By: Hinojosa S.B. No. 1005
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of polygraph examiners by the Texas
Department of Licensing and Regulation and the abolition of the
Polygraph Examiners Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1703.003, Occupations Code, is amended
by amending Subdivisions (1), (2), and (5) and adding Subdivision
(1-a) to read as follows:
(1) "Commission" means the Texas Commission of
Licensing and Regulation.
(1-a) "Committee" ["Board"] means the Polygraph
Advisory Committee [Examiners Board].
(2) "Department" means the Texas Department of
Licensing and Regulation [Public Safety of the State of Texas].
(5) "Polygraph examiner internship" means a course of
study of polygraph examinations and of the administration of
polygraph examinations by a trainee under the personal supervision
and control of a polygraph examiner as prescribed by the department
[board] at the beginning of the internship.
SECTION 2. The heading to Subchapter B, Chapter 1703,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. POLYGRAPH ADVISORY COMMITTEE [EXAMINERS BOARD]
SECTION 3. The heading to Section 1703.051, Occupations
Code, is amended to read as follows:
Sec. 1703.051. COMMITTEE [BOARD] MEMBERSHIP.
SECTION 4. Subsections (a), (d), and (e), Section 1703.051,
Occupations Code, are amended to read as follows:
(a) The Polygraph Advisory Committee [Examiners Board]
consists of five [seven] members appointed by the presiding officer
of the commission, with the approval of the commission, [governor
with the advice and consent of the senate] as follows:
(1) two polygraph examiner members who are qualified
polygraph examiners for a governmental law enforcement agency;
(2) two polygraph examiner members who are qualified
polygraph examiners in the commercial field; and
(3) one member [three members] who represents
[represent] the public.
(d) Two committee [board] members may not be employed by the
same person.
(e) Appointments to the committee [board] shall be made
without regard to the race, color, disability [creed], sex,
religion, or national origin of the appointee.
SECTION 5. Section 1703.054, Occupations Code, is amended
to read as follows:
Sec. 1703.054. TERMS; VACANCY. (a) Committee [Board]
members serve staggered six-year terms.
(b) If a vacancy occurs on the committee [board], the
presiding officer of the commission, with the commission's
approval, [governor] shall appoint a successor to fill the
unexpired term.
SECTION 6. Section 1703.055, Occupations Code, is amended
to read as follows:
Sec. 1703.055. PRESIDING OFFICER [OFFICERS]. The presiding
officer of the commission, with the commission's approval, [board]
shall appoint a member of the committee to serve as [elect from
among its members a] presiding officer of the committee for a
two-year term[, assistant presiding officer, and secretary].
SECTION 7. Subchapter B, Chapter 1703, Occupations Code, is
amended by adding Section 1703.058 to read as follows:
Sec. 1703.058. COMMITTEE POWERS AND DUTIES. (a) The
committee may propose rules and standards for adoption by the
commission relating to the regulation of polygraph examiners.
(b) The committee shall advise the commission on:
(1) educational requirements for a polygraph
examiner;
(2) the contents of a licensing examination;
(3) technical issues related to a polygraph
examination;
(4) the specific offenses for which a conviction would
constitute grounds for the department to take action under Section
53.021; and
(5) administering and enforcing this chapter.
SECTION 8. Section 1703.202, Occupations Code, is amended
to read as follows:
Sec. 1703.202. LICENSE APPLICATION. An application for a
polygraph examiner license must:
(1) be made to the department [board's secretary] in
writing [under oath] on a form prescribed by the department
[board];
(2) be accompanied by the required nonrefundable fee;
and
(3) include any information the department [board]
considers necessary to evaluate the applicant's qualifications.
SECTION 9. Section 1703.203, Occupations Code, is amended
to read as follows:
Sec. 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person
is qualified for a polygraph examiner license if the person:
(1) has not been convicted of an offense that directly
relates to the duties and responsibilities of a polygraph examiner
[a misdemeanor involving moral turpitude or a felony];
(2) either:
(A) holds a baccalaureate degree from a college
or university accredited by an organization designated by the
commission [board] that the commission [board] determines has
accreditation standards ensuring a high level of student
scholarship; or
(B) has active investigative experience during
the five years preceding the date of application;
(3) either:
(A) is a graduate of a commission-approved
[board-approved] polygraph examiners course and has satisfactorily
completed at least six months of a polygraph examiner internship;
or
(B) has satisfactorily completed at least 12
months of a polygraph examiner internship; and
(4) has passed an examination conducted by or under
the supervision of the department [board] to determine the person's
competency for a license.
(b) The commission [board] by rule shall establish:
(1) the specific offenses that disqualify an applicant
under Subsection (a)(1); and
(2) the criteria by which the department [board]
evaluates an applicant's compliance with the active investigative
experience requirement established by Subsection (a)(2)(B).
(c) The department [board] shall provide for an examination
under this chapter to be administered in three-month intervals.
SECTION 10. Section 1703.205, Occupations Code, is amended
to read as follows:
Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR
INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner
license is issued, the person to whom the license is to be issued
must provide to the department [board] evidence of a surety bond or
insurance policy that:
(1) is in the amount of $5,000; and
(2) requires the obligor on the bond or policy to pay,
to the extent of the face amount of the bond or policy, all
judgments recovered against the license holder for any wrongful or
illegal act committed by the license holder in the course of
administering a polygraph examination.
(b) Each license must be signed by the executive director of
the department [board members] and issued by [under] the department
[board seal].
SECTION 11. Subsections (a) and (c), Section 1703.206,
Occupations Code, are amended to read as follows:
(a) An applicant for the issuance or renewal of a polygraph
examiner license who is not a resident of this state, in addition to
meeting all other requirements for a license, must file with the
department [board] an irrevocable consent to have:
(1) an action against the applicant filed in a court of
a county or municipality of this state in which:
(A) the plaintiff resides; or
(B) a part of the transaction out of which the
alleged cause of action arose occurred; and
(2) process in the action served on the applicant by
leaving two copies of the process with the department [board's
secretary].
(c) The department [board's secretary] shall immediately
send by registered or certified mail a copy of the process to the
applicant at the address shown on department [board] records.
SECTION 12. Section 1703.207, Occupations Code, is amended
to read as follows:
Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The
department [board] may waive any license requirement for an
applicant who holds a license from another state that has license
requirements substantially equivalent to those of this state.
SECTION 13. Subsections (b), (c), and (d), Section
1703.208, Occupations Code, are amended to read as follows:
(b) The department may [On board approval, the secretary of
the board shall] issue a polygraph examiner internship license to
an applicant who applies for the license and pays the required fee
at least 10 days before the date the internship begins. The
application must contain any information required by the department
[board].
(c) A polygraph examiner internship license expires on the
first anniversary of the date of issuance. On good cause shown to
the department [board], the license may be extended or renewed for
not more than six months.
(d) After the expiration of the original term of a polygraph
examiner internship license and any extension or renewal of that
license granted by the department [board], a trainee may not hold
another internship license before the first anniversary of the date
the trainee's previous internship license expired.
SECTION 14. Subsection (a), Section 1703.252, Occupations
Code, is amended to read as follows:
(a) The commission [board] by rule may adopt a system under
which polygraph examiner licenses expire on various dates during
the year.
SECTION 15. Subsection (b), Section 1703.254, Occupations
Code, is amended to read as follows:
(b) A person eligible for license renewal under Subsection
(a) must, before the second anniversary of the date the service,
training, or education terminates, pay to the department [board]
the required renewal fee and provide to the department [board] an
affidavit stating that:
(1) the person was engaged in the service, training,
or education; and
(2) termination of the service, training, or education
occurred under an honorable condition.
SECTION 16. Subsection (a), Section 1703.255, Occupations
Code, is amended to read as follows:
(a) The department [board] may recognize, prepare, or
implement continuing education programs for polygraph examiners
and trainees.
SECTION 17. Section 1703.301, Occupations Code, is amended
to read as follows:
Sec. 1703.301. LICENSE HOLDER INFORMATION. (a) A
polygraph examiner shall notify the department [secretary of the
board] in writing of a change in the examiner's principal business
location not later than the 30th day after the date the change is
made.
(b) Failure to notify the department [secretary] as
required by Subsection (a) results in automatic suspension of the
examiner's license.
SECTION 18. Subsection (b), Section 1703.306, Occupations
Code, is amended to read as follows:
(b) The department [board] or any other governmental agency
that acquires information from a polygraph examination under this
section shall maintain the confidentiality of the information.
SECTION 19. Subchapter G, Chapter 1703, Occupations Code,
is amended by adding Section 1703.307 to read as follows:
Sec. 1703.307. INFORMATION INCLUDED IN CONTRACT FOR
SERVICES AND WAIVER OF LIABILITY. A written contract for a
polygraph examiner's services and a waiver of liability signed by
the subject of a polygraph examination must:
(1) inform the subject of the procedures to file a
complaint against the examiner with the department; and
(2) contain the name, mailing address, and telephone
number of the department.
SECTION 20. Section 1703.351, Occupations Code, is amended
to read as follows:
Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION.
(a) The department [board] shall take action authorized under
Subsection (b) against an applicant or license holder who:
(1) wilfully violates this chapter or a rule adopted
under this chapter;
(2) violates Section 1703.306(a);
(3) wilfully aids or abets another to violate this
chapter or a rule adopted under this chapter;
(4) allows the person's license issued under this
chapter to be used by an unlicensed person in violation of this
chapter;
(5) makes a material misstatement in an application
for the issuance or renewal of a license;
(6) makes a wilful misrepresentation or false promise
or causes the printing of a false or misleading advertisement to
directly or indirectly obtain business or trainees;
(7) fails to inform a subject to be examined:
(A) of the nature of the examination; and
(B) that the subject's participation in the
examination is voluntary;
(8) fails to inform the subject of an examination of
the examination results on request;
(9) violates Section 51.151, Family Code;
(10) wilfully makes a false report concerning an
examination for polygraph examination purposes;
(11) fails to provide within a reasonable time
information requested by the department [board's secretary] as the
result of a formal complaint to the department [board] alleging a
violation of this chapter;
(12) demonstrates unworthiness or incompetency to act
as a polygraph examiner;
(13) is convicted of an offense that directly relates
to the duties and responsibilities of a polygraph examiner [a
misdemeanor involving moral turpitude or a felony]; or
(14) is found to be incapacitated as provided by the
Probate Code.
(b) On determining that an applicant or license holder has
engaged in an act listed in Subsection (a), the department [board]
shall:
(1) refuse to issue a license to the applicant;
(2) revoke or suspend the person's license; or
(3) reprimand the person.
(c) The department [board] may probate a license
suspension.
SECTION 21. Section 1703.353, Occupations Code, is amended
to read as follows:
Sec. 1703.353. SURRENDER OF LICENSE. (a) A license holder
whose license is suspended or revoked shall immediately surrender
the license to the department [board's secretary].
(b) The department [board's secretary] shall restore a
suspended or revoked license to the license holder on the
department's [board's written] recommendations.
SECTION 22. Section 1703.354, Occupations Code, is amended
to read as follows:
Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a
polygraph examiner or trainee engages in an unlawful act or a
violation of this chapter, the department [board] may not revoke
the license of the polygraph examiner who employed the examiner or
trainee unless the department [board] is satisfied that the
employer wilfully or negligently aided or abetted the examiner or
trainee in the unlawful act or violation.
SECTION 23. Section 1703.355, Occupations Code, is amended
to read as follows:
Sec. 1703.355. JUDICIAL REVIEW. (a) A person may appeal
an action of the department [board], including the refusal to issue
a license to the person or the suspension or revocation of the
person's license, by timely filing a petition in a district court in
the county in which the person resides or in Travis County.
(b) The standard of review is under the substantial evidence
rule.
(c) An appeal of a department [board] action is governed by
Chapter 2001, Government Code.
SECTION 24. Subsection (a), Section 1703.401, Occupations
Code, is amended to read as follows:
(a) If a person violates this chapter, the department,
[board's secretary, on direction of a majority of the board and]
through the attorney general, shall apply in the state's name in
district court for an order to enjoin the violation of or to enforce
compliance with this chapter.
SECTION 25. Subsection (d), Section 411.122, Government
Code, is amended to read as follows:
(d) The following state agencies are subject to this
section:
(1) Texas Appraiser Licensing and Certification
Board;
(2) Texas Board of Architectural Examiners;
(3) Texas Board of Chiropractic Examiners;
(4) State Board of Dental Examiners;
(5) Texas Board of Professional Engineers;
(6) Texas Funeral Service Commission;
(7) Texas Board of Professional Geoscientists;
(8) Department of State Health Services, except as
provided by Section 411.110, and agencies attached to the
department, including:
(A) Texas State Board of Examiners of Dietitians;
(B) Texas State Board of Examiners of Marriage
and Family Therapists;
(C) Midwifery Board;
(D) Texas State Board of Examiners of
Perfusionists;
(E) Texas State Board of Examiners of
Professional Counselors;
(F) Texas State Board of Social Worker Examiners;
(G) State Board of Examiners for Speech-Language
Pathology and Audiology;
(H) Advisory Board of Athletic Trainers;
(I) State Committee of Examiners in the Fitting
and Dispensing of Hearing Instruments;
(J) Texas Board of Licensure for Professional
Medical Physicists; and
(K) Texas Board of Orthotics and Prosthetics;
(9) Texas Board of Professional Land Surveying;
(10) Texas Department of Licensing and Regulation,
except as provided by Section 411.093;
(11) Texas Commission on Environmental Quality;
(12) Texas Board of Occupational Therapy Examiners;
(13) Texas Optometry Board;
(14) Texas State Board of Pharmacy;
(15) Texas Board of Physical Therapy Examiners;
(16) Texas State Board of Plumbing Examiners;
(17) Texas State Board of Podiatric Medical Examiners;
(18) [Polygraph Examiners Board;
[(19)] Texas State Board of Examiners of
Psychologists;
(19) [(20)] Texas Real Estate Commission;
(20) [(21)] Board of Tax Professional Examiners;
(21) [(22)] Texas Department of Transportation;
(22) [(23)] State Board of Veterinary Medical
Examiners;
(23) [(24)] Texas Department of Housing and Community
Affairs;
(24) [(25)] secretary of state;
(25) [(26)] state fire marshal;
(26) [(27)] Texas Education Agency; and
(27) [(28)] Department of Agriculture.
SECTION 26. Subsection (a), Section 2054.352, Government
Code, is amended to read as follows:
(a) The following licensing entities shall participate in
the system established under Section 2054.353:
(1) Texas Board of Chiropractic Examiners;
(2) Court Reporters Certification Board;
(3) State Board of Dental Examiners;
(4) Texas Funeral Service Commission;
(5) Texas Board of Professional Land Surveying;
(6) Texas Medical Board;
(7) Texas Board of Nursing;
(8) Texas Optometry Board;
(9) Department of Agriculture, for licenses issued
under Chapter 1951, Occupations Code;
(10) Texas State Board of Pharmacy;
(11) Executive Council of Physical Therapy and
Occupational Therapy Examiners;
(12) Texas State Board of Plumbing Examiners;
(13) Texas State Board of Podiatric Medical Examiners;
(14) Board of Tax Professional Examiners;
(15) [Polygraph Examiners Board;
[(16)] Texas State Board of Examiners of
Psychologists;
(16) [(17)] State Board of Veterinary Medical
Examiners;
(17) [(18)] Texas Real Estate Commission;
(18) [(19)] Texas Appraiser Licensing and
Certification Board;
(19) [(20)] Texas Department of Licensing and
Regulation;
(20) [(21)] Texas State Board of Public Accountancy;
(21) [(22)] State Board for Educator Certification;
(22) [(23)] Texas Board of Professional Engineers;
(23) [(24)] Department of State Health Services;
(24) [(25)] Texas Board of Architectural Examiners;
(25) [(26)] Texas Racing Commission;
(26) [(27)] Commission on Law Enforcement Officer
Standards and Education; and
(27) [(28)] Texas Private Security Board.
SECTION 27. The following laws are repealed:
(1) Section 1703.005, Occupations Code;
(2) Section 1703.052, Occupations Code;
(3) Section 1703.053, Occupations Code;
(4) Section 1703.056, Occupations Code;
(5) Section 1703.057, Occupations Code;
(6) Subchapters C and D, Chapter 1703, Occupations
Code;
(7) Section 1703.204, Occupations Code;
(8) Section 1703.253, Occupations Code; and
(9) Section 1703.352, Occupations Code.
SECTION 28. As soon as possible after the effective date of
this Act, the presiding officer of the Texas Commission of
Licensing and Regulation shall appoint the members of the Polygraph
Advisory Committee in accordance with Chapter 1703, Occupations
Code, as amended by this Act. In making the initial appointments,
the presiding officer shall designate two members for terms
expiring February 1, 2011, two members for terms expiring February
1, 2013, and one member for a term expiring February 1, 2015.
SECTION 29. (a) The Polygraph Examiners Board is abolished
but continues in existence until January 1, 2010, for the sole
purpose of transferring obligations, property, full-time
equivalent positions, rights, powers, and duties to the Texas
Department of Licensing and Regulation. The department assumes all
of the obligations, property, full-time equivalent positions,
rights, powers, and duties of the board as it exists immediately
before the effective date of this Act. All unexpended funds
appropriated to the board are transferred to the department. The
transfer of the obligations, property, full-time equivalent
positions, rights, powers, and duties of the board to the
department must be completed not later than January 1, 2010.
(b) All rules of the Polygraph Examiners Board are continued
in effect as rules of the Texas Commission of Licensing and
Regulation until superseded by a rule of the commission. A license
issued by the board is continued in effect as provided by the law in
effect immediately before the effective date of this Act. A
complaint, investigation, contested case, or other proceeding
pending on the effective date of this Act is continued without
change in status after the effective date of this Act. An activity
conducted by the board is considered to be an activity conducted by
the department.
(c) A reference in another law or an administrative rule to
the Polygraph Examiners Board means the Texas Department of
Licensing and Regulation.
(d) Before October 1, 2009, the Department of Public Safety
of the State of Texas and the Texas Department of Licensing and
Regulation shall develop and enter into a memorandum of
understanding relating to the transfer of functions relating to
polygraph examiners from the Department of Public Safety to the
Texas Department of Licensing and Regulation as provided by this
Act. The memorandum must include a transition plan with a timetable
with specific steps and deadlines needed to complete the transfer.
SECTION 30. This Act takes effect September 1, 2009.