Texas 2009 - 81st Regular

Texas House Bill HB2310 Compare Versions

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1	1	H.B. No. 2310
2	2
3	3
4	4	AN ACT
5	5	relating to the powers and duties of the Texas Department of
6	6	Licensing and Regulation, including the power to issue emergency
7	7	orders and temporary and emergency licenses.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 51.001, Occupations Code, is amended by
10	10	amending Subdivision (1) and adding Subdivision (1-a) to read as
11	11	follows:
12	12	(1) "Advisory board" means a board, committee,
13	13	council, or other entity with multiple members that has as its
14	14	primary function advising the commission or department.
15	15	(1-a) "Commission" means the Texas Commission of
16	16	Licensing and Regulation.
17	17	SECTION 2. Subchapter D, Chapter 51, Occupations Code, is
18	18	amended by adding Sections 51.209 and 51.210 to read as follows:
19	19	Sec. 51.209. ADVISORY BOARDS; REMOVAL OF ADVISORY BOARD
20	20	MEMBER. (a) This section applies to any advisory board appointed
21	21	to advise the commission or department regarding a program subject
22	22	to regulation by the department.
23	23	(b) An advisory board member who was appointed by the
24	24	presiding officer of the commission with the commission's approval
25	25	may be removed from the advisory board by the presiding officer with
26	26	the commission's approval on any of the following grounds:
27	27	(1) the member does not have at the time of becoming a
28	28	member of the advisory board the qualifications required by the law
29	29	or rule authorizing appointment of the member;
30	30	(2) the member does not maintain during service on the
31	31	advisory board the qualifications required by the law or rule
32	32	authorizing appointment of the member;
33	33	(3) the member cannot, because of illness or
34	34	disability, discharge the member's duties for a substantial part of
35	35	the member's term;
36	36	(4) the member is absent from more than half of the
37	37	regularly scheduled advisory board meetings that the member is
38	38	eligible to attend during a calendar year without an excuse
39	39	approved by a majority vote of the advisory board; or
40	40	(5) the member is unfit to continue serving on the
41	41	advisory board.
42	42	(c) The validity of an action of an advisory board is not
43	43	affected by the fact that it is taken when a ground for removal of a
44	44	member exists.
45	45	Sec. 51.210. METHOD OF MAKING PAYMENTS. (a) The commission
46	46	may authorize payment of regulatory fees, fines, penalties, and
47	47	charges for goods and services through:
48	48	(1) an electronic payment method; or
49	49	(2) a credit card issued by a financial institution
50	50	chartered by a state or the United States or issued by a nationally
51	51	recognized credit organization approved by the commission.
52	52	(b) A payment by a method under this section may be made in
53	53	person, by telephone, or through the Internet.
54	54	(c) The commission may require a person who makes a payment
55	55	to the department through an electronic payment method or credit
56	56	card to pay a discount or service charge in an amount reasonable and
57	57	necessary to reimburse the commission for the costs involved in
58	58	processing the payment.
59	59	(d) The commission may adopt rules as necessary to implement
60	60	this section.
61	61	SECTION 3. Section 51.310, Occupations Code, is amended by
62	62	adding Subsection (c) to read as follows:
63	63	(c) The executive director by rule shall prescribe notice
64	64	procedures for proceedings under this subchapter that provide for
65	65	notice by certified mail with electronic return receipt.
66	66	SECTION 4. Subchapter G, Chapter 51, Occupations Code, is
67	67	amended by adding Sections 51.3511, 51.3512, and 51.3513 to read as
68	68	follows:
69	69	Sec. 51.3511. ISSUANCE OF EMERGENCY ORDERS. (a) If the
70	70	executive director determines that an emergency exists requiring
71	71	immediate action to protect the public health and safety, the
72	72	executive director may issue an emergency order to:
73	73	(1) suspend or revoke a license or other authorization
74	74	issued under a program regulated by the department; or
75	75	(2) halt operation of an unsafe facility or unsafe
76	76	equipment that is subject to regulation by the department.
77	77	(b) The executive director may issue an emergency order with
78	78	or without notice and hearing as the executive director considers
79	79	practicable under the circumstances.
80	80	(c) If an emergency order is issued under this section
81	81	without a hearing, the executive director shall set the time and
82	82	place for a hearing conducted by the State Office of Administrative
83	83	Hearings to affirm, modify, or set aside the emergency order not
84	84	later than the 10th day after the date the order was issued. The
85	85	order shall be affirmed to the extent that reasonable cause existed
86	86	to issue the order.
87	87	(d) The commission by rule may prescribe procedures for the
88	88	determination and appeal of an emergency order issued under this
89	89	section, including a rule allowing the commission to affirm,
90	90	modify, or set aside a decision made by the State Office of
91	91	Administrative Hearings under Subsection (c).
92	92	(e) A proceeding under this section is a contested case
93	93	under Chapter 2001, Government Code.
94	94	Sec. 51.3512. SUBPOENAS. (a) The department may issue a
95	95	subpoena as provided by this section.
96	96	(b) The department may request and, if necessary, compel by
97	97	subpoena:
98	98	(1) the production for inspection and copying of
99	99	records, documents, and other evidence relevant to the
100	100	investigation of an alleged violation of this chapter, a law
101	101	establishing a regulatory program administered by the department,
102	102	or a rule adopted or order issued by the commission or executive
103	103	director; and
104	104	(2) the attendance of a witness for examination under
105	105	oath.
106	106	(c) A subpoena under this section may be issued throughout
107	107	this state and may be served by any person designated by the
108	108	commission or the executive director.
109	109	(d) The department, acting through the attorney general,
110	110	may bring an action to enforce a subpoena issued under this section
111	111	against a person who fails to comply with the subpoena.
112	112	(e) Venue for an action brought under this section is in a
113	113	district court in:
114	114	(1) Travis County; or
115	115	(2) any county in which the department may hold a
116	116	hearing.
117	117	(f) The court shall order compliance with the subpoena if
118	118	the court finds that good cause exists to issue the subpoena.
119	119	Sec. 51.3513. CEASE AND DESIST ORDER. The executive
120	120	director may issue a cease and desist order if the executive
121	121	director determines that the action is necessary to prevent a
122	122	violation of:
123	123	(1) this chapter;
124	124	(2) a law establishing a regulatory program
125	125	administered by the department; or
126	126	(3) a rule adopted or order issued by the commission or
127	127	the executive director.
128	128	SECTION 5. Section 51.352(a), Occupations Code, is amended
129	129	to read as follows:
130	130	(a) The attorney general or the executive director may
131	131	institute an action for injunctive relief to restrain a violation
132	132	by and to collect a civil penalty from a person that appears to be in
133	133	violation of or threatening to violate a law establishing a
134	134	regulatory program administered by the department or a rule or
135	135	order of the commission or executive director related to the
136	136	regulatory program. A civil penalty assessed under this subsection
137	137	may not exceed $5,000 per day for each violation.
138	138	SECTION 6. The heading to Section 51.353, Occupations Code,
139	139	is amended to read as follows:
140	140	Sec. 51.353. LICENSE DENIAL; ADMINISTRATIVE SANCTIONS.
141	141	SECTION 7. Section 51.353(a), Occupations Code, is amended
142	142	to read as follows:
143	143	(a) The commission may deny, [shall] revoke, suspend, or
144	144	refuse to renew a license or may [shall] reprimand a license holder
145	145	for a violation of this chapter, a law establishing a regulatory
146	146	program administered by the department, or a rule or order of the
147	147	commission or the executive director.
148	148	SECTION 8. Section 51.354, Occupations Code, is amended by
149	149	redesignating Subsection (d) as Subsection (b) and adding
150	150	Subsection (c) to read as follows:
151	151	(b) [(d)] A proceeding under this chapter to deny, suspend,
152	152	or revoke a license is considered to be a contested case under
153	153	Chapter 2001, Government Code.
154	154	(c) The executive director by rule shall prescribe notice
155	155	procedures for a contested case under this chapter that provide for
156	156	notice by certified mail with electronic return receipt.
157	157	SECTION 9. Subchapter G, Chapter 51, Occupations Code, is
158	158	amended by adding Sections 51.355 and 51.356 to read as follows:
159	159	Sec. 51.355. LICENSE ELIGIBILITY OF PERSON WHOSE LICENSE
160	160	HAS BEEN REVOKED. A person whose license has been revoked by order
161	161	of the commission or executive director is not eligible for a new
162	162	license until the first anniversary of the date of the revocation.
163	163	Sec. 51.356. DEFERRED ADJUDICATION; LICENSE SUSPENSION,
164	164	LICENSE REVOCATION, OR DENIAL OR REFUSAL TO RENEW LICENSE. (a) The
165	165	commission may deny, suspend, revoke, or refuse to renew a license
166	166	or other authorization issued by a program regulated by the
167	167	department if the commission determines that a deferred
168	168	adjudication makes the person holding or seeking the license unfit
169	169	for the license.
170	170	(b) In making a determination under Subsection (a), the
171	171	commission shall consider the factors set forth in Sections 53.022
172	172	and 53.023 and the guidelines issued by the department under
173	173	Section 53.025.
174	174	SECTION 10. Subchapter H, Chapter 51, Occupations Code, is
175	175	amended by adding Sections 51.4011 and 51.4012 to read as follows:
176	176	Sec. 51.4011. INACTIVE STATUS. (a) The commission may
177	177	adopt rules to allow a license holder to place a license issued by
178	178	the department on inactive status by:
179	179	(1) submitting, on a form prescribed by the
180	180	department, an application for inactive status to the department
181	181	not later than the expiration date of the license; and
182	182	(2) paying the required fee.
183	183	(b) Except as provided by Subsection (f), a person whose
184	184	license is on inactive status is not required to complete
185	185	continuing education required under this chapter, a law
186	186	establishing a program regulated by the department, or a rule
187	187	adopted by the commission.
188	188	(c) A person whose license is on inactive status may reapply
189	189	for inactive status before the expiration date of the license. The
190	190	person must pay the required fee.
191	191	(d) A person whose license is on inactive status may not
192	192	engage in any activity for which the license is required.
193	193	(e) A license holder may not employ a person for an activity
194	194	for which a license is required if the person's license is on
195	195	inactive status.
196	196	(f) A person whose license is on inactive status may return
197	197	the license to active status by:
198	198	(1) applying to the department for active status on a
199	199	form prescribed by the department;
200	200	(2) paying the required fee; and
201	201	(3) providing evidence satisfactory to the department
202	202	that the person has completed the number of hours of continuing
203	203	education that would otherwise have been required for a renewal of
204	204	an active license for the preceding license period.
205	205	(g) The commission may set fees and adopt rules as necessary
206	206	to implement this section.
207	207	Sec. 51.4012. LICENSE ELIGIBILITY REQUIREMENTS REGARDING
208	208	APPLICANT'S BACKGROUND; DETERMINATION LETTER. (a)
209	209	Notwithstanding any other law, the commission may determine that a
210	210	person is not eligible for a license based on the person's criminal
211	211	history or other information that indicates that the person lacks
212	212	the honesty, trustworthiness, and integrity to hold a license
213	213	issued by the department.
214	214	(b) Before applying for a license from the department, a
215	215	person may request that the department issue a letter determining
216	216	whether the person would be eligible for a license under Subsection
217	217	(a) of this section, Section 51.356, or Chapter 53. To obtain a
218	218	determination letter, a person must file a request on a form
219	219	prescribed by the department and pay the required fee.
220	220	(c) Not later than the 30th day after the date the
221	221	department makes its determination, the department shall issue the
222	222	determination letter to the person.
223	223	(d) The department has the same powers to investigate a
224	224	request filed under this section as the department has to
225	225	investigate a person applying for a license.
226	226	(e) A determination letter issued under this section that is
227	227	adverse to a person does not prevent the person from subsequently
228	228	applying for a license.
229	229	(f) The department is not bound by its determination that
230	230	the person would be eligible if, after the issuance of the
231	231	determination letter, the department determines there has been a
232	232	change in a person's circumstances or discovers a previously
233	233	undiscovered fact.
234	234	(g) A determination under this section is not a contested
235	235	case under Chapter 2001, Government Code.
236	236	SECTION 11. Section 51.402(c), Occupations Code, is amended
237	237	to read as follows:
238	238	(c) The department may require a testing service to:
239	239	(1) notify a person of the results of the person's
240	240	examination; or
241	241	(2) collect a fee for administering a license
242	242	examination from a person taking the examination.
243	243	SECTION 12. Subchapter H, Chapter 51, Occupations Code, is
244	244	amended by adding Sections 51.407 and 51.408 to read as follows:
245	245	Sec. 51.407. TEMPORARY LICENSE. (a) The commission by rule
246	246	may provide for the issuance of a temporary license to an applicant
247	247	who:
248	248	(1) submits to the executive director an application
249	249	on a form prescribed by the executive director;
250	250	(2) meets preliminary qualifications established by
251	251	commission rule; and
252	252	(3) pays any required fees.
253	253	(b) A temporary license issued under this section expires on
254	254	the 21st day after the date of issuance and may not be renewed.
255	255	(c) A temporary license holder is subject to:
256	256	(1) this chapter;
257	257	(2) any law applicable to the activity for which the
258	258	license is required; and
259	259	(3) any rule of the commission or the executive
260	260	director applicable to the license.
261	261	Sec. 51.408. EMERGENCY LICENSE. (a) The executive
262	262	director may issue an emergency license to a person who meets
263	263	eligibility requirements provided by:
264	264	(1) a law establishing a regulatory program
265	265	administered by the department; or
266	266	(2) a rule adopted to implement this section.
267	267	(b) An emergency license issued under this section expires
268	268	on the date indicated by the executive director, but not later than
269	269	the 90th day after the date the license is issued. If the governor
270	270	declares an extended state of disaster under Section 418.014,
271	271	Government Code, the executive director may extend the term of an
272	272	emergency license to an expiration date after the 90th day after the
273	273	date the license was issued.
274	274	(c) The emergency license holder may engage in the
275	275	activities authorized by the type of license only:
276	276	(1) during a period in which a state of disaster has
277	277	been declared and the following recovery period; and
278	278	(2) in an area designated as a disaster area under
279	279	Chapter 418, Government Code.
280	280	SECTION 13. (a) Except as provided by Subsection (b) of
281	281	this section, this Act takes effect September 1, 2009.
282	282	(b) Sections 51.4011 and 51.4012, Occupations Code, as
283	283	added by this Act, take effect May 1, 2010.
284	284	______________________________ ______________________________
285	285	President of the Senate Speaker of the House
286	286	I certify that H.B. No. 2310 was passed by the House on April
287	287	9, 2009, by the following vote: Yeas 148, Nays 0, 1 present, not
288	288	voting; that the House refused to concur in Senate amendments to
289	289	H.B. No. 2310 on May 14, 2009, and requested the appointment of a
290	290	conference committee to consider the differences between the two
291	291	houses; and that the House adopted the conference committee report
292	292	on H.B. No. 2310 on May 31, 2009, by the following vote: Yeas 140,
293	293	Nays 0, 2 present, not voting.
294	294	______________________________
295	295	Chief Clerk of the House
296	296	I certify that H.B. No. 2310 was passed by the Senate, with
297	297	amendments, on May 6, 2009, by the following vote: Yeas 31, Nays 0;
298	298	at the request of the House, the Senate appointed a conference
299	299	committee to consider the differences between the two houses; and
300	300	that the Senate adopted the conference committee report on H.B. No.
301	301	2310 on May 31, 2009, by the following vote: Yeas 31, Nays 0.
302	302	______________________________
303	303	Secretary of the Senate
304	304	APPROVED: __________________
305	305	Date
306	306	__________________
307	307	Governor