Texas 2013 - 83rd Regular

Texas House Bill HB3038 Compare Versions

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1	1	By: Anderson (Senate Sponsor - Carona) H.B. No. 3038
2	2	(In the Senate - Received from the House May 9, 2013;
3	3	May 10, 2013, read first time and referred to Committee on Business
4	4	and Commerce; May 16, 2013, reported favorably by the following
5	5	vote: Yeas 7, Nays 0; May 16, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to licensing and regulation of auctioneers; authorizing a
11	11	fee.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 1802.001, Occupations Code, is amended
14	14	by amending Subdivisions (3) and (5) and adding Subdivisions (10),
15	15	(11), (12), and (13) to read as follows:
16	16	(3) "Auction" means the sale of property by
17	17	competitive bid using any method, format, or venue.
18	18	(5) "Auctioneer" means any person [an individual] who:
19	19	(A) sells or offers to sell property at auction,
20	20	with or without receiving [valuable] consideration; or
21	21	(B) solicits, negotiates, or executes an auction
22	22	listing contract [, as a bid caller].
23	23	(10) "Personal property" means any property other than
24	24	real property, including all tangible and intangible types of
25	25	property.
26	26	(11) "Real property" means land, including
27	27	improvements, fixtures, and other property appurtenant to or used
28	28	in connection with the land, and any other estate, interest, or
29	29	legal or equitable right in the land, improvement, fixture, or
30	30	appurtenant property.
31	31	(12) "Recurring basis" means more than once every 24
32	32	months.
33	33	(13) "Sealed bid auction" means a sealed bidding
34	34	procedure that incorporates or allows for the competitive
35	35	increasing or decreasing of bids after the opening of sealed bids.
36	36	SECTION 2. Sections 1802.002 and 1802.003, Occupations
37	37	Code, are amended to read as follows:
38	38	Sec. 1802.002. APPLICABILITY. (a) This chapter does not
39	39	apply to:
40	40	(1) a sale conducted by order of a United States court
41	41	under Title 11, United States Code;
42	42	(2) a sale conducted by an employee of the United
43	43	States, this state, or a political subdivision of this state in the
44	44	course and scope of employment;
45	45	(3) a sale conducted by a charitable, religious, or
46	46	civic organization, including an organization having a tax exempt
47	47	status under Section 501(c), Internal Revenue Code of 1986, or
48	48	organized as a nonprofit entity, if the person organizing,
49	49	arranging, or conducting the auction receives no compensation;
50	50	(4) a sale conducted by any person [an individual] of
51	51	the person's [individual's] property if the person [individual] is
52	52	not engaged in the business of selling property at auction [as an
53	53	auctioneer] on a recurring basis;
54	54	(5) a foreclosure sale of real property personally
55	55	conducted by a trustee under a deed of trust;
56	56	(6) a foreclosure sale of personal property personally
57	57	conducted by:
58	58	(A) a person who holds a security interest in the
59	59	property, including a mortgage; or
60	60	(B) an employee or agent of a person described by
61	61	Paragraph (A) acting in the course and scope of employment, if:
62	62	(i) the employee or agent is not otherwise
63	63	engaged in the auction business; and
64	64	(ii) all property for sale in the auction is
65	65	subject to a security agreement;
66	66	(7) a sale conducted by sealed bid without the option
67	67	of increasing or decreasing the amount of a bid;
68	68	(8) an auction conducted only for student training
69	69	purposes as part of a course of study approved by the department
70	70	[executive director for auctioneers];
71	71	(9) an auction conducted by a posted stockyard or
72	72	market agency as defined by the federal Packers and Stockyards Act
73	73	(7 U.S.C. Section 181 et seq.), as amended;
74	74	(10) an auction of livestock conducted by a nonprofit
75	75	livestock trade association chartered in this state, if the auction
76	76	involves only the sale of livestock owned by members of the trade
77	77	association; [or]
78	78	(11) an auction conducted by a charitable or nonprofit
79	79	organization chartered in this state, if the auction:
80	80	(A) is part of a fair that is organized under
81	81	state, county, or municipal authority; and
82	82	(B) involves only the sale of property owned by
83	83	the organization's members; or
84	84	(12) a sale or auction conducted outside of this
85	85	state.
86	86	(b) This chapter applies to a sealed bid auction.
87	87	Sec. 1802.003. PREEMPTION. A political subdivision of this
88	88	state may not levy on or collect from an auctioneer [or associate
89	89	auctioneer] a license tax or fee as a regulatory or revenue measure
90	90	or require the licensing of an auctioneer [or associate
91	91	auctioneer], if the auctioneer [or associate auctioneer] holds a
92	92	license under this chapter and is in compliance with this chapter.
93	93	SECTION 3. Sections 1802.051(a) and (c), Occupations Code,
94	94	are amended to read as follows:
95	95	(a) A person may not act as an auctioneer of real or personal
96	96	property [or associate auctioneer in an auction held] in this state
97	97	unless the person [is an individual who] holds a license issued by
98	98	the executive director under this chapter.
99	99	(c) An individual [A person] who is licensed under this
100	100	chapter may not act as an auctioneer for an entity unless the
101	101	entity:
102	102	(1) is an auction company owned or operated by an
103	103	individual [a person] who is licensed under this chapter; [or]
104	104	(2) holds a dealer general distinguishing number
105	105	issued under Subchapter B, Chapter 503, Transportation Code, and
106	106	the auction is for the purpose of auctioning vehicles as defined by
107	107	Section 503.001, Transportation Code; or
108	108	(3) is a real estate brokerage firm that is operated by
109	109	a broker licensed by the Texas Real Estate Commission.
110	110	SECTION 4. Section 1802.052(a), Occupations Code, is
111	111	amended to read as follows:
112	112	(a) An individual is eligible for an auctioneer's license if
113	113	the individual:
114	114	(1) is at least 18 years of age;
115	115	(2) is a citizen of the United States or a legal alien;
116	116	(3) [either:
117	117	[(A)] passes a written or oral examination
118	118	demonstrating knowledge of the auction business and of the laws of
119	119	this state relating to the auction business[; or
120	120	[(B) shows proof of employment by a licensed
121	121	auctioneer for at least two years during which the applicant
122	122	participated in at least 10 auctions];
123	123	(4) holds a high school diploma or a high school
124	124	equivalency certificate;
125	125	(5) has not been convicted of a felony during the five
126	126	years preceding the date of application; and
127	127	(6) has completed at least 80 hours of classroom
128	128	instruction at an auction school with a curriculum approved by the
129	129	department in accordance with the standards and procedures
130	130	established by rule adopted under this chapter.
131	131	SECTION 5. Section 1802.054, Occupations Code, is amended
132	132	to read as follows:
133	133	Sec. 1802.054. APPLICATION FOR LICENSE. An applicant for a
134	134	license must apply to the executive director on a form provided by
135	135	the executive director that establishes the applicant's
136	136	eligibility for the license. The application must be accompanied
137	137	by:
138	138	(1) any fee required for the auctioneer education and
139	139	recovery fund authorized under Section 1802.153 [the required
140	140	bond];
141	141	(2) the required license fee; and
142	142	(3) either:
143	143	(A) the permit number of a sales tax permit
144	144	issued to the applicant by the comptroller under Subchapter F,
145	145	Chapter 151, Tax Code; or
146	146	(B) proof of exemption from the tax permit
147	147	requirement under Chapter 151, Tax Code.
148	148	SECTION 6. Section 1802.101, Occupations Code, is amended
149	149	to read as follows:
150	150	Sec. 1802.101. AUCTIONEER EDUCATION ADVISORY BOARD. The
151	151	advisory board shall advise the commission on educational matters,
152	152	operational matters, and common practices within the auction
153	153	industry.
154	154	SECTION 7. Sections 1802.102(a) and (b), Occupations Code,
155	155	are amended to read as follows:
156	156	(a) The advisory board consists of seven [six] members
157	157	appointed as follows:
158	158	(1) four [three] members who are licensed auctioneers
159	159	appointed by the presiding officer of the commission, with the
160	160	commission's approval;
161	161	(2) the administrative head, or the administrative
162	162	head's designee, of any state agency or office that is selected by
163	163	the commission [executive director of the Texas Economic
164	164	Development and Tourism Office or the director's designee]; and
165	165	(3) two public members.
166	166	(b) In appointing advisory board members under Subsection
167	167	(a)(1), the presiding officer of the commission shall consider the
168	168	geographical diversity of the members [may not appoint members who
169	169	reside in contiguous senatorial districts].
170	170	SECTION 8. Section 1802.103(a), Occupations Code, is
171	171	amended to read as follows:
172	172	(a) The members appointed under Section 1802.102(a)(1)
173	173	serve two-year terms that expire on September 1 and may not serve
174	174	more than two consecutive terms. If a vacancy occurs during the
175	175	term of such a member, the presiding officer of the commission, with
176	176	the commission's approval, shall appoint a replacement to serve for
177	177	the remainder of the term.
178	178	SECTION 9. Section 1802.104, Occupations Code, is amended
179	179	to read as follows:
180	180	Sec. 1802.104. PRESIDING OFFICER. The presiding officer of
181	181	the commission, with the commission's approval, shall appoint a
182	182	member of the advisory board to serve as presiding officer of the
183	183	board. The presiding officer serves for two years and may not serve
184	184	more than two consecutive terms.
185	185	SECTION 10. Section 1802.107(b), Occupations Code, is
186	186	amended to read as follows:
187	187	(b) The advisory board may meet at other times at the call of
188	188	the presiding officer of the commission or the executive director.
189	189	SECTION 11. Section 1802.153(b), Occupations Code, is
190	190	amended to read as follows:
191	191	(b) If the balance in the fund on December 31 of a year is
192	192	less than $350,000 [$300,000], each license holder at the next
193	193	license renewal shall pay, in addition to the renewal fee, a fee
194	194	that is equal to the greater of $50 or a pro rata share of the amount
195	195	necessary to obtain a balance in the fund of $350,000 [$300,000].
196	196	SECTION 12. Section 1802.156, Occupations Code, is amended
197	197	to read as follows:
198	198	Sec. 1802.156. EDUCATION EXPENDITURES PERMITTED. The
199	199	executive director may use amounts in excess of $300,000 [$250,000]
200	200	in the fund to:
201	201	(1) advance education and research in the
202	202	auctioneering profession for the benefit of license holders and to
203	203	improve and increase the efficiency of the industry;
204	204	(2) underwrite educational seminars, training
205	205	centers, and other educational projects for the use and benefit of
206	206	license holders;
207	207	(3) sponsor, contract, and underwrite other
208	208	educational and research projects that advance the auctioneering
209	209	profession in this state; and
210	210	(4) cooperate with associations of auctioneers and
211	211	other groups for the education and advancement of the auctioneering
212	212	profession in this state.
213	213	SECTION 13. Section 1802.206, Occupations Code, is amended
214	214	to read as follows:
215	215	Sec. 1802.206. PAYMENT LIMITS. (a) The executive director
216	216	may not pay a single aggrieved party more than $15,000 [$10,000].
217	217	(b) The total payment of all claims by more than one
218	218	aggrieved party arising from one auction at one location,
219	219	regardless of the length of the auction, may not exceed $30,000
220	220	[$20,000].
221	221	(c) The total payment of claims against a single auctioneer
222	222	may not exceed $30,000 [$20,000].
223	223	SECTION 14. Section 1802.209(a), Occupations Code, is
224	224	amended to read as follows:
225	225	(a) This subchapter and Section 1802.252 do not limit the
226	226	commission's or executive director's authority to take disciplinary
227	227	action against a license holder for a violation of this chapter or a
228	228	rule adopted under this chapter.
229	229	SECTION 15. Section 1802.251, Occupations Code, is amended
230	230	to read as follows:
231	231	Sec. 1802.251. DENIAL OF APPLICATION; SUSPENSION OR
232	232	REVOCATION OF LICENSE. The commission or executive director may
233	233	deny an application for a license or suspend or revoke the license
234	234	of any auctioneer for:
235	235	(1) violating this chapter or a rule adopted under
236	236	this chapter;
237	237	(2) obtaining a license through false or fraudulent
238	238	representation;
239	239	(3) making a substantial misrepresentation in an
240	240	application for an auctioneer's license;
241	241	(4) engaging in a continued and flagrant course of
242	242	misrepresentation or making false promises through an agent,
243	243	advertising, or otherwise;
244	244	(5) failing to account for or remit, within a
245	245	reasonable time, money belonging to another that is in the
246	246	auctioneer's possession and commingling funds of another with the
247	247	auctioneer's funds or failing to keep the funds of another in an
248	248	escrow or trust account; or
249	249	(6) violating a provision of the Business & Commerce
250	250	Code in conducting an auction.
251	251	SECTION 16. Section 1802.253(a), Occupations Code, is
252	252	amended to read as follows:
253	253	(a) Before denying an application for a license, the
254	254	commission or executive director shall:
255	255	(1) set the matter for a hearing to be conducted by the
256	256	State Office of Administrative Hearings; and
257	257	(2) before the hearing date, notify the applicant in
258	258	writing of:
259	259	(A) the charges alleged or the question to be
260	260	determined at the hearing; and
261	261	(B) the date and location of the hearing.
262	262	SECTION 17. Sections 1802.001(2), 1802.053, 1802.062,
263	263	1802.105, and 1802.253(d), Occupations Code, are repealed.
264	264	SECTION 18. (a) The presiding officer of the Texas
265	265	Commission of Licensing and Regulation shall appoint an additional
266	266	member to the auctioneer education advisory board as required by
267	267	Section 1802.102, Occupations Code, as amended by this Act, not
268	268	later than September 1, 2013, for a term expiring September 1, 2015.
269	269	(b) Section 1802.103, Occupations Code, as amended by this
270	270	Act, applies only to the appointment of a member of the auctioneer
271	271	education advisory board on or after the effective date of this Act
272	272	and does not affect the entitlement of a member serving on the board
273	273	immediately before the effective date of this Act to continue to
274	274	serve for the remainder of the member's term.
275	275	SECTION 19. Section 1802.206, Occupations Code, as amended
276	276	by this Act, applies only to a claim filed under Section 1802.202,
277	277	Occupations Code, on or after the effective date of this Act. A
278	278	claim filed before that date is governed by the law in effect on the
279	279	date the claim was filed, and the former law is continued in effect
280	280	for that purpose.
281	281	SECTION 20. This Act takes effect immediately if it
282	282	receives a vote of two-thirds of all the members elected to each
283	283	house, as provided by Section 39, Article III, Texas Constitution.
284	284	If this Act does not receive the vote necessary for immediate
285	285	effect, this Act takes effect September 1, 2013.
286	286	* * * * *