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Texas Senate Bill SB1399

Texas 2011 - 82nd Regular

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11 By: Patrick S.B. No. 1399
22 (Legler)
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to the regulation of foundation repair contractors;
88 providing penalties.
99 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1010 SECTION 1. Subtitle A, Title 6, Occupations Code, is
1111 amended by adding Chapter 1003 to read as follows:
1212 CHAPTER 1003. FOUNDATION REPAIR CONTRACTORS
1313 SUBCHAPTER A. GENERAL PROVISIONS
1414 Sec. 1003.001. SHORT TITLE. This chapter may be cited as
1515 the Foundation Repair Contractors Act.
1616 Sec. 1003.002. DEFINITIONS. In this chapter:
1717 (1) "Advisory board" means the Foundation Repair
1818 Contractors Advisory Board.
1919 (2) "Commission" means the Texas Commission of
2020 Licensing and Regulation.
2121 (3) "Department" means the Texas Department of
2222 Licensing and Regulation.
2323 (4) "Executive director" means the executive director
2424 of the department.
2525 (5) "Foundation" means that portion of a structure
2626 that serves the function of:
2727 (A) supporting an overlying structure;
2828 (B) providing a base for an overlying structure;
2929 or
3030 (C) transmitting loads from an overlying
3131 structure to the underlying soils.
3232 (6) "Foundation repair" means the performance of or an
3333 offer to perform the design, installation, or construction
3434 functions in connection with the repair or maintenance of a
3535 foundation.
3636 (7) "Foundation repair contracting company" means an
3737 individual or business engaged in foundation repair contracting for
3838 the public.
3939 (8) "Laborer" means an individual who, under the
4040 supervision of a person licensed under this chapter, performs
4141 manual labor, including digging holes, pouring foundations,
4242 tunneling, and installing underpinning.
4343 (9) "Manager" means an individual who oversees
4444 activities related to foundation repair, including foundation
4545 installation, foundation lifting, customer service, and sales.
4646 (10) "Mobile structure" means a structure that has
4747 wheels attached for the purpose of moving the structure from one
4848 location to another.
4949 Sec. 1003.003. EXEMPTIONS. (a) This chapter does not
5050 apply to:
5151 (1) an individual homeowner who, without paid help,
5252 repairs the foundation of the individual's residence;
5353 (2) an individual licensed as an engineer under
5454 Chapter 1001 who engages in foundation repair in connection with
5555 the business in which the individual is employed but who does not
5656 engage in that work for the public;
5757 (3) an individual or entity that engages in foundation
5858 repair for a mobile structure;
5959 (4) an individual or entity that performs foundation
6060 repair only on nonresidential properties; or
6161 (5) an individual or entity that, for compensation:
6262 (A) sells, constructs, or remodels a
6363 single-family house or duplex;
6464 (B) supervises or manages the construction or
6565 remodeling of a single-family house or duplex; or
6666 (C) contracts for the supervision or management
6767 of the construction or remodeling of a single-family house or
6868 duplex.
6969 (b) A laborer is not required to hold a license under this
7070 chapter if the laborer is engaged in foundation repair under the
7171 supervision of a license holder under this chapter.
7272 Sec. 1003.004. APPLICATION OF MUNICIPAL ORDINANCES.
7373 Foundation repair by an individual or entity, including an
7474 individual or entity that is exempt under this chapter, is subject
7575 to a permit, inspection, or approval requirement established by a
7676 municipal ordinance.
7777 [Sections 1003.005-1003.050 reserved for expansion]
7878 SUBCHAPTER B. FOUNDATION REPAIR CONTRACTORS ADVISORY BOARD
7979 Sec. 1003.051. ADVISORY BOARD MEMBERSHIP. The Foundation
8080 Repair Contractors Advisory Board consists of seven members
8181 appointed by the presiding officer of the commission, with the
8282 commission's approval.
8383 Sec. 1003.052. MEMBERS. (a) Each advisory board member,
8484 other than the public member, must be experienced in the design,
8585 installation, construction, maintenance, service, repair, or
8686 modification of a foundation.
8787 (b) The members shall be appointed as follows:
8888 (1) one member who is an official of a municipality;
8989 (2) one member who is an engineer licensed under
9090 Chapter 1001;
9191 (3) four members who are licensed foundation repair
9292 master license holders, of whom two must be members of a statewide
9393 foundation repair organization; and
9494 (4) one member who represents the public and is not
9595 affiliated with any foundation repair contracting company.
9696 Sec. 1003.053. ADVISORY BOARD DUTIES. The advisory board
9797 shall provide advice and recommendations to the department and
9898 commission on technical matters relevant to the administration and
9999 enforcement of this chapter, including examination content,
100100 licensing standards, fees, rules, and continuing education
101101 requirements.
102102 Sec. 1003.054. TERMS; VACANCY. (a) Advisory board members
103103 shall serve staggered six-year terms. The terms of two or three
104104 members expire on February 1 of each odd-numbered year.
105105 (b) If a vacancy occurs during a member's term, the
106106 presiding officer of the commission, with the commission's
107107 approval, shall fill the vacancy for the remainder of the unexpired
108108 term with an individual having the same qualifications as the
109109 predecessor.
110110 Sec. 1003.055. PRESIDING OFFICER. The presiding officer of
111111 the commission, with the commission's approval, shall designate one
112112 member of the advisory board to serve as presiding officer of the
113113 board for a two-year term.
114114 Sec. 1003.056. COMPENSATION; REIMBURSEMENT. An advisory
115115 board member serves without compensation but is entitled to
116116 reimbursement for actual and necessary expenses incurred in
117117 performing functions as an advisory board member, as provided by
118118 the General Appropriations Act and the budget of the department.
119119 Sec. 1003.057. MEETINGS. (a) The advisory board shall
120120 meet at least annually and may meet at other times at the call of the
121121 presiding officer of the commission or the executive director.
122122 (b) The advisory board shall meet in this state at a place
123123 designated by the executive director.
124124 [Sections 1003.058-1003.100 reserved for expansion]
125125 SUBCHAPTER C. POWERS AND DUTIES
126126 Sec. 1003.101. RULES. The commission shall adopt rules as
127127 necessary to implement this chapter.
128128 Sec. 1003.102. INSURANCE REQUIREMENTS. The commission by
129129 rule shall establish minimum liability insurance requirements for a
130130 foundation repair contracting company under this chapter.
131131 Sec. 1003.103. CONTRACTS FOR ENFORCEMENT. The department
132132 may contract with another state agency or political subdivision of
133133 the state to enforce this chapter and rules adopted under this
134134 chapter.
135135 Sec. 1003.104. PERSONNEL. The department may employ
136136 personnel necessary to administer this chapter.
137137 Sec. 1003.105. DIRECTORY OF LICENSE HOLDERS. The
138138 department shall maintain a directory of license holders and make
139139 the directory available to the public.
140140 [Sections 1003.106-1003.150 reserved for expansion]
141141 SUBCHAPTER D. LICENSE REQUIREMENTS
142142 Sec. 1003.151. LICENSE REQUIRED. (a) An individual or
143143 entity may not engage in foundation repair unless the individual or
144144 entity holds the appropriate license under this chapter.
145145 (b) An individual or entity that holds a license issued
146146 under this chapter is not required to hold a license issued by a
147147 municipality to engage in foundation repair in the municipality.
148148 Sec. 1003.152. LICENSE CLASSIFICATIONS. The department
149149 shall issue contracting company, master, journeyman, estimator,
150150 and foreman licenses.
151151 Sec. 1003.153. CONTRACTING COMPANY LICENSE. (a) A
152152 contracting company license entitles the license holder to engage
153153 in business as a foundation repair contracting company.
154154 (b) A foundation repair contracting company shall employ at
155155 least one full-time license holder who holds a master license.
156156 (c) A foundation repair contracting company that does not
157157 employ a license holder as required by Subsection (b) at the time
158158 the services are performed may not collect a fee or otherwise
159159 enforce the contract.
160160 (d) A foundation repair contracting company shall maintain
161161 at all times insurance as required by commission rule.
162162 Sec. 1003.154. MASTER LICENSE. (a) A master license
163163 entitles the license holder to engage in foundation repair.
164164 (b) An applicant for a master license under this chapter
165165 must:
166166 (1) be at least 21 years of age;
167167 (2) have at least 60 months of documented, practical
168168 work experience in foundation repair under the supervision of a
169169 master license holder during the preceding seven years or
170170 substantially equivalent experience;
171171 (3) have a high school diploma or its equivalent; and
172172 (4) pass an examination administered by the
173173 department.
174174 Sec. 1003.155. JOURNEYMAN LICENSE. (a) A journeyman
175175 license entitles the license holder to engage in the design and sale
176176 of foundation repair and the lifting, lowering, and adjusting of
177177 buildings under the supervision of a master license holder.
178178 (b) An applicant for a journeyman license under this chapter
179179 must:
180180 (1) be at least 21 years of age;
181181 (2) have at least 24 months of documented, practical
182182 work experience in foundation repair under the supervision of a
183183 master license holder during the preceding five years or
184184 substantially equivalent experience;
185185 (3) have a high school diploma or its equivalent; and
186186 (4) pass an examination administered by the
187187 department.
188188 Sec. 1003.156. ESTIMATOR LICENSE. (a) An estimator
189189 license entitles the license holder to engage in providing
190190 estimates or designs for foundation repair under the supervision of
191191 a master or journeyman license holder.
192192 (b) An applicant for an estimator license under this chapter
193193 must:
194194 (1) be at least 21 years of age;
195195 (2) have a high school diploma or its equivalent; and
196196 (3) pass an examination administered by the
197197 department.
198198 Sec. 1003.157. FOREMAN LICENSE. (a) A foreman license
199199 entitles the license holder to supervise laborers and to engage in
200200 foundation repair under the supervision of a master or journeyman
201201 license holder.
202202 (b) An applicant for a foreman license under this chapter
203203 must be at least 18 years of age.
204204 Sec. 1003.158. PRACTICAL EXPERIENCE. For purposes of
205205 determining an applicant's practical experience under this
206206 subchapter, a four-year degree in engineering is equivalent to two
207207 years of practical experience if the degree is from an institution
208208 of higher education.
209209 Sec. 1003.159. APPLICATION. (a) An applicant for a
210210 license must submit an application on the form prescribed by the
211211 department.
212212 (b) The application must specify the class of license for
213213 which the applicant is applying and include the required fees.
214214 (c) The application for a master, journeyman, estimator, or
215215 foreman license must include a statement containing evidence
216216 satisfactory to the department of the applicant's required
217217 practical experience. An application for a contracting company
218218 license must include proof of insurance as required by commission
219219 rule.
220220 (d) The department may conduct a criminal background check
221221 on an applicant.
222222 Sec. 1003.160. EXAMINATIONS. (a) The department shall
223223 prescribe a separate examination for each class of license under
224224 this chapter, except that an examination is not required for a
225225 foreman or contracting company license.
226226 (b) The department shall prescribe the method and content of
227227 an examination administered under this chapter.
228228 (c) The examination:
229229 (1) must be offered on a monthly basis or more
230230 frequently as determined by the executive director;
231231 (2) must be offered at locations throughout the state
232232 as determined by the executive director; and
233233 (3) may be offered online as determined by the
234234 executive director.
235235 Sec. 1003.161. ISSUANCE AND TERM OF LICENSE. (a) The
236236 department shall issue a license to an applicant who:
237237 (1) submits a verified application on a form
238238 prescribed by the department;
239239 (2) provides evidence of insurance coverage required
240240 by commission rule, if applicable;
241241 (3) passes an examination, if applicable;
242242 (4) pays the required fees; and
243243 (5) meets the requirements of this chapter and rules
244244 adopted under this chapter.
245245 (b) A license issued under this chapter expires at the end
246246 of the license period set by the commission.
247247 Sec. 1003.162. RENEWAL OF LICENSE. To renew a license, the
248248 license holder must:
249249 (1) submit a renewal application in the form
250250 prescribed by the executive director;
251251 (2) pay the required fee;
252252 (3) show evidence of insurance required by commission
253253 rule, if applicable; and
254254 (4) show evidence of having completed the continuing
255255 education requirements established by the commission, as
256256 applicable.
257257 Sec. 1003.163. DISPLAY OF LICENSE. The commission, with
258258 the advice of the advisory board, shall adopt rules relating to the
259259 use, display, and advertisement of a license.
260260 Sec. 1003.164. NOTICE TO MUNICIPALITIES. (a) An
261261 individual who obtains a license under this chapter shall provide a
262262 notice to the municipal authority that enforces foundation repair
263263 regulations in each municipality in which the individual engages in
264264 foundation repair.
265265 (b) The notice must be in the form required by the
266266 municipality and inform the municipality that the individual has
267267 obtained a license under this chapter.
268268 (c) A municipality may charge a fee to an individual who
269269 provides the notice required by this section. The municipality
270270 shall set the fee in an amount reasonable and necessary to
271271 administer this section.
272272 Sec. 1003.165. PROHIBITED PRACTICES. (a) A license holder
273273 may not perform or offer or attempt to perform an act, service, or
274274 function that is:
275275 (1) defined as the practice of engineering under
276276 Chapter 1001, unless the individual holds a license under that
277277 chapter;
278278 (2) defined as the practice of architecture under
279279 Chapter 1051, unless the individual holds a license under that
280280 chapter;
281281 (3) regulated under Chapter 113, Natural Resources
282282 Code, unless the individual holds a license or is exempt by rule
283283 under that chapter; or
284284 (4) defined as plumbing under Chapter 1301, unless the
285285 individual holds a license under that chapter.
286286 (b) A license holder may not:
287287 (1) fail to provide services for which payment has
288288 been made or fail to honor the terms of a contract in the absence of
289289 a good faith dispute;
290290 (2) intentionally or knowingly misrepresent a
291291 necessary service, service to be provided, or service that has been
292292 provided; or
293293 (3) make a fraudulent promise to induce an individual
294294 to contract for a service.
295295 (c) A laborer may not supervise any individual who is
296296 performing work related to foundation repair.
297297 [Sections 1003.166-1003.200 reserved for expansion]
298298 SUBCHAPTER E. DISCIPLINARY ACTION; PENALTY
299299 Sec. 1003.201. DISCIPLINARY ACTION. The commission or
300300 executive director may impose an administrative penalty or take
301301 disciplinary action under Chapter 51 or this chapter if a license
302302 holder violates this chapter, a rule adopted under this chapter, or
303303 an order of the commission or the executive director.
304304 Sec. 1003.202. CRIMINAL PENALTY. (a) A person commits an
305305 offense if the person knowingly engages in foundation repair
306306 without holding a license required by this chapter.
307307 (b) An offense under this section is a Class C misdemeanor.
308308 [Sections 1003.203-1003.250 reserved for expansion]
309309 SUBCHAPTER F. INITIAL LICENSES
310310 Sec. 1003.251. WAIVER OF EXAMINATION REQUIREMENT. (a) The
311311 department shall waive the examination requirement of Section
312312 1003.154(b) for a master license for an applicant who has been an
313313 owner or manager of a foundation repair contracting company for at
314314 least 60 months before September 1, 2012.
315315 (b) The department shall waive the examination requirement
316316 of Section 1003.155(b) for a journeyman license for an applicant
317317 who has worked for a foundation repair contracting company as a
318318 salesperson, estimator, foreman, or manager for at least 24 months
319319 before September 1, 2012.
320320 Sec. 1003.252. INITIAL LICENSING. (a) The department
321321 shall issue a master license to a qualified applicant who:
322322 (1) submits an application not later than September 1,
323323 2012;
324324 (2) is at least 21 years of age;
325325 (3) has been an owner or manager of a foundation repair
326326 contracting company for at least 60 months; and
327327 (4) has a high school diploma or its equivalent.
328328 (b) The department shall issue a journeyman license to a
329329 qualified applicant who:
330330 (1) submits an application not later than September 1,
331331 2012;
332332 (2) is at least 21 years of age;
333333 (3) has worked for a foundation repair contracting
334334 company as a salesperson, estimator, foreman, or manager for at
335335 least 24 months; and
336336 (4) has a high school diploma or its equivalent.
337337 Sec. 1003.253. RENEWAL OF LICENSE. To qualify to renew an
338338 initial license issued under this subchapter, the license holder
339339 must comply with the requirements of Section 1003.162.
340340 Sec. 1003.254. EXPIRATION OF SUBCHAPTER. This subchapter
341341 expires October 1, 2012.
342342 SECTION 2. (a) Notwithstanding the requirement of
343343 Subdivision (3), Subsection (b), Section 1003.052, Occupations
344344 Code, as added by this Act, the Texas Commission of Licensing and
345345 Regulation shall appoint persons who meet the practical experience
346346 requirement for an initial master license to serve as initial
347347 members of the Foundation Repair Contractors Advisory Board as soon
348348 as practicable after the effective date of this Act.
349349 (b) The Texas Commission of Licensing and Regulation shall
350350 determine with respect to the members of the Foundation Repair
351351 Contractors Advisory Board appointed under Chapter 1003,
352352 Occupations Code, as added by this Act, which terms of two members
353353 expire February 1, 2013, which terms of two members expire February
354354 1, 2015, and which terms of three members expire February 1, 2017.
355355 (c) The changes in law made by Section 1003.153, Occupations
356356 Code, as added by this Act, apply only to a contract for foundation
357357 repair entered into or renewed on or after September 1, 2012. A
358358 contract for foundation repair entered into or renewed before
359359 September 1, 2012, is governed by the law as it existed on the date
360360 the contract was entered into, and the former law is continued in
361361 effect for that purpose.
362362 SECTION 3. (a) The Texas Commission of Licensing and
363363 Regulation shall adopt rules to implement Chapter 1003, Occupations
364364 Code, as added by this Act, not later than February 1, 2012.
365365 (b) A person is not required to obtain a license to engage in
366366 foundation repair under Chapter 1003, Occupations Code, as added by
367367 this Act, before September 1, 2012.
368368 SECTION 4. (a) Except as provided by Subsection (b) of
369369 this section, this Act takes effect September 1, 2011.
370370 (b) Sections 1003.151, 1003.201, and 1003.202, Occupations
371371 Code, as added by this Act, take effect September 1, 2012.