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Texas Senate Bill SB862

Texas 2009 - 81st Regular

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11 S.B. No. 862
22
33
44 AN ACT
55 relating to practices and professions regulated by the Texas Real
66 Estate Commission.
77 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
88 SECTION 1. Subsection (a), Section 1101.152, Occupations
99 Code, as amended by Section 3, Chapter 297 (H.B. 1530), and Section
1010 9, Chapter 1411 (S.B. 914), Acts of the 80th Legislature, Regular
1111 Session, 2007, is reenacted and amended to read as follows:
1212 (a) The commission shall adopt rules to charge and collect
1313 [reasonable] fees in amounts reasonable and necessary to cover the
1414 costs of administering this chapter, including a fee for:
1515 (1) filing an original application for a broker
1616 license;
1717 (2) annual renewal of a broker license;
1818 (3) filing an original application for a salesperson
1919 license;
2020 (4) annual renewal of a salesperson license;
2121 (5) annual registration;
2222 (6) filing an application for a license examination;
2323 (7) filing a request for a branch office license;
2424 (8) filing a request for a change of place of business,
2525 change of name, return to active status, or change of sponsoring
2626 broker;
2727 (9) filing a request to replace a lost or destroyed
2828 license or certificate of registration;
2929 (10) filing an application for approval of an
3030 education program under Subchapter G;
3131 (11) annual operation of an education program under
3232 Subchapter G;
3333 (12) filing an application for approval of an
3434 instructor of core real estate courses;
3535 (13) transcript evaluation;
3636 (14) preparing a license or registration history;
3737 (15) filing an application for a moral character
3838 determination; and
3939 (16) conducting a criminal history check for issuing
4040 or renewing a license.
4141 SECTION 2. Subsection (b), Section 1101.152, Occupations
4242 Code, is amended to read as follows:
4343 (b) The commission shall adopt rules to set and collect
4444 [reasonable] fees in amounts reasonable and necessary to cover the
4545 costs of implementing [to implement] the continuing education
4646 requirements for license holders, including a fee for:
4747 (1) an application for approval of a continuing
4848 education provider;
4949 (2) an application for approval of a continuing
5050 education course of study;
5151 (3) an application for approval of an instructor of
5252 continuing education courses; and
5353 (4) attendance at a program to train instructors of a
5454 continuing education course prescribed under Section 1101.455.
5555 SECTION 3. Subsection (b), Section 1101.153, Occupations
5656 Code, is amended to read as follows:
5757 (b) Of each fee increase collected under Subsection (a):
5858 (1) $50 shall be transmitted to Texas A&M University
5959 for deposit in a separate banking account that may be appropriated
6060 only to support, maintain, and carry out the purposes, objectives,
6161 and duties of the Texas Real Estate Research Center;
6262 (2) [,] $50 shall be deposited to the credit of the
6363 foundation school fund; and
6464 (3) $100 [$150] shall be deposited to the credit of the
6565 general revenue fund.
6666 SECTION 4. Subsection (a), Section 1101.154, Occupations
6767 Code, is amended to read as follows:
6868 (a) The fee for the issuance or renewal of a:
6969 (1) broker license is the amount of the fee set under
7070 Sections 1101.152 and 1101.153 and an additional $20 fee;
7171 (2) salesperson license is the amount of the fee set
7272 under Section 1101.152 and an additional $20 [$17.50] fee; and
7373 (3) certificate of registration is the amount of the
7474 fee set under Section 1101.152 and an additional $20 fee.
7575 SECTION 5. Section 1101.606, Occupations Code, is amended
7676 by amending Subsection (a) and adding Subsections (c) and (d) to
7777 read as follows:
7878 (a) Except as provided by Subsection (c), an [An] aggrieved
7979 person who obtains a court judgment against a license or
8080 certificate holder for an act described by Section 1101.602 may,
8181 after final judgment is entered, execution returned nulla bona, and
8282 a judgment lien perfected, file a verified claim in the court that
8383 entered the judgment.
8484 (c) If an aggrieved person is precluded by action of a
8585 bankruptcy court from executing a judgment or perfecting a judgment
8686 lien as required by Subsection (a), the person shall verify to the
8787 commission that the person has made a good faith effort to protect
8888 the judgment from being discharged in bankruptcy.
8989 (d) The commission by rule may prescribe the actions
9090 necessary for an aggrieved person to demonstrate that the person
9191 has made a good faith effort under Subsection (c) to protect a
9292 judgment from being discharged in bankruptcy.
9393 SECTION 6. Section 1101.652, Occupations Code, is amended
9494 to read as follows:
9595 Sec. 1101.652. GROUNDS FOR SUSPENSION OR REVOCATION OF
9696 LICENSE. (a) The commission may suspend or revoke a license
9797 issued under this chapter or take other disciplinary action
9898 authorized by this chapter if the license holder:
9999 (1) enters a plea of guilty or nolo contendere to or is
100100 convicted of a felony or a criminal offense involving fraud [in
101101 which fraud is an essential element], and the time for appeal has
102102 elapsed or the judgment or conviction has been affirmed on appeal,
103103 without regard to an order granting community supervision that
104104 suspends the imposition of the sentence;
105105 (2) procures or attempts to procure a license under
106106 this chapter for the license holder or a salesperson by fraud,
107107 misrepresentation, or deceit or by making a material misstatement
108108 of fact in an application for a license;
109109 (3) engages in misrepresentation, dishonesty, or
110110 fraud when selling, buying, trading, or leasing real property in
111111 the name of:
112112 (A) the license holder;
113113 (B) the license holder's spouse; or
114114 (C) a person related to the license holder within
115115 the first degree by consanguinity;
116116 (4) fails to honor, within a reasonable time, a check
117117 issued to the commission after the commission has sent by certified
118118 mail a request for payment to the license holder's last known
119119 business address according to commission records;
120120 (5) fails or refuses to produce on request, for
121121 inspection by the commission or a commission representative, a
122122 document, book, or record that is in the license holder's
123123 possession and relates to a real estate transaction conducted by
124124 the license holder;
125125 (6) fails to provide, within a reasonable time,
126126 information requested by the commission that relates to a formal or
127127 informal complaint to the commission that would indicate a
128128 violation of this chapter;
129129 (7) fails to surrender to the owner, without just
130130 cause, a document or instrument that is requested by the owner and
131131 that is in the license holder's possession;
132132 (8) fails to use a contract form required by the
133133 commission under Section 1101.155;
134134 (9) fails to notify the commission, not later than the
135135 30th day after the date of a final conviction or the entry of a plea
136136 of guilty or nolo contendere, that the person has been convicted of
137137 or entered a plea of guilty or nolo contendere to a felony or a
138138 criminal offense involving fraud; or
139139 (10) disregards or violates this chapter.
140140 (b) The commission may suspend or revoke a license issued
141141 under this chapter or take other disciplinary action authorized by
142142 this chapter if the license holder, while acting as a broker or
143143 salesperson:
144144 (1) acts negligently or incompetently;
145145 (2) engages in conduct that is dishonest or in bad
146146 faith or that demonstrates untrustworthiness;
147147 (3) makes a material misrepresentation to a potential
148148 buyer concerning a significant defect, including a latent
149149 structural defect, known to the license holder that would be a
150150 significant factor to a reasonable and prudent buyer in making a
151151 decision to purchase real property;
152152 (4) fails to disclose to a potential buyer a defect
153153 described by Subdivision (3) that is known to the license holder;
154154 (5) makes a false promise that is likely to influence a
155155 person to enter into an agreement when the license holder is unable
156156 or does not intend to keep the promise;
157157 (6) pursues a continued and flagrant course of
158158 misrepresentation or makes false promises through an agent or
159159 salesperson, through advertising, or otherwise;
160160 (7) fails to make clear to all parties to a real estate
161161 transaction the party for whom the license holder is acting;
162162 (8) receives compensation from more than one party to
163163 a real estate transaction without the full knowledge and consent of
164164 all parties to the transaction;
165165 (9) fails within a reasonable time to properly account
166166 for or remit money that is received by the license holder and that
167167 belongs to another person;
168168 (10) commingles money that belongs to another person
169169 with the license holder's own money;
170170 (11) pays a commission or a fee to or divides a
171171 commission or a fee with a person other than a license holder or a
172172 real estate broker or salesperson licensed in another state for
173173 compensation for services as a real estate agent;
174174 (12) fails to specify a definite termination date that
175175 is not subject to prior notice in a contract, other than a contract
176176 to perform property management services, in which the license
177177 holder agrees to perform services for which a license is required
178178 under this chapter;
179179 (13) accepts, receives, or charges an undisclosed
180180 commission, rebate, or direct profit on an expenditure made for a
181181 principal;
182182 (14) solicits, sells, or offers for sale real property
183183 by means of a lottery;
184184 (15) solicits, sells, or offers for sale real property
185185 by means of a deceptive practice;
186186 (16) acts in a dual capacity as broker and undisclosed
187187 principal in a real estate transaction;
188188 (17) guarantees or authorizes or permits a person to
189189 guarantee that future profits will result from a resale of real
190190 property;
191191 (18) places a sign on real property offering the real
192192 property for sale or lease without obtaining the written consent of
193193 the owner of the real property or the owner's authorized agent;
194194 (19) offers to sell or lease real property without the
195195 knowledge and consent of the owner of the real property or the
196196 owner's authorized agent;
197197 (20) offers to sell or lease real property on terms
198198 other than those authorized by the owner of the real property or the
199199 owner's authorized agent;
200200 (21) induces or attempts to induce a party to a
201201 contract of sale or lease to break the contract for the purpose of
202202 substituting a new contract;
203203 (22) negotiates or attempts to negotiate the sale,
204204 exchange, or lease of real property with an owner, landlord, buyer,
205205 or tenant with knowledge that that person is a party to an
206206 outstanding written contract that grants exclusive agency to
207207 another broker in connection with the transaction;
208208 (23) publishes or causes to be published an
209209 advertisement, including an advertisement by newspaper, radio,
210210 television, the Internet, or display, that misleads or is likely to
211211 deceive the public, tends to create a misleading impression, or
212212 fails to identify the person causing the advertisement to be
213213 published as a licensed broker or agent;
214214 (24) withholds from or inserts into a statement of
215215 account or invoice a statement that the license holder knows makes
216216 the statement of account or invoice inaccurate in a material way;
217217 (25) publishes or circulates an unjustified or
218218 unwarranted threat of a legal proceeding or other action;
219219 (26) establishes an association by employment or
220220 otherwise with a person other than a license holder if the person is
221221 expected or required to act as a license holder;
222222 (27) aids, abets, or conspires with another person to
223223 circumvent this chapter;
224224 (28) fails or refuses to provide, on request, a copy of
225225 a document relating to a real estate transaction to a person who
226226 signed the document;
227227 (29) fails to advise a buyer in writing before the
228228 closing of a real estate transaction that the buyer should:
229229 (A) have the abstract covering the real estate
230230 that is the subject of the contract examined by an attorney chosen
231231 by the buyer; or
232232 (B) be provided with or obtain a title insurance
233233 policy;
234234 (30) fails to deposit, within a reasonable time, money
235235 the license holder receives as escrow agent in a real estate
236236 transaction:
237237 (A) in trust with a title company authorized to
238238 do business in this state; or
239239 (B) in a custodial, trust, or escrow account
240240 maintained for that purpose in a banking institution authorized to
241241 do business in this state;
242242 (31) disburses money deposited in a custodial, trust,
243243 or escrow account, as provided in Subdivision (30), before the
244244 completion or termination of the real estate transaction;
245245 (32) discriminates against an owner, potential buyer,
246246 landlord, or potential tenant on the basis of race, color,
247247 religion, sex, disability, familial status, national origin, or
248248 ancestry, including directing a prospective buyer or tenant
249249 interested in equivalent properties to a different area based on
250250 the race, color, religion, sex, disability, familial status,
251251 national origin, or ancestry of the potential owner or tenant; or
252252 (33) disregards or violates this chapter.
253253 SECTION 7. Section 1303.3525, Occupations Code, is amended
254254 to read as follows:
255255 Sec. 1303.3525. HEARING [EXAMINER]. (a) The commission
256256 may authorize the State Office of Administrative Hearings [a
257257 hearing examiner] to conduct a hearing and enter a final decision in
258258 a proceeding under Section 1303.351.
259259 (b) All hearings conducted under Subsection (a) are
260260 governed by Chapter 2001, Government Code [A final decision of a
261261 hearing examiner under this section is appealable to the commission
262262 as provided by commission rule].
263263 SECTION 8. Subsections (b) and (c), Section 221.024,
264264 Property Code, are amended to read as follows:
265265 (b) The commission [may]:
266266 (1) shall authorize the State Office of Administrative
267267 Hearings [specific employees] to conduct hearings [and issue final
268268 decisions] in contested cases; and
269269 (2) may establish reasonable fees for forms and
270270 documents it provides to the public and for the filing or
271271 registration of documents required by this chapter.
272272 (c) If the commission initiates a disciplinary proceeding
273273 under this chapter, the person is entitled to a hearing before the
274274 State Office of Administrative Hearings [commission or a hearing
275275 officer appointed by the commission]. The commission by rule shall
276276 adopt procedures to permit an appeal to the commission from a
277277 determination made by the State Office of Administrative Hearings
278278 [a hearing officer] in a disciplinary action.
279279 SECTION 9. Subsection (c), Section 221.027, Property Code,
280280 is amended to read as follows:
281281 (c) A registration may be suspended under this section
282282 without notice or hearing on the complaint if:
283283 (1) institution of proceedings for a hearing before
284284 the State Office of Administrative Hearings [commission] is
285285 initiated simultaneously with the temporary suspension; and
286286 (2) a hearing is held under Chapter 2001, Government
287287 Code, and this chapter as soon as possible.
288288 SECTION 10. (a) The change in law made by this Act to
289289 Section 1101.606, Occupations Code, applies only to a judgment
290290 entered by a court on or after the effective date of this Act. A
291291 judgment entered before the effective date of this Act is governed
292292 by the law in effect when the judgment was entered, and the former
293293 law is continued in effect for that purpose.
294294 (b) The change in law made by this Act to Subsection (b),
295295 Section 1101.652, Occupations Code, applies only to conduct
296296 occurring on or after the effective date of this Act. Conduct
297297 occurring before the effective date of this Act is governed by the
298298 law in effect when the conduct occurred, and the former law is
299299 continued in effect for that purpose.
300300 (c) The changes in law made by this Act to Section
301301 1303.3525, Occupations Code, and Section 221.024, Property Code,
302302 apply only to a contested case filed on or after the effective date
303303 of this Act. A contested case filed before the effective date of
304304 this Act is governed by the law in effect on the date the contested
305305 case was filed, and the former law is continued in effect for that
306306 purpose.
307307 SECTION 11. (a) Except as provided by Subsection (b) of
308308 this section, this Act takes effect immediately if it receives a
309309 vote of two-thirds of all the members elected to each house, as
310310 provided by Section 39, Article III, Texas Constitution. If this
311311 Act does not receive the vote necessary for immediate effect, this
312312 Act takes effect September 1, 2009.
313313 (b) Subsection (b), Section 1101.153, Occupations Code, as
314314 amended by this Act, takes effect September 1, 2011.
315315 ______________________________ ______________________________
316316 President of the Senate Speaker of the House
317317 I hereby certify that S.B. No. 862 passed the Senate on
318318 April 9, 2009, by the following vote: Yeas 31, Nays 0.
319319 ______________________________
320320 Secretary of the Senate
321321 I hereby certify that S.B. No. 862 passed the House on
322322 April 30, 2009, by the following vote: Yeas 143, Nays 1, one
323323 present not voting.
324324 ______________________________
325325 Chief Clerk of the House
326326 Approved:
327327 ______________________________
328328 Date
329329 ______________________________
330330 Governor