81R6531 JAM-F
By: Geren H.B. No. 1406
A BILL TO BE ENTITLED
AN ACT
relating to practices and professions regulated by the Texas Real
Estate Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1101.152(a), Occupations Code, as
amended by Section 3, Chapter 297 (H.B. 1530), and Section 9,
Chapter 1411 (S.B. 914), Acts of the 80th Legislature, Regular
Session, 2007, is reenacted and amended to read as follows:
(a) The commission shall adopt rules to charge and collect
[reasonable] fees in amounts reasonable and necessary to cover the
costs of administering this chapter, including a fee for:
(1) filing an original application for a broker
license;
(2) annual renewal of a broker license;
(3) filing an original application for a salesperson
license;
(4) annual renewal of a salesperson license;
(5) annual registration;
(6) filing an application for a license examination;
(7) filing a request for a branch office license;
(8) filing a request for a change of place of business,
change of name, return to active status, or change of sponsoring
broker;
(9) filing a request to replace a lost or destroyed
license or certificate of registration;
(10) filing an application for approval of an
education program under Subchapter G;
(11) annual operation of an education program under
Subchapter G;
(12) filing an application for approval of an
instructor of core real estate courses;
(13) transcript evaluation;
(14) preparing a license or registration history;
(15) filing an application for a moral character
determination; and
(16) conducting a criminal history check for issuing
or renewing a license.
SECTION 2. Section 1101.152(b), Occupations Code, is
amended to read as follows:
(b) The commission shall adopt rules to set and collect
[reasonable] fees in amounts reasonable and necessary to cover the
costs of implementing [to implement] the continuing education
requirements for license holders, including a fee for:
(1) an application for approval of a continuing
education provider;
(2) an application for approval of a continuing
education course of study;
(3) an application for approval of an instructor of
continuing education courses; and
(4) attendance at a program to train instructors of a
continuing education course prescribed under Section 1101.455.
SECTION 3. Section 1101.153(b), Occupations Code, is
amended to read as follows:
(b) Of each fee increase collected under Subsection (a):
(1) $50 shall be transmitted to Texas A&M University
for deposit in a separate banking account that may be appropriated
only to support, maintain, and carry out the purposes, objectives,
and duties of Texas Real Estate Research Center;
(2) [,] $50 shall be deposited to the credit of the
foundation school fund; and
(3) $100 [$150] shall be deposited to the credit of the
general revenue fund.
SECTION 4. Section 1101.154(a), Occupations Code, is
amended to read as follows:
(a) The fee for the issuance or renewal of a:
(1) broker license is the amount of the fee set under
Sections 1101.152 and 1101.153 and an additional $20 fee;
(2) salesperson license is the amount of the fee set
under Section 1101.152 and an additional $20 [$17.50] fee; and
(3) certificate of registration is the amount of the
fee set under Section 1101.152 and an additional $20 fee.
SECTION 5. Section 1101.606, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (c) and (d) to
read as follows:
(a) Except as provided by Subsection (c), an [An] aggrieved
person who obtains a court judgment against a license or
certificate holder for an act described by Section 1101.602 may,
after final judgment is entered, execution returned nulla bona, and
a judgment lien perfected, file a verified claim in the court that
entered the judgment.
(c) If an aggrieved person is precluded by action of a
bankruptcy court from executing a judgment or perfecting a judgment
lien as required by Subsection (a), the person shall verify to the
commission that the person has made a good faith effort to protect
the judgment from being discharged in bankruptcy.
(d) The commission by rule may prescribe the actions
necessary for an aggrieved person to demonstrate that the person
has made a good faith effort under Subsection (c) to protect a
judgment from being discharged in bankruptcy.
SECTION 6. Section 1101.652, Occupations Code, is amended
to read as follows:
Sec. 1101.652. GROUNDS FOR SUSPENSION OR REVOCATION OF
LICENSE. (a) The commission may suspend or revoke a license
issued under this chapter or take other disciplinary action
authorized by this chapter if the license holder:
(1) enters a plea of guilty or nolo contendere to or is
convicted of a felony or a criminal offense involving fraud [in
which fraud is an essential element], and the time for appeal has
elapsed or the judgment or conviction has been affirmed on appeal,
without regard to an order granting community supervision that
suspends the imposition of the sentence;
(2) procures or attempts to procure a license under
this chapter for the license holder or a salesperson by fraud,
misrepresentation, or deceit or by making a material misstatement
of fact in an application for a license;
(3) engages in misrepresentation, dishonesty, or
fraud when selling, buying, trading, or leasing real property in
the name of:
(A) the license holder;
(B) the license holder's spouse; or
(C) a person related to the license holder within
the first degree by consanguinity;
(4) fails to honor, within a reasonable time, a check
issued to the commission after the commission has sent by certified
mail a request for payment to the license holder's last known
business address according to commission records;
(5) fails or refuses to produce on request, for
inspection by the commission or a commission representative, a
document, book, or record that is in the license holder's
possession and relates to a real estate transaction conducted by
the license holder;
(6) fails to provide, within a reasonable time,
information requested by the commission that relates to a formal or
informal complaint to the commission that would indicate a
violation of this chapter;
(7) fails to surrender to the owner, without just
cause, a document or instrument that is requested by the owner and
that is in the license holder's possession;
(8) fails to use a contract form required by the
commission under Section 1101.155;
(9) fails to notify the commission, not later than the
30th day after the date of a final conviction or the entry of a plea
of guilty or nolo contendere, that the person has been convicted of
or entered a plea of guilty or nolo contendere to a felony or a
criminal offense involving fraud; or
(10) disregards or violates this chapter.
(b) The commission may suspend or revoke a license issued
under this chapter or take other disciplinary action authorized by
this chapter if the license holder, while acting as a broker or
salesperson:
(1) acts negligently or incompetently;
(2) engages in conduct that is dishonest or in bad
faith or that demonstrates untrustworthiness;
(3) makes a material misrepresentation to a potential
buyer concerning a significant defect, including a latent
structural defect, known to the license holder that would be a
significant factor to a reasonable and prudent buyer in making a
decision to purchase real property;
(4) fails to disclose to a potential buyer a defect
described by Subdivision (3) that is known to the license holder;
(5) makes a false promise that is likely to influence a
person to enter into an agreement when the license holder is unable
or does not intend to keep the promise;
(6) pursues a continued and flagrant course of
misrepresentation or makes false promises through an agent or
salesperson, through advertising, or otherwise;
(7) fails to make clear to all parties to a real estate
transaction the party for whom the license holder is acting;
(8) receives compensation from more than one party to
a real estate transaction without the full knowledge and consent of
all parties to the transaction;
(9) fails within a reasonable time to properly account
for or remit money that is received by the license holder and that
belongs to another person;
(10) commingles money that belongs to another person
with the license holder's own money;
(11) pays a commission or a fee to or divides a
commission or a fee with a person other than a license holder or a
real estate broker or salesperson licensed in another state for
compensation for services as a real estate agent;
(12) fails to specify a definite termination date that
is not subject to prior notice in a contract, other than a contract
to perform property management services, in which the license
holder agrees to perform services for which a license is required
under this chapter;
(13) accepts, receives, or charges an undisclosed
commission, rebate, or direct profit on an expenditure made for a
principal;
(14) solicits, sells, or offers for sale real property
by means of a lottery;
(15) solicits, sells, or offers for sale real property
by means of a deceptive practice;
(16) acts in a dual capacity as broker and undisclosed
principal in a real estate transaction;
(17) guarantees or authorizes or permits a person to
guarantee that future profits will result from a resale of real
property;
(18) places a sign on real property offering the real
property for sale or lease without obtaining the written consent of
the owner of the real property or the owner's authorized agent;
(19) offers to sell or lease real property without the
knowledge and consent of the owner of the real property or the
owner's authorized agent;
(20) offers to sell or lease real property on terms
other than those authorized by the owner of the real property or the
owner's authorized agent;
(21) induces or attempts to induce a party to a
contract of sale or lease to break the contract for the purpose of
substituting a new contract;
(22) negotiates or attempts to negotiate the sale,
exchange, or lease of real property with an owner, landlord, buyer,
or tenant with knowledge that that person is a party to an
outstanding written contract that grants exclusive agency to
another broker in connection with the transaction;
(23) publishes or causes to be published an
advertisement, including an advertisement by newspaper, radio,
television, the Internet, or display, that misleads or is likely to
deceive the public, tends to create a misleading impression, or
fails to identify the person causing the advertisement to be
published as a licensed broker or agent;
(24) withholds from or inserts into a statement of
account or invoice a statement that the license holder knows makes
the statement of account or invoice inaccurate in a material way;
(25) publishes or circulates an unjustified or
unwarranted threat of a legal proceeding or other action;
(26) establishes an association by employment or
otherwise with a person other than a license holder if the person is
expected or required to act as a license holder;
(27) aids, abets, or conspires with another person to
circumvent this chapter;
(28) fails or refuses to provide, on request, a copy of
a document relating to a real estate transaction to a person who
signed the document;
(29) fails to advise a buyer in writing before the
closing of a real estate transaction that the buyer should:
(A) have the abstract covering the real estate
that is the subject of the contract examined by an attorney chosen
by the buyer; or
(B) be provided with or obtain a title insurance
policy;
(30) fails to deposit, within a reasonable time, money
the license holder receives as escrow agent in a real estate
transaction:
(A) in trust with a title company authorized to
do business in this state; or
(B) in a custodial, trust, or escrow account
maintained for that purpose in a banking institution authorized to
do business in this state;
(31) disburses money deposited in a custodial, trust,
or escrow account, as provided in Subdivision (30), before the
completion or termination of the real estate transaction;
(32) discriminates against an owner, potential buyer,
landlord, or potential tenant on the basis of race, color,
religion, sex, disability, familial status, national origin, or
ancestry, including directing a prospective buyer or tenant
interested in equivalent properties to a different area based on
the race, color, religion, sex, disability, familial status,
national origin, or ancestry of the potential owner or tenant; or
(33) disregards or violates this chapter.
SECTION 7. Section 1303.3525, Occupations Code, is amended
to read as follows:
Sec. 1303.3525. HEARING [EXAMINER]. (a) The commission
may authorize the State Office of Administrative Hearings [a
hearing examiner] to conduct a hearing and enter a final decision in
a proceeding under Section 1303.351.
(b) All hearings conducted under Subsection (a) are
governed by Chapter 2001, Government Code [A final decision of a
hearing examiner under this section is appealable to the commission
as provided by commission rule].
SECTION 8. Sections 221.024(b) and (c), Property Code, are
amended to read as follows:
(b) The commission [may]:
(1) shall authorize the State Office of Administrative
Hearings [specific employees] to conduct hearings [and issue final
decisions] in contested cases; and
(2) may establish reasonable fees for forms and
documents it provides to the public and for the filing or
registration of documents required by this chapter.
(c) If the commission initiates a disciplinary proceeding
under this chapter, the person is entitled to a hearing before the
State Office of Administrative Hearings [commission or a hearing
officer appointed by the commission]. The commission by rule shall
adopt procedures to permit an appeal to the commission from a
determination made by the State Office of Administrative Hearings
[a hearing officer] in a disciplinary action.
SECTION 9. Section 221.027(c), Property Code, is amended to
read as follows:
(c) A registration may be suspended under this section
without notice or hearing on the complaint if:
(1) institution of proceedings for a hearing before
the State Office of Administrative Hearings [commission] is
initiated simultaneously with the temporary suspension; and
(2) a hearing is held under Chapter 2001, Government
Code, and this chapter as soon as possible.
SECTION 10. (a) The change in law made by this Act to
Section 1101.606, Occupations Code, applies only to a judgment
entered by a court on or after the effective date of this Act. A
judgment entered before the effective date of this Act is governed
by the law in effect when the judgment was entered, and the former
law is continued in effect for that purpose.
(b) The change in law made by this Act to Section
1101.652(b), Occupations Code, applies only to conduct occurring
on or after the effective date of this Act. Conduct occurring
before the effective date of this Act is governed by the law in
effect when the conduct occurred, and the former law is continued in
effect for that purpose.
(c) The changes in law made by this Act to Section
1303.3525, Occupations Code, and Section 221.024, Property Code,
apply only to a contested case filed on or after the effective date
of this Act. A contested case filed before the effective date of
this Act is governed by the law in effect on the date the contested
case was filed, and the former law is continued in effect for that
purpose.
SECTION 11. (a) Except as provided by Subsection (b) of
this section, this Act takes effect immediately if it receives a
vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.
(b) Section 1101.153(b), Occupations Code, as amended by
this Act, takes effect September 1, 2011.