81R26276 MCK-F
By: Geren, Solomons H.B. No. 2105
Substitute the following for H.B. No. 2105:
By: Chisum C.S.H.B. No. 2105
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain licensing agents; providing a
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 3, Alcoholic Beverage Code, is
amended by adding Chapter 39 to read as follows:
CHAPTER 39. LICENSING AGENCY PERMIT
Sec. 39.01. AUTHORIZED ACTIVITIES. The holder of a
licensing agency permit may:
(1) subject to Section 39.02, enter into an agreement
with an applicant for a license or permit issued under this code to
provide agreed upon services to the applicant with respect to
obtaining or renewing a permit or license issued under this code;
(2) charge and collect a separate payment for services
provided to the applicant;
(3) receive and hold in trust for an applicant:
(A) fees and surcharges required to be submitted
with an application for a permit or license; and
(B) funds to obtain a bond related to a permit or
license; and
(4) submit to the commission or assessor and collector
of taxes the permit or license application and fees, surcharges,
and any bond received or obtained on behalf of an applicant.
Sec. 39.02. WRITTEN AGREEMENTS. (a) An agreement
described by Section 39.01(1) must be in writing. The commission by
rule may establish the minimum terms and conditions of the
agreement.
(b) The commission may adopt a standard form agreement for
use by licensing agency permit holders that meets the requirements
of this chapter. The commission shall publish any standard form
agreement on the commission's Internet website.
Sec. 39.03. ELIGIBILITY FOR PERMIT. (a) An individual is
eligible for a licensing agency permit if the individual:
(1) is at least 18 years of age;
(2) is a citizen of the United States or is lawfully
present in the United States and authorized to engage in the work
authorized under this chapter; and
(3) is not disqualified under Section 39.07 or another
provision of this code.
(b) A legal entity is eligible for a licensing agency permit
if each officer, owner, director, and manager of the entity meets
the qualifications provided by Subsection (a).
Sec. 39.04. REQUIRED TRAINING. (a) Not later than the 90th
day after the date a licensing agency permit is issued, the
individual holding the permit or each officer, owner, director, and
manager of the entity that holds the permit must:
(1) successfully complete a licensing agency employee
training course as provided by Section 39.05; and
(2) obtain a licensing agency employee training course
certificate of completion issued by the commission.
(b) An employee or agent of a licensing agency permit holder
who engages in an activity described by Section 39.01 must hold a
current licensing agency employee training course certificate of
completion issued by the commission.
(c) An employee or agent of a licensing agency permit holder
who is not engaged in processing permit or license applications is
not required to hold a certificate described by Subsection (b).
Sec. 39.05. LICENSING AGENCY EMPLOYEE TRAINING COURSE.
(a) The commission shall develop and implement a licensing agency
employee training course. The course must include instruction
regarding:
(1) permits and licenses issued by the commission and
the activities authorized for each permit and license;
(2) the requirements and procedures for filing permit
and license applications, fees, surcharges, and bonds with the
commission; and
(3) the fiduciary duties owed by a licensing agency to
an applicant on whose behalf the licensing agency acts and to the
commission.
(b) The commission by rule shall adopt a fee to be collected
from each person enrolled in a licensing agency employee training
course.
(c) The commission shall issue a certificate of completion
to each person who successfully completes the licensing agency
employee training course.
(d) A certificate of completion issued under this section
expires on the second anniversary of the date the certificate is
issued.
Sec. 39.06. FEE. (a) The annual fee for a licensing agency
permit is $1,500.
(b) No local fee is authorized for a permit issued under
this chapter.
Sec. 39.07. REFUSAL OR DENIAL OF PERMIT. (a) The
commission or administrator may refuse an individual's original or
renewal application for a permit under this chapter, with or
without a hearing, if the commission or administrator has reason to
believe and finds that the individual:
(1) fails to meet or maintain the minimum
qualifications for a permit under this chapter; or
(2) holds or held a direct or indirect interest in a
permit or license issued by the commission that was canceled for
cause during the 12 months preceding the date the application was
filed with the commission.
(b) The commission or administrator may refuse a legal
entity's original or renewal application for a permit under this
chapter, with or without a hearing, if the commission or
administrator has reason to believe and finds that:
(1) the legal entity fails to meet or maintain the
minimum qualifications for a permit under this chapter; or
(2) any owner, officer, director, shareholder, or
manager of the legal entity held or had a direct or indirect
interest in a permit or license issued by the commission that was
canceled for cause during the 12 months preceding the date the
application was filed with the commission.
(c) The commission or administrator shall refuse an
original or renewal application for a permit under this chapter,
with or without a hearing, if the commission or administrator has
reason to believe and finds that the applicant:
(1) failed to submit the required application, fee, or
bond;
(2) is an individual and five years have not elapsed
since the termination of a sentence, probation, deferred
adjudication, or parole of the individual for a misdemeanor
involving moral turpitude or a felony; or
(3) is a legal entity and five years have not elapsed
since the termination of a sentence, probation, deferred
adjudication, or parole of any owner, officer, director,
shareholder, or manager of the legal entity for a misdemeanor
involving moral turpitude or a felony.
Sec. 39.08. APPLICABILITY OF OTHER CODE PROVISIONS. Except
as provided by the commission by rule, the provisions of this code
and commission rules generally applicable to permits apply to an
application for or permit issued under this chapter.
Sec. 39.09. LICENSING AGENCY BOND. (a) An applicant for a
licensing agency permit must file a bond with the commission in an
amount set by the commission in accordance with this section and
conditioned on the licensing agency permit holder's compliance with
this chapter.
(b) The commission shall adopt rules to:
(1) implement the requirements of this section;
(2) establish a claims procedure for persons entitled
to make a claim against a bond;
(3) establish a procedure for the commission to
approve claims and allocate and distribute all or part of a bond to
satisfy an approved claim; and
(4) establish a procedure to ensure that a bond is
restored and maintained in the amount required by the commission
following distribution of all or part of a bond.
(c) Subject to Subsection (d), the commission shall
determine the initial amount of the bond for each licensing agency
permit holder based on the applicant's good faith estimate of the
licensing agency's gross revenue from engaging in activities under
this chapter.
(d) The commission may not require a bond in an amount that
exceeds $200,000.
(e) Subject to Subsection (d), the commission may adjust the
amount of a bond whenever necessary to maintain the bond amount and
to reflect a change in condition or risk including:
(1) the actual gross revenues of the permit holder;
(2) the permit holder's history of claims against a
bond; or
(3) the permit holder's history of compliance with
this code and commission rules.
Sec. 39.10. CANCELLATION OR SUSPENSION OF PERMIT. In
addition to the grounds for cancellation or suspension of a permit
under Section 11.61, the commission or administrator may cancel or
suspend an original or renewal licensing agency permit if it is
found after notice and hearing that:
(1) the permit holder failed to enter into a written
agreement with an applicant for an original or renewal license or
permit issued by the commission under this code, as required by
Section 39.02;
(2) the permit holder failed to provide an agreed upon
service to an applicant on whose behalf the permit holder agreed to
act;
(3) the permit holder charged and collected a fee for a
service that was not provided or collected a fee in excess of the
agreed upon fee;
(4) the permit holder failed to hold in trust
application fees or surcharges received on behalf of an applicant
or any funds received to obtain a bond on behalf of an applicant;
(5) the permit holder failed to submit to the
commission or assessor and collector of taxes a permit or license
application or fees, surcharges, or any bond required to be
submitted with an application received or obtained on behalf of an
applicant;
(6) the permit holder employed or compensated one or
more employees who violated a provision of this chapter or a
commission rule; or
(7) the permit holder employed or compensated a person
to engage in activities described by Section 39.01 who did not have
a current licensing agency employee certification.
Sec. 39.11. OFFENSE. (a) A person commits an offense if
the person:
(1) misrepresents that the person is authorized to
engage in activities under this chapter when the person is not; or
(2) does not hold a permit issued under this chapter
and is not exempt under Section 39.12 and:
(A) offers to engage in activities described by
Section 39.01; or
(B) engages in activities described by Section
39.01.
(b) An offense under this section is a Class B misdemeanor.
Sec. 39.12. EXEMPTION. The following persons may engage in
an activity described by Section 39.01 without obtaining a permit
under this chapter:
(1) an attorney licensed in this state or another
state;
(2) a person working under the supervision of a
licensed attorney;
(3) a person who is engaged in the activity
exclusively on behalf of an applicant for a permit or license in
which the person holds or has a direct or indirect interest; or
(4) an agent or employee of an applicant for a license
or permit who is engaged in the activity exclusively on behalf of
the applicant.
SECTION 2. On or before July 1, 2010, the Texas Alcoholic
Beverage Commission shall adopt all rules necessary to implement
Chapter 39, Alcoholic Beverage Code, as added by this Act.
SECTION 3. A person is not required to hold a permit under
Chapter 39, Alcoholic Beverage Code, as added by this Act, before
September 1, 2010, to engage in activity regulated by that chapter.
SECTION 4. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2009.
(b) Section 39.11, Alcoholic Beverage Code, as added by this
Act, takes effect September 1, 2010.