Texas 2011 - 82nd Regular

Texas Senate Bill SB1171 Compare Versions

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1	1	By: Carona S.B. No. 1171
2	2	(In the Senate - Filed March 4, 2011; March 16, 2011, read
3	3	first time and referred to Committee on Business and Commerce;
4	4	April 7, 2011, reported favorably by the following vote: Yeas 7,
5	5	Nays 0; April 7, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to practices and professions regulated by the Texas
11	11	Appraiser Licensing and Certification Board.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 1103.002, Occupations Code, is amended
14	14	to read as follows:
15	15	Sec. 1103.002. PURPOSE. The purpose of this chapter is to:
16	16	(1) conform state law relating to the regulation of
17	17	real estate appraisers to the requirements adopted under Title XI,
18	18	Financial Institutions Reform, Recovery, and Enforcement Act of
19	19	1989; and
20	20	(2) enforce standards for the appraisal of real
21	21	property.
22	22	SECTION 2. Subdivision (1), Section 1103.003, Occupations
23	23	Code, is amended to read as follows:
24	24	(1) "Appraisal" means, regardless of whether prepared
25	25	for a federally related transaction:
26	26	(A) an opinion [estimate] of value; or
27	27	(B) the act or process of developing an opinion
28	28	of [estimating] value.
29	29	SECTION 3. Subsection (b), Section 1103.004, Occupations
30	30	Code, is amended to read as follows:
31	31	(b) This chapter does not prohibit:
32	32	(1) a person authorized by law from performing an
33	33	evaluation of real property for or providing an evaluation of real
34	34	property to another person; or
35	35	(2) [a real estate broker or salesperson licensed
36	36	under Chapter 1101 but not certified or licensed under this chapter
37	37	from performing an appraisal in a transaction other than a
38	38	federally related transaction;
39	39	[(3) the requirement that a person who is not
40	40	certified or licensed under this chapter be licensed as a real
41	41	estate broker or salesperson to perform an appraisal in a
42	42	transaction other than a federally related transaction; or
43	43	[(4)] a real estate broker [or salesperson] licensed
44	44	under Chapter 1101 or a salesperson acting under the authority of a
45	45	sponsoring broker from providing to another person a written
46	46	analysis, [giving an] opinion, or conclusion relating to the
47	47	estimated price of real property if the analysis, [if the] opinion,
48	48	or conclusion:
49	49	(A) is not referred to as an appraisal; [and]
50	50	(B) is given in the ordinary course of the
51	51	broker's or salesperson's business; and
52	52	(C) is related to the actual or potential
53	53	acquisition, disposition, encumbrance, or management of an
54	54	interest in [to:
55	55	[(i) a potential seller or third party
56	56	regarding the recommended listing price of real property; or
57	57	[(ii) a potential purchaser or third party
58	58	regarding the recommended purchase price of] real property.
59	59	SECTION 4. Subsection (b), Section 1103.101, Occupations
60	60	Code, is amended to read as follows:
61	61	(b) The board may delegate to the commissioner the
62	62	responsibility for administering this chapter, including the
63	63	approval of consent orders and agreements.
64	64	SECTION 5. Section 1103.151, Occupations Code, is amended
65	65	to read as follows:
66	66	Sec. 1103.151. RULES RELATING TO CERTIFICATES AND LICENSES.
67	67	The board may adopt:
68	68	(1) rules for certifying or licensing an appraiser or
69	69	approving an appraiser trainee in this state that are in accordance
70	70	with this chapter and consistent with applicable federal law;
71	71	(2) rules relating to the education and experience
72	72	required for certifying or licensing an appraiser or approving an
73	73	appraiser trainee that are consistent with the guidelines
74	74	recognized by the Appraiser Qualifications Board;
75	75	(3) rules relating to the examination required by
76	76	Subchapter F; and
77	77	(4) rules relating to procedures for the timely
78	78	renewal of a certificate, [or] license, or trainee approval.
79	79	SECTION 6. Subsection (a), Section 1103.156, Occupations
80	80	Code, is amended to read as follows:
81	81	(a) The board may establish reasonable fees to administer
82	82	this chapter, including:
83	83	(1) an application fee for a certificate or license;
84	84	(2) an examination fee;
85	85	(3) a renewal fee for a certificate or license;
86	86	(4) a registration fee for a nonresident real estate
87	87	appraiser;
88	88	(5) an application fee for an appraiser trainee;
89	89	(6) a [an annual] renewal fee for an appraiser
90	90	trainee;
91	91	(7) a fee for filing a request for a return to active
92	92	status; and
93	93	(8) other appropriate fees.
94	94	SECTION 7. Subchapter D, Chapter 1103, Occupations Code, is
95	95	amended by adding Sections 1103.157 and 1103.158 to read as
96	96	follows:
97	97	Sec. 1103.157. GIFTS, GRANTS, AND DONATIONS. The board may
98	98	solicit, accept, and administer gifts, grants, and donations of any
99	99	kind from any public or private source for the purposes of this
100	100	chapter.
101	101	Sec. 1103.158. EXPERT WITNESS TESTIMONY BY BOARD MEMBER.
102	102	Notwithstanding Section 572.051, Government Code, a board member
103	103	may testify as an expert witness in an action concerning a violation
104	104	of the Uniform Standards of Professional Appraisal Practice.
105	105	SECTION 8. Section 1103.201, Occupations Code, is amended
106	106	to read as follows:
107	107	Sec. 1103.201. CERTIFICATE OR LICENSE REQUIRED. (a) A
108	108	[Unless the person is certified under this chapter, a] person may
109	109	not perform an appraisal of real estate unless the person is
110	110	licensed or certified as an appraiser under this chapter,
111	111	registered as a temporary out-of-state appraiser under this
112	112	chapter, or acting as an appraiser trainee under the sponsorship of
113	113	a certified appraiser.[:
114	114	[(1) use the title "state-certified real estate
115	115	appraiser"; or
116	116	[(2) refer to an appraisal prepared by the person as a
117	117	"certified appraisal."]
118	118	(b) Unless the person holds the appropriate license or
119	119	certification [is licensed under this chapter], a person may not:
120	120	(1) use the title "state-certified real estate
121	121	appraiser" or "state-licensed real estate appraiser"; or
122	122	(2) refer to an appraisal performed [prepared] by the
123	123	person as a "certified appraisal" or "licensed appraisal."
124	124	SECTION 9. Subchapter E, Chapter 1103, Occupations Code, is
125	125	amended by adding Section 1103.2015 to read as follows:
126	126	Sec. 1103.2015. GENERAL APPLICATION REQUIREMENTS. An
127	127	applicant for a license or certificate issued under this chapter
128	128	shall provide the board with the applicant's current mailing
129	129	address, telephone number, and e-mail address, if available.
130	130	SECTION 10. Subsection (b), Section 1103.206, Occupations
131	131	Code, is amended to read as follows:
132	132	(b) The board shall adopt a reliable method to verify the
133	133	evidence of appraisal experience submitted by an applicant for a
134	134	certificate or license. The method must include the review of
135	135	appraisal experience of all applicants for certification and must
136	136	rely on appropriate sampling techniques that are applied to not
137	137	more than five percent of the license applications received by the
138	138	board. An applicant whose application is selected for verification
139	139	has at least 60 days after the date of selection to prepare any
140	140	records requested by the board. The board may not require the
141	141	applicant to provide more information than the information the
142	142	board may obtain under Section 1103.207.
143	143	SECTION 11. Subsections (a), (e), (f), and (g), Section
144	144	1103.209, Occupations Code, are amended to read as follows:
145	145	(a) The board shall [may] issue a reciprocal certificate or
146	146	license to an applicant from another state if:
147	147	(1) the appraiser licensing and certification program
148	148	of the other state is in compliance with 12 U.S.C. Section 3331 et
149	149	seq.;
150	150	(2) the appraiser holds a valid license or certificate
151	151	from a state whose requirements for licensure or certification meet
152	152	or exceed the licensure or certification requirements of this
153	153	state; and
154	154	(3) the appraiser satisfies the board as to the
155	155	appraiser's honesty, trustworthiness, and integrity [under terms
156	156	adopted by the board to an applicant who is certified or licensed
157	157	under the laws of another state having certification or licensing
158	158	requirements that the board determines have not been disapproved by
159	159	the Appraiser Qualifications Board. The terms must comply with the
160	160	minimum criteria for obtaining a certificate or license recognized
161	161	by the Appraiser Qualifications Board].
162	162	(e) An applicant for a certificate or license under this
163	163	chapter who is not a resident of this state must submit with the
164	164	application an irrevocable consent that states that service of
165	165	process in an action against the applicant arising out of the
166	166	applicant's activities as a certified or licensed appraiser in this
167	167	state may be made by delivery of the process to the commissioner if
168	168	the plaintiff in the action, using due diligence, cannot obtain
169	169	personal service on the applicant. If process is served as provided
170	170	by this subsection, the commissioner shall immediately send a copy
171	171	of the material served on the commissioner [by regular mail] to the
172	172	certified or licensed appraiser at the appraiser's address of
173	173	record [principal place of business and residence address].
174	174	(f) The board shall request verification from the state in
175	175	which the applicant is certified or licensed to confirm that the
176	176	applicant's certificate or license is valid, active, and in good
177	177	standing. The board may not issue a reciprocal certificate or
178	178	license without that verification.
179	179	(g) A reciprocal certificate or license expires on the
180	180	second anniversary of the last day of the month in which it was
181	181	[earlier of:
182	182	[(1) the expiration date of the certificate or license
183	183	held by the applicant in the state in which the applicant is
184	184	certified or licensed; or
185	185	[(2) the first anniversary of the date the reciprocal
186	186	certificate or license is] issued.
187	187	SECTION 12. Subchapter E, Chapter 1103, Occupations Code,
188	188	is amended by adding Section 1103.2091 to read as follows:
189	189	Sec. 1103.2091. PROBATIONARY CERTIFICATE, LICENSE, OR
190	190	TRAINEE APPROVAL. (a) The board may issue a probationary
191	191	certificate or license or approve an appraiser trainee on a
192	192	probationary basis.
193	193	(b) The board by rule shall adopt reasonable terms for
194	194	issuing a probationary certificate or license and for approval of
195	195	an appraiser trainee on a probationary basis.
196	196	(c) A person who holds a probationary certificate or license
197	197	or who is approved as an appraiser trainee under this section must
198	198	disclose the probationary status to all clients before accepting an
199	199	assignment.
200	200	SECTION 13. Subchapter E, Chapter 1103, Occupations Code,
201	201	is amended by adding Section 1103.2111 to read as follows:
202	202	Sec. 1103.2111. LATE RENEWAL OF CERTIFICATE, LICENSE, OR
203	203	TRAINEE APPROVAL. (a) A person whose certificate, license, or
204	204	approval has been expired for 90 days or less may renew the
205	205	certificate, license, or approval by paying to the board a fee equal
206	206	to 1-1/2 times the required renewal fee. If a certificate, license,
207	207	or approval has been expired for more than 90 days but less than six
208	208	months, the person may renew the certificate, license, or approval
209	209	by paying to the board a fee equal to two times the required renewal
210	210	fee.
211	211	(b) A certificate, license, or approval that is renewed
212	212	under this section shall expire on the date that would apply had the
213	213	certificate, license, or approval been timely renewed.
214	214	(c) A person may not perform an appraisal in a federally
215	215	related transaction while the person is not actively licensed or
216	216	certified as an appraiser.
217	217	(d) If a person's certificate, license, or approval has been
218	218	expired six months or longer, the person may not renew the
219	219	certificate, license, or approval. The person may obtain a new
220	220	certificate, license, or approval by complying with the
221	221	requirements and procedures for an original application.
222	222	SECTION 14. Subsection (b), Section 1103.258, Occupations
223	223	Code, is amended to read as follows:
224	224	(b) An applicant who fails the examination three
225	225	consecutive times may not apply for reexamination or submit a new
226	226	license application unless the applicant submits evidence
227	227	satisfactory to the board that the applicant has completed
228	228	additional education, as prescribed by the board, since the date
229	229	the applicant last took the examination [has not successfully
230	230	completed the examination before the first anniversary of the date
231	231	the application was initially accepted by the board must submit a
232	232	new application and pay the required application fee].
233	233	SECTION 15. Subchapter G, Chapter 1103, Occupations Code,
234	234	is amended by adding Section 1103.304 to read as follows:
235	235	Sec. 1103.304. EXTENSION OF REGISTRATION. A person may
236	236	obtain a 90-day extension of a temporary registration under this
237	237	subchapter by completing an extension form approved by the board
238	238	and paying any required fee. The board may grant only one extension
239	239	for each temporary registration.
240	240	SECTION 16. Subchapter H, Chapter 1103, Occupations Code,
241	241	is amended by adding Section 1103.356 to read as follows:
242	242	Sec. 1103.356. RENEWAL OF APPRAISER TRAINEE APPROVAL. A
243	243	person may renew an approval as an appraiser trainee by:
244	244	(1) paying the renewal fee established by the board;
245	245	(2) providing evidence satisfactory to the board of
246	246	completion of any required continuing education; and
247	247	(3) meeting any other renewal requirement established
248	248	by the board.
249	249	SECTION 17. The heading to Section 1103.403, Occupations
250	250	Code, is amended to read as follows:
251	251	Sec. 1103.403. CONTACT INFORMATION [OFFICE LOCATION].
252	252	SECTION 18. Subsection (b), Section 1103.403, Occupations
253	253	Code, is amended to read as follows:
254	254	(b) Not later than the 10th day after the date an [a
255	255	certified or licensed] appraiser changes the appraiser's address,
256	256	e-mail address, or telephone number [moves from a previously
257	257	designated address], the appraiser shall:
258	258	[(1)] notify the board of the change [new office
259	259	location on a form prescribed by the board;] and
260	260	[(2)] pay any required [a] fee [set by the board].
261	261	SECTION 19. Subchapter K, Chapter 1103, Occupations Code,
262	262	is amended by adding Sections 1103.5011 and 1103.5012 to read as
263	263	follows:
264	264	Sec. 1103.5011. NOTICE OF VIOLATION AND PENALTY. (a) The
265	265	commissioner may send an appraiser against whom a complaint has
266	266	been filed a notice of violation including:
267	267	(1) a summary of the alleged violation;
268	268	(2) the recommended sanction, including the amount of
269	269	any administrative penalty sought; and
270	270	(3) a conspicuous notice that the respondent has the
271	271	right to a hearing to contest the alleged violation, the
272	272	recommended sanction, or both.
273	273	(b) Not later than the 20th day after the date the person
274	274	receives the notice under Subsection (a), the person may:
275	275	(1) accept the commissioner's determination,
276	276	including the recommended sanction; or
277	277	(2) request in writing a hearing, to be held under
278	278	Chapter 2001, Government Code, on the occurrence of the violation,
279	279	the sanction, or both.
280	280	Sec. 1103.5012. PENALTY TO BE PAID OR HEARING REQUESTED. If
281	281	the person accepts the commissioner's determination, or fails to
282	282	respond in a timely manner to the notice, the board by order shall
283	283	approve the determination and order payment of the recommended
284	284	penalty, impose the recommended sanction, or both.
285	285	SECTION 20. Section 1103.518, Occupations Code, is amended
286	286	to read as follows:
287	287	Sec. 1103.518. ACTION AFTER HEARING. On conclusion of a
288	288	contested case hearing and on submission of all written responses
289	289	allowed under Section 1103.515, the administrative law judge shall:
290	290	(1) make findings of fact and conclusions of law; and
291	291	(2) issue to the board a proposal for decision that the
292	292	board take one or more of the following actions:
293	293	(A) dismiss the charges[, including issuing an
294	294	order declaring that the case file is confidential];
295	295	(B) suspend or revoke the appraiser's
296	296	certificate or license or the appraiser trainee's approval;
297	297	(C) impose a period of probation with or without
298	298	conditions;
299	299	(D) require the appraiser to submit to
300	300	reexamination for a certificate or license;
301	301	(E) require the appraiser or appraiser trainee to
302	302	participate in additional professional education or continuing
303	303	education;
304	304	(F) issue a public or private reprimand or a
305	305	warning;
306	306	(G) issue a consent order; or
307	307	(H) impose an administrative penalty as
308	308	prescribed by Section 1103.552.
309	309	SECTION 21. Section 1103.522, Occupations Code, is amended
310	310	to read as follows:
311	311	Sec. 1103.522. REINSTATEMENT OF CERTIFICATE OR LICENSE.
312	312	[(a)] A person whose certificate or license has been [suspended
313	313	or] revoked or a person who has surrendered a certificate or license
314	314	issued by the board may not apply to the board for reinstatement
315	315	until the second anniversary of the date of [as provided by the
316	316	order of suspension or] revocation or surrender.
317	317	[(b) If the order does not establish terms for
318	318	reinstatement, the appraiser may not:
319	319	[(1) make an initial application for reinstatement
320	320	until the first anniversary of the effective date of the order; or
321	321	[(2) make subsequent applications more often than once
322	322	every two years.]
323	323	SECTION 22. Subchapter L, Chapter 1103, Occupations Code,
324	324	is amended by adding Section 1103.5511 to read as follows:
325	325	Sec. 1103.5511. TEMPORARY SUSPENSION. (a) The presiding
326	326	officer of the board shall appoint a disciplinary panel consisting
327	327	of three board members to determine whether a person's license or
328	328	certification to practice under this chapter should be temporarily
329	329	suspended.
330	330	(b) If the disciplinary panel determines from the
331	331	information presented to the panel that a person licensed or
332	332	certified to practice under this chapter would, by the person's
333	333	continued practice, constitute a continuing threat to the public
334	334	welfare, the panel shall temporarily suspend the license or
335	335	certification of that person.
336	336	(c) A license or certification may be suspended under this
337	337	section without notice or hearing on the complaint if:
338	338	(1) institution of proceedings for a contested case
339	339	hearing is initiated simultaneously with the temporary suspension;
340	340	and
341	341	(2) a hearing is held under Chapter 2001, Government
342	342	Code, and this chapter as soon as possible.
343	343	(d) A temporary suspension under this section automatically
344	344	expires after 45 days if the board has not scheduled a hearing to
345	345	take place within that time or if, at the board's request, the
346	346	hearing is continued beyond the 45th day.
347	347	(e) Notwithstanding Chapter 551, Government Code, the
348	348	disciplinary panel may hold a meeting by telephone conference call
349	349	if immediate action is required and convening the panel at one
350	350	location is inconvenient for any member of the panel.
351	351	SECTION 23. Section 1103.552, Occupations Code, is amended
352	352	to read as follows:
353	353	Sec. 1103.552. ADMINISTRATIVE PENALTY. (a) The board may
354	354	impose an administrative penalty for a violation of this chapter or
355	355	a rule adopted or order issued by the board under this chapter
356	356	[Section 1103.518(2)(H)] in an amount not to exceed:
357	357	(1) $1,500 for each violation; or
358	358	(2) $5,000 for multiple violations [proved] in a
359	359	single [one contested] case.
360	360	(b) The person on whom the penalty is imposed shall pay the
361	361	penalty not later than the 20th day after the date the order
362	362	imposing the penalty becomes [of the] final [disposition of the
363	363	contested case].
364	364	SECTION 24. Section 1103.208 and Subsection (b), Section
365	365	1103.209, Occupations Code, are repealed.
366	366	SECTION 25. The change in law made by this Act to Subsection
367	367	(b), Section 1103.209, Occupations Code, applies only to an
368	368	application for a reciprocal certificate or license that is
369	369	submitted on or after the effective date of this Act. An
370	370	application submitted before the effective date of this Act is
371	371	governed by the law in effect on the date the application is
372	372	submitted, and the former law is continued in effect for that
373	373	purpose.
374	374	SECTION 26. The change in law made by Section 1103.2111,
375	375	Occupations Code, as added by this Act, applies to the renewal of a
376	376	certificate, license, or approval that expires on or after the
377	377	effective date of this Act. A certificate, license, or approval
378	378	that expires before the effective date of this Act is governed by
379	379	the law in effect on the date the certificate, license, or approval
380	380	expired, and the former law is continued in effect for that purpose.
381	381	SECTION 27. The change in law made by Sections 1103.5011 and
382	382	1103.5012, Occupations Code, as added by this Act, applies only to a
383	383	complaint filed on or after the effective date of this Act. A
384	384	complaint filed before that date is governed by the law in effect on
385	385	the date the complaint was filed, and the former law is continued in
386	386	effect for that purpose.
387	387	SECTION 28. This Act takes effect immediately if it
388	388	receives a vote of two-thirds of all the members elected to each
389	389	house, as provided by Section 39, Article III, Texas Constitution.
390	390	If this Act does not receive the vote necessary for immediate
391	391	effect, this Act takes effect September 1, 2011.
392	392	* * * * *