Texas 2009 - 81st Regular

Texas House Bill HB2105 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	81R26276 MCK-F
2	2	By: Geren, Solomons H.B. No. 2105
3	3	Substitute the following for H.B. No. 2105:
4	4	By: Chisum C.S.H.B. No. 2105
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the regulation of certain licensing agents; providing a
10	10	penalty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle A, Title 3, Alcoholic Beverage Code, is
13	13	amended by adding Chapter 39 to read as follows:
14	14	CHAPTER 39. LICENSING AGENCY PERMIT
15	15	Sec. 39.01. AUTHORIZED ACTIVITIES. The holder of a
16	16	licensing agency permit may:
17	17	(1) subject to Section 39.02, enter into an agreement
18	18	with an applicant for a license or permit issued under this code to
19	19	provide agreed upon services to the applicant with respect to
20	20	obtaining or renewing a permit or license issued under this code;
21	21	(2) charge and collect a separate payment for services
22	22	provided to the applicant;
23	23	(3) receive and hold in trust for an applicant:
24	24	(A) fees and surcharges required to be submitted
25	25	with an application for a permit or license; and
26	26	(B) funds to obtain a bond related to a permit or
27	27	license; and
28	28	(4) submit to the commission or assessor and collector
29	29	of taxes the permit or license application and fees, surcharges,
30	30	and any bond received or obtained on behalf of an applicant.
31	31	Sec. 39.02. WRITTEN AGREEMENTS. (a) An agreement
32	32	described by Section 39.01(1) must be in writing. The commission by
33	33	rule may establish the minimum terms and conditions of the
34	34	agreement.
35	35	(b) The commission may adopt a standard form agreement for
36	36	use by licensing agency permit holders that meets the requirements
37	37	of this chapter. The commission shall publish any standard form
38	38	agreement on the commission's Internet website.
39	39	Sec. 39.03. ELIGIBILITY FOR PERMIT. (a) An individual is
40	40	eligible for a licensing agency permit if the individual:
41	41	(1) is at least 18 years of age;
42	42	(2) is a citizen of the United States or is lawfully
43	43	present in the United States and authorized to engage in the work
44	44	authorized under this chapter; and
45	45	(3) is not disqualified under Section 39.07 or another
46	46	provision of this code.
47	47	(b) A legal entity is eligible for a licensing agency permit
48	48	if each officer, owner, director, and manager of the entity meets
49	49	the qualifications provided by Subsection (a).
50	50	Sec. 39.04. REQUIRED TRAINING. (a) Not later than the 90th
51	51	day after the date a licensing agency permit is issued, the
52	52	individual holding the permit or each officer, owner, director, and
53	53	manager of the entity that holds the permit must:
54	54	(1) successfully complete a licensing agency employee
55	55	training course as provided by Section 39.05; and
56	56	(2) obtain a licensing agency employee training course
57	57	certificate of completion issued by the commission.
58	58	(b) An employee or agent of a licensing agency permit holder
59	59	who engages in an activity described by Section 39.01 must hold a
60	60	current licensing agency employee training course certificate of
61	61	completion issued by the commission.
62	62	(c) An employee or agent of a licensing agency permit holder
63	63	who is not engaged in processing permit or license applications is
64	64	not required to hold a certificate described by Subsection (b).
65	65	Sec. 39.05. LICENSING AGENCY EMPLOYEE TRAINING COURSE.
66	66	(a) The commission shall develop and implement a licensing agency
67	67	employee training course. The course must include instruction
68	68	regarding:
69	69	(1) permits and licenses issued by the commission and
70	70	the activities authorized for each permit and license;
71	71	(2) the requirements and procedures for filing permit
72	72	and license applications, fees, surcharges, and bonds with the
73	73	commission; and
74	74	(3) the fiduciary duties owed by a licensing agency to
75	75	an applicant on whose behalf the licensing agency acts and to the
76	76	commission.
77	77	(b) The commission by rule shall adopt a fee to be collected
78	78	from each person enrolled in a licensing agency employee training
79	79	course.
80	80	(c) The commission shall issue a certificate of completion
81	81	to each person who successfully completes the licensing agency
82	82	employee training course.
83	83	(d) A certificate of completion issued under this section
84	84	expires on the second anniversary of the date the certificate is
85	85	issued.
86	86	Sec. 39.06. FEE. (a) The annual fee for a licensing agency
87	87	permit is $1,500.
88	88	(b) No local fee is authorized for a permit issued under
89	89	this chapter.
90	90	Sec. 39.07. REFUSAL OR DENIAL OF PERMIT. (a) The
91	91	commission or administrator may refuse an individual's original or
92	92	renewal application for a permit under this chapter, with or
93	93	without a hearing, if the commission or administrator has reason to
94	94	believe and finds that the individual:
95	95	(1) fails to meet or maintain the minimum
96	96	qualifications for a permit under this chapter; or
97	97	(2) holds or held a direct or indirect interest in a
98	98	permit or license issued by the commission that was canceled for
99	99	cause during the 12 months preceding the date the application was
100	100	filed with the commission.
101	101	(b) The commission or administrator may refuse a legal
102	102	entity's original or renewal application for a permit under this
103	103	chapter, with or without a hearing, if the commission or
104	104	administrator has reason to believe and finds that:
105	105	(1) the legal entity fails to meet or maintain the
106	106	minimum qualifications for a permit under this chapter; or
107	107	(2) any owner, officer, director, shareholder, or
108	108	manager of the legal entity held or had a direct or indirect
109	109	interest in a permit or license issued by the commission that was
110	110	canceled for cause during the 12 months preceding the date the
111	111	application was filed with the commission.
112	112	(c) The commission or administrator shall refuse an
113	113	original or renewal application for a permit under this chapter,
114	114	with or without a hearing, if the commission or administrator has
115	115	reason to believe and finds that the applicant:
116	116	(1) failed to submit the required application, fee, or
117	117	bond;
118	118	(2) is an individual and five years have not elapsed
119	119	since the termination of a sentence, probation, deferred
120	120	adjudication, or parole of the individual for a misdemeanor
121	121	involving moral turpitude or a felony; or
122	122	(3) is a legal entity and five years have not elapsed
123	123	since the termination of a sentence, probation, deferred
124	124	adjudication, or parole of any owner, officer, director,
125	125	shareholder, or manager of the legal entity for a misdemeanor
126	126	involving moral turpitude or a felony.
127	127	Sec. 39.08. APPLICABILITY OF OTHER CODE PROVISIONS. Except
128	128	as provided by the commission by rule, the provisions of this code
129	129	and commission rules generally applicable to permits apply to an
130	130	application for or permit issued under this chapter.
131	131	Sec. 39.09. LICENSING AGENCY BOND. (a) An applicant for a
132	132	licensing agency permit must file a bond with the commission in an
133	133	amount set by the commission in accordance with this section and
134	134	conditioned on the licensing agency permit holder's compliance with
135	135	this chapter.
136	136	(b) The commission shall adopt rules to:
137	137	(1) implement the requirements of this section;
138	138	(2) establish a claims procedure for persons entitled
139	139	to make a claim against a bond;
140	140	(3) establish a procedure for the commission to
141	141	approve claims and allocate and distribute all or part of a bond to
142	142	satisfy an approved claim; and
143	143	(4) establish a procedure to ensure that a bond is
144	144	restored and maintained in the amount required by the commission
145	145	following distribution of all or part of a bond.
146	146	(c) Subject to Subsection (d), the commission shall
147	147	determine the initial amount of the bond for each licensing agency
148	148	permit holder based on the applicant's good faith estimate of the
149	149	licensing agency's gross revenue from engaging in activities under
150	150	this chapter.
151	151	(d) The commission may not require a bond in an amount that
152	152	exceeds $200,000.
153	153	(e) Subject to Subsection (d), the commission may adjust the
154	154	amount of a bond whenever necessary to maintain the bond amount and
155	155	to reflect a change in condition or risk including:
156	156	(1) the actual gross revenues of the permit holder;
157	157	(2) the permit holder's history of claims against a
158	158	bond; or
159	159	(3) the permit holder's history of compliance with
160	160	this code and commission rules.
161	161	Sec. 39.10. CANCELLATION OR SUSPENSION OF PERMIT. In
162	162	addition to the grounds for cancellation or suspension of a permit
163	163	under Section 11.61, the commission or administrator may cancel or
164	164	suspend an original or renewal licensing agency permit if it is
165	165	found after notice and hearing that:
166	166	(1) the permit holder failed to enter into a written
167	167	agreement with an applicant for an original or renewal license or
168	168	permit issued by the commission under this code, as required by
169	169	Section 39.02;
170	170	(2) the permit holder failed to provide an agreed upon
171	171	service to an applicant on whose behalf the permit holder agreed to
172	172	act;
173	173	(3) the permit holder charged and collected a fee for a
174	174	service that was not provided or collected a fee in excess of the
175	175	agreed upon fee;
176	176	(4) the permit holder failed to hold in trust
177	177	application fees or surcharges received on behalf of an applicant
178	178	or any funds received to obtain a bond on behalf of an applicant;
179	179	(5) the permit holder failed to submit to the
180	180	commission or assessor and collector of taxes a permit or license
181	181	application or fees, surcharges, or any bond required to be
182	182	submitted with an application received or obtained on behalf of an
183	183	applicant;
184	184	(6) the permit holder employed or compensated one or
185	185	more employees who violated a provision of this chapter or a
186	186	commission rule; or
187	187	(7) the permit holder employed or compensated a person
188	188	to engage in activities described by Section 39.01 who did not have
189	189	a current licensing agency employee certification.
190	190	Sec. 39.11. OFFENSE. (a) A person commits an offense if
191	191	the person:
192	192	(1) misrepresents that the person is authorized to
193	193	engage in activities under this chapter when the person is not; or
194	194	(2) does not hold a permit issued under this chapter
195	195	and is not exempt under Section 39.12 and:
196	196	(A) offers to engage in activities described by
197	197	Section 39.01; or
198	198	(B) engages in activities described by Section
199	199	39.01.
200	200	(b) An offense under this section is a Class B misdemeanor.
201	201	Sec. 39.12. EXEMPTION. The following persons may engage in
202	202	an activity described by Section 39.01 without obtaining a permit
203	203	under this chapter:
204	204	(1) an attorney licensed in this state or another
205	205	state;
206	206	(2) a person working under the supervision of a
207	207	licensed attorney;
208	208	(3) a person who is engaged in the activity
209	209	exclusively on behalf of an applicant for a permit or license in
210	210	which the person holds or has a direct or indirect interest; or
211	211	(4) an agent or employee of an applicant for a license
212	212	or permit who is engaged in the activity exclusively on behalf of
213	213	the applicant.
214	214	SECTION 2. On or before July 1, 2010, the Texas Alcoholic
215	215	Beverage Commission shall adopt all rules necessary to implement
216	216	Chapter 39, Alcoholic Beverage Code, as added by this Act.
217	217	SECTION 3. A person is not required to hold a permit under
218	218	Chapter 39, Alcoholic Beverage Code, as added by this Act, before
219	219	September 1, 2010, to engage in activity regulated by that chapter.
220	220	SECTION 4. (a) Except as provided by Subsection (b) of this
221	221	section, this Act takes effect September 1, 2009.
222	222	(b) Section 39.11, Alcoholic Beverage Code, as added by this
223	223	Act, takes effect September 1, 2010.