Texas 2009 - 81st Regular

Texas House Bill HB2033 Compare Versions

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1	1	81R3811 NC-D
2	2	By: Kolkhorst H.B. No. 2033
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of polygraph examiners by the Texas
8	8	Department of Licensing and Regulation and the abolition of the
9	9	Polygraph Examiners Board.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 1703.003, Occupations Code, is amended
12	12	by amending Subdivisions (1), (2), and (5) and adding Subdivision
13	13	(1-a) to read as follows:
14	14	(1) "Commission" means the Texas Commission of
15	15	Licensing and Regulation.
16	16	(1-a) "Committee" ["Board"] means the Polygraph
17	17	Advisory Committee [Examiners Board].
18	18	(2) "Department" means the Texas Department of
19	19	Licensing and Regulation [Public Safety of the State of Texas].
20	20	(5) "Polygraph examiner internship" means a course of
21	21	study of polygraph examinations and of the administration of
22	22	polygraph examinations by a trainee under the personal supervision
23	23	and control of a polygraph examiner as prescribed by the department
24	24	[board] at the beginning of the internship.
25	25	SECTION 2. The heading to Subchapter B, Chapter 1703,
26	26	Occupations Code, is amended to read as follows:
27	27	SUBCHAPTER B. POLYGRAPH ADVISORY COMMITTEE [EXAMINERS BOARD]
28	28	SECTION 3. The heading to Section 1703.051, Occupations
29	29	Code, is amended to read as follows:
30	30	Sec. 1703.051. COMMITTEE [BOARD] MEMBERSHIP.
31	31	SECTION 4. Sections 1703.051(a), (d), and (e), Occupations
32	32	Code, are amended to read as follows:
33	33	(a) The Polygraph Advisory Committee [Examiners Board]
34	34	consists of five [seven] members appointed by the presiding officer
35	35	of the commission, with the approval of the commission, [governor
36	36	with the advice and consent of the senate] as follows:
37	37	(1) two polygraph examiner members who are qualified
38	38	polygraph examiners for a governmental law enforcement agency;
39	39	(2) two polygraph examiner members who are qualified
40	40	polygraph examiners in the commercial field; and
41	41	(3) one member [three members] who represents
42	42	[represent] the public.
43	43	(d) Two committee [board] members may not be employed by the
44	44	same person.
45	45	(e) Appointments to the committee [board] shall be made
46	46	without regard to the race, color, disability [creed], sex,
47	47	religion, or national origin of the appointee.
48	48	SECTION 5. Section 1703.054, Occupations Code, is amended
49	49	to read as follows:
50	50	Sec. 1703.054. TERMS; VACANCY. (a) Committee [Board]
51	51	members serve staggered six-year terms.
52	52	(b) If a vacancy occurs on the committee [board], the
53	53	presiding officer of the commission, with the commission's
54	54	approval, [governor] shall appoint a successor to fill the
55	55	unexpired term.
56	56	SECTION 6. Section 1703.055, Occupations Code, is amended
57	57	to read as follows:
58	58	Sec. 1703.055. PRESIDING OFFICER [OFFICERS]. The presiding
59	59	officer of the commission, with the commission's approval, [board]
60	60	shall appoint a member of the committee to serve as [elect from
61	61	among its members a] presiding officer of the committee for a
62	62	two-year term [, assistant presiding officer, and secretary].
63	63	SECTION 7. Subchapter B, Chapter 1703, Occupations Code, is
64	64	amended by adding Section 1703.058 to read as follows:
65	65	Sec. 1703.058. COMMITTEE POWERS AND DUTIES. (a) The
66	66	committee may propose rules and standards for adoption by the
67	67	commission relating to the regulation of polygraph examiners.
68	68	(b) The committee shall advise the commission on:
69	69	(1) educational requirements for a polygraph
70	70	examiner;
71	71	(2) the contents of a licensing examination;
72	72	(3) technical issues related to a polygraph
73	73	examination;
74	74	(4) the specific offenses for which a conviction would
75	75	constitute grounds for the department to take action under Section
76	76	53.021; and
77	77	(5) administering and enforcing this chapter.
78	78	SECTION 8. Section 1703.202, Occupations Code, is amended
79	79	to read as follows:
80	80	Sec. 1703.202. LICENSE APPLICATION. An application for a
81	81	polygraph examiner license must:
82	82	(1) be made to the department [board's secretary] in
83	83	writing [under oath] on a form prescribed by the department
84	84	[board];
85	85	(2) be accompanied by the required nonrefundable fee;
86	86	and
87	87	(3) include any information the department [board]
88	88	considers necessary to evaluate the applicant's qualifications.
89	89	SECTION 9. Section 1703.203, Occupations Code, is amended
90	90	to read as follows:
91	91	Sec. 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person
92	92	is qualified for a polygraph examiner license if the person:
93	93	(1) has not been convicted of an offense that directly
94	94	relates to the duties and responsibilities of a polygraph examiner
95	95	[a misdemeanor involving moral turpitude or a felony];
96	96	(2) either:
97	97	(A) holds a baccalaureate degree from a college
98	98	or university accredited by an organization designated by the
99	99	commission [board] that the commission [board] determines has
100	100	accreditation standards ensuring a high level of student
101	101	scholarship; or
102	102	(B) has active investigative experience during
103	103	the five years preceding the date of application;
104	104	(3) either:
105	105	(A) is a graduate of a commission-approved
106	106	[board-approved] polygraph examiners course and has satisfactorily
107	107	completed at least six months of a polygraph examiner internship;
108	108	or
109	109	(B) has satisfactorily completed at least 12
110	110	months of a polygraph examiner internship; and
111	111	(4) has passed an examination conducted by or under
112	112	the supervision of the department [board] to determine the person's
113	113	competency for a license.
114	114	(b) The commission [board] by rule shall establish:
115	115	(1) the specific offenses that disqualify an applicant
116	116	under Subsection (a)(1); and
117	117	(2) the criteria by which the department [board]
118	118	evaluates an applicant's compliance with the active investigative
119	119	experience requirement established by Subsection (a)(2)(B).
120	120	(c) The department [board] shall provide for an examination
121	121	under this chapter to be administered in three-month intervals.
122	122	SECTION 10. Section 1703.205, Occupations Code, is amended
123	123	to read as follows:
124	124	Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR
125	125	INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner
126	126	license is issued, the person to whom the license is to be issued
127	127	must provide to the department [board] evidence of a surety bond or
128	128	insurance policy that:
129	129	(1) is in the amount of $5,000; and
130	130	(2) requires the obligor on the bond or policy to pay,
131	131	to the extent of the face amount of the bond or policy, all
132	132	judgments recovered against the license holder for any wrongful or
133	133	illegal act committed by the license holder in the course of
134	134	administering a polygraph examination.
135	135	(b) Each license must be signed by the executive director of
136	136	the department [board members] and issued by [under] the department
137	137	[board seal].
138	138	SECTION 11. Sections 1703.206(a) and (c), Occupations Code,
139	139	are amended to read as follows:
140	140	(a) An applicant for the issuance or renewal of a polygraph
141	141	examiner license who is not a resident of this state, in addition to
142	142	meeting all other requirements for a license, must file with the
143	143	department [board] an irrevocable consent to have:
144	144	(1) an action against the applicant filed in a court of
145	145	a county or municipality of this state in which:
146	146	(A) the plaintiff resides; or
147	147	(B) a part of the transaction out of which the
148	148	alleged cause of action arose occurred; and
149	149	(2) process in the action served on the applicant by
150	150	leaving two copies of the process with the department [board's
151	151	secretary].
152	152	(c) The department [board's secretary] shall immediately
153	153	send by registered or certified mail a copy of the process to the
154	154	applicant at the address shown on department [board] records.
155	155	SECTION 12. Section 1703.207, Occupations Code, is amended
156	156	to read as follows:
157	157	Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The
158	158	department [board] may waive any license requirement for an
159	159	applicant who holds a license from another state that has license
160	160	requirements substantially equivalent to those of this state.
161	161	SECTION 13. Sections 1703.208(b), (c), and (d), Occupations
162	162	Code, are amended to read as follows:
163	163	(b) The department may [On board approval, the secretary of
164	164	the board shall] issue a polygraph examiner internship license to
165	165	an applicant who applies for the license and pays the required fee
166	166	at least 10 days before the date the internship begins. The
167	167	application must contain any information required by the department
168	168	[board].
169	169	(c) A polygraph examiner internship license expires on the
170	170	first anniversary of the date of issuance. On good cause shown to
171	171	the department [board], the license may be extended or renewed for
172	172	not more than six months.
173	173	(d) After the expiration of the original term of a polygraph
174	174	examiner internship license and any extension or renewal of that
175	175	license granted by the department [board], a trainee may not hold
176	176	another internship license before the first anniversary of the date
177	177	the trainee's previous internship license expired.
178	178	SECTION 14. Section 1703.252(a), Occupations Code, is
179	179	amended to read as follows:
180	180	(a) The commission [board] by rule may adopt a system under
181	181	which polygraph examiner licenses expire on various dates during
182	182	the year.
183	183	SECTION 15. Section 1703.254(b), Occupations Code, is
184	184	amended to read as follows:
185	185	(b) A person eligible for license renewal under Subsection
186	186	(a) must, before the second anniversary of the date the service,
187	187	training, or education terminates, pay to the department [board]
188	188	the required renewal fee and provide to the department [board] an
189	189	affidavit stating that:
190	190	(1) the person was engaged in the service, training,
191	191	or education; and
192	192	(2) termination of the service, training, or education
193	193	occurred under an honorable condition.
194	194	SECTION 16. Section 1703.255(a), Occupations Code, is
195	195	amended to read as follows:
196	196	(a) The department [board] may recognize, prepare, or
197	197	implement continuing education programs for polygraph examiners
198	198	and trainees.
199	199	SECTION 17. Section 1703.301, Occupations Code, is amended
200	200	to read as follows:
201	201	Sec. 1703.301. LICENSE HOLDER INFORMATION. (a) A
202	202	polygraph examiner shall notify the department [secretary of the
203	203	board] in writing of a change in the examiner's principal business
204	204	location not later than the 30th day after the date the change is
205	205	made.
206	206	(b) Failure to notify the department [secretary] as
207	207	required by Subsection (a) results in automatic suspension of the
208	208	examiner's license.
209	209	SECTION 18. Section 1703.306(b), Occupations Code, is
210	210	amended to read as follows:
211	211	(b) The department [board] or any other governmental agency
212	212	that acquires information from a polygraph examination under this
213	213	section shall maintain the confidentiality of the information.
214	214	SECTION 19. Subchapter G, Chapter 1703, Occupations Code,
215	215	is amended by adding Section 1703.307 to read as follows:
216	216	Sec. 1703.307. INFORMATION INCLUDED IN CONTRACT FOR
217	217	SERVICES AND WAIVER OF LIABILITY. A written contract for a
218	218	polygraph examiner's services and a waiver of liability signed by
219	219	the subject of a polygraph examination must:
220	220	(1) inform the subject of the procedures to file a
221	221	complaint against the examiner with the department; and
222	222	(2) contain the name, mailing address, and telephone
223	223	number of the department.
224	224	SECTION 20. Section 1703.351, Occupations Code, is amended
225	225	to read as follows:
226	226	Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION. (a)
227	227	The department [board] shall take action authorized under
228	228	Subsection (b) against an applicant or license holder who:
229	229	(1) wilfully violates this chapter or a rule adopted
230	230	under this chapter;
231	231	(2) violates Section 1703.306(a);
232	232	(3) wilfully aids or abets another to violate this
233	233	chapter or a rule adopted under this chapter;
234	234	(4) allows the person's license issued under this
235	235	chapter to be used by an unlicensed person in violation of this
236	236	chapter;
237	237	(5) makes a material misstatement in an application
238	238	for the issuance or renewal of a license;
239	239	(6) makes a wilful misrepresentation or false promise
240	240	or causes the printing of a false or misleading advertisement to
241	241	directly or indirectly obtain business or trainees;
242	242	(7) fails to inform a subject to be examined:
243	243	(A) of the nature of the examination; and
244	244	(B) that the subject's participation in the
245	245	examination is voluntary;
246	246	(8) fails to inform the subject of an examination of
247	247	the examination results on request;
248	248	(9) violates Section 51.151, Family Code;
249	249	(10) wilfully makes a false report concerning an
250	250	examination for polygraph examination purposes;
251	251	(11) fails to provide within a reasonable time
252	252	information requested by the department [board's secretary] as the
253	253	result of a formal complaint to the department [board] alleging a
254	254	violation of this chapter;
255	255	(12) demonstrates unworthiness or incompetency to act
256	256	as a polygraph examiner;
257	257	(13) is convicted of an offense that directly relates
258	258	to the duties and responsibilities of a polygraph examiner [a
259	259	misdemeanor involving moral turpitude or a felony]; or
260	260	(14) is found to be incapacitated as provided by the
261	261	Probate Code.
262	262	(b) On determining that an applicant or license holder has
263	263	engaged in an act listed in Subsection (a), the department [board]
264	264	shall:
265	265	(1) refuse to issue a license to the applicant;
266	266	(2) revoke or suspend the person's license; or
267	267	(3) reprimand the person.
268	268	(c) The department [board] may probate a license
269	269	suspension.
270	270	SECTION 21. Section 1703.353, Occupations Code, is amended
271	271	to read as follows:
272	272	Sec. 1703.353. SURRENDER OF LICENSE. (a) A license holder
273	273	whose license is suspended or revoked shall immediately surrender
274	274	the license to the department [board's secretary].
275	275	(b) The department [board's secretary] shall restore a
276	276	suspended or revoked license to the license holder on the
277	277	department's [board's written] recommendations.
278	278	SECTION 22. Section 1703.354, Occupations Code, is amended
279	279	to read as follows:
280	280	Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a
281	281	polygraph examiner or trainee engages in an unlawful act or a
282	282	violation of this chapter, the department [board] may not revoke
283	283	the license of the polygraph examiner who employed the examiner or
284	284	trainee unless the department [board] is satisfied that the
285	285	employer wilfully or negligently aided or abetted the examiner or
286	286	trainee in the unlawful act or violation.
287	287	SECTION 23. Section 1703.355, Occupations Code, is amended
288	288	to read as follows:
289	289	Sec. 1703.355. JUDICIAL REVIEW. (a) A person may appeal
290	290	an action of the department [board], including the refusal to issue
291	291	a license to the person or the suspension or revocation of the
292	292	person's license, by timely filing a petition in a district court in
293	293	the county in which the person resides or in Travis County.
294	294	(b) The standard of review is under the substantial evidence
295	295	rule.
296	296	(c) An appeal of a department [board] action is governed by
297	297	Chapter 2001, Government Code.
298	298	SECTION 24. Section 1703.401(a), Occupations Code, is
299	299	amended to read as follows:
300	300	(a) If a person violates this chapter, the department,
301	301	[board's secretary, on direction of a majority of the board and]
302	302	through the attorney general, shall apply in the state's name in
303	303	district court for an order to enjoin the violation of or to enforce
304	304	compliance with this chapter.
305	305	SECTION 25. Section 411.122(d), Government Code, is amended
306	306	to read as follows:
307	307	(d) The following state agencies are subject to this
308	308	section:
309	309	(1) Texas Appraiser Licensing and Certification
310	310	Board;
311	311	(2) Texas Board of Architectural Examiners;
312	312	(3) Texas Board of Chiropractic Examiners;
313	313	(4) State Board of Dental Examiners;
314	314	(5) Texas Board of Professional Engineers;
315	315	(6) Texas Funeral Service Commission;
316	316	(7) Texas Board of Professional Geoscientists;
317	317	(8) Department of State Health Services, except as
318	318	provided by Section 411.110, and agencies attached to the
319	319	department, including:
320	320	(A) Texas State Board of Examiners of Dietitians;
321	321	(B) Texas State Board of Examiners of Marriage
322	322	and Family Therapists;
323	323	(C) Midwifery Board;
324	324	(D) Texas State Board of Examiners of
325	325	Perfusionists;
326	326	(E) Texas State Board of Examiners of
327	327	Professional Counselors;
328	328	(F) Texas State Board of Social Worker Examiners;
329	329	(G) State Board of Examiners for Speech-Language
330	330	Pathology and Audiology;
331	331	(H) Advisory Board of Athletic Trainers;
332	332	(I) State Committee of Examiners in the Fitting
333	333	and Dispensing of Hearing Instruments;
334	334	(J) Texas Board of Licensure for Professional
335	335	Medical Physicists; and
336	336	(K) Texas Board of Orthotics and Prosthetics;
337	337	(9) Texas Board of Professional Land Surveying;
338	338	(10) Texas Department of Licensing and Regulation,
339	339	except as provided by Section 411.093;
340	340	(11) Texas Commission on Environmental Quality;
341	341	(12) Texas Board of Occupational Therapy Examiners;
342	342	(13) Texas Optometry Board;
343	343	(14) Texas State Board of Pharmacy;
344	344	(15) Texas Board of Physical Therapy Examiners;
345	345	(16) Texas State Board of Plumbing Examiners;
346	346	(17) Texas State Board of Podiatric Medical Examiners;
347	347	(18) [Polygraph Examiners Board;
348	348	[(19)] Texas State Board of Examiners of
349	349	Psychologists;
350	350	(19) [(20)] Texas Real Estate Commission;
351	351	(20) [(21)] Board of Tax Professional Examiners;
352	352	(21) [(22)] Texas Department of Transportation;
353	353	(22) [(23)] State Board of Veterinary Medical
354	354	Examiners;
355	355	(23) [(24)] Texas Department of Housing and Community
356	356	Affairs;
357	357	(24) [(25)] secretary of state;
358	358	(25) [(26)] state fire marshal;
359	359	(26) [(27)] Texas Education Agency; and
360	360	(27) [(28)] Department of Agriculture.
361	361	SECTION 26. Section 2054.352(a), Government Code, is
362	362	amended to read as follows:
363	363	(a) The following licensing entities shall participate in
364	364	the system established under Section 2054.353:
365	365	(1) Texas Board of Chiropractic Examiners;
366	366	(2) Court Reporters Certification Board;
367	367	(3) State Board of Dental Examiners;
368	368	(4) Texas Funeral Service Commission;
369	369	(5) Texas Board of Professional Land Surveying;
370	370	(6) Texas Medical Board;
371	371	(7) Texas Board of Nursing;
372	372	(8) Texas Optometry Board;
373	373	(9) Department of Agriculture, for licenses issued
374	374	under Chapter 1951, Occupations Code;
375	375	(10) Texas State Board of Pharmacy;
376	376	(11) Executive Council of Physical Therapy and
377	377	Occupational Therapy Examiners;
378	378	(12) Texas State Board of Plumbing Examiners;
379	379	(13) Texas State Board of Podiatric Medical Examiners;
380	380	(14) Board of Tax Professional Examiners;
381	381	(15) [Polygraph Examiners Board;
382	382	[(16)] Texas State Board of Examiners of
383	383	Psychologists;
384	384	(16) [(17)] State Board of Veterinary Medical
385	385	Examiners;
386	386	(17) [(18)] Texas Real Estate Commission;
387	387	(18) [(19)] Texas Appraiser Licensing and
388	388	Certification Board;
389	389	(19) [(20)] Texas Department of Licensing and
390	390	Regulation;
391	391	(20) [(21)] Texas State Board of Public Accountancy;
392	392	(21) [(22)] State Board for Educator Certification;
393	393	(22) [(23)] Texas Board of Professional Engineers;
394	394	(23) [(24)] Department of State Health Services;
395	395	(24) [(25)] Texas Board of Architectural Examiners;
396	396	(25) [(26)] Texas Racing Commission;
397	397	(26) [(27)] Commission on Law Enforcement Officer
398	398	Standards and Education; and
399	399	(27) [(28)] Texas Private Security Board.
400	400	SECTION 27. The following laws are repealed:
401	401	(1) Section 1703.005, Occupations Code;
402	402	(2) Section 1703.052, Occupations Code;
403	403	(3) Section 1703.053, Occupations Code;
404	404	(4) Section 1703.056, Occupations Code;
405	405	(5) Section 1703.057, Occupations Code;
406	406	(6) Subchapters C and D, Chapter 1703, Occupations
407	407	Code;
408	408	(7) Section 1703.204, Occupations Code;
409	409	(8) Section 1703.253, Occupations Code; and
410	410	(9) Section 1703.352, Occupations Code.
411	411	SECTION 28. As soon as possible after the effective date of
412	412	this Act, the presiding officer of the Texas Commission of
413	413	Licensing and Regulation shall appoint the members of the Polygraph
414	414	Advisory Committee in accordance with Chapter 1703, Occupations
415	415	Code, as amended by this Act. In making the initial appointments,
416	416	the presiding officer shall designate two members for terms
417	417	expiring February 1, 2011, two members for terms expiring February
418	418	1, 2013, and one member for a term expiring February 1, 2015.
419	419	SECTION 29. (a) The Polygraph Examiners Board is abolished
420	420	but continues in existence until January 1, 2010, for the sole
421	421	purpose of transferring obligations, property, full-time
422	422	equivalent positions, rights, powers, and duties to the Texas
423	423	Department of Licensing and Regulation. The department assumes all
424	424	of the obligations, property, full-time equivalent positions,
425	425	rights, powers, and duties of the board as it exists immediately
426	426	before the effective date of this Act. All unexpended funds
427	427	appropriated to the board are transferred to the department. The
428	428	transfer of the obligations, property, full-time equivalent
429	429	positions, rights, powers, and duties of the board to the
430	430	department must be completed not later than January 1, 2010.
431	431	(b) All rules of the Polygraph Examiners Board are continued
432	432	in effect as rules of the Texas Commission of Licensing and
433	433	Regulation until superseded by a rule of the commission. A license
434	434	issued by the board is continued in effect as provided by the law in
435	435	effect immediately before the effective date of this Act. A
436	436	complaint, investigation, contested case, or other proceeding
437	437	pending on the effective date of this Act is continued without
438	438	change in status after the effective date of this Act. An activity
439	439	conducted by the board is considered to be an activity conducted by
440	440	the department.
441	441	(c) A reference in another law or an administrative rule to
442	442	the Polygraph Examiners Board means the Texas Department of
443	443	Licensing and Regulation.
444	444	(d) Before October 1, 2009, the Department of Public Safety
445	445	of the State of Texas and the Texas Department of Licensing and
446	446	Regulation shall develop and enter into a memorandum of
447	447	understanding relating to the transfer of functions relating to
448	448	polygraph examiners from the Department of Public Safety to the
449	449	Texas Department of Licensing and Regulation as provided by this
450	450	Act. The memorandum must include a transition plan with a timetable
451	451	with specific steps and deadlines needed to complete the transfer.
452	452	SECTION 30. This Act takes effect September 1, 2009.