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Texas House Bill HB1406

Texas 2009 - 81st Regular

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11 81R6531 JAM-F
22 By: Geren H.B. No. 1406
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to practices and professions regulated by the Texas Real
88 Estate Commission.
99 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1010 SECTION 1. Section 1101.152(a), Occupations Code, as
1111 amended by Section 3, Chapter 297 (H.B. 1530), and Section 9,
1212 Chapter 1411 (S.B. 914), Acts of the 80th Legislature, Regular
1313 Session, 2007, is reenacted and amended to read as follows:
1414 (a) The commission shall adopt rules to charge and collect
1515 [reasonable] fees in amounts reasonable and necessary to cover the
1616 costs of administering this chapter, including a fee for:
1717 (1) filing an original application for a broker
1818 license;
1919 (2) annual renewal of a broker license;
2020 (3) filing an original application for a salesperson
2121 license;
2222 (4) annual renewal of a salesperson license;
2323 (5) annual registration;
2424 (6) filing an application for a license examination;
2525 (7) filing a request for a branch office license;
2626 (8) filing a request for a change of place of business,
2727 change of name, return to active status, or change of sponsoring
2828 broker;
2929 (9) filing a request to replace a lost or destroyed
3030 license or certificate of registration;
3131 (10) filing an application for approval of an
3232 education program under Subchapter G;
3333 (11) annual operation of an education program under
3434 Subchapter G;
3535 (12) filing an application for approval of an
3636 instructor of core real estate courses;
3737 (13) transcript evaluation;
3838 (14) preparing a license or registration history;
3939 (15) filing an application for a moral character
4040 determination; and
4141 (16) conducting a criminal history check for issuing
4242 or renewing a license.
4343 SECTION 2. Section 1101.152(b), Occupations Code, is
4444 amended to read as follows:
4545 (b) The commission shall adopt rules to set and collect
4646 [reasonable] fees in amounts reasonable and necessary to cover the
4747 costs of implementing [to implement] the continuing education
4848 requirements for license holders, including a fee for:
4949 (1) an application for approval of a continuing
5050 education provider;
5151 (2) an application for approval of a continuing
5252 education course of study;
5353 (3) an application for approval of an instructor of
5454 continuing education courses; and
5555 (4) attendance at a program to train instructors of a
5656 continuing education course prescribed under Section 1101.455.
5757 SECTION 3. Section 1101.153(b), Occupations Code, is
5858 amended to read as follows:
5959 (b) Of each fee increase collected under Subsection (a):
6060 (1) $50 shall be transmitted to Texas A&M University
6161 for deposit in a separate banking account that may be appropriated
6262 only to support, maintain, and carry out the purposes, objectives,
6363 and duties of Texas Real Estate Research Center;
6464 (2) [,] $50 shall be deposited to the credit of the
6565 foundation school fund; and
6666 (3) $100 [$150] shall be deposited to the credit of the
6767 general revenue fund.
6868 SECTION 4. Section 1101.154(a), Occupations Code, is
6969 amended to read as follows:
7070 (a) The fee for the issuance or renewal of a:
7171 (1) broker license is the amount of the fee set under
7272 Sections 1101.152 and 1101.153 and an additional $20 fee;
7373 (2) salesperson license is the amount of the fee set
7474 under Section 1101.152 and an additional $20 [$17.50] fee; and
7575 (3) certificate of registration is the amount of the
7676 fee set under Section 1101.152 and an additional $20 fee.
7777 SECTION 5. Section 1101.606, Occupations Code, is amended
7878 by amending Subsection (a) and adding Subsections (c) and (d) to
7979 read as follows:
8080 (a) Except as provided by Subsection (c), an [An] aggrieved
8181 person who obtains a court judgment against a license or
8282 certificate holder for an act described by Section 1101.602 may,
8383 after final judgment is entered, execution returned nulla bona, and
8484 a judgment lien perfected, file a verified claim in the court that
8585 entered the judgment.
8686 (c) If an aggrieved person is precluded by action of a
8787 bankruptcy court from executing a judgment or perfecting a judgment
8888 lien as required by Subsection (a), the person shall verify to the
8989 commission that the person has made a good faith effort to protect
9090 the judgment from being discharged in bankruptcy.
9191 (d) The commission by rule may prescribe the actions
9292 necessary for an aggrieved person to demonstrate that the person
9393 has made a good faith effort under Subsection (c) to protect a
9494 judgment from being discharged in bankruptcy.
9595 SECTION 6. Section 1101.652, Occupations Code, is amended
9696 to read as follows:
9797 Sec. 1101.652. GROUNDS FOR SUSPENSION OR REVOCATION OF
9898 LICENSE. (a) The commission may suspend or revoke a license
9999 issued under this chapter or take other disciplinary action
100100 authorized by this chapter if the license holder:
101101 (1) enters a plea of guilty or nolo contendere to or is
102102 convicted of a felony or a criminal offense involving fraud [in
103103 which fraud is an essential element], and the time for appeal has
104104 elapsed or the judgment or conviction has been affirmed on appeal,
105105 without regard to an order granting community supervision that
106106 suspends the imposition of the sentence;
107107 (2) procures or attempts to procure a license under
108108 this chapter for the license holder or a salesperson by fraud,
109109 misrepresentation, or deceit or by making a material misstatement
110110 of fact in an application for a license;
111111 (3) engages in misrepresentation, dishonesty, or
112112 fraud when selling, buying, trading, or leasing real property in
113113 the name of:
114114 (A) the license holder;
115115 (B) the license holder's spouse; or
116116 (C) a person related to the license holder within
117117 the first degree by consanguinity;
118118 (4) fails to honor, within a reasonable time, a check
119119 issued to the commission after the commission has sent by certified
120120 mail a request for payment to the license holder's last known
121121 business address according to commission records;
122122 (5) fails or refuses to produce on request, for
123123 inspection by the commission or a commission representative, a
124124 document, book, or record that is in the license holder's
125125 possession and relates to a real estate transaction conducted by
126126 the license holder;
127127 (6) fails to provide, within a reasonable time,
128128 information requested by the commission that relates to a formal or
129129 informal complaint to the commission that would indicate a
130130 violation of this chapter;
131131 (7) fails to surrender to the owner, without just
132132 cause, a document or instrument that is requested by the owner and
133133 that is in the license holder's possession;
134134 (8) fails to use a contract form required by the
135135 commission under Section 1101.155;
136136 (9) fails to notify the commission, not later than the
137137 30th day after the date of a final conviction or the entry of a plea
138138 of guilty or nolo contendere, that the person has been convicted of
139139 or entered a plea of guilty or nolo contendere to a felony or a
140140 criminal offense involving fraud; or
141141 (10) disregards or violates this chapter.
142142 (b) The commission may suspend or revoke a license issued
143143 under this chapter or take other disciplinary action authorized by
144144 this chapter if the license holder, while acting as a broker or
145145 salesperson:
146146 (1) acts negligently or incompetently;
147147 (2) engages in conduct that is dishonest or in bad
148148 faith or that demonstrates untrustworthiness;
149149 (3) makes a material misrepresentation to a potential
150150 buyer concerning a significant defect, including a latent
151151 structural defect, known to the license holder that would be a
152152 significant factor to a reasonable and prudent buyer in making a
153153 decision to purchase real property;
154154 (4) fails to disclose to a potential buyer a defect
155155 described by Subdivision (3) that is known to the license holder;
156156 (5) makes a false promise that is likely to influence a
157157 person to enter into an agreement when the license holder is unable
158158 or does not intend to keep the promise;
159159 (6) pursues a continued and flagrant course of
160160 misrepresentation or makes false promises through an agent or
161161 salesperson, through advertising, or otherwise;
162162 (7) fails to make clear to all parties to a real estate
163163 transaction the party for whom the license holder is acting;
164164 (8) receives compensation from more than one party to
165165 a real estate transaction without the full knowledge and consent of
166166 all parties to the transaction;
167167 (9) fails within a reasonable time to properly account
168168 for or remit money that is received by the license holder and that
169169 belongs to another person;
170170 (10) commingles money that belongs to another person
171171 with the license holder's own money;
172172 (11) pays a commission or a fee to or divides a
173173 commission or a fee with a person other than a license holder or a
174174 real estate broker or salesperson licensed in another state for
175175 compensation for services as a real estate agent;
176176 (12) fails to specify a definite termination date that
177177 is not subject to prior notice in a contract, other than a contract
178178 to perform property management services, in which the license
179179 holder agrees to perform services for which a license is required
180180 under this chapter;
181181 (13) accepts, receives, or charges an undisclosed
182182 commission, rebate, or direct profit on an expenditure made for a
183183 principal;
184184 (14) solicits, sells, or offers for sale real property
185185 by means of a lottery;
186186 (15) solicits, sells, or offers for sale real property
187187 by means of a deceptive practice;
188188 (16) acts in a dual capacity as broker and undisclosed
189189 principal in a real estate transaction;
190190 (17) guarantees or authorizes or permits a person to
191191 guarantee that future profits will result from a resale of real
192192 property;
193193 (18) places a sign on real property offering the real
194194 property for sale or lease without obtaining the written consent of
195195 the owner of the real property or the owner's authorized agent;
196196 (19) offers to sell or lease real property without the
197197 knowledge and consent of the owner of the real property or the
198198 owner's authorized agent;
199199 (20) offers to sell or lease real property on terms
200200 other than those authorized by the owner of the real property or the
201201 owner's authorized agent;
202202 (21) induces or attempts to induce a party to a
203203 contract of sale or lease to break the contract for the purpose of
204204 substituting a new contract;
205205 (22) negotiates or attempts to negotiate the sale,
206206 exchange, or lease of real property with an owner, landlord, buyer,
207207 or tenant with knowledge that that person is a party to an
208208 outstanding written contract that grants exclusive agency to
209209 another broker in connection with the transaction;
210210 (23) publishes or causes to be published an
211211 advertisement, including an advertisement by newspaper, radio,
212212 television, the Internet, or display, that misleads or is likely to
213213 deceive the public, tends to create a misleading impression, or
214214 fails to identify the person causing the advertisement to be
215215 published as a licensed broker or agent;
216216 (24) withholds from or inserts into a statement of
217217 account or invoice a statement that the license holder knows makes
218218 the statement of account or invoice inaccurate in a material way;
219219 (25) publishes or circulates an unjustified or
220220 unwarranted threat of a legal proceeding or other action;
221221 (26) establishes an association by employment or
222222 otherwise with a person other than a license holder if the person is
223223 expected or required to act as a license holder;
224224 (27) aids, abets, or conspires with another person to
225225 circumvent this chapter;
226226 (28) fails or refuses to provide, on request, a copy of
227227 a document relating to a real estate transaction to a person who
228228 signed the document;
229229 (29) fails to advise a buyer in writing before the
230230 closing of a real estate transaction that the buyer should:
231231 (A) have the abstract covering the real estate
232232 that is the subject of the contract examined by an attorney chosen
233233 by the buyer; or
234234 (B) be provided with or obtain a title insurance
235235 policy;
236236 (30) fails to deposit, within a reasonable time, money
237237 the license holder receives as escrow agent in a real estate
238238 transaction:
239239 (A) in trust with a title company authorized to
240240 do business in this state; or
241241 (B) in a custodial, trust, or escrow account
242242 maintained for that purpose in a banking institution authorized to
243243 do business in this state;
244244 (31) disburses money deposited in a custodial, trust,
245245 or escrow account, as provided in Subdivision (30), before the
246246 completion or termination of the real estate transaction;
247247 (32) discriminates against an owner, potential buyer,
248248 landlord, or potential tenant on the basis of race, color,
249249 religion, sex, disability, familial status, national origin, or
250250 ancestry, including directing a prospective buyer or tenant
251251 interested in equivalent properties to a different area based on
252252 the race, color, religion, sex, disability, familial status,
253253 national origin, or ancestry of the potential owner or tenant; or
254254 (33) disregards or violates this chapter.
255255 SECTION 7. Section 1303.3525, Occupations Code, is amended
256256 to read as follows:
257257 Sec. 1303.3525. HEARING [EXAMINER]. (a) The commission
258258 may authorize the State Office of Administrative Hearings [a
259259 hearing examiner] to conduct a hearing and enter a final decision in
260260 a proceeding under Section 1303.351.
261261 (b) All hearings conducted under Subsection (a) are
262262 governed by Chapter 2001, Government Code [A final decision of a
263263 hearing examiner under this section is appealable to the commission
264264 as provided by commission rule].
265265 SECTION 8. Sections 221.024(b) and (c), Property Code, are
266266 amended to read as follows:
267267 (b) The commission [may]:
268268 (1) shall authorize the State Office of Administrative
269269 Hearings [specific employees] to conduct hearings [and issue final
270270 decisions] in contested cases; and
271271 (2) may establish reasonable fees for forms and
272272 documents it provides to the public and for the filing or
273273 registration of documents required by this chapter.
274274 (c) If the commission initiates a disciplinary proceeding
275275 under this chapter, the person is entitled to a hearing before the
276276 State Office of Administrative Hearings [commission or a hearing
277277 officer appointed by the commission]. The commission by rule shall
278278 adopt procedures to permit an appeal to the commission from a
279279 determination made by the State Office of Administrative Hearings
280280 [a hearing officer] in a disciplinary action.
281281 SECTION 9. Section 221.027(c), Property Code, is amended to
282282 read as follows:
283283 (c) A registration may be suspended under this section
284284 without notice or hearing on the complaint if:
285285 (1) institution of proceedings for a hearing before
286286 the State Office of Administrative Hearings [commission] is
287287 initiated simultaneously with the temporary suspension; and
288288 (2) a hearing is held under Chapter 2001, Government
289289 Code, and this chapter as soon as possible.
290290 SECTION 10. (a) The change in law made by this Act to
291291 Section 1101.606, Occupations Code, applies only to a judgment
292292 entered by a court on or after the effective date of this Act. A
293293 judgment entered before the effective date of this Act is governed
294294 by the law in effect when the judgment was entered, and the former
295295 law is continued in effect for that purpose.
296296 (b) The change in law made by this Act to Section
297297 1101.652(b), Occupations Code, applies only to conduct occurring
298298 on or after the effective date of this Act. Conduct occurring
299299 before the effective date of this Act is governed by the law in
300300 effect when the conduct occurred, and the former law is continued in
301301 effect for that purpose.
302302 (c) The changes in law made by this Act to Section
303303 1303.3525, Occupations Code, and Section 221.024, Property Code,
304304 apply only to a contested case filed on or after the effective date
305305 of this Act. A contested case filed before the effective date of
306306 this Act is governed by the law in effect on the date the contested
307307 case was filed, and the former law is continued in effect for that
308308 purpose.
309309 SECTION 11. (a) Except as provided by Subsection (b) of
310310 this section, this Act takes effect immediately if it receives a
311311 vote of two-thirds of all the members elected to each house, as
312312 provided by Section 39, Article III, Texas Constitution. If this
313313 Act does not receive the vote necessary for immediate effect, this
314314 Act takes effect September 1, 2009.
315315 (b) Section 1101.153(b), Occupations Code, as amended by
316316 this Act, takes effect September 1, 2011.