By: Birdwell S.B. No. 1995
 
  (Paddie)
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the review of certain occupational licensing rules by
  the office of the governor.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 57, Occupations Code, is amended by
  designating Section 57.001 as Subchapter A and adding a subchapter
  heading to read as follows:
  SUBCHAPTER A. GENERAL PROVISIONS
         SECTION 2.  Chapter 57, Occupations Code, is amended by
  adding Subchapter B, and a heading is added to that subchapter to
  read as follows:
  SUBCHAPTER B. GOVERNING BOARD MEMBERSHIP
         SECTION 3.  Section 57.002, Occupations Code, is transferred
  to Subchapter B, Chapter 57, Occupations Code, as added by this Act,
  and redesignated as Section 57.051, Occupations Code, to read as
  follows:
         Sec. 57.051 [57.002].  REQUIREMENTS FOR GOVERNING BOARD
  MEMBERSHIP. A person may not be required to be a member of a private
  trade association as a precondition to serving as a member of the
  governing board of a state agency that issues a license or otherwise
  regulates a business, occupation, or profession.
         SECTION 4.  Chapter 57, Occupations Code, is amended by
  adding Subchapter C to read as follows:
  SUBCHAPTER C. REVIEW OF STATE AGENCY RULES
         Sec. 57.101.  DEFINITION.  In this subchapter, "division" 
  means the division of the governor's office established under this
  subchapter.
         Sec. 57.102.  APPLICABILITY. This subchapter applies only
  to a state agency with a governing board that is controlled by
  persons who provide services that are regulated by the agency.
         Sec. 57.103.  ESTABLISHMENT OF DIVISION. (a)  The governor
  shall:
               (1)  establish a division to review state agency rules
  in accordance with this subchapter; and
               (2)  appoint a director for the division with the
  advice and consent of the senate.
         (b)  The director must be licensed to practice law in this
  state and have experience in antitrust law.
         (c)  The director serves a two-year term expiring February 1
  of each odd-numbered year.
         Sec. 57.104.  CONFLICT OF INTEREST.  (a)  In this section,
  "Texas trade association" means a 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 appointed as director or employed by
  the division 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.),
  and its subsequent amendments, if:
               (1)  the person is an officer, employee, or paid
  consultant of a Texas trade association; or
               (2)  the person's spouse is an officer, manager, or paid
  consultant of a Texas trade association.
         (c)  A person may not be appointed as director or act as the
  general counsel to the division if the person is required to
  register as a lobbyist under Chapter 305, Government Code.
         Sec. 57.105.  SUBMISSION OF CERTAIN STATE AGENCY RULES.
  (a)  A state agency that issues a license must submit any proposed
  rule affecting market competition in this state relating to the
  business, occupation, or profession for which a license is issued
  to the division for review before the rule is adopted or
  implemented.  A state agency that issues a license must also submit
  to the division for review any rule that the agency is considering
  for readoption under Section 2001.039, Government Code, if the rule
  affects market competition as described by this section.
         (b)  The state agency must include with the submission a
  statement of the purpose for the proposed rule, copies of all
  administrative records regarding the proposed rule, including any
  information or comments the agency received from the public, and
  any other information required by the division.
         (c)  For purposes of this section, a rule affects market
  competition if the rule would, if implemented or readopted:
               (1)  create a barrier to market participation in this
  state; or
               (2)  result in higher prices or reduced competition for
  a product or service provided by a license holder in this state.
         Sec. 57.106.  REVIEW BY DIVISION. (a)  The division shall
  conduct a thorough, independent review of each proposed rule
  submitted under Section 57.105 to determine:
               (1)  if the effect of the proposed rule on market
  competition is consistent with state policy as established by the
  applicable state agency's governing statute; and
               (2)  whether the proposed rule promotes a clearly
  articulated and affirmatively expressed policy as established by
  the legislature to displace competition with government action.
         (b)  In conducting the review, the division may:
               (1)  request information from the state agency;
               (2)  require the state agency to conduct an analysis of
  possible implications of the rule;
               (3)  solicit public comments; or
               (4)  hold public hearings.
         (c)  The division shall complete the review not later than
  the 90th day after the date the proposed rule is submitted under
  Section 57.105.
         (d)  After review, the division shall:
               (1)  approve the proposed rule; or
               (2)  reject the proposed rule and return the rule to the
  state agency with instructions for revising the rule to be
  consistent with applicable state policy.
         (e)  A state agency may not finally adopt or implement a
  proposed rule required to be submitted for review under this
  subchapter unless the division has approved the rule under this
  section.
         (f)  The division shall, for each proposed rule submitted
  under this subchapter, provide to the state agency and make
  available to the public an explanation of the division's reasons
  for approving or rejecting the rule, including a discussion of the
  division's determination regarding the consistency of the rule with
  applicable state policy.
         (g)  The division may initiate a review of a proposed rule
  that was not submitted for review under this subchapter if the
  division has reason to believe that the proposed rule may have an
  anticompetitive market effect.  A state agency may not finally
  adopt or implement a proposed rule for which the division has
  initiated a review under this subsection unless the division
  approves the rule in accordance with this section.
         (h)  When conducting a review of a proposed rule or deciding
  whether to initiate a review, the division shall only consider
  evidence or communications that are:
               (1)  submitted to the division in writing from an
  identified person or entity and made available to the public;
               (2)  submitted in a public hearing; or
               (3)  generally known to the public.
         Sec. 57.107.  RULEMAKING AUTHORITY. The division may adopt
  rules to carry out this subchapter.
         SECTION 5.  The office of the governor is required to
  implement a provision of this Act only if the legislature
  appropriates money specifically for that purpose.  If the
  legislature does not appropriate money specifically for that
  purpose, the office of the governor may, but is not required to,
  implement a provision of this Act using other appropriations
  available for that purpose.
         SECTION 6.  This Act takes effect September 1, 2019.