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Texas Senate Bill SB1005

Texas 2009 - 81st Regular

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11 S.B. No. 1005
22
33
44 AN ACT
55 relating to the regulation of polygraph examiners by the Texas
66 Department of Licensing and Regulation and the abolition of the
77 Polygraph Examiners Board.
88 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
99 SECTION 1. Section 1703.003, Occupations Code, is amended
1010 by amending Subdivisions (1), (2), and (5) and adding Subdivision
1111 (1-a) to read as follows:
1212 (1) "Commission" means the Texas Commission of
1313 Licensing and Regulation.
1414 (1-a) "Committee" ["Board"] means the Polygraph
1515 Advisory Committee [Examiners Board].
1616 (2) "Department" means the Texas Department of
1717 Licensing and Regulation [Public Safety of the State of Texas].
1818 (5) "Polygraph examiner internship" means a course of
1919 study of polygraph examinations and of the administration of
2020 polygraph examinations by a trainee under the personal supervision
2121 and control of a polygraph examiner as prescribed by the department
2222 [board] at the beginning of the internship.
2323 SECTION 2. The heading to Subchapter B, Chapter 1703,
2424 Occupations Code, is amended to read as follows:
2525 SUBCHAPTER B. POLYGRAPH ADVISORY COMMITTEE [EXAMINERS BOARD]
2626 SECTION 3. The heading to Section 1703.051, Occupations
2727 Code, is amended to read as follows:
2828 Sec. 1703.051. COMMITTEE [BOARD] MEMBERSHIP.
2929 SECTION 4. Subsections (a), (c), (d), and (e), Section
3030 1703.051, Occupations Code, are amended to read as follows:
3131 (a) The Polygraph Advisory Committee [Examiners Board]
3232 consists of five [seven] members appointed by the presiding officer
3333 of the commission, with the approval of the commission, [governor
3434 with the advice and consent of the senate] as follows:
3535 (1) two polygraph examiner members who are qualified
3636 polygraph examiners for a governmental law enforcement agency;
3737 (2) two polygraph examiner members who are qualified
3838 polygraph examiners in the commercial field; and
3939 (3) one member [three members] who represents
4040 [represent] the public.
4141 (c) A polygraph examiner member must[:
4242 [(1)] be actively engaged as a polygraph examiner on
4343 the date of appointment[; and
4444 [(2) have been engaged as a polygraph examiner for at
4545 least five consecutive years before the date of appointment].
4646 (d) Two committee [board] members may not be employed by the
4747 same person.
4848 (e) Appointments to the committee [board] shall be made
4949 without regard to the race, color, disability [creed], sex,
5050 religion, or national origin of the appointee.
5151 SECTION 5. Section 1703.054, Occupations Code, is amended
5252 to read as follows:
5353 Sec. 1703.054. TERMS; VACANCY. (a) Committee [Board]
5454 members serve staggered six-year terms.
5555 (b) If a vacancy occurs on the committee [board], the
5656 presiding officer of the commission, with the commission's
5757 approval, [governor] shall appoint a successor to fill the
5858 unexpired term.
5959 SECTION 6. Section 1703.055, Occupations Code, is amended
6060 to read as follows:
6161 Sec. 1703.055. PRESIDING OFFICER [OFFICERS]. The presiding
6262 officer of the commission, with the commission's approval, [board]
6363 shall appoint a member of the committee to serve as [elect from
6464 among its members a] presiding officer of the committee for a
6565 two-year term[, assistant presiding officer, and secretary].
6666 SECTION 7. Subchapter B, Chapter 1703, Occupations Code, is
6767 amended by adding Section 1703.058 to read as follows:
6868 Sec. 1703.058. COMMITTEE DUTIES. The committee shall
6969 advise the commission on:
7070 (1) educational requirements for a polygraph
7171 examiner;
7272 (2) the contents of a licensing examination;
7373 (3) technical issues related to a polygraph
7474 examination;
7575 (4) the specific offenses for which a conviction would
7676 constitute grounds for the department to take action under Section
7777 53.021; and
7878 (5) administering and enforcing this chapter.
7979 SECTION 8. Section 1703.202, Occupations Code, is amended
8080 to read as follows:
8181 Sec. 1703.202. LICENSE APPLICATION. An application for a
8282 polygraph examiner license must:
8383 (1) be made to the department [board's secretary in
8484 writing under oath] on a form prescribed by the department [board];
8585 (2) be accompanied by the required nonrefundable fee;
8686 and
8787 (3) include any information the department [board]
8888 considers necessary to evaluate the applicant's qualifications.
8989 SECTION 9. Section 1703.203, Occupations Code, is amended
9090 to read as follows:
9191 Sec. 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person
9292 is qualified for a polygraph examiner license if the person:
9393 (1) has not been convicted of an offense that directly
9494 relates to the duties and responsibilities of a polygraph examiner
9595 [a misdemeanor involving moral turpitude or a felony];
9696 (2) either:
9797 (A) holds a baccalaureate degree from a college
9898 or university accredited by an organization designated by the
9999 department [board] that the department [board] determines has
100100 accreditation standards ensuring a high level of student
101101 scholarship; or
102102 (B) has active investigative experience during
103103 the five years preceding the date of application;
104104 (3) either:
105105 (A) is a graduate of a department-approved
106106 [board-approved] polygraph examiners course and has satisfactorily
107107 completed at least six months of a polygraph examiner internship;
108108 or
109109 (B) has satisfactorily completed at least 12
110110 months of a polygraph examiner internship; and
111111 (4) has passed an examination conducted by, [or] under
112112 the supervision of, or approved by the department [board] to
113113 determine the person's competency for a license.
114114 (b) The commission [board] by rule shall establish:
115115 (1) the specific offenses that disqualify an applicant
116116 under Subsection (a)(1); and
117117 (2) the criteria by which the department [board]
118118 evaluates an applicant's compliance with the active investigative
119119 experience requirement established by Subsection (a)(2)(B).
120120 (c) The department [board] shall provide for an examination
121121 under this chapter to be administered in three-month intervals.
122122 SECTION 10. Section 1703.205, Occupations Code, is amended
123123 to read as follows:
124124 Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR
125125 INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner
126126 license is issued, the person to whom the license is to be issued
127127 must provide to the department [board] evidence of a surety bond or
128128 insurance policy that:
129129 (1) is in the amount of $5,000; and
130130 (2) requires the obligor on the bond or policy to pay,
131131 to the extent of the face amount of the bond or policy, all
132132 judgments recovered against the license holder for any wrongful or
133133 illegal act committed by the license holder in the course of
134134 administering a polygraph examination.
135135 (b) Each license must be [signed by the board members and]
136136 issued by [under] the department [board seal].
137137 SECTION 11. Subsections (a) and (c), Section 1703.206,
138138 Occupations Code, are amended to read as follows:
139139 (a) An applicant for the issuance or renewal of a polygraph
140140 examiner license who is not a resident of this state, in addition to
141141 meeting all other requirements for a license, must file with the
142142 department [board] an irrevocable consent to have:
143143 (1) an action against the applicant filed in a court of
144144 a county or municipality of this state in which:
145145 (A) the plaintiff resides; or
146146 (B) a part of the transaction out of which the
147147 alleged cause of action arose occurred; and
148148 (2) process in the action served on the applicant by
149149 leaving two copies of the process with the department [board's
150150 secretary].
151151 (c) The department [board's secretary] shall immediately
152152 send by registered or certified mail a copy of the process to the
153153 applicant at the address shown on department [board] records.
154154 SECTION 12. Section 1703.207, Occupations Code, is amended
155155 to read as follows:
156156 Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The
157157 executive director [board] may waive any license requirement for an
158158 applicant who holds a license from another state that has license
159159 requirements substantially equivalent to those of this state.
160160 SECTION 13. Subsections (b), (c), and (d), Section
161161 1703.208, Occupations Code, are amended to read as follows:
162162 (b) The department may [On board approval, the secretary of
163163 the board shall] issue a polygraph examiner internship license to
164164 an applicant who applies for the license and pays the required fee
165165 [at least 10 days before the date the internship begins]. The
166166 application must contain any information required by the department
167167 [board].
168168 (c) A polygraph examiner internship license expires on the
169169 first anniversary of the date of issuance and[. On good cause shown
170170 to the board, the license] may be [extended or] renewed once [for
171171 not more than six months].
172172 (d) After the expiration of the original term of a polygraph
173173 examiner internship license and any extension or renewal of that
174174 license granted by the department [board], a trainee may not hold
175175 another internship license before the first anniversary of the date
176176 the trainee's previous internship license expired.
177177 SECTION 14. Subsection (a), Section 1703.252, Occupations
178178 Code, is amended to read as follows:
179179 (a) The commission [board] by rule may adopt a system under
180180 which polygraph examiner licenses expire on various dates during
181181 the year.
182182 SECTION 15. Subsection (b), Section 1703.254, Occupations
183183 Code, is amended to read as follows:
184184 (b) A person eligible for license renewal under Subsection
185185 (a) must, before the second anniversary of the date the service,
186186 training, or education terminates, pay to the department [board]
187187 the required renewal fee and certify [provide] to the department
188188 [board an affidavit stating] that:
189189 (1) the person was engaged in the service, training,
190190 or education; and
191191 (2) termination of the service, training, or education
192192 occurred under an honorable condition.
193193 SECTION 16. Subsection (a), Section 1703.255, Occupations
194194 Code, is amended to read as follows:
195195 (a) The department [board] may recognize, prepare, or
196196 implement continuing education programs for polygraph examiners
197197 and trainees.
198198 SECTION 17. Section 1703.301, Occupations Code, is amended
199199 to read as follows:
200200 Sec. 1703.301. LICENSE HOLDER INFORMATION. [(a)] A
201201 polygraph examiner shall notify the department [secretary of the
202202 board] in writing of a change in the examiner's principal business
203203 location not later than the 30th day after the date the change is
204204 made.
205205 [(b) Failure to notify the secretary as required by
206206 Subsection (a) results in automatic suspension of the examiner's
207207 license.]
208208 SECTION 18. Subsection (b), Section 1703.306, Occupations
209209 Code, is amended to read as follows:
210210 (b) The department [board] or any other governmental agency
211211 that acquires information from a polygraph examination under this
212212 section shall maintain the confidentiality of the information.
213213 SECTION 19. Subchapter G, Chapter 1703, Occupations Code,
214214 is amended by adding Section 1703.307 to read as follows:
215215 Sec. 1703.307. INFORMATION INCLUDED IN CONTRACT FOR
216216 SERVICES AND WAIVER OF LIABILITY. A written contract for a
217217 polygraph examiner's services and a waiver of liability signed by
218218 the subject of a polygraph examination must:
219219 (1) inform the subject of the procedures to file a
220220 complaint against the examiner with the department; and
221221 (2) contain the name, mailing address, and telephone
222222 number of the department.
223223 SECTION 20. Section 1703.351, Occupations Code, is amended
224224 to read as follows:
225225 Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION.
226226 (a) The department may [board shall] take action authorized under
227227 Subsection (b) against an applicant or license holder who:
228228 (1) wilfully violates this chapter or a rule adopted
229229 under this chapter;
230230 (2) violates Section 1703.306(a);
231231 (3) wilfully aids or abets another to violate this
232232 chapter or a rule adopted under this chapter;
233233 (4) allows the person's license issued under this
234234 chapter to be used by an unlicensed person in violation of this
235235 chapter;
236236 (5) makes a material misstatement in an application
237237 for the issuance or renewal of a license;
238238 (6) makes a wilful misrepresentation or false promise
239239 or causes the printing of a false or misleading advertisement to
240240 directly or indirectly obtain business or trainees;
241241 (7) fails to inform a subject to be examined:
242242 (A) of the nature of the examination; and
243243 (B) that the subject's participation in the
244244 examination is voluntary;
245245 (8) fails to inform the subject of an examination of
246246 the examination results on request;
247247 (9) violates Section 51.151, Family Code;
248248 (10) wilfully makes a false report concerning an
249249 examination for polygraph examination purposes;
250250 (11) fails to provide within a reasonable time
251251 information requested by the department [board's secretary] as the
252252 result of a formal complaint to the department [board] alleging a
253253 violation of this chapter;
254254 (12) demonstrates unworthiness or incompetency to act
255255 as a polygraph examiner;
256256 (13) is convicted of an offense that directly relates
257257 to the duties and responsibilities of a polygraph examiner [a
258258 misdemeanor involving moral turpitude or a felony]; or
259259 (14) is found to be incapacitated as provided by the
260260 Probate Code.
261261 (b) On determining that an applicant or license holder has
262262 engaged in an act listed in Subsection (a), the department [board]
263263 shall:
264264 (1) deny [refuse to issue] a license to the applicant;
265265 (2) revoke or suspend the person's license; or
266266 (3) reprimand the person.
267267 (c) The department [board] may probate a license
268268 suspension.
269269 SECTION 21. Section 1703.353, Occupations Code, is amended
270270 to read as follows:
271271 Sec. 1703.353. SURRENDER OF LICENSE. [(a)] A license
272272 holder whose license is suspended or revoked shall immediately
273273 surrender the license to the department [board's secretary].
274274 [(b) The board's secretary shall restore a suspended or
275275 revoked license to the license holder on the board's written
276276 recommendations.]
277277 SECTION 22. Section 1703.354, Occupations Code, is amended
278278 to read as follows:
279279 Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a
280280 polygraph examiner or trainee engages in an unlawful act or a
281281 violation of this chapter, the department [board] may not revoke
282282 the license of the polygraph examiner who employed the examiner or
283283 trainee unless the department [board] is satisfied that the
284284 employer wilfully or negligently aided or abetted the examiner or
285285 trainee in the unlawful act or violation.
286286 SECTION 23. Section 1703.355, Occupations Code, is amended
287287 to read as follows:
288288 Sec. 1703.355. ADMINISTRATIVE PROCEDURE [JUDICIAL REVIEW].
289289 The administrative procedures under Sections 51.310, 51.353, and
290290 51.354 apply to a disciplinary action taken under this chapter.
291291 [(a) A person may appeal an action of the board, including the
292292 refusal to issue a license to the person or the suspension or
293293 revocation of the person's license, by timely filing a petition in a
294294 district court in the county in which the person resides or in
295295 Travis County.
296296 [(b) An appeal of a board action is governed by Chapter
297297 2001, Government Code.]
298298 SECTION 24. Subchapter H, Chapter 1703, Occupations Code,
299299 is amended by adding Section 1703.356 to read as follows:
300300 Sec. 1703.356. APPEAL. (a) An appeal of a department
301301 action under this chapter is governed by Chapter 2001, Government
302302 Code.
303303 (b) The standard of review is under the substantial evidence
304304 rule.
305305 SECTION 25. Subsection (a), Section 1703.401, Occupations
306306 Code, is amended to read as follows:
307307 (a) If a person violates this chapter, the department,
308308 [board's secretary, on direction of a majority of the board and]
309309 through the attorney general, shall apply in the state's name in
310310 district court for an order to enjoin the violation of or to enforce
311311 compliance with this chapter.
312312 SECTION 26. Subsection (d), Section 411.122, Government
313313 Code, is amended to read as follows:
314314 (d) The following state agencies are subject to this
315315 section:
316316 (1) Texas Appraiser Licensing and Certification
317317 Board;
318318 (2) Texas Board of Architectural Examiners;
319319 (3) Texas Board of Chiropractic Examiners;
320320 (4) State Board of Dental Examiners;
321321 (5) Texas Board of Professional Engineers;
322322 (6) Texas Funeral Service Commission;
323323 (7) Texas Board of Professional Geoscientists;
324324 (8) Department of State Health Services, except as
325325 provided by Section 411.110, and agencies attached to the
326326 department, including:
327327 (A) Texas State Board of Examiners of Dietitians;
328328 (B) Texas State Board of Examiners of Marriage
329329 and Family Therapists;
330330 (C) Midwifery Board;
331331 (D) Texas State Board of Examiners of
332332 Perfusionists;
333333 (E) Texas State Board of Examiners of
334334 Professional Counselors;
335335 (F) Texas State Board of Social Worker Examiners;
336336 (G) State Board of Examiners for Speech-Language
337337 Pathology and Audiology;
338338 (H) Advisory Board of Athletic Trainers;
339339 (I) State Committee of Examiners in the Fitting
340340 and Dispensing of Hearing Instruments;
341341 (J) Texas Board of Licensure for Professional
342342 Medical Physicists; and
343343 (K) Texas Board of Orthotics and Prosthetics;
344344 (9) Texas Board of Professional Land Surveying;
345345 (10) Texas Department of Licensing and Regulation,
346346 except as provided by Section 411.093;
347347 (11) Texas Commission on Environmental Quality;
348348 (12) Texas Board of Occupational Therapy Examiners;
349349 (13) Texas Optometry Board;
350350 (14) Texas State Board of Pharmacy;
351351 (15) Texas Board of Physical Therapy Examiners;
352352 (16) Texas State Board of Plumbing Examiners;
353353 (17) Texas State Board of Podiatric Medical Examiners;
354354 (18) [Polygraph Examiners Board;
355355 [(19)] Texas State Board of Examiners of
356356 Psychologists;
357357 (19) [(20)] Texas Real Estate Commission;
358358 (20) [(21)] Board of Tax Professional Examiners;
359359 (21) [(22)] Texas Department of Transportation;
360360 (22) [(23)] State Board of Veterinary Medical
361361 Examiners;
362362 (23) [(24)] Texas Department of Housing and Community
363363 Affairs;
364364 (24) [(25)] secretary of state;
365365 (25) [(26)] state fire marshal;
366366 (26) [(27)] Texas Education Agency; and
367367 (27) [(28)] Department of Agriculture.
368368 SECTION 27. Subsection (a), Section 2054.352, Government
369369 Code, is amended to read as follows:
370370 (a) The following licensing entities shall participate in
371371 the system established under Section 2054.353:
372372 (1) Texas Board of Chiropractic Examiners;
373373 (2) Court Reporters Certification Board;
374374 (3) State Board of Dental Examiners;
375375 (4) Texas Funeral Service Commission;
376376 (5) Texas Board of Professional Land Surveying;
377377 (6) Texas Medical Board;
378378 (7) Texas Board of Nursing;
379379 (8) Texas Optometry Board;
380380 (9) Department of Agriculture, for licenses issued
381381 under Chapter 1951, Occupations Code;
382382 (10) Texas State Board of Pharmacy;
383383 (11) Executive Council of Physical Therapy and
384384 Occupational Therapy Examiners;
385385 (12) Texas State Board of Plumbing Examiners;
386386 (13) Texas State Board of Podiatric Medical Examiners;
387387 (14) Board of Tax Professional Examiners;
388388 (15) [Polygraph Examiners Board;
389389 [(16)] Texas State Board of Examiners of
390390 Psychologists;
391391 (16) [(17)] State Board of Veterinary Medical
392392 Examiners;
393393 (17) [(18)] Texas Real Estate Commission;
394394 (18) [(19)] Texas Appraiser Licensing and
395395 Certification Board;
396396 (19) [(20)] Texas Department of Licensing and
397397 Regulation;
398398 (20) [(21)] Texas State Board of Public Accountancy;
399399 (21) [(22)] State Board for Educator Certification;
400400 (22) [(23)] Texas Board of Professional Engineers;
401401 (23) [(24)] Department of State Health Services;
402402 (24) [(25)] Texas Board of Architectural Examiners;
403403 (25) [(26)] Texas Racing Commission;
404404 (26) [(27)] Commission on Law Enforcement Officer
405405 Standards and Education; and
406406 (27) [(28)] Texas Private Security Board.
407407 SECTION 28. The following laws are repealed:
408408 (1) Section 1703.005, Occupations Code;
409409 (2) Section 1703.052, Occupations Code;
410410 (3) Section 1703.053, Occupations Code;
411411 (4) Section 1703.056, Occupations Code;
412412 (5) Section 1703.057, Occupations Code;
413413 (6) Subchapters C and D, Chapter 1703, Occupations
414414 Code;
415415 (7) Section 1703.204, Occupations Code;
416416 (8) Section 1703.253, Occupations Code; and
417417 (9) Section 1703.352, Occupations Code.
418418 SECTION 29. As soon as possible after the effective date of
419419 this Act, the presiding officer of the Texas Commission of
420420 Licensing and Regulation shall appoint the members of the Polygraph
421421 Advisory Committee in accordance with Chapter 1703, Occupations
422422 Code, as amended by this Act. In making the initial appointments,
423423 the presiding officer shall designate two members for terms
424424 expiring February 1, 2011, two members for terms expiring February
425425 1, 2013, and one member for a term expiring February 1, 2015.
426426 SECTION 30. (a) The Polygraph Examiners Board is abolished
427427 but continues in existence until January 1, 2010, for the sole
428428 purpose of transferring obligations, property, full-time
429429 equivalent positions, rights, powers, and duties to the Texas
430430 Department of Licensing and Regulation. The department assumes all
431431 of the obligations, property, full-time equivalent positions,
432432 rights, powers, and duties of the board as it exists immediately
433433 before the effective date of this Act. All unexpended funds
434434 appropriated to the board are transferred to the department. The
435435 transfer of the obligations, property, full-time equivalent
436436 positions, rights, powers, and duties of the board to the
437437 department must be completed not later than January 1, 2010.
438438 (b) All rules of the Polygraph Examiners Board are continued
439439 in effect as rules of the Texas Commission of Licensing and
440440 Regulation until superseded by a rule of the commission. A license
441441 issued by the board is continued in effect as provided by the law in
442442 effect immediately before the effective date of this Act. A
443443 complaint, investigation, contested case, or other proceeding
444444 pending on the effective date of this Act is continued without
445445 change in status of the parties after the effective date of this
446446 Act. An activity conducted by the board is considered to be an
447447 activity conducted by the department.
448448 (c) A reference in another law or an administrative rule to
449449 the Polygraph Examiners Board means the Texas Department of
450450 Licensing and Regulation.
451451 (d) Before July 15, 2009, the Department of Public Safety of
452452 the State of Texas and the Texas Department of Licensing and
453453 Regulation shall develop and enter into a memorandum of
454454 understanding relating to the transfer of functions relating to
455455 polygraph examiners from the Department of Public Safety to the
456456 Texas Department of Licensing and Regulation as provided by this
457457 Act. The memorandum must include a transition plan with a timetable
458458 with specific steps and deadlines needed to complete the transfer.
459459 SECTION 31. This Act takes effect immediately if it
460460 receives a vote of two-thirds of all the members elected to each
461461 house, as provided by Section 39, Article III, Texas Constitution.
462462 If this Act does not receive the vote necessary for immediate
463463 effect, this Act takes effect September 1, 2009.
464464 ______________________________ ______________________________
465465 President of the Senate Speaker of the House
466466 I hereby certify that S.B. No. 1005 passed the Senate on
467467 April 2, 2009, by the following vote: Yeas 31, Nays 0; and that the
468468 Senate concurred in House amendment on May 18, 2009, by the
469469 following vote: Yeas 31, Nays 0.
470470 ______________________________
471471 Secretary of the Senate
472472 I hereby certify that S.B. No. 1005 passed the House, with
473473 amendment, on May 13, 2009, by the following vote: Yeas 137,
474474 Nays 0, one present not voting.
475475 ______________________________
476476 Chief Clerk of the House
477477 Approved:
478478 ______________________________
479479 Date
480480 ______________________________
481481 Governor