81R27575 JSC-D
By: Estes S.B. No. 1011
Substitute the following for S.B. No. 1011:
By: Davis of Dallas C.S.S.B. No. 1011
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Commission
on Fire Protection.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 419, Government Code, is
amended to read as follows:
CHAPTER 419. TEXAS [COMMISSION ON] FIRE PROTECTION AGENCY
SECTION 2. Section 419.001(1), Government Code, is amended
to read as follows:
(1) "Commission" means the Texas [Commission on] Fire
Protection Agency.
SECTION 3. Section 419.002, Government Code, is amended to
read as follows:
Sec. 419.002. TEXAS FIRE PROTECTION AGENCY
[COMMISSION]. The Texas [Commission on] Fire Protection Agency is
an agency of the state.
SECTION 4. Subchapter A, Chapter 419, Government Code, is
amended by adding Section 419.0025 to read as follows:
Sec. 419.0025. REFERENCE. A reference in law to the Texas
Commission on Fire Protection means the Texas Fire Protection
Agency.
SECTION 5. Section 419.003, Government Code, is amended to
read as follows:
Sec. 419.003. SUNSET PROVISION. The Texas [Commission on]
Fire Protection Agency is subject to Chapter 325 (Texas Sunset
Act). Unless continued in existence as provided by that chapter,
the Texas Fire Protection Agency [commission] is abolished and this
chapter expires September 1, 2021 [2009].
SECTION 6. Section 419.004(e), Government Code, is amended
to read as follows:
(e) A person may not be [is not eligible for appointment as]
a public member of the commission if the person or the person's
spouse:
(1) is registered, certified, or licensed by a
regulatory agency in the field of fire protection [the commission];
(2) is employed by or participates in the management
of a business entity or other organization regulated by [the
commission] or receiving money [funds] from the commission;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by [the commission] or receiving money
[funds] from the commission;
(4) uses or receives a substantial amount of tangible
goods, services, or money [funds] from the commission, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(5) is employed in the field of [a member of a paid or
volunteer] fire protection [department].
SECTION 7. Sections 419.005(a) and (c), Government Code,
are amended to read as follows:
(a) It is a ground for removal from the commission that [if]
a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 419.004;
(2) does not maintain during service on the commission
the qualifications required by Section 419.004;
(3) is ineligible for membership under [violates a
prohibition established by] Section 419.006;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term [for which the member is appointed because of illness or
disability]; or
(5) is absent from more than half of the regularly
scheduled commission meetings that the member is eligible to attend
during a calendar year without an excuse approved [unless the
absence is excused] by majority vote of the commission.
(c) If the executive director has knowledge that a potential
ground for removal exists, the executive director shall notify the
presiding officer of the commission of the potential ground. The
presiding officer shall then notify the governor and the attorney
general that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
executive director shall notify the next highest ranking officer of
the commission, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
SECTION 8. Section 419.006, Government Code, is amended to
read as follows:
Sec. 419.006. CONFLICT OF INTEREST. (a) In [An officer,
employee, or paid consultant of a Texas trade association in the
field of fire protection may not be a member of the commission or an
employee of the commission who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group 17, of the position classification salary schedule.
[(b) A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of fire
protection may not be a commission member and may not be a
commission employee who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group 17, of the position classification salary schedule.
[(c) For the purposes of] this section, "Texas trade
association" means [a Texas trade association is] a [nonprofit,]
cooperative[,] and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
(b) A person may not be a member of the commission and may
not be a commission employee employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of fire
protection; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of fire
protection.
(c) [(d)] A person may not be [serve as] a member of the
commission or act as the general counsel to the commission or the
agency if the person is required to register as a lobbyist under
Chapter 305 because of the person's activities for compensation on
behalf of a profession related to the operation of the commission.
SECTION 9. Section 419.007(a), Government Code, is amended
to read as follows:
(a) The governor shall designate a member of the commission
[fire protection instructor appointed under Section 419.004(a)(6)
serves] as the presiding officer of the commission to serve in that
capacity at the pleasure of [unless] the governor [designates
another member as presiding officer]. The commission shall elect
from among its members an assistant presiding officer and a
secretary.
SECTION 10. Section 419.0071, Government Code, is amended
to read as follows:
Sec. 419.0071. COMMISSION MEMBER TRAINING. (a) A [To be
eligible to take office as a member of the commission, a] person who
is appointed to and qualifies for office as a member of the
commission may not vote, deliberate, or be counted as a member in
attendance at a meeting of the commission until the person
completes [must complete at least one course of] a training program
that complies with this section.
(b) The training program must provide [information to] the
person with information regarding:
(1) the [enabling] legislation that created the
commission;
(2) the programs, [operated by the commission;
[(3) the role and] functions, [of the commission;
[(4) the] rules, and [of the commission with an
emphasis on the rules that relate to disciplinary and investigatory
authority;
[(5) the current] budget of [for] the commission;
(3) [(6)] the results of the most recent formal audit
of the commission;
(4) [(7)] the requirements of laws relating to [the:
[(A)] open meetings [law], public information
[Chapter 551;
[(B) open records law, Chapter 552; and
[(C) administrative procedure law], and [Chapter
2001;
[(8) the requirements of the conflict] conflicts of
interest [interests laws and other laws relating to public
officials]; and
(5) [(9)] any applicable ethics policies adopted by
the commission [agency] or the Texas Ethics Commission.
(c) A person appointed to the commission is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after [, as provided by the General Appropriations Act and as if]
the person qualifies for office [were a member of the commission].
SECTION 11. Subchapter A, Chapter 419, Government Code, is
amended by adding Section 419.0083 to read as follows:
Sec. 419.0083. NEGOTIATED RULEMAKING; ALTERNATIVE DISPUTE
RESOLUTION. (a) The commission shall develop and implement a
policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the commission.
SECTION 12. Section 419.009(c), Government Code, is amended
to read as follows:
(c) The commission shall develop and implement policies
that clearly separate the policy-making [define the respective]
responsibilities of the commission and the management
responsibilities of the executive director and the staff of the
commission.
SECTION 13. Section 419.011, Government Code, is amended to
read as follows:
Sec. 419.011. [PUBLIC INTEREST INFORMATION AND]
COMPLAINTS. (a) The commission shall maintain a system to
promptly and efficiently act on complaints filed with the
commission. The commission shall maintain information about
parties to the complaint, the subject matter of the complaint, a
summary of the results of the review or investigation of the
complaint, and its disposition.
(b) The commission shall make [prepare] information
available [of public interest] describing its [the functions of the
commission and the commission's] procedures for complaint
investigation and resolution [by which complaints are filed with
and resolved by the commission. The commission shall make the
information available to the public and appropriate state agencies.
[(b) The commission shall keep a file about each written
complaint filed with the commission that the commission has
authority to resolve. The commission shall provide to the person
filing the complaint and the persons or entities complained about
the commission's policies and procedures pertaining to complaint
investigation and resolution].
(c) The commission[, at least quarterly and until final
disposition of the complaint,] shall periodically notify the
[person filing the] complaint parties [and the persons or entities
complained about] of the status of the complaint until final
disposition [unless the notice would jeopardize an undercover
investigation.
[(c) The commission shall keep information about each
complaint filed with the commission. The information shall
include:
[(1) the date the complaint is received;
[(2) the name of the complainant;
[(3) the subject matter of the complaint;
[(4) a record of all persons contacted in relation to
the complaint;
[(5) a summary of the results of the review or
investigation of the complaint; and
[(6) for complaints for which the agency took no
action, an explanation of the reason the complaint was closed
without action.
[(d) The commission shall comply with federal and state laws
related to program and facility accessibility. The executive
director shall also prepare and maintain a written plan that
describes how a person who does not speak English can be provided
reasonable access to the commission's programs].
SECTION 14. Subchapter A, Chapter 419, Government Code, is
amended by adding Section 419.012 to read as follows:
Sec. 419.012. TECHNOLOGICAL SOLUTIONS. The commission
shall implement a policy requiring the commission to use
appropriate technological solutions to improve the commission's
ability to perform its functions. The policy must ensure that the
public is able to interact with the commission on the Internet.
SECTION 15. Section 419.021, Government Code, is amended by
adding Subdivision (8) to read as follows:
(8) "Volunteer fire department" means a fire
department operated by its members, including a part-paid fire
department, that is operated on a not-for-profit basis, including a
department that is exempt from federal income tax under Section
501(a), Internal Revenue Code of 1986, by being listed as an exempt
organization in Section 501(c)(3) of that code.
SECTION 16. Section 419.022(a), Government Code, is amended
to read as follows:
(a) The commission may:
(1) require the submission of reports and information
by a local governmental agency in this state that employs fire
protection personnel;
(2) assist fire departments, volunteer fire
departments, volunteer firefighters, and fire protection personnel
with problems related to fire-fighting techniques, clothing, and
equipment;
(3) assist fire departments and local governments with
the development and updating of local fire codes;
(4) on request, assist in performing staffing studies
of fire departments; [and]
(5) establish minimum educational, training,
physical, and mental standards for admission to employment as fire
protection personnel in a permanent, temporary, or probationary
status and for advanced or specialized fire protection personnel
positions; and
(6) establish under Subchapter D minimum educational
and training standards for volunteer firefighters.
SECTION 17. Section 419.023, Government Code, is amended by
amending Subsection (e) and adding Subsection (f) to read as
follows:
(e) On request by the commission, the [The] committee
[periodically] shall review commission rules relating to fire
protection personnel, fire departments, and other fire fighters and
fire fighting organizations that are subject to regulation under
this subchapter and recommend changes in the rules to the
commission.
(f) Appointments to the committee shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointees.
SECTION 18. Section 419.026(a), Government Code, is amended
to read as follows:
(a) The commission shall set and collect a fee [of not more
than $35] for each certificate that the commission issues or renews
under this subchapter, except that if a person holds more than one
certificate the commission may collect only one fee each year for
the renewal of those certificates. The commission by rule shall set
the amount of the fee under this subsection in an amount designed to
recover the commission's costs in connection with issuing
certificates under this subchapter, including the cost to the
commission of obtaining fingerprint-based criminal history record
information under Section 419.0325. The employing agency or entity
shall pay the [this] fee in the manner prescribed [as provided] by
commission rule. The certificate must be renewed annually.
SECTION 19. Section 419.027, Government Code, is amended to
read as follows:
Sec. 419.027. BIENNIAL INSPECTIONS. (a) At least
biennially, the commission shall visit and inspect each institution
or facility conducting courses for training fire protection
personnel and recruits, each fire department, and each local
governmental agency providing fire protection to determine if the
department, agency, institution, or facility is complying with this
chapter and commission rules.
(b) The commission may conduct risk-based inspections of
institutions and facilities in addition to the inspections under
Subsection (a). In determining whether to conduct an inspection of
an institution or facility under this subsection, the commission
shall consider:
(1) how recently the institution or facility has come
under regulation;
(2) the institution's or facility's history of
compliance with state law and commission rules;
(3) the number of complaints filed with the commission
regarding the institution or facility during the last year;
(4) the number of paid personnel in the institution or
facility;
(5) the frequency of fire responses;
(6) the institution's or facility's ability to inspect
and maintain equipment; and
(7) any other factor the commission considers
appropriate to assess an institution's or facility's safety risk.
SECTION 20. Sections 419.032(a) and (d), Government Code,
are amended to read as follows:
(a) A fire department may not appoint a person to the fire
department, except on a temporary or probationary basis, unless:
(1) the person:
(A) [(1)] has satisfactorily completed a
preparatory program of training in fire protection at a school
approved by the commission; and
(B) [(2)] meets the qualifications established
by the commission under Subsection (b); and
(2) the commission has approved the person's
fingerprint-based criminal history record information under
Section 419.0325.
(d) The commission may certify persons who are qualified
under this subchapter to be fire protection personnel. The
commission shall adopt rules relating to presentation of evidence
of satisfactory completion of a program or course of instruction in
another jurisdiction equivalent in content and quality to that
required by the commission for approved fire protection education
and training programs in this state and shall issue to a person
meeting the rules and the requirements of Section 419.0325 a
certificate evidencing satisfaction of Subsections (a) and (b). The
commission may waive any certification requirement, except those
under Section 419.0325, for an applicant with a valid license from
another state having certification requirements substantially
equivalent to those of this state.
SECTION 21. Subchapter B, Chapter 419, Government Code, is
amended by adding Section 419.0325 to read as follows:
Sec. 419.0325. CRIMINAL HISTORY RECORD INFORMATION
APPROVAL REQUIRED FOR CERTIFICATION. (a) The commission may not
certify a person as fire protection personnel unless the
commission, after review, has approved fingerprint-based criminal
history record information about the person obtained from the
Department of Public Safety under Subchapter F, Chapter 411, and
from the Federal Bureau of Investigation under Section 411.087.
(b) The applicant for certification or the fire department
may submit the required fingerprint-based state and national
criminal history record information to the commission. If neither
the applicant nor the fire department submits the required criminal
history record information to the commission, the commission shall
obtain the required criminal history record information pursuant to
Sections 411.087 and 411.1236.
(c) The commission by rule shall establish criteria for
denying a person certification to be fire protection personnel
based on the person's criminal history record information. The
criteria must relate to a person's fitness to serve as fire
protection personnel.
(d) Criminal history record information received by the
commission is privileged and confidential and for commission use
only.
SECTION 22. Sections 419.034(a), (b), and (c), Government
Code, are amended to read as follows:
(a) A fire department or other employing entity may renew an
unexpired certification by, [paying to the commission] before the
expiration date of the certificate:
(1) submitting evidence satisfactory to the
commission of completion of any required professional education;
and
(2) paying to the commission the required renewal fee.
(b) If a person's certificate has been expired for 30 days
or less, the fire department or other employing entity may renew the
certificate by:
(1) submitting evidence satisfactory to the
commission of completion of any required professional education;
and
(2) paying to the commission the required renewal fee
and a fee that is one-half of the certification fee for the
certificate.
(c) If a person's certificate has been expired for longer
than 30 days but less than one year, the fire department or other
employing entity may renew the certificate by:
(1) submitting evidence satisfactory to the
commission of completion of any required professional education;
and
(2) paying to the commission all unpaid renewal fees
and a fee that is equal to the certification fee.
SECTION 23. Section 419.036, Government Code, is amended by
adding Subsections (c) and (d) to read as follows:
(c) A complaint case opened by the commission based on a
violation found during an inspection conducted under Section
419.027 must be opened not later than the 30th day after the date
the commission provides notice of the violation to the applicable
department, agency, institution, or facility.
(d) The commission by rule shall create a matrix for
determining penalty amounts and disciplinary actions for fire
departments, training providers, and certified personnel who
commit violations of this chapter or a rule adopted under this
chapter. In developing the matrix, the commission shall consider
the following factors:
(1) compliance history;
(2) seriousness of the violation;
(3) the safety threat to the public or fire personnel;
(4) any mitigating factors; and
(5) any other factors the commission considers
appropriate.
SECTION 24. Subchapter B, Chapter 419, Government Code, is
amended by adding Section 419.0366 to read as follows:
Sec. 419.0366. TRACKING AND ANALYSIS OF COMPLAINT AND
VIOLATION DATA. (a) The commission shall develop and implement a
method for tracking and categorizing the sources and types of
complaints filed with the commission and of violations of this
chapter or a rule adopted under this chapter.
(b) The commission shall analyze the complaint and
violation data maintained under Subsection (a) to identify trends
and areas that may require additional regulation or enforcement.
SECTION 25. Subchapter B, Chapter 419, Government Code, is
amended by adding Section 419.048 to read as follows:
Sec. 419.048. FIRE PROTECTION PERSONNEL INJURY DATA;
RECOMMENDATIONS TO REDUCE INJURIES. (a) Pursuant to Section
417.004, the commission and the commissioner of insurance, as
necessary to allow the agencies to perform their statutory duties,
shall transfer information between the two agencies, including
injury information from the Texas Fire Incident Reporting System
and workers' compensation data showing claims filed by fire
protection personnel.
(b) Personally identifiable information received by the
commission under this section relating to injured fire protection
personnel is confidential. The commission may not release, and a
person may not gain access to, any information that could
reasonably be expected to reveal the identity of injured fire
protection personnel.
(c) The commission shall evaluate information and data on
fire protection personnel injuries and develop recommendations for
reducing fire protection personnel injuries. The commission shall
forward the recommendations to the state fire marshal not later
than September 1 of each year for inclusion in the annual report
required by Section 417.0075.
(d) The commission shall establish criteria for evaluating
fire protection personnel injury information to determine the
nature of injuries that the commission should investigate. Based
on these investigations, the commission shall identify fire
departments in need of assistance in reducing injuries and may
provide assistance to those fire departments.
SECTION 26. Section 419.054, Government Code, is amended by
adding Subsection (e) to read as follows:
(e) Appointments to the committee shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointees.
SECTION 27. Subchapter D, Chapter 419, Government Code, is
amended by adding Sections 419.074 and 419.075 to read as follows:
Sec. 419.074. RULES RELATING TO VOLUNTEER FIREFIGHTERS.
Notwithstanding that participation in any component of a program
established under this chapter remains voluntary for a volunteer
firefighter, the commission may prohibit a person from serving as a
volunteer firefighter unless the person meets certain requirements
determined by commission rule, including initial minimum education
and training requirements and continuing education requirements
that the commission may establish by rule for purposes of this
section.
Sec. 419.075. TRAINING ASSISTANCE. The commission shall
adopt rules and procedures for the administration of a training
assistance program for volunteer fire departments and volunteer
firefighters. The training assistance provided under this
subchapter may be provided by any of the methods listed in Section
419.031.
SECTION 28. Section 419.906, Government Code, is amended by
adding Subsections (d) and (e) to read as follows:
(d) The commission may enter a default order if a fire
department or training provider fails to take action to correct a
violation found during an inspection conducted under this chapter
or to request an informal settlement conference before the 61st day
after the date the commission provides to the department or
provider notice requiring the department or provider to correct the
violation.
(e) Notwithstanding Section 419.0365, the commission may
temporarily suspend a person's or regulated entity's certificate on
a determination by a panel of the commission that continued
activity by the person or entity would present an immediate threat
to the public or to fire service trainees. The panel may hold a
meeting for purposes of this subsection by teleconference call
pursuant to Section 551.125. A person or regulated entity whose
certificate is temporarily suspended under this subsection is
entitled to a hearing before the commission not later than the 14th
day after the date of the temporary suspension.
SECTION 29. Subchapter Z, Chapter 419, Government Code, is
amended by adding Section 419.908 to read as follows:
Sec. 419.908. COOPERATION WITH FEDERAL AND STATE ENTITIES
IN A DISASTER. In a declared state of disaster under Section
418.014, the commission shall coordinate with appropriate state and
federal agencies, including the governor's office of homeland
security and the Federal Emergency Management Agency.
SECTION 30. (a) As soon as practicable after the effective
date of this Act, the governor shall designate a member of the
governing body of the Texas Fire Protection Agency as the presiding
officer of the governing body pursuant to Section 419.007,
Government Code, as amended by this Act.
(b) As soon as practicable after the effective date of this
Act, the Texas Fire Protection Agency shall adopt the rules
required by Section 419.0325, Government Code, as added by this
Act, and Sections 419.026 and 419.036, Government Code, as amended
by this Act.
(c) Notwithstanding Section 419.048, Government Code, as
added by this Act, the Texas Fire Protection Agency is not required
to submit its annual recommendations to the state fire marshal for
inclusion in the report required by Section 417.0075, Government
Code, before September 1, 2010.
SECTION 31. (a) Sections 419.004, 419.006, and 419.0071(a),
Government Code, as amended by this Act, apply only to a person who
is appointed or reappointed as a member of the governing body of the
Texas Fire Protection Agency on or after the effective date of this
Act. A person appointed or reappointed as a member of the governing
body before the effective date of this Act is governed by the law in
effect immediately before that date, and the former law is
continued in effect for that purpose.
(b) Section 419.005, Government Code, as amended by this
Act, applies only to a ground for removal that occurs on or after
the effective date of this Act. A ground for removal that occurs
before the effective date of this Act is governed by the law in
effect immediately before that date, and the former law is
continued in effect for that purpose.
(c) Section 419.0071(b), Government Code, as amended by
this Act, applies only to a training program attended on or after
the effective date of this Act. A training program attended before
the effective date of this Act is governed by the law in effect
immediately before that date, and the former law is continued in
effect for that purpose.
(d) Section 419.0071(c), Government Code, as amended by
this Act, applies only to expenses incurred on or after the
effective date of this Act. Expenses incurred before the effective
date of this Act are governed by the law in effect immediately
before that date, and the former law is continued in effect for that
purpose.
(e) Section 419.026, Government Code, as amended by this
Act, applies only to a certificate issued or renewed on or after
January 1, 2010. A certificate issued or renewed before January 1,
2010, is governed by the law in effect on the date the certificate
was issued or renewed, and the former law is continued in effect for
that purpose.
(f) Section 419.032, Government Code, as amended by this
Act, and Section 419.0325, Government Code, as added by this Act,
apply only to a person who applies for an initial certificate on or
after January 1, 2010. A person who applies for an initial
certificate before January 1, 2010, is governed, even in relation
to the person's renewal of the certificate on or after that date, by
the law in effect immediately before that date, and the former law
is continued in effect for that purpose.
(g) Section 419.034, Government Code, as amended by this
Act, applies only to a certificate renewed on or after the effective
date of this Act. A certificate renewed before the effective date
of this Act is governed by the law in effect immediately before that
date, and the former law is continued in effect for that purpose.
(h) Section 419.906(d), Government Code, as added by this
Act, applies only to an order pursuant to a violation that occurs on
or after the effective date of this Act. An order pursuant to a
violation that occurs before the effective date of this Act is
governed by the law in effect immediately before that date, and the
former law is continued in effect for that purpose.
SECTION 32. (a) On September 1, 2009, the Texas Commission
on Fire Protection is renamed the Texas Fire Protection Agency.
(b) A reference in any statute or administrative rule to the
Texas Commission on Fire Protection means the Texas Fire Protection
Agency.
SECTION 33. (a) Except as provided by Subsections (b) and
(c) of this section, this Act takes effect September 1, 2009.
(b) The amendment to Section 419.026, Government Code,
takes effect January 1, 2010.
(c) The addition of Section 419.074, Government Code, takes
effect September 1, 2010.