H.B. No. 2310
AN ACT
relating to the powers and duties of the Texas Department of
Licensing and Regulation, including the power to issue emergency
orders and temporary and emergency licenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.001, Occupations Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Advisory board" means a board, committee,
council, or other entity with multiple members that has as its
primary function advising the commission or department.
(1-a) "Commission" means the Texas Commission of
Licensing and Regulation.
SECTION 2. Subchapter D, Chapter 51, Occupations Code, is
amended by adding Sections 51.209 and 51.210 to read as follows:
Sec. 51.209. ADVISORY BOARDS; REMOVAL OF ADVISORY BOARD
MEMBER. (a) This section applies to any advisory board appointed
to advise the commission or department regarding a program subject
to regulation by the department.
(b) An advisory board member who was appointed by the
presiding officer of the commission with the commission's approval
may be removed from the advisory board by the presiding officer with
the commission's approval on any of the following grounds:
(1) the member does not have at the time of becoming a
member of the advisory board the qualifications required by the law
or rule authorizing appointment of the member;
(2) the member does not maintain during service on the
advisory board the qualifications required by the law or rule
authorizing appointment of the member;
(3) the member cannot, because of illness or
disability, discharge the member's duties for a substantial part of
the member's term;
(4) the member is absent from more than half of the
regularly scheduled advisory board meetings that the member is
eligible to attend during a calendar year without an excuse
approved by a majority vote of the advisory board; or
(5) the member is unfit to continue serving on the
advisory board.
(c) The validity of an action of an advisory board is not
affected by the fact that it is taken when a ground for removal of a
member exists.
Sec. 51.210. METHOD OF MAKING PAYMENTS. (a) The commission
may authorize payment of regulatory fees, fines, penalties, and
charges for goods and services through:
(1) an electronic payment method; or
(2) a credit card issued by a financial institution
chartered by a state or the United States or issued by a nationally
recognized credit organization approved by the commission.
(b) A payment by a method under this section may be made in
person, by telephone, or through the Internet.
(c) The commission may require a person who makes a payment
to the department through an electronic payment method or credit
card to pay a discount or service charge in an amount reasonable and
necessary to reimburse the commission for the costs involved in
processing the payment.
(d) The commission may adopt rules as necessary to implement
this section.
SECTION 3. Section 51.310, Occupations Code, is amended by
adding Subsection (c) to read as follows:
(c) The executive director by rule shall prescribe notice
procedures for proceedings under this subchapter that provide for
notice by certified mail with electronic return receipt.
SECTION 4. Subchapter G, Chapter 51, Occupations Code, is
amended by adding Sections 51.3511, 51.3512, and 51.3513 to read as
follows:
Sec. 51.3511. ISSUANCE OF EMERGENCY ORDERS. (a) If the
executive director determines that an emergency exists requiring
immediate action to protect the public health and safety, the
executive director may issue an emergency order to:
(1) suspend or revoke a license or other authorization
issued under a program regulated by the department; or
(2) halt operation of an unsafe facility or unsafe
equipment that is subject to regulation by the department.
(b) The executive director may issue an emergency order with
or without notice and hearing as the executive director considers
practicable under the circumstances.
(c) If an emergency order is issued under this section
without a hearing, the executive director shall set the time and
place for a hearing conducted by the State Office of Administrative
Hearings to affirm, modify, or set aside the emergency order not
later than the 10th day after the date the order was issued. The
order shall be affirmed to the extent that reasonable cause existed
to issue the order.
(d) The commission by rule may prescribe procedures for the
determination and appeal of an emergency order issued under this
section, including a rule allowing the commission to affirm,
modify, or set aside a decision made by the State Office of
Administrative Hearings under Subsection (c).
(e) A proceeding under this section is a contested case
under Chapter 2001, Government Code.
Sec. 51.3512. SUBPOENAS. (a) The department may issue a
subpoena as provided by this section.
(b) The department may request and, if necessary, compel by
subpoena:
(1) the production for inspection and copying of
records, documents, and other evidence relevant to the
investigation of an alleged violation of this chapter, a law
establishing a regulatory program administered by the department,
or a rule adopted or order issued by the commission or executive
director; and
(2) the attendance of a witness for examination under
oath.
(c) A subpoena under this section may be issued throughout
this state and may be served by any person designated by the
commission or the executive director.
(d) The department, acting through the attorney general,
may bring an action to enforce a subpoena issued under this section
against a person who fails to comply with the subpoena.
(e) Venue for an action brought under this section is in a
district court in:
(1) Travis County; or
(2) any county in which the department may hold a
hearing.
(f) The court shall order compliance with the subpoena if
the court finds that good cause exists to issue the subpoena.
Sec. 51.3513. CEASE AND DESIST ORDER. The executive
director may issue a cease and desist order if the executive
director determines that the action is necessary to prevent a
violation of:
(1) this chapter;
(2) a law establishing a regulatory program
administered by the department; or
(3) a rule adopted or order issued by the commission or
the executive director.
SECTION 5. Section 51.352(a), Occupations Code, is amended
to read as follows:
(a) The attorney general or the executive director may
institute an action for injunctive relief to restrain a violation
by and to collect a civil penalty from a person that appears to be in
violation of or threatening to violate a law establishing a
regulatory program administered by the department or a rule or
order of the commission or executive director related to the
regulatory program. A civil penalty assessed under this subsection
may not exceed $5,000 per day for each violation.
SECTION 6. The heading to Section 51.353, Occupations Code,
is amended to read as follows:
Sec. 51.353. LICENSE DENIAL; ADMINISTRATIVE SANCTIONS.
SECTION 7. Section 51.353(a), Occupations Code, is amended
to read as follows:
(a) The commission may deny, [shall] revoke, suspend, or
refuse to renew a license or may [shall] reprimand a license holder
for a violation of this chapter, a law establishing a regulatory
program administered by the department, or a rule or order of the
commission or the executive director.
SECTION 8. Section 51.354, Occupations Code, is amended by
redesignating Subsection (d) as Subsection (b) and adding
Subsection (c) to read as follows:
(b) [(d)] A proceeding under this chapter to deny, suspend,
or revoke a license is considered to be a contested case under
Chapter 2001, Government Code.
(c) The executive director by rule shall prescribe notice
procedures for a contested case under this chapter that provide for
notice by certified mail with electronic return receipt.
SECTION 9. Subchapter G, Chapter 51, Occupations Code, is
amended by adding Sections 51.355 and 51.356 to read as follows:
Sec. 51.355. LICENSE ELIGIBILITY OF PERSON WHOSE LICENSE
HAS BEEN REVOKED. A person whose license has been revoked by order
of the commission or executive director is not eligible for a new
license until the first anniversary of the date of the revocation.
Sec. 51.356. DEFERRED ADJUDICATION; LICENSE SUSPENSION,
LICENSE REVOCATION, OR DENIAL OR REFUSAL TO RENEW LICENSE. (a) The
commission may deny, suspend, revoke, or refuse to renew a license
or other authorization issued by a program regulated by the
department if the commission determines that a deferred
adjudication makes the person holding or seeking the license unfit
for the license.
(b) In making a determination under Subsection (a), the
commission shall consider the factors set forth in Sections 53.022
and 53.023 and the guidelines issued by the department under
Section 53.025.
SECTION 10. Subchapter H, Chapter 51, Occupations Code, is
amended by adding Sections 51.4011 and 51.4012 to read as follows:
Sec. 51.4011. INACTIVE STATUS. (a) The commission may
adopt rules to allow a license holder to place a license issued by
the department on inactive status by:
(1) submitting, on a form prescribed by the
department, an application for inactive status to the department
not later than the expiration date of the license; and
(2) paying the required fee.
(b) Except as provided by Subsection (f), a person whose
license is on inactive status is not required to complete
continuing education required under this chapter, a law
establishing a program regulated by the department, or a rule
adopted by the commission.
(c) A person whose license is on inactive status may reapply
for inactive status before the expiration date of the license. The
person must pay the required fee.
(d) A person whose license is on inactive status may not
engage in any activity for which the license is required.
(e) A license holder may not employ a person for an activity
for which a license is required if the person's license is on
inactive status.
(f) A person whose license is on inactive status may return
the license to active status by:
(1) applying to the department for active status on a
form prescribed by the department;
(2) paying the required fee; and
(3) providing evidence satisfactory to the department
that the person has completed the number of hours of continuing
education that would otherwise have been required for a renewal of
an active license for the preceding license period.
(g) The commission may set fees and adopt rules as necessary
to implement this section.
Sec. 51.4012. LICENSE ELIGIBILITY REQUIREMENTS REGARDING
APPLICANT'S BACKGROUND; DETERMINATION LETTER. (a)
Notwithstanding any other law, the commission may determine that a
person is not eligible for a license based on the person's criminal
history or other information that indicates that the person lacks
the honesty, trustworthiness, and integrity to hold a license
issued by the department.
(b) Before applying for a license from the department, a
person may request that the department issue a letter determining
whether the person would be eligible for a license under Subsection
(a) of this section, Section 51.356, or Chapter 53. To obtain a
determination letter, a person must file a request on a form
prescribed by the department and pay the required fee.
(c) Not later than the 30th day after the date the
department makes its determination, the department shall issue the
determination letter to the person.
(d) The department has the same powers to investigate a
request filed under this section as the department has to
investigate a person applying for a license.
(e) A determination letter issued under this section that is
adverse to a person does not prevent the person from subsequently
applying for a license.
(f) The department is not bound by its determination that
the person would be eligible if, after the issuance of the
determination letter, the department determines there has been a
change in a person's circumstances or discovers a previously
undiscovered fact.
(g) A determination under this section is not a contested
case under Chapter 2001, Government Code.
SECTION 11. Section 51.402(c), Occupations Code, is amended
to read as follows:
(c) The department may require a testing service to:
(1) notify a person of the results of the person's
examination; or
(2) collect a fee for administering a license
examination from a person taking the examination.
SECTION 12. Subchapter H, Chapter 51, Occupations Code, is
amended by adding Sections 51.407 and 51.408 to read as follows:
Sec. 51.407. TEMPORARY LICENSE. (a) The commission by rule
may provide for the issuance of a temporary license to an applicant
who:
(1) submits to the executive director an application
on a form prescribed by the executive director;
(2) meets preliminary qualifications established by
commission rule; and
(3) pays any required fees.
(b) A temporary license issued under this section expires on
the 21st day after the date of issuance and may not be renewed.
(c) A temporary license holder is subject to:
(1) this chapter;
(2) any law applicable to the activity for which the
license is required; and
(3) any rule of the commission or the executive
director applicable to the license.
Sec. 51.408. EMERGENCY LICENSE. (a) The executive
director may issue an emergency license to a person who meets
eligibility requirements provided by:
(1) a law establishing a regulatory program
administered by the department; or
(2) a rule adopted to implement this section.
(b) An emergency license issued under this section expires
on the date indicated by the executive director, but not later than
the 90th day after the date the license is issued. If the governor
declares an extended state of disaster under Section 418.014,
Government Code, the executive director may extend the term of an
emergency license to an expiration date after the 90th day after the
date the license was issued.
(c) The emergency license holder may engage in the
activities authorized by the type of license only:
(1) during a period in which a state of disaster has
been declared and the following recovery period; and
(2) in an area designated as a disaster area under
Chapter 418, Government Code.
SECTION 13. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Sections 51.4011 and 51.4012, Occupations Code, as
added by this Act, take effect May 1, 2010.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2310 was passed by the House on April
9, 2009, by the following vote: Yeas 148, Nays 0, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 2310 on May 14, 2009, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 2310 on May 31, 2009, by the following vote: Yeas 140,
Nays 0, 2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2310 was passed by the Senate, with
amendments, on May 6, 2009, by the following vote: Yeas 31, Nays 0;
at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
2310 on May 31, 2009, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor