration has been renewed].

SECTION 21. Section 154.110(a), Government Code, is amended to read as follows:

(a) After receiving a complaint and giving the certified shorthand reporter notice and an opportunity for a hearing as prescribed by Subchapter B, Chapter 153, the commission shall revoke, suspend, or refuse to renew the shorthand reporter's certification or issue a reprimand to the reporter for:

(1) fraud or corruption;

(2) dishonesty;

(3) wilful or negligent violation or failure of duty;

(4) incompetence;

(5) fraud or misrepresentation in obtaining certification;

(6) a final conviction of a felony or misdemeanor that directly relates to the duties and responsibilities of a certified shorthand [court] reporter, as determined by supreme court rules;

(7) engaging in the practice of shorthand reporting using a method for which the reporter is not certified;

(8) engaging in the practice of shorthand reporting while certification is suspended;

(9) unprofessional conduct, including giving directly or indirectly, benefiting from, or being employed as a result of any gift, incentive, reward, or anything of value to attorneys, clients, or their representatives or agents, except for nominal items that do not exceed $100 in the aggregate for each recipient each year;

(10) entering into or providing services under a prohibited contract described by Section 154.115;

(11) committing any other act that violates this chapter or a rule or provision of the code of ethics adopted under this subtitle; or

(12) other sufficient cause.

SECTION 22. Section 154.111(c), Government Code, is amended to read as follows:

(c) The commission may suspend the registration of a shorthand reporting firm or affiliate office:

(1) for a designated period of time in accordance with Section 154.110(b);

(2) until the shorthand reporting firm or affiliate office corrects the deficiencies that were the grounds for the suspension; or

(3) until the shorthand reporting firm or affiliate office complies with any conditions imposed by the commission to ensure the shorthand reporting firm's or affiliate office's future performance.

SECTION 23. Sections 155.001(2), (3), (5), and (7), Government Code, are amended to read as follows:

(2) "Corporate fiduciary" has the meaning assigned by Section 1002.007, Estates [601, Texas Probate] Code.

(3) "Guardian" has the meaning assigned by Section 1002.012, Estates [601, Texas Probate] Code.

(5) "Incapacitated person" has the meaning assigned by Section 1002.017, Estates [601, Texas Probate] Code.

(7) "Ward" has the meaning assigned by Section 22.033, Estates [601, Texas Probate] Code.

SECTION 24. Sections 155.102(c) and (d), Government Code, are amended to read as follows:

(c) The supreme court may adopt rules and procedures for issuing a certificate and for renewing, suspending, or revoking a certificate issued under this section. Any rules adopted by the supreme court under this section must:

(1) ensure compliance with the standards adopted under Section 155.101;

(2) provide that the commission establish qualifications for obtaining and maintaining certification;

(3) provide that the commission issue certificates under this section;

(4) provide that a certificate expires on the last day of the month in which the second anniversary of the date the certificate was [is] issued occurs unless renewed on or before that day;

(5) prescribe procedures for accepting complaints and conducting investigations of alleged violations of the minimum standards adopted under Section 155.101 or other terms of the certification by certificate holders; and

(6) prescribe procedures by which the commission, after notice and hearing, may suspend or revoke the certificate of a holder who fails to substantially comply with appropriate standards or other terms of the certification.

(d) If the requirements for issuing a certificate under this section or reissuing a certificate under Section 153.060 include passage of an examination covering guardianship education requirements:

(1) the commission shall develop and the director shall administer the examination; or

(2) the commission shall direct the director to contract with another person or entity the commission determines has the expertise and resources to develop and administer the examination.

SECTION 25. Section 155.104, Government Code, is amended to read as follows:

Sec. 155.104. INFORMATION FROM PRIVATE PROFESSIONAL GUARDIANS. In addition to the information submitted under Section 1104.306, Estates [697(e), Texas Probate] Code, the director may require a private professional guardian or a person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian to submit information considered necessary to monitor the person's compliance with the applicable standards adopted under Section 155.101 or with the certification requirements of Section 155.102.

SECTION 26. Section 155.105(c), Government Code, is amended to read as follows:

(c) A private professional guardian shall submit with the report required under Subsection (b) a copy of the guardian's application for a certificate of registration required by Section 1104.302, Estates [697(a), Texas Probate] Code.

SECTION 27. Section 156.001, Government Code, is amended to read as follows:

Sec. 156.001. DEFINITIONS [DEFINITION]. In this chapter:

(1) [,] "Advisory [advisory] board" means the Process Server Certification Advisory Board.

(2) "Certified process server" or "process server" means a person who is certified by the commission under order of the supreme court to serve process.

SECTION 28. Subchapter B, Chapter 156, Government Code, is amended by adding Section 156.053 to read as follows:

Sec. 156.053. PROCESS SERVER CERTIFICATION RENEWAL; FEES. Certification of a process server expires on the last day of the month in which the second anniversary of the date on which the certification was issued occurs unless it is renewed on or before that date. On renewal of certification, each process server must pay a fee to the commission in accordance with Section 152.2015.

SECTION 29. Section 157.001(2), Government Code, is amended to read as follows:

(2) "Licensed court interpreter" means an individual licensed under this chapter by the commission to interpret court proceedings for an individual who can hear but who has no or limited English proficiency [does not comprehend English or communicate in English].

SECTION 30. Sections 157.101(a), (c), and (d), Government Code, are amended to read as follows:

(a) The director shall issue a court interpreter license to an applicant who:

(1) can interpret for an individual who can hear but who has no or limited English proficiency [does not comprehend English or communicate in English];

(2) passes the appropriate examination prescribed by the commission within the period specified in Section 152.201(c-1) [not earlier than two years before the date the director receives the applicant's application for a license]; and

(3) possesses the other qualifications for the license required by this chapter or by rules adopted under this chapter.

(c) A license issued under this chapter expires on the last day of the month in which the second anniversary of the date on which the license was issued occurs unless it is renewed on or before that date [is valid for one year from the date of issuance].

(d) A license issued under this chapter must include at least one of the following designations:

(1) a basic designation that permits the interpreter to interpret court proceedings in justice courts and municipal courts that are not municipal courts of record, but the designation does not permit the interpreter to interpret [other than] a proceeding before the court in which the judge is acting as a magistrate; or

(2) a master designation that permits the interpreter to interpret court proceedings in all courts in this state, including justice courts and municipal courts described by Subdivision (1).

SECTION 31. Section 157.102, Government Code, is amended to read as follows:

Sec. 157.102. COURT INTERPRETER LICENSE. To qualify for a court interpreter license under this chapter, an individual must apply on a form prescribed by the commission and demonstrate, in the manner required by the director, reasonable proficiency in interpreting English and court proceedings for individuals who can hear but who have no or limited English proficiency [do not comprehend English or communicate in English].

SECTION 32. The heading to Section 157.104, Government Code, is amended to read as follows:

Sec. 157.104. COMMISSION DUTIES[; INSPECTIONS].

SECTION 33. Section 157.105, Government Code, is amended to read as follows:

Sec. 157.105. SUSPENSION, REFUSAL OF RENEWAL, AND REVOCATION OF LICENSES; REISSUANCE. (a) After providing the opportunity for a hearing in accordance with Section 153.055, the commission shall suspend, [or] revoke, or refuse to renew a court interpreter license on a finding that the individual:

(1) made a material misstatement in an application for a license;

(2) disregarded or violated this chapter or a rule adopted under this chapter; or

(3) engaged in dishonorable or unethical conduct likely to deceive, defraud, or harm the public or a person for whom the interpreter interprets.

(b) In accordance with Section 153.060, the [The] commission may reissue a license to an individual whose license has been revoked or refused renewal if the individual applies in writing to the department and shows good cause to justify reissuance of the license.

SECTION 34. Section 157.107(b), Government Code, is amended to read as follows:

(b) A person who violates this chapter or a rule adopted under this chapter is subject to an administrative penalty assessed by the commission as provided by Chapter 153, in addition to administrative sanctions that may be imposed under Section 157.105.

SECTION 35. The following provisions of the Government Code are repealed:

(1) Sections 154.107(d), (e), (f), (g), and (h);

(2) Sections 154.108 and 154.109;

(3) Section 154.110(d);

(4) Section 154.111(e); and

(5) Section 156.052(b).

SECTION 36. (a) Section 152.053, Government Code, as amended by this Act, applies only to the appointment of a person to an advisory board or committee of the Judicial Branch Certification Commission on or after the effective date of this Act. The appointment of a person to an advisory board or committee of the Judicial Branch Certification Commission before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

(b) Section 154.107(b), Government Code, as amended by this Act, applies only to the expiration of a certification or registration of a court reporter on or after January 1, 2018. The expiration of a certification or registration of a court reporter before that date is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

(c) If a person's certification, registration, or license expiration date changes as a result of Section 154.107, 155.102, or 157.101, Government Code, as amended by this Act, or Section 156.053, Government Code, as added by this Act, the Judicial Branch Certification Commission must prorate the certification, registration, or license fee on a monthly basis so that each certification, registration, or license holder pays only the portion of the fee that is allocable to the number of months during which the certification, registration, or license is valid.

SECTION 37. This Act takes effect September 1, 2017.