Texas 2009 - 81st Regular

Texas Senate Bill SB2057 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R10578 NC-F
2	2	By: Williams S.B. No. 2057
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the powers and duties of the Texas Department of
8	8	Licensing and Regulation, including the power to issue emergency
9	9	orders and temporary and emergency licenses.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 51.001, Occupations Code, is amended by
12	12	amending Subdivision (1) and adding Subdivision (1-a) to read as
13	13	follows:
14	14	(1) "Advisory board" means a board, committee,
15	15	council, or other entity with multiple members that has as its
16	16	primary function advising the commission or department.
17	17	(1-a) "Commission" means the Texas Commission of
18	18	Licensing and Regulation.
19	19	SECTION 2. Subchapter D, Chapter 51, Occupations Code, is
20	20	amended by adding Sections 51.209 and 51.210 to read as follows:
21	21	Sec. 51.209. ADVISORY BOARDS; REMOVAL OF ADVISORY BOARD
22	22	MEMBER. (a) This section applies to any advisory board appointed
23	23	to advise the commission or department regarding a program subject
24	24	to regulation by the department.
25	25	(b) An advisory board member who was appointed by the
26	26	presiding officer of the commission with the commission's approval
27	27	may be removed from the advisory board by the presiding officer with
28	28	the commission's approval on any of the following grounds:
29	29	(1) the member does not have at the time of becoming a
30	30	member of the advisory board the qualifications required by the law
31	31	or rule authorizing appointment of the member;
32	32	(2) the member does not maintain during service on the
33	33	advisory board the qualifications required by the law or rule
34	34	authorizing appointment of the member;
35	35	(3) the member cannot, because of illness or
36	36	disability, discharge the member's duties for a substantial part of
37	37	the member's term; or
38	38	(4) the member is absent from more than half of the
39	39	regularly scheduled advisory board meetings that the member is
40	40	eligible to attend during a calendar year without an excuse
41	41	approved by a majority vote of the advisory board.
42	42	(c) The validity of an action of an advisory board is not
43	43	affected by the fact that it is taken when a ground for removal of a
44	44	member exists.
45	45	Sec. 51.210. METHOD OF MAKING PAYMENTS. (a) The
46	46	commission may authorize payment of regulatory fees, fines,
47	47	penalties, and charges for goods and services through:
48	48	(1) an electronic payment method; or
49	49	(2) a credit card issued by a financial institution
50	50	chartered by a state or the United States or issued by a nationally
51	51	recognized credit organization approved by the commission.
52	52	(b) A payment by a method under this section may be made in
53	53	person, by telephone, or through the Internet.
54	54	(c) The commission may require a person who makes a payment
55	55	to the department through an electronic payment method or credit
56	56	card to pay a discount or service charge in an amount reasonable and
57	57	necessary to reimburse the commission for the costs involved in
58	58	processing the payment.
59	59	(d) The commission may adopt rules as necessary to implement
60	60	this section.
61	61	SECTION 3. Subchapter G, Chapter 51, Occupations Code, is
62	62	amended by adding Sections 51.3511, 51.3512, and 51.3513 to read as
63	63	follows:
64	64	Sec. 51.3511. ISSUANCE OF EMERGENCY ORDERS. (a) If the
65	65	executive director determines that an emergency exists requiring
66	66	immediate action to protect the public health and safety, the
67	67	executive director may issue an emergency order to:
68	68	(1) suspend or revoke a license or other authorization
69	69	issued under a program regulated by the department; or
70	70	(2) halt operation of an unsafe facility or unsafe
71	71	equipment that is subject to regulation by the department.
72	72	(b) The executive director may issue an emergency order with
73	73	or without notice and hearing as the executive director considers
74	74	practicable under the circumstances.
75	75	(c) If an emergency order is issued under this section
76	76	without a hearing, the executive director shall set the time and
77	77	place for a hearing conducted by the State Office of Administrative
78	78	Hearings to affirm, modify, or set aside the emergency order not
79	79	later than the 10th day after the date the order was issued. The
80	80	order shall be affirmed to the extent that reasonable cause existed
81	81	to issue the order.
82	82	(d) The commission by rule may prescribe procedures for the
83	83	determination and appeal of an emergency order issued under this
84	84	section, including a rule allowing the commission to affirm,
85	85	modify, or set aside a decision made by the State Office of
86	86	Administrative Hearings under Subsection (c).
87	87	(e) A proceeding under this section is a contested case
88	88	under Chapter 2001, Government Code.
89	89	Sec. 51.3512. SUBPOENAS. (a) The department may issue a
90	90	subpoena as provided by this section.
91	91	(b) The department may request and, if necessary, compel by
92	92	subpoena:
93	93	(1) the production for inspection and copying of
94	94	records, documents, and other evidence relevant to the
95	95	investigation of an alleged violation of this chapter, a law
96	96	establishing a regulatory program administered by the department,
97	97	or a rule adopted or order issued by the commission or executive
98	98	director; and
99	99	(2) the attendance of a witness for examination under
100	100	oath.
101	101	(c) A subpoena under this section may be issued throughout
102	102	this state and may be served by any person designated by the
103	103	commission or the executive director.
104	104	(d) The department, acting through the attorney general,
105	105	may bring an action to enforce a subpoena issued under this section
106	106	against a person who fails to comply with the subpoena.
107	107	(e) Venue for an action brought under this section is in a
108	108	district court in:
109	109	(1) Travis County; or
110	110	(2) any county in which the department may hold a
111	111	hearing.
112	112	(f) The court shall order compliance with the subpoena if
113	113	the court finds that good cause exists to issue the subpoena.
114	114	Sec. 51.3513. CEASE AND DESIST ORDER. The executive
115	115	director may issue a cease and desist order if the executive
116	116	director determines that the action is necessary to prevent a
117	117	violation of:
118	118	(1) this chapter;
119	119	(2) a law establishing a regulatory program
120	120	administered by the department; or
121	121	(3) a rule adopted or order issued by the commission or
122	122	the executive director.
123	123	SECTION 4. Section 51.352(a), Occupations Code, is amended
124	124	to read as follows:
125	125	(a) The attorney general or the executive director may
126	126	institute an action for injunctive relief to restrain a violation
127	127	by and to collect a civil penalty from a person that appears to be in
128	128	violation of or threatening to violate a law establishing a
129	129	regulatory program administered by the department or a rule or
130	130	order of the commission or executive director related to the
131	131	regulatory program. A civil penalty assessed under this subsection
132	132	may not exceed $5,000 per day for each violation.
133	133	SECTION 5. The heading to Section 51.353, Occupations Code,
134	134	is amended to read as follows:
135	135	Sec. 51.353. LICENSE DENIAL; ADMINISTRATIVE SANCTIONS.
136	136	SECTION 6. Section 51.353(a), Occupations Code, is amended
137	137	to read as follows:
138	138	(a) The commission shall deny, revoke, suspend, or refuse to
139	139	renew a license or shall reprimand a license holder for a violation
140	140	of this chapter, a law establishing a regulatory program
141	141	administered by the department, or a rule or order of the commission
142	142	or the executive director.
143	143	SECTION 7. Subchapter G, Chapter 51, Occupations Code, is
144	144	amended by adding Sections 51.355 and 51.356 to read as follows:
145	145	Sec. 51.355. LICENSE ELIGIBILITY OF PERSON WHOSE LICENSE
146	146	HAS BEEN REVOKED. A person whose license has been revoked by order
147	147	of the commission or executive director is not eligible for a new
148	148	license until the first anniversary of the date of the revocation.
149	149	Sec. 51.356. DEFERRED ADJUDICATION; LICENSE SUSPENSION,
150	150	LICENSE REVOCATION, OR DENIAL OR REFUSAL TO RENEW LICENSE. (a) The
151	151	commission may deny, suspend, revoke, or refuse to renew a license
152	152	or other authorization issued by a program regulated by the
153	153	department if the commission determines that a deferred
154	154	adjudication makes the person holding or seeking the license unfit
155	155	for the license.
156	156	(b) In making a determination under Subsection (a), the
157	157	commission shall consider the factors set forth in Sections 53.022
158	158	and 53.023 and the guidelines issued by the department under
159	159	Section 53.025.
160	160	SECTION 8. Subchapter H, Chapter 51, Occupations Code, is
161	161	amended by adding Sections 51.4011 and 51.4012 to read as follows:
162	162	Sec. 51.4011. INACTIVE STATUS. (a) Not later than the
163	163	10th day before the expiration date of a license issued by the
164	164	department, the license holder may place the license on inactive
165	165	status by:
166	166	(1) submitting an application for inactive status to
167	167	the department on a form prescribed by the department; and
168	168	(2) paying the required fee.
169	169	(b) Except as provided by Subsection (f), a person whose
170	170	license is on inactive status is not required to complete
171	171	continuing education required under this chapter, a law
172	172	establishing a program regulated by the department, or a rule
173	173	adopted by the commission.
174	174	(c) A person whose license is on inactive status may reapply
175	175	for inactive status before the expiration date of the license. The
176	176	person must pay the required fee.
177	177	(d) A person whose license is on inactive status may not
178	178	engage in any activity for which the license is required.
179	179	(e) A license holder may not employ a person whose license
180	180	is on inactive status.
181	181	(f) A person whose license is on inactive status may return
182	182	the license to active status by:
183	183	(1) applying to the department for active status on a
184	184	form prescribed by the department;
185	185	(2) paying the required fee; and
186	186	(3) providing evidence satisfactory to the department
187	187	that the person has completed the number of hours of continuing
188	188	education that would otherwise have been required for a renewal of
189	189	an active license for the preceding license period.
190	190	(g) The commission may set fees and adopt rules as necessary
191	191	to implement this section.
192	192	Sec. 51.4012. LICENSE ELIGIBILITY REQUIREMENTS REGARDING
193	193	APPLICANT'S BACKGROUND; DETERMINATION LETTER. (a)
194	194	Notwithstanding any other law, the commission may determine that a
195	195	person is not eligible for a license based on the person's criminal
196	196	history or other information that indicates that the person lacks
197	197	the honesty, trustworthiness, and integrity to hold a license
198	198	issued by the department.
199	199	(b) Before applying for a license from the department, a
200	200	person may request that the department issue a letter determining
201	201	whether the person would be eligible for a license under Subsection
202	202	(a) of this section, Section 51.356, or Chapter 53. To obtain a
203	203	determination letter, a person must file a request on a form
204	204	prescribed by the department and pay the required fee.
205	205	(c) Not later than the 30th day after the date the
206	206	department makes its determination, the department shall issue the
207	207	determination letter to the person.
208	208	(d) The department has the same powers to investigate a
209	209	request filed under this section as the department has to
210	210	investigate a person applying for a license.
211	211	(e) A determination letter issued under this section that is
212	212	adverse to a person does not prevent the person from subsequently
213	213	applying for a license.
214	214	(f) The department is not bound by its determination that
215	215	the person would be eligible if, after the issuance of the
216	216	determination letter, the department determines there has been a
217	217	change in a person's circumstances or discovers a previously
218	218	undiscovered fact.
219	219	(g) A determination under this section is not a contested
220	220	case under Chapter 2001, Government Code.
221	221	SECTION 9. Subchapter H, Chapter 51, Occupations Code, is
222	222	amended by adding Sections 51.407 and 51.408 to read as follows:
223	223	Sec. 51.407. TEMPORARY LICENSE. (a) The commission by rule
224	224	may provide for the issuance of a temporary license to an applicant
225	225	who:
226	226	(1) submits to the executive director an application
227	227	on a form prescribed by the executive director;
228	228	(2) meets preliminary qualifications established by
229	229	commission rule; and
230	230	(3) pays any required fees.
231	231	(b) A temporary license issued under this section expires on
232	232	the 21st day after the date of issuance and may not be renewed.
233	233	(c) A temporary license holder is subject to:
234	234	(1) this chapter;
235	235	(2) any law applicable to the activity for which the
236	236	license is required; and
237	237	(3) any rule of the commission or the executive
238	238	director applicable to the license.
239	239	Sec. 51.408. EMERGENCY LICENSE. (a) The executive
240	240	director may issue an emergency license to a person who meets
241	241	eligibility requirements provided by:
242	242	(1) a law establishing a regulatory program
243	243	administered by the department; or
244	244	(2) a rule adopted to implement this section.
245	245	(b) An emergency license issued under this section expires
246	246	on the date indicated by the executive director, but not later than
247	247	the 90th day after the date the license is issued.
248	248	(c) The emergency license holder may engage in the
249	249	activities authorized by the type of license only:
250	250	(1) during a period in which a state of disaster has
251	251	been declared and the following recovery period; and
252	252	(2) in an area designated as a disaster area under
253	253	Chapter 418, Government Code.
254	254	SECTION 10. (a) Except as provided by Subsection (b) of
255	255	this section, this Act takes effect September 1, 2009.
256	256	(b) Sections 51.4011 and 51.4012, Occupations Code, as
257	257	added by this Act, take effect May 1, 2010.