86R6163 BEE-D
By: Bell of Montgomery H.B. No. 4618
A BILL TO BE ENTITLED
AN ACT
relating to the requirement that a right-of-way agent obtain a
license from the Texas Real Estate Commission; expanding an
occupational regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1101.002, Occupations Code, is amended
by amending Subdivision (4) and adding Subdivisions (4-a), (6-a),
and (6-b) to read as follows:
(4) "License" means a broker license or sales agent
license issued under this chapter. The term does not include a
right-of-way agent license.
(4-a) "License holder" means a broker or sales agent
licensed under this chapter. The term does not include a holder of
a right-of-way agent license.
(6-a) "Right-of-way agent license" means a license
issued under Subchapter K.
(6-b) "Right-of-way agent license holder" means a
person licensed under Subchapter K.
SECTION 2. Section 1101.151(a), Occupations Code, is
amended to read as follows:
(a) The commission shall:
(1) administer this chapter and Chapter 1102;
(2) adopt rules and establish standards relating to
permissible forms of advertising by a license holder acting as a
residential rental locator;
(3) maintain a list of right-of-way agent license
[registry of certificate] holders; and
(4) design and adopt a seal.
SECTION 3. Section 1101.152(a), Occupations Code, is
amended to read as follows:
(a) The commission shall adopt rules to charge and collect
fees in amounts reasonable and necessary to cover the costs of
administering this chapter, including a fee for:
(1) filing an original application for a broker
license;
(2) renewal of a broker license;
(3) filing an original application for a sales agent
license;
(4) renewal of a sales agent license;
(5) filing an original application for a [registration
as an easement or] right-of-way agent license;
(6) renewal of a right-of-way agent license;
(7) filing an application for a license examination;
(8) [(7)] filing a request for a branch office
license;
(9) [(8)] filing a request for a change of place of
business, change of name, return to active status, or change of
sponsoring broker;
(10) [(9)] filing a request to replace a lost or
destroyed license or right-of-way agent license [or certificate of
registration];
(11) [(10)] filing an application for approval of an
education program under Subchapter G;
(12) [(11)] annual operation of an education program
under Subchapter G;
(13) [(12)] filing an application for approval of an
instructor of qualifying real estate courses;
(14) [(13)] transcript evaluation;
(15) [(14)] preparing a license or right-of-way agent
license [registration] history;
(16) [(15)] filing a request for a moral character
determination; and
(17) [(16)] conducting a criminal history check for
issuing or renewing a license.
SECTION 4. Section 1101.154(a), Occupations Code, is
amended to read as follows:
(a) The fee for the issuance or renewal of a:
(1) broker license is the amount of the fee set under
Section 1101.152 and an additional $70 fee;
(2) sales agent license is the amount of the fee set
under Section 1101.152 and an additional $20 fee; and
(3) right-of-way agent license [certificate of
registration] is the amount of the fee set under Section 1101.152
and an additional $20 fee.
SECTION 5. Section 1101.205, Occupations Code, is amended
to read as follows:
Sec. 1101.205. COMPLAINT INVESTIGATION OF RIGHT-OF-WAY
AGENT LICENSE [CERTIFICATE] HOLDER. The commission shall
investigate a signed complaint received by the commission that
relates to an act of a right-of-way agent license [certificate]
holder or a person required to hold a right-of-way agent license
[certificate] under Subchapter K. Section 1101.204 applies to an
investigation under this section.
SECTION 6. Subchapter K, Chapter 1101, Occupations Code, is
amended to read as follows:
SUBCHAPTER K. RIGHT-OF-WAY AGENT LICENSE [CERTIFICATE]
REQUIREMENTS
Sec. 1101.501. RIGHT-OF-WAY AGENT LICENSE [CERTIFICATE]
REQUIRED. (a) A person may not sell, buy, lease, or transfer an
easement or right-of-way [for another,] for compensation or with
the expectation of receiving compensation[,] for an entity with
eminent domain authority or for use in connection with
telecommunication, utility, railroad, or pipeline service unless
the person:
(1) holds a broker license or sales agent license
issued under this chapter; or
(2) holds a right-of-way agent license [certificate of
registration] issued under this subchapter.
(b) Subsection (a) does not apply to:
(1) an entity with eminent domain authority or the
entity's employee; or
(2) an attorney licensed in this state.
Sec. 1101.502. ELIGIBILITY REQUIREMENTS FOR RIGHT-OF-WAY
AGENT LICENSE [CERTIFICATE]. (a) To be eligible to receive or
renew a right-of-way agent license [a certificate of registration
or a renewal certificate under this subchapter], a person must
[be]:
(1) be, at the time of application:
(A) at least 18 years of age; and
(B) [(2)] a citizen of the United States or a
lawfully admitted alien;
(2) satisfy the commission as to the applicant's
honesty, trustworthiness, and integrity; and
(3) complete the required courses of study, including
qualifying education requirements, prescribed by the commission
under this subchapter.
(b) To be eligible to receive or renew a right-of-way agent
license [a certificate of registration or a renewal certificate
under this subchapter], a business entity must designate as its
agent one of its managing officers who holds a right-of-way agent
license issued [is registered] under this subchapter.
Sec. 1101.503. ISSUANCE OF RIGHT-OF-WAY AGENT LICENSE
[CERTIFICATE]. (a) The commission shall issue a right-of-way
agent license [certificate of registration] to an applicant who
meets the requirements for a right-of-way agent license under this
subchapter [certificate of registration].
(b) The right-of-way agent license [certificate] remains in
effect for the period prescribed by the commission if the
right-of-way agent license [certificate] holder complies with this
chapter, including the requirements of this subchapter, and pays
the appropriate renewal fees.
Sec. 1101.504. RIGHT-OF-WAY AGENT LICENSE DURATION,
[CERTIFICATE] EXPIRATION, AND RENEWAL. The provisions of Section
1101.451 governing the duration, expiration, and renewal of a
broker or sales agent license apply [certificate of registration
are subject to the same provisions as are applicable under Section
1101.451] to the duration, expiration, and renewal of a
right-of-way agent license issued under this subchapter.
Sec. 1101.5041. CRIMINAL HISTORY RECORD INFORMATION
REQUIREMENT FOR RIGHT-OF-WAY AGENT LICENSE [CERTIFICATE]. An
applicant for an original [certificate of registration] or renewal
right-of-way agent license [of a certificate of registration] must
comply with the criminal history record check requirements of
Section 1101.3521.
Sec. 1101.505. DENIAL OF RIGHT-OF-WAY AGENT LICENSE
[CERTIFICATE]. The denial of a right-of-way agent license
[certificate of registration] is subject to the same provisions as
are applicable under Section 1101.364 to the denial of a broker or
sales agent license.
Sec. 1101.506. CHANGE OF ADDRESS. Not later than the 10th
day after the date a right-of-way agent license [certificate]
holder moves its place of business from a previously designated
address, the right-of-way agent license holder shall:
(1) notify the commission of the move; and
(2) obtain a new right-of-way agent license
[certificate of registration] that reflects the address of the new
place of business.
Sec. 1101.507. DISPLAY OF RIGHT-OF-WAY AGENT LICENSE
[CERTIFICATE]. A right-of-way agent license [certificate] holder
shall prominently display at all times the holder's right-of-way
agent license [certificate of registration] in the right-of-way
agent license holder's place of business.
Sec. 1101.508. NOTICE TO CONSUMERS. The commission by rule
may:
(1) prescribe the text of consumer notices regarding a
right-of-way agent license holder; and
(2) establish the methods by which a right-of-way
agent license holder provides a consumer notice or the statement
prepared and provided under Section 402.031, Government Code.
Sec 1101.509. QUALIFYING EDUCATION REQUIREMENTS. (a) The
commission by rule shall approve coursework that an applicant must
successfully complete to be eligible for a right-of-way agent
license under this subchapter.
(b) An applicant for a right-of-way agent license shall
submit evidence satisfactory to the commission that the applicant
has completed at least 15 classroom hours of right-of-way agent
coursework approved by the commission in:
(1) the law of eminent domain, including the rights of
property owners;
(2) appropriate standards of professionalism in
contacting and conducting negotiations with property owners; and
(3) ethical considerations in the performance of
right-of-way acquisition services.
Sec. 1101.510. CONTINUING EDUCATION. (a) To be eligible
to renew a right-of-way agent license, the right-of-way agent
license holder must submit evidence satisfactory to the commission
that the right-of-way agent license holder successfully completed
at least six classroom hours of continuing education approved by
the commission.
(b) The commission by rule shall prescribe the title,
content, administration, and duration of continuing education
courses that a right-of-way agent license holder must successfully
complete to renew a right-of-way agent license under this
subchapter.
SECTION 7. Sections 1101.601 and 1101.602, Occupations
Code, are amended to read as follows:
Sec. 1101.601. REAL ESTATE RECOVERY TRUST ACCOUNT.
(a) The commission shall maintain a real estate recovery trust
account to reimburse aggrieved persons who suffer actual damages
caused by an act described by Section 1101.602 committed by:
(1) a license holder;
(2) a right-of-way agent license [certificate]
holder; or
(3) a person who does not hold a license or
right-of-way agent license [certificate] and who is an employee or
agent of a license holder or right-of-way agent license
[certificate] holder.
(b) The license holder or right-of-way agent license
[certificate] holder must have held the license or right-of-way
agent license [certificate] at the time the act was committed.
Sec. 1101.602. ENTITLEMENT TO REIMBURSEMENT. An aggrieved
person is entitled to reimbursement from the trust account if a
person described by Section 1101.601 engages in conduct that
requires a license or right-of-way agent license [certificate of
registration] under this chapter and is described by Section
1101.652(a-1)(1) or (b), if the person is a license holder, or
Section 1101.653(1), (2), (3), or (4), if the person is a
right-of-way agent license [certificate] holder.
SECTION 8. Sections 1101.603(a) and (e), Occupations Code,
are amended to read as follows:
(a) In addition to other fees required by this chapter, the
commission shall collect a fee of $10 to deposit to the credit of
the trust account from an applicant for an original license or
right-of-way agent license [certificate of registration].
(e) On a determination by the commission at any time that
the balance in the trust account is less than $1 million, each
license holder or right-of-way agent license [certificate] holder
at the next renewal must pay, in addition to the renewal fee, an
additional fee of $10. The commission shall deposit the additional
fee to the credit of the trust account.
SECTION 9. Section 1101.605(b), Occupations Code, is
amended to read as follows:
(b) When an aggrieved person brings an action for a judgment
that may result in an agreed judgment and order for payment from the
trust account, the aggrieved person and the license holder or
right-of-way agent license [certificate] holder against whom the
action is brought shall notify the commission in writing before
entry of the agreed judgment and deliver a copy of all petitions and
pleadings and the proposed agreed judgment to the commission. The
commission will notify the parties not later than the 30th day after
the date of receiving the documents if the commission intends to
relitigate material and relevant issues as to the applicability of
the trust account to the agreed judgment as provided by Section
1101.608.
SECTION 10. Section 1101.606(a), Occupations Code, is
amended to read as follows:
(a) Except as provided by Subsections (c) and (c-1), an
aggrieved person who obtains a court judgment against a license
holder or right-of-way agent license [certificate] holder for an
act described by Section 1101.602 may, after final judgment is
entered, execution returned nulla bona, and a judgment lien
perfected, file a verified claim in the court that entered the
judgment.
SECTION 11. Section 1101.607, Occupations Code, is amended
to read as follows:
Sec. 1101.607. ISSUES AT HEARING. At the hearing on the
application for payment from the trust account, the aggrieved
person must show:
(1) that the judgment is based on facts allowing
recovery under this subchapter;
(2) that the person is not:
(A) the spouse of the judgment debtor or the
personal representative of the spouse;
(B) a license holder or right-of-way agent
license [certificate] holder who is seeking to recover
compensation, including a commission, in the real estate
transaction that is the subject of the application for payment; or
(C) related to the judgment debtor within the
first degree by consanguinity;
(3) that, according to the best information available,
the judgment debtor does not have sufficient attachable assets in
this or another state to satisfy the judgment;
(4) the amount that may be realized from the sale of
assets liable to be sold or applied to satisfy the judgment; and
(5) the balance remaining due on the judgment after
application of the amount under Subdivision (4).
SECTION 12. Sections 1101.610(b) and (c), Occupations Code,
are amended to read as follows:
(b) Payments from the trust account for claims based on
judgments against a single license holder or right-of-way agent
license [certificate] holder may not exceed a total of $100,000
until the license holder or right-of-way agent license
[certificate] holder has reimbursed the trust account for all
amounts paid.
(c) If the court finds that the total amount of claims
against a license holder or right-of-way agent license
[certificate] holder exceeds the limitations in this section, the
court shall proportionately reduce the amount payable on each
claim.
SECTION 13. Section 1101.613, Occupations Code, is amended
to read as follows:
Sec. 1101.613. EFFECT ON DISCIPLINARY PROCEEDINGS.
(a) This subchapter does not limit the commission's authority to
take disciplinary action against a license holder or right-of-way
agent license [certificate] holder for a violation of this chapter
or a commission rule.
(b) A license holder's or right-of-way agent license
holder's [certificate holder's] repayment of all amounts owed to
the trust account does not affect another disciplinary proceeding
brought under this chapter.
SECTION 14. Section 1101.615, Occupations Code, is amended
to read as follows:
Sec. 1101.615. NOTICE TO CONSUMERS AND SERVICE RECIPIENTS.
[(a)] The commission by rule shall prescribe a notice regarding
the availability of payment from the trust account for aggrieved
persons and establish methods by which each license holder and
right-of-way agent license [certificate] holder shall provide the
notice to consumers and service recipients.
SECTION 15. Section 1101.653, Occupations Code, is amended
to read as follows:
Sec. 1101.653. GROUNDS FOR SUSPENSION OR REVOCATION OF
RIGHT-OF-WAY AGENT LICENSE [CERTIFICATE]. The commission may
suspend or revoke a right-of-way agent license [certificate of
registration] issued under this chapter if the right-of-way agent
license [certificate] holder:
(1) engages in dishonest dealing, fraud, unlawful
discrimination, or a deceptive act;
(2) makes a misrepresentation;
(3) acts in bad faith;
(4) demonstrates untrustworthiness;
(5) fails to honor, within a reasonable time, a check
issued to the commission after the commission has mailed a request
for payment to the right-of-way agent license [certificate]
holder's last known address according to the commission's records;
(6) fails to provide to a party to a transaction a
written notice prescribed by the commission that:
(A) must be given before the party is obligated
to sell, buy, lease, or transfer a right-of-way or easement; and
(B) contains:
(i) the name of the right-of-way agent
license [certificate] holder;
(ii) the right-of-way agent license
[certificate] number;
(iii) the name of the person the
right-of-way agent license [certificate] holder represents;
(iv) a statement advising the party that
the party may seek representation from a lawyer or broker in the
transaction; and
(v) a statement generally advising the
party that the right-of-way or easement may affect the value of the
property; or
(7) disregards or violates this chapter or a
commission rule relating to right-of-way agent license
[certificate] holders.
SECTION 16. Section 1101.654, Occupations Code, is amended
to read as follows:
Sec. 1101.654. SUSPENSION OR REVOCATION OF LICENSE OR
RIGHT-OF-WAY AGENT LICENSE [CERTIFICATE] FOR UNAUTHORIZED PRACTICE
OF LAW. (a) The commission shall suspend or revoke the license or
right-of-way agent license [certificate of registration] of a
license holder or right-of-way agent license [certificate] holder
who is not a licensed attorney in this state and who, for
consideration, a reward, or a pecuniary benefit, present or
anticipated, direct or indirect, or in connection with the person's
employment, agency, or fiduciary relationship as a license holder
or right-of-way agent license [certificate] holder:
(1) drafts an instrument, other than a form described
by Section 1101.155, that transfers or otherwise affects an
interest in real property; or
(2) advises a person regarding the validity or legal
sufficiency of an instrument or the validity of title to real
property.
(b) Notwithstanding any other law, a license holder or
right-of-way agent license [certificate] holder who completes a
contract form for the sale, exchange, option, or lease of an
interest in real property incidental to acting as a broker is not
engaged in the unauthorized or illegal practice of law in this state
if the form was:
(1) adopted by the commission for the type of
transaction for which the form is used;
(2) prepared by an attorney licensed in this state and
approved by the attorney for the type of transaction for which the
form is used; or
(3) prepared by the property owner or by an attorney
and required by the property owner.
SECTION 17. The heading to Section 1101.655, Occupations
Code, is amended to read as follows:
Sec. 1101.655. REVOCATION OF LICENSE [OR CERTIFICATE] FOR
CLAIM ON ACCOUNT.
SECTION 18. Sections 1101.655(a), (b), and (c), Occupations
Code, are amended to read as follows:
(a) The commission shall revoke a license, approval, or
right-of-way agent license [registration] issued under this
chapter or Chapter 1102 if:
(1) the commission makes a payment from the real
estate recovery trust account under Subchapter M on behalf of a
license holder or right-of-way agent license [registration]
holder; and
(2) the license holder or right-of-way agent license
[registration] holder does not repay the real estate recovery trust
account the full amount of a payment made on the license holder's or
right-of-way agent license [registration] holder's behalf before
the 31st day after the date the commission provides notice to the
license holder or right-of-way agent license [registration]
holder.
(b) The commission may probate an order revoking a license,
approval, or right-of-way agent license [registration] under this
section.
(c) A person is not eligible for a license or right-of-way
agent license [certificate] until the person has repaid in full the
amount paid from the account for the person, plus interest at the
legal rate.
SECTION 19. Section 1101.657(a), Occupations Code, is
amended to read as follows:
(a) If the commission proposes to deny, suspend, or revoke a
person's license or right-of-way agent license [certificate of
registration], the person is entitled to a hearing conducted by the
State Office of Administrative Hearings.
SECTION 20. Section 1101.660(b), Occupations Code, is
amended to read as follows:
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder,
right-of-way agent license [certificate] holder, or regulated
entity an opportunity to be heard; and
(2) require the presence of:
(A) a public member of the commission for a case
involving a consumer complaint; and
(B) at least two staff members of the commission
with experience in the regulatory area that is the subject of the
proceeding.
SECTION 21. Section 1101.663, Occupations Code, is amended
to read as follows:
Sec. 1101.663. REAPPLYING AFTER REVOCATION, SURRENDER, OR
DENIAL. A person whose license or right-of-way agent license
[registration] has been revoked, a person who has surrendered a
license or right-of-way agent license [registration] issued by the
commission, or a person whose application for a license or
right-of-way agent license [registration] has been denied after a
hearing under Section 1101.657 may not apply to the commission for a
license or right-of-way agent license [registration] before the
second anniversary of the date of the revocation, surrender, or
denial.
SECTION 22. The heading to Section 1101.753, Occupations
Code, is amended to read as follows:
Sec. 1101.753. CIVIL PENALTY FOR CERTAIN VIOLATIONS BY
BROKER, SALES AGENT, OR RIGHT-OF-WAY AGENT [CERTIFICATE HOLDER].
SECTION 23. Section 1101.753(a), Occupations Code, is
amended to read as follows:
(a) In addition to injunctive relief under Sections
1101.751 and 1101.752, a person who receives a commission or other
consideration as a result of acting as a broker or sales agent
without holding a license or right-of-way agent license
[certificate of registration] under this chapter is liable to the
state for a civil penalty of not less than the amount of money
received or more than three times the amount of money received.
SECTION 24. The heading to Section 1101.754, Occupations
Code, is amended to read as follows:
Sec. 1101.754. PRIVATE CAUSE OF ACTION FOR CERTAIN
VIOLATIONS BY BROKER, SALES AGENT, OR RIGHT-OF-WAY AGENT
[CERTIFICATE HOLDER].
SECTION 25. Section 1101.754(a), Occupations Code, is
amended to read as follows:
(a) A person who receives a commission or other
consideration as a result of acting as a broker or sales agent
without holding a license or right-of-way agent license
[certificate of registration] under this chapter is liable to an
aggrieved person for a penalty of not less than the amount of money
received or more than three times the amount of money received.
SECTION 26. The heading to Section 1101.758, Occupations
Code, is amended to read as follows:
Sec. 1101.758. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY
BROKER, SALES AGENT, OR RIGHT-OF-WAY AGENT [CERTIFICATE HOLDER].
SECTION 27. Section 1101.758(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person:
(1) acts as a broker or sales agent without holding a
broker license or sales agent license under this chapter, as
applicable; or
(2) engages in an activity for which a right-of-way
agent license [certificate of registration] is required under this
chapter without holding a right-of-way agent license
[certificate].
SECTION 28. Section 1101.002(2), Occupations Code, is
repealed.
SECTION 29. Not later than January 1, 2020, the Texas Real
Estate Commission shall adopt rules to implement Subchapter K,
Chapter 1101, Occupations Code, as amended by this Act.
SECTION 30. Chapter 1101, Occupations Code, as amended by
this Act, applies only to an application for an original or renewal
right-of-way agent license filed on or after March 1, 2020. An
application for an original or renewal certificate of registration
as an easement or right-of-way agent filed before March 1, 2020, is
governed by the law in effect on the date the application was filed,
and the former law is continued in effect for that purpose.
SECTION 31. (a) Except as provided by Subsection (b) of
this section, this Act takes effect March 1, 2020.
(b) Section 29 of this Act takes effect September 1, 2019.