| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to limitations on the enforcement of certain occupational |
|
|
regulations. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Title 1, Occupations Code, is amended by adding |
|
|
Chapter 2 to read as follows: |
|
|
CHAPTER 2. LIMITATION ON ENFORCEMENT OF CERTAIN OCCUPATIONAL |
|
|
REGULATIONS |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 2.001. DEFINITIONS. In this chapter: |
|
|
(1) "License" means a nontransferable and exclusive |
|
|
authorization issued by a licensing authority authorizing an |
|
|
individual, based on the established personal qualifications, to |
|
|
engage in a particular occupation. |
|
|
(2) "Licensing authority" means a department, |
|
|
commission, board, office, or other agency of this state or a |
|
|
political subdivision of this state that issues a license, |
|
|
specialty occupational license for medical reimbursement, |
|
|
registration, certificate, permit, or other authorization related |
|
|
to an occupation. |
|
|
(3) "Occupational regulation" means any regulation, |
|
|
rule, policy, fee, condition, test, permit, administrative |
|
|
practice, or other provision in which a licensing authority |
|
|
establishes the personal qualifications necessary to engage in any |
|
|
occupation or profession. The term does not include a license. |
|
|
(4) "Personal qualifications" means criteria related |
|
|
to an individual's personal background and characteristics related |
|
|
to eligibility for a license including: |
|
|
(A) educational attainment; |
|
|
(B) passage of an examination; |
|
|
(C) work experience; |
|
|
(D) character; and |
|
|
(E) criminal history. |
|
|
(5) "Specialty occupational license for medical |
|
|
reimbursement" means a nontransferable authorization to perform a |
|
|
medical service that is: |
|
|
(A) required for an individual to be eligible to |
|
|
receive payment or reimbursement from a governmental agency or |
|
|
other entity for providing medical services; and |
|
|
(B) issued by a licensing authority to an |
|
|
individual who meets the established personal qualifications. |
|
|
(6) "Welfare" means an action to protect the public |
|
|
against fraud or harm. The term does not include an action to |
|
|
protect an existing public or private entity against competition. |
|
|
Sec. 2.002. POLICY. It is the policy of this state that all |
|
|
occupational regulations must be limited to those demonstrably |
|
|
necessary and carefully tailored to fulfill legitimate public |
|
|
health, safety, and welfare objectives. |
|
|
Sec. 2.003. REVIEW REQUIRED. (a) Not later than September |
|
|
1, 2024, each licensing authority shall conduct a comprehensive |
|
|
review of each occupational regulation applicable to a license |
|
|
issued by the authority and for each occupational regulation: |
|
|
(1) specify the public health, safety, or welfare |
|
|
objective served by the regulation and the reason the regulation is |
|
|
necessary to serve each objective; |
|
|
(2) analyze, based on any available information, the |
|
|
effects of the regulation on: |
|
|
(A) opportunities for workers; |
|
|
(B) consumer choices and costs; |
|
|
(C) general unemployment; |
|
|
(D) market competition; |
|
|
(E) governmental costs; and |
|
|
(F) other related measures; and |
|
|
(3) compare the regulation with how the applicable |
|
|
business or profession is regulated in other states. |
|
|
(b) A licensing authority shall for any occupational |
|
|
regulation determined during a review under Subsection (a) to |
|
|
violate the policy provided by Section 2.002: |
|
|
(1) repeal the regulation or modify the regulation to |
|
|
conform to the policy provided by Section 2.002, if the authority is |
|
|
authorized by law to do so; or |
|
|
(2) recommend that the legislature repeal the |
|
|
regulation or take any other action necessary to modify the |
|
|
regulation to conform to the policy provided by Section 2.002. |
|
|
(c) Not later than December 1, 2024, each licensing |
|
|
authority shall submit to the legislature a report summarizing any |
|
|
actions taken by the authority under Subsection (b)(1) and any |
|
|
recommendations made under Subsection (b)(2). |
|
|
(d) This section expires September 1, 2025. |
|
|
SUBCHAPTER B. ENFORCEMENT |
|
|
Sec. 2.051. PETITION FOR REPEAL OR MODIFICATION. (a) A |
|
|
person may petition a licensing authority to repeal or modify an |
|
|
occupational regulation applicable to a license issued by the |
|
|
authority if the regulation violates the policy provided by Section |
|
|
2.002. |
|
|
(b) Not later than the 90th day after the date a licensing |
|
|
authority receives a petition under Subsection (a), the authority |
|
|
shall: |
|
|
(1) repeal the regulation; |
|
|
(2) modify the regulation to conform to the policy |
|
|
provided by Section 2.002; |
|
|
(3) state the reasons the authority has determined |
|
|
that the regulation does not violate the policy provided by Section |
|
|
2.002; or |
|
|
(4) notify the petitioner that the authority is not |
|
|
authorized under law to repeal or modify the regulation. |
|
|
Sec. 2.052. INJUNCTIVE RELIEF. (a) A person may bring an |
|
|
action for an injunction against the enforcement of an occupational |
|
|
regulation in a district court in Travis County or any county in |
|
|
which the regulation is enforced. |
|
|
(b) A person is entitled to relief from an occupational |
|
|
regulation if the court finds by a preponderance of evidence that |
|
|
the occupational regulation on its face or in its effect burdens the |
|
|
entry into a profession or occupation and: |
|
|
(1) the licensing authority is unable to prove by a |
|
|
preponderance of evidence that the regulation is not demonstrably |
|
|
necessary and carefully tailored to fulfill legitimate public |
|
|
health, safety, or welfare objectives; or |
|
|
(2) if the regulation is necessary to the legitimate |
|
|
public health, safety, or welfare objectives as demonstrated under |
|
|
Subdivision (1), the objective can be effectively served by using a |
|
|
less restrictive regulation that is less burdensome to economic |
|
|
opportunity. |
|
|
(c) In determining whether an occupational regulation is |
|
|
less restrictive for purposes of Subsection (b)(2), the following |
|
|
list represents regulations from least restrictive to most |
|
|
restrictive: |
|
|
(1) market competition; |
|
|
(2) ratings or reviews from consumers or third |
|
|
parties; |
|
|
(3) private certification; |
|
|
(4) voluntary bonding or insurance; |
|
|
(5) existence of a specific private cause of action to |
|
|
remedy a consumer harm; |
|
|
(6) a law prohibiting deceptive trade practices; |
|
|
(7) a requirement for mandatory disclosure to a |
|
|
consumer of attributes of a specific good or service; |
|
|
(8) a restriction on the process of providing a |
|
|
specific good or service to a consumer; |
|
|
(9) inspection requirements; |
|
|
(10) a requirement that an individual obtain a bond or |
|
|
insurance; |
|
|
(11) a statute, rule, or policy requiring registration |
|
|
with a licensing authority; |
|
|
(12) a statute, rule, or policy requiring |
|
|
certification by a licensing authority; |
|
|
(13) a specialty occupational license for medical |
|
|
reimbursement; and |
|
|
(14) a statute, rule, or policy requiring licensing by |
|
|
a licensing authority. |
|
|
(d) The court shall award to a plaintiff who prevails under |
|
|
this section reasonable attorney's fees and costs. |
|
|
SECTION 2. This Act takes effect September 1, 2023. |