82R4488 MAW-D
By: Harless H.B. No. 722
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of massage therapists, massage
establishments, massage schools, and sexually oriented businesses;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 455.001, Occupations Code, is amended by
amending Subdivisions (7) and (8) and adding Subdivisions (9-a)
through (9-e) to read as follows:
(7) "Massage therapist" means a person who practices,
[or] administers, or offers to practice or administer massage
therapy or other massage services to a client for
compensation. The term includes a licensed massage therapist,
therapeutic massage practitioner, massage technician, masseur,
masseuse, myotherapist, body massager, body rubber, or any
derivation of those titles.
(8) "Massage therapy" means the manipulation of soft
tissue by hand or through a mechanical or electrical apparatus for
the purpose of body massage and includes effleurage (stroking),
petrissage (kneading), tapotement (percussion), compression,
vibration, friction, nerve strokes, reflexology, and Swedish
gymnastics. The terms "massage," "therapeutic massage," "massage
technology," "myotherapy," "body massage," "body rub," or any
derivation of those terms are synonyms for "massage therapy."
(9-a) "Nude" means a person who is:
(A) entirely unclothed; or
(B) clothed in a manner that leaves uncovered or
visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts or any portion of
the genitals or buttocks.
(9-b) "Operator" means a person who is supervising a
massage establishment or massage school at the time a violation
occurs or the establishment or school is inspected. If no person
is supervising, any employee, contractor, or agent of the owner who
is present at the establishment or school at the time of the
violation or inspection is the operator.
(9-c) "Owner" includes a person:
(A) in whose name a certificate of occupancy or
other certificate reflecting compliance with a regulation of a
political subdivision has been issued for a massage establishment
or massage school and any person having control over that person; or
(B) who operates a massage establishment or
massage school under a lease, operating agreement, or other
arrangement.
(9-d) "Reflexology" means a treatment method involving
the manipulation of reflex areas in the hands and feet with the
practitioner's hand, fingers, and thumb.
(9-e) "Sexual contact" includes:
(A) any touching of any part of the genitalia or
anus;
(B) any touching of the breasts of a female
without the written consent of the female;
(C) any offer or agreement to engage in any
activity described in Paragraph (A) or (B);
(D) kissing without the consent of both persons;
(E) deviate sexual intercourse, sexual contact,
sexual intercourse, indecent exposure, sexual assault,
prostitution, and promotion of prostitution as described in
Chapters 21, 22, and 43, Penal Code, or any offer or agreement to
engage in such activities;
(F) any behavior, gesture, or expression that may
reasonably be interpreted as inappropriately seductive or sexual;
or
(G) inappropriate sexual comments about or to a
client, including sexual comments about a person's body.
SECTION 2. Section 455.104, Occupations Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) The department, its authorized representative, or a
peace officer may enter the premises of a place of business that
represents itself as a massage establishment, regardless of whether
the business holds an appropriate license issued under this chapter
at any time that the department or peace officer considers
necessary to ensure compliance with this chapter and the rules
adopted under this chapter.
SECTION 3. Section 455.202(a), Occupations Code, is amended
to read as follows:
(a) A massage establishment may employ only licensed
massage therapists to perform or offer to perform massage therapy
or other massage services.
SECTION 4. Section 455.204, Occupations Code, is amended to
read as follows:
Sec. 455.204. DISPLAY OF LICENSE. (a) A person who holds a
license shall publicly display the original license as specified by
the department.
(b) Each massage establishment must post in plain sight the
original license for each massage therapist who practices in the
massage establishment.
(c) Each massage school, massage establishment, massage
therapy instructor, or massage therapist shall present the person's
original license on the request of the department, an authorized
representative of the department, or a peace officer.
(d) On the request of a peace officer, a massage therapist
shall present:
(1) if the person is a United States citizen, the
person's valid driver's license or identification card issued by a
state in the United States; or
(2) if the person is not a United States citizen, the
person's:
(A) passport or other identification card issued
by a governmental agency; and
(B) valid work permit.
(e) In this section, a person is considered to publicly
display a license or to post the license in plain sight if the
license is visible from an area readily accessible by the public.
SECTION 5. Section 455.205, Occupations Code, is amended by
amending Subsections (a) and (d) and adding Subsection (f) to read
as follows:
(a) A massage therapist may not:
(1) perform or offer to perform massage therapy or
other massage services for compensation or without compensation at
or for:
(A) a sexually oriented business; or
(B) a place of business that represents itself as
a massage establishment, unless the establishment holds an
appropriate license issued under this chapter;
(2) perform or offer to perform massage therapy or
other massage services for compensation or without compensation
unless the massage therapist is a United States citizen or a legal
permanent resident with a valid work permit; or
(3) while nude or in clothing designed to arouse or
gratify the sexual desire of an individual, provide massage therapy
or other massage services to a customer.
(d) A sexually oriented business may not use the word
"massage," [or] "bath," or "spa" on a sign or any form of
advertising.
(f) While in a massage establishment, a person may not:
(1) engage in sexual conduct;
(2) possess a device or item intended to provide
sexual stimulation or sexual gratification to any person; or
(3) possess clothing designed to arouse or gratify the
sexual desire of any person.
SECTION 6. Section 455.352, Occupations Code, is amended by
amending Subsections (a) and (e) and adding Subsection (c-1) to
read as follows:
(a) A person commits an offense if the person is required to
be licensed under this chapter and the person:
(1) knowingly violates Section 455.151, 455.159,
455.202(b), 455.203(a) or (c), 455.204(b) or (c), or 455.205(b),
(c), [or] (d), or (f); or
(2) collects or agrees to a fee or any other form of
compensation for massage therapy without being licensed under this
chapter.
(c-1) A person commits an offense if the person violates a
rule adopted under this chapter.
(e) If it is shown at the trial of an offense under this
section that the defendant has been previously convicted:
(1) of an offense under this section, the offense is a
Class A misdemeanor; or
(2) two or more times of an offense under this section,
the offense is a state jail felony.
SECTION 7. Sections 451.202(d) and 451.351(i), Occupations
Code, are repealed.
SECTION 8. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 9. This Act takes effect September 1, 2011.