By: Carona S.B. No. 1171
(In the Senate - Filed March 4, 2011; March 16, 2011, read
first time and referred to Committee on Business and Commerce;
April 7, 2011, reported favorably by the following vote: Yeas 7,
Nays 0; April 7, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to practices and professions regulated by the Texas
Appraiser Licensing and Certification Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1103.002, Occupations Code, is amended
to read as follows:
Sec. 1103.002. PURPOSE. The purpose of this chapter is to:
(1) conform state law relating to the regulation of
real estate appraisers to the requirements adopted under Title XI,
Financial Institutions Reform, Recovery, and Enforcement Act of
1989; and
(2) enforce standards for the appraisal of real
property.
SECTION 2. Subdivision (1), Section 1103.003, Occupations
Code, is amended to read as follows:
(1) "Appraisal" means, regardless of whether prepared
for a federally related transaction:
(A) an opinion [estimate] of value; or
(B) the act or process of developing an opinion
of [estimating] value.
SECTION 3. Subsection (b), Section 1103.004, Occupations
Code, is amended to read as follows:
(b) This chapter does not prohibit:
(1) a person authorized by law from performing an
evaluation of real property for or providing an evaluation of real
property to another person; or
(2) [a real estate broker or salesperson licensed
under Chapter 1101 but not certified or licensed under this chapter
from performing an appraisal in a transaction other than a
federally related transaction;
[(3) the requirement that a person who is not
certified or licensed under this chapter be licensed as a real
estate broker or salesperson to perform an appraisal in a
transaction other than a federally related transaction; or
[(4)] a real estate broker [or salesperson] licensed
under Chapter 1101 or a salesperson acting under the authority of a
sponsoring broker from providing to another person a written
analysis, [giving an] opinion, or conclusion relating to the
estimated price of real property if the analysis, [if the] opinion,
or conclusion:
(A) is not referred to as an appraisal; [and]
(B) is given in the ordinary course of the
broker's or salesperson's business; and
(C) is related to the actual or potential
acquisition, disposition, encumbrance, or management of an
interest in [to:
[(i) a potential seller or third party
regarding the recommended listing price of real property; or
[(ii) a potential purchaser or third party
regarding the recommended purchase price of] real property.
SECTION 4. Subsection (b), Section 1103.101, Occupations
Code, is amended to read as follows:
(b) The board may delegate to the commissioner the
responsibility for administering this chapter, including the
approval of consent orders and agreements.
SECTION 5. Section 1103.151, Occupations Code, is amended
to read as follows:
Sec. 1103.151. RULES RELATING TO CERTIFICATES AND LICENSES.
The board may adopt:
(1) rules for certifying or licensing an appraiser or
approving an appraiser trainee in this state that are in accordance
with this chapter and consistent with applicable federal law;
(2) rules relating to the education and experience
required for certifying or licensing an appraiser or approving an
appraiser trainee that are consistent with the guidelines
recognized by the Appraiser Qualifications Board;
(3) rules relating to the examination required by
Subchapter F; and
(4) rules relating to procedures for the timely
renewal of a certificate, [or] license, or trainee approval.
SECTION 6. Subsection (a), Section 1103.156, Occupations
Code, is amended to read as follows:
(a) The board may establish reasonable fees to administer
this chapter, including:
(1) an application fee for a certificate or license;
(2) an examination fee;
(3) a renewal fee for a certificate or license;
(4) a registration fee for a nonresident real estate
appraiser;
(5) an application fee for an appraiser trainee;
(6) a [an annual] renewal fee for an appraiser
trainee;
(7) a fee for filing a request for a return to active
status; and
(8) other appropriate fees.
SECTION 7. Subchapter D, Chapter 1103, Occupations Code, is
amended by adding Sections 1103.157 and 1103.158 to read as
follows:
Sec. 1103.157. GIFTS, GRANTS, AND DONATIONS. The board may
solicit, accept, and administer gifts, grants, and donations of any
kind from any public or private source for the purposes of this
chapter.
Sec. 1103.158. EXPERT WITNESS TESTIMONY BY BOARD MEMBER.
Notwithstanding Section 572.051, Government Code, a board member
may testify as an expert witness in an action concerning a violation
of the Uniform Standards of Professional Appraisal Practice.
SECTION 8. Section 1103.201, Occupations Code, is amended
to read as follows:
Sec. 1103.201. CERTIFICATE OR LICENSE REQUIRED. (a) A
[Unless the person is certified under this chapter, a] person may
not perform an appraisal of real estate unless the person is
licensed or certified as an appraiser under this chapter,
registered as a temporary out-of-state appraiser under this
chapter, or acting as an appraiser trainee under the sponsorship of
a certified appraiser.[:
[(1) use the title "state-certified real estate
appraiser"; or
[(2) refer to an appraisal prepared by the person as a
"certified appraisal."]
(b) Unless the person holds the appropriate license or
certification [is licensed under this chapter], a person may not:
(1) use the title "state-certified real estate
appraiser" or "state-licensed real estate appraiser"; or
(2) refer to an appraisal performed [prepared] by the
person as a "certified appraisal" or "licensed appraisal."
SECTION 9. Subchapter E, Chapter 1103, Occupations Code, is
amended by adding Section 1103.2015 to read as follows:
Sec. 1103.2015. GENERAL APPLICATION REQUIREMENTS. An
applicant for a license or certificate issued under this chapter
shall provide the board with the applicant's current mailing
address, telephone number, and e-mail address, if available.
SECTION 10. Subsection (b), Section 1103.206, Occupations
Code, is amended to read as follows:
(b) The board shall adopt a reliable method to verify the
evidence of appraisal experience submitted by an applicant for a
certificate or license. The method must include the review of
appraisal experience of all applicants for certification and must
rely on appropriate sampling techniques that are applied to not
more than five percent of the license applications received by the
board. An applicant whose application is selected for verification
has at least 60 days after the date of selection to prepare any
records requested by the board. The board may not require the
applicant to provide more information than the information the
board may obtain under Section 1103.207.
SECTION 11. Subsections (a), (e), (f), and (g), Section
1103.209, Occupations Code, are amended to read as follows:
(a) The board shall [may] issue a reciprocal certificate or
license to an applicant from another state if:
(1) the appraiser licensing and certification program
of the other state is in compliance with 12 U.S.C. Section 3331 et
seq.;
(2) the appraiser holds a valid license or certificate
from a state whose requirements for licensure or certification meet
or exceed the licensure or certification requirements of this
state; and
(3) the appraiser satisfies the board as to the
appraiser's honesty, trustworthiness, and integrity [under terms
adopted by the board to an applicant who is certified or licensed
under the laws of another state having certification or licensing
requirements that the board determines have not been disapproved by
the Appraiser Qualifications Board. The terms must comply with the
minimum criteria for obtaining a certificate or license recognized
by the Appraiser Qualifications Board].
(e) An applicant for a certificate or license under this
chapter who is not a resident of this state must submit with the
application an irrevocable consent that states that service of
process in an action against the applicant arising out of the
applicant's activities as a certified or licensed appraiser in this
state may be made by delivery of the process to the commissioner if
the plaintiff in the action, using due diligence, cannot obtain
personal service on the applicant. If process is served as provided
by this subsection, the commissioner shall immediately send a copy
of the material served on the commissioner [by regular mail] to the
certified or licensed appraiser at the appraiser's address of
record [principal place of business and residence address].
(f) The board shall request verification from the state in
which the applicant is certified or licensed to confirm that the
applicant's certificate or license is valid, active, and in good
standing. The board may not issue a reciprocal certificate or
license without that verification.
(g) A reciprocal certificate or license expires on the
second anniversary of the last day of the month in which it was
[earlier of:
[(1) the expiration date of the certificate or license
held by the applicant in the state in which the applicant is
certified or licensed; or
[(2) the first anniversary of the date the reciprocal
certificate or license is] issued.
SECTION 12. Subchapter E, Chapter 1103, Occupations Code,
is amended by adding Section 1103.2091 to read as follows:
Sec. 1103.2091. PROBATIONARY CERTIFICATE, LICENSE, OR
TRAINEE APPROVAL. (a) The board may issue a probationary
certificate or license or approve an appraiser trainee on a
probationary basis.
(b) The board by rule shall adopt reasonable terms for
issuing a probationary certificate or license and for approval of
an appraiser trainee on a probationary basis.
(c) A person who holds a probationary certificate or license
or who is approved as an appraiser trainee under this section must
disclose the probationary status to all clients before accepting an
assignment.
SECTION 13. Subchapter E, Chapter 1103, Occupations Code,
is amended by adding Section 1103.2111 to read as follows:
Sec. 1103.2111. LATE RENEWAL OF CERTIFICATE, LICENSE, OR
TRAINEE APPROVAL. (a) A person whose certificate, license, or
approval has been expired for 90 days or less may renew the
certificate, license, or approval by paying to the board a fee equal
to 1-1/2 times the required renewal fee. If a certificate, license,
or approval has been expired for more than 90 days but less than six
months, the person may renew the certificate, license, or approval
by paying to the board a fee equal to two times the required renewal
fee.
(b) A certificate, license, or approval that is renewed
under this section shall expire on the date that would apply had the
certificate, license, or approval been timely renewed.
(c) A person may not perform an appraisal in a federally
related transaction while the person is not actively licensed or
certified as an appraiser.
(d) If a person's certificate, license, or approval has been
expired six months or longer, the person may not renew the
certificate, license, or approval. The person may obtain a new
certificate, license, or approval by complying with the
requirements and procedures for an original application.
SECTION 14. Subsection (b), Section 1103.258, Occupations
Code, is amended to read as follows:
(b) An applicant who fails the examination three
consecutive times may not apply for reexamination or submit a new
license application unless the applicant submits evidence
satisfactory to the board that the applicant has completed
additional education, as prescribed by the board, since the date
the applicant last took the examination [has not successfully
completed the examination before the first anniversary of the date
the application was initially accepted by the board must submit a
new application and pay the required application fee].
SECTION 15. Subchapter G, Chapter 1103, Occupations Code,
is amended by adding Section 1103.304 to read as follows:
Sec. 1103.304. EXTENSION OF REGISTRATION. A person may
obtain a 90-day extension of a temporary registration under this
subchapter by completing an extension form approved by the board
and paying any required fee. The board may grant only one extension
for each temporary registration.
SECTION 16. Subchapter H, Chapter 1103, Occupations Code,
is amended by adding Section 1103.356 to read as follows:
Sec. 1103.356. RENEWAL OF APPRAISER TRAINEE APPROVAL. A
person may renew an approval as an appraiser trainee by:
(1) paying the renewal fee established by the board;
(2) providing evidence satisfactory to the board of
completion of any required continuing education; and
(3) meeting any other renewal requirement established
by the board.
SECTION 17. The heading to Section 1103.403, Occupations
Code, is amended to read as follows:
Sec. 1103.403. CONTACT INFORMATION [OFFICE LOCATION].
SECTION 18. Subsection (b), Section 1103.403, Occupations
Code, is amended to read as follows:
(b) Not later than the 10th day after the date an [a
certified or licensed] appraiser changes the appraiser's address,
e-mail address, or telephone number [moves from a previously
designated address], the appraiser shall:
[(1)] notify the board of the change [new office
location on a form prescribed by the board;] and
[(2)] pay any required [a] fee [set by the board].
SECTION 19. Subchapter K, Chapter 1103, Occupations Code,
is amended by adding Sections 1103.5011 and 1103.5012 to read as
follows:
Sec. 1103.5011. NOTICE OF VIOLATION AND PENALTY. (a) The
commissioner may send an appraiser against whom a complaint has
been filed a notice of violation including:
(1) a summary of the alleged violation;
(2) the recommended sanction, including the amount of
any administrative penalty sought; and
(3) a conspicuous notice that the respondent has the
right to a hearing to contest the alleged violation, the
recommended sanction, or both.
(b) Not later than the 20th day after the date the person
receives the notice under Subsection (a), the person may:
(1) accept the commissioner's determination,
including the recommended sanction; or
(2) request in writing a hearing, to be held under
Chapter 2001, Government Code, on the occurrence of the violation,
the sanction, or both.
Sec. 1103.5012. PENALTY TO BE PAID OR HEARING REQUESTED. If
the person accepts the commissioner's determination, or fails to
respond in a timely manner to the notice, the board by order shall
approve the determination and order payment of the recommended
penalty, impose the recommended sanction, or both.
SECTION 20. Section 1103.518, Occupations Code, is amended
to read as follows:
Sec. 1103.518. ACTION AFTER HEARING. On conclusion of a
contested case hearing and on submission of all written responses
allowed under Section 1103.515, the administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) issue to the board a proposal for decision that the
board take one or more of the following actions:
(A) dismiss the charges[, including issuing an
order declaring that the case file is confidential];
(B) suspend or revoke the appraiser's
certificate or license or the appraiser trainee's approval;
(C) impose a period of probation with or without
conditions;
(D) require the appraiser to submit to
reexamination for a certificate or license;
(E) require the appraiser or appraiser trainee to
participate in additional professional education or continuing
education;
(F) issue a public or private reprimand or a
warning;
(G) issue a consent order; or
(H) impose an administrative penalty as
prescribed by Section 1103.552.
SECTION 21. Section 1103.522, Occupations Code, is amended
to read as follows:
Sec. 1103.522. REINSTATEMENT OF CERTIFICATE OR LICENSE.
[(a)] A person whose certificate or license has been [suspended
or] revoked or a person who has surrendered a certificate or license
issued by the board may not apply to the board for reinstatement
until the second anniversary of the date of [as provided by the
order of suspension or] revocation or surrender.
[(b) If the order does not establish terms for
reinstatement, the appraiser may not:
[(1) make an initial application for reinstatement
until the first anniversary of the effective date of the order; or
[(2) make subsequent applications more often than once
every two years.]
SECTION 22. Subchapter L, Chapter 1103, Occupations Code,
is amended by adding Section 1103.5511 to read as follows:
Sec. 1103.5511. TEMPORARY SUSPENSION. (a) The presiding
officer of the board shall appoint a disciplinary panel consisting
of three board members to determine whether a person's license or
certification to practice under this chapter should be temporarily
suspended.
(b) If the disciplinary panel determines from the
information presented to the panel that a person licensed or
certified to practice under this chapter would, by the person's
continued practice, constitute a continuing threat to the public
welfare, the panel shall temporarily suspend the license or
certification of that person.
(c) A license or certification may be suspended under this
section without notice or hearing on the complaint if:
(1) institution of proceedings for a contested case
hearing is initiated simultaneously with the temporary suspension;
and
(2) a hearing is held under Chapter 2001, Government
Code, and this chapter as soon as possible.
(d) A temporary suspension under this section automatically
expires after 45 days if the board has not scheduled a hearing to
take place within that time or if, at the board's request, the
hearing is continued beyond the 45th day.
(e) Notwithstanding Chapter 551, Government Code, the
disciplinary panel may hold a meeting by telephone conference call
if immediate action is required and convening the panel at one
location is inconvenient for any member of the panel.
SECTION 23. Section 1103.552, Occupations Code, is amended
to read as follows:
Sec. 1103.552. ADMINISTRATIVE PENALTY. (a) The board may
impose an administrative penalty for a violation of this chapter or
a rule adopted or order issued by the board under this chapter
[Section 1103.518(2)(H)] in an amount not to exceed:
(1) $1,500 for each violation; or
(2) $5,000 for multiple violations [proved] in a
single [one contested] case.
(b) The person on whom the penalty is imposed shall pay the
penalty not later than the 20th day after the date the order
imposing the penalty becomes [of the] final [disposition of the
contested case].
SECTION 24. Section 1103.208 and Subsection (b), Section
1103.209, Occupations Code, are repealed.
SECTION 25. The change in law made by this Act to Subsection
(b), Section 1103.209, Occupations Code, applies only to an
application for a reciprocal certificate or license that is
submitted on or after the effective date of this Act. An
application submitted before the effective date of this Act is
governed by the law in effect on the date the application is
submitted, and the former law is continued in effect for that
purpose.
SECTION 26. The change in law made by Section 1103.2111,
Occupations Code, as added by this Act, applies to the renewal of a
certificate, license, or approval that expires on or after the
effective date of this Act. A certificate, license, or approval
that expires before the effective date of this Act is governed by
the law in effect on the date the certificate, license, or approval
expired, and the former law is continued in effect for that purpose.
SECTION 27. The change in law made by Sections 1103.5011 and
1103.5012, Occupations Code, as added by this Act, applies only to a
complaint filed on or after the effective date of this Act. A
complaint filed before that date is governed by the law in effect on
the date the complaint was filed, and the former law is continued in
effect for that purpose.
SECTION 28. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2011.
* * * * *