COMMITTEE SUBSTITUTE for S.B. No. 279 By: Armbrister

By: JacksonS.B. No. 279

(In the Senate Filed March 6, 2003; March 11, 2003, read first time and referred to Committee on Government Organization; April 23, 2003, reported adversely, with favorable Committee Substitute by the following vote: Yeas 5, Nays 1; April 23, 2003, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 279 By: Armbrister

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Department of Licensing and Regulation, including certain functions transferred to the department from the Texas Department of Insurance and the Texas Commission on Environmental Quality and including certain functions transferred from the department to the Department of Public Safety of the State of Texas.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. TEXAS DEPARTMENT OF LICENSING AND REGULATION

SECTION 1.001. Section 51.002, Occupations Code, is amended to read as follows:

Sec. 51.002. APPLICATION OF SUNSET ACT. The Texas Commission of Licensing and Regulation and the Texas Department of Licensing and Regulation are subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission and the department are abolished September 1, 2015 [2003].

SECTION 1.002. Subchapter A, Chapter 51, Occupations Code, is amended by adding Section 51.003 to read as follows:

Sec. 51.003. APPLICABILITY. This chapter applies to each regulatory program administered by the department, including any program under which a license is issued by the department.

SECTION 1.003. Subsection (a), Section 51.052, Occupations Code, is amended to read as follows:

(a) The commission consists of seven [six] members appointed by the governor with the advice and consent of the senate.

SECTION 1.004. Subsection (b), Section 51.053, Occupations Code, is amended to read as follows:

(b) A person is not eligible for appointment as a member of the commission if the person or the person's spouse:

(1) is regulated by the department;

(2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the department;

(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the department;

(4) uses or receives a substantial amount of tangible goods, services, or funds from the department, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses; or

(5) [is an officer, employee, or paid consultant of a trade association in a field regulated by the department;

[(6)] is an employee of the department[; or

[(7) is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the commission or department].

SECTION 1.005. Subchapter B, Chapter 51, Occupations Code, is amended by adding Section 51.0535 to read as follows:

Sec. 51.0535. CONFLICT OF INTEREST. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person may not be a member of the commission and may not be a department employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in a field regulated by the department; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in a field regulated by the department.

(c) A person may not be a member of the commission or act as the general counsel to the commission or the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the department.

SECTION 1.006. Subchapter B, Chapter 51, Occupations Code, is amended by adding Section 51.054 to read as follows:

Sec. 51.054. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section.

(b) The training program must provide the person with information regarding:

(1) the legislation that created the department and the commission;

(2) the programs operated by the department;

(3) the role and functions of the department;

(4) the rules of the department, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5) the current budget for the department;

(6) the results of the most recent formal audit of the department;

(7) the requirements of:

(A) the open meetings law, Chapter 551, Government Code;

(B) the public information law, Chapter 552, Government Code;

(C) the administrative procedure law, Chapter 2001, Government Code; and

(D) other laws relating to public officials, including conflictofinterest laws; and

(8) any applicable ethics policies adopted by the department or the Texas Ethics Commission.

(c) A person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.

SECTION 1.007. Subsection (a), Section 51.055, Occupations Code, is amended to read as follows:

(a) Members of the commission serve staggered sixyear terms. The terms of one or two members expire on February 1 of each oddnumbered year.

SECTION 1.008. Subsection (a), Section 51.056, Occupations Code, is amended to read as follows:

(a) The governor shall designate a member of the commission as the presiding officer of the commission to serve in that capacity at the pleasure of the governor [commission shall elect one of its members as presiding officer. The presiding officer serves in that capacity for a period of two years].

SECTION 1.009. Subsections (a) and (c), Section 51.057, Occupations Code, are amended to read as follows:

(a) It is a ground for removal from the commission that a member:

(1) does not have at the time of taking office [appointment] the qualifications required by Section 51.053 [for appointment to the commission];

(2) does not maintain during service on the commission the qualifications required by Section 51.053 [for appointment to the commission];

(3) is ineligible for membership under [violates a prohibition established by] Section 51.0535 [51.053]; [or]

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year without an excuse approved [unless the absence is excused] by a majority vote of the commission.

(c) If [a commission member or] the executive director has knowledge that a potential ground for removal exists, the [member or] executive director shall notify the presiding officer of the commission of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the commission, who shall then notify the governor and the attorney general that a potential ground for removal exists.

SECTION 1.010. Section 51.105, Occupations Code, is amended to read as follows:

Sec. 51.105. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly separate the policymaking [define the respective] responsibilities of the commission and the management responsibilities of[,] the executive director[,] and the staff of the department.

SECTION 1.011. Subchapter C, Chapter 51, Occupations Code, is amended by adding Section 51.106 to read as follows:

Sec. 51.106. INFORMATION ON STANDARDS OF CONDUCT. The executive director or the executive director's designee shall provide to members of the commission and to department employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees.

SECTION 1.012. Section 51.108, Occupations Code, is amended to read as follows:

Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement that implements a program of [to assure implementation of an] equal employment opportunity to ensure that [program under which] all personnel decisions [transactions] are made without regard to race, color, disability, sex, religion, age, or national origin.

(b) The policy statement must include:

(1) personnel policies, including policies relating [related] to recruitment, evaluation, selection, [appointment,] training, and promotion of personnel, that show the intent of the department to avoid the unlawful employment practices described by Chapter 21, Labor Code; and

(2) an analysis of the extent to which the composition of the department's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law [a comprehensive analysis of the department workforce that meets federal and state guidelines;

[(3) procedures by which a determination can be made of significant underuse in the department workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

[(4) reasonable methods to appropriately address those areas of significant underuse].

(c) The [(b) A] policy statement [prepared under Subsection (a)] must:

(1) [cover an annual period,] be updated [at least] annually;

(2) be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1);[,] and

(3) be filed with the governor's office [governor].

SECTION 1.013. Subchapter C, Chapter 51, Occupations Code, is amended by adding Section 51.109 to read as follows:

Sec. 51.109. STATE EMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director's designee shall provide to department employees information and training on the benefits and methods of participation in the state employee incentive program.

SECTION 1.014. Sections 51.203 and 51.204, Occupations Code, are amended to read as follows:

Sec. 51.203. RULES REGARDING PROGRAMS REGULATED BY DEPARTMENT [ADOPTED BY EXECUTIVE DIRECTOR]. The commission [executive director] shall adopt rules as necessary to implement each law establishing a program regulated by the department.

Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commission [executive director] may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.

(b) The commission [executive director] may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:

(1) restricts the use of any advertising medium;

(2) restricts the license holder's personal appearance or the use of the license holder's voice in an advertisement;

(3) relates to the size or duration of an advertisement; or

(4) restricts the use of a trade name in advertising.

SECTION 1.015. Subchapter D, Chapter 51, Occupations Code, is amended by adding Sections 51.207 and 51.208 to read as follows:

Sec. 51.207. USE OF TECHNOLOGY. The commission shall develop and implement a policy requiring the executive director and department employees to research and propose appropriate technological solutions to improve the department's ability to perform its functions. The technological solutions must:

(1) ensure that the public is able to easily find information about the department on the Internet;

(2) ensure that persons who want to use the department's services are able to:

(A) interact with the department through the Internet; and

(B) access any service that can be provided effectively through the Internet; and

(3) be costeffective and developed through the department's planning processes.

Sec. 51.208. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The commission shall develop and implement a policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of department rules; and

(2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the department's jurisdiction.

(b) The department's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

(c) The commission shall designate a trained person to:

(1) coordinate the implementation of the policy adopted under Subsection (a);

(2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3) collect data concerning the effectiveness of those procedures, as implemented by the department.

SECTION 1.016. Section 51.252, Occupations Code, is amended to read as follows:

Sec. 51.252. COMPLAINTS. (a) The executive director shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. The department shall provide to the person filing the complaint and to each person who is a subject of the complaint information about the department's policies and procedures relating to complaint investigation and resolution.

(b) The department shall maintain a [keep an information] file on [about] each written complaint filed with the department [that the commission or executive director has authority to resolve]. The file must include:

(1) the name of the person who filed the complaint;

(2) the date the complaint is received by the department;

(3) the subject matter of the complaint;

(4) the name of each person contacted in relation to the complaint;

(5) a summary of the results of the review or investigation of the complaint; and

(6) an explanation of the reason the file was closed, if the department closed the file without taking action other than to investigate the complaint.

(c) The [If a written complaint is filed that the commission or executive director has authority to resolve, the] department, at least quarterly and until final disposition of the complaint, shall notify the person filing [parties to] the complaint and each person who is a subject of the complaint of the status of the investigation [complaint] unless the notice would jeopardize an undercover investigation.

(d) The commission shall adopt a procedure for documenting complaints to the department from the time of the submission of the initial complaint to the final disposition of the complaint. The commission shall publish the procedure in the Texas Register.

SECTION 1.017. Section 51.302, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c) The commission shall by rule or by procedure published in the Texas Register establish a written enforcement plan that provides notice to license holders of the specific ranges of penalties that apply to specific alleged violations and the criteria by which the department determines the amount of a proposed administrative penalty.

SECTION 1.018. Section 51.353, Occupations Code, is amended to read as follows:

Sec. 51.353. ADMINISTRATIVE SANCTIONS. (a) The commission shall revoke, suspend, or refuse to renew a license or shall reprimand a license holder for a violation of this chapter, [executive director shall adopt rules relating to administrative sanctions that may be enforced against a license holder regulated by the department. If a license holder violates] a law establishing a regulatory program administered by the department, or a rule or order of the commission [or executive director, the executive director may:

[(1) issue a written reprimand to the license holder;

[(2) revoke or suspend the license holder's license; or

[(3) place the license holder on probation if the person's license has been suspended].

(b) The commission may place on probation a person whose license is suspended. If a license suspension is probated, the commission [executive director] may require the person [license holder] to:

(1) report regularly to the department on matters that are the basis of the probation;

(2) limit practice to the areas prescribed by the commission [executive director]; or

(3) continue or renew professional education [in those areas that are the basis for the probation] until the person [license holder] attains a degree of skill satisfactory to the commission in those areas that are the basis for the probation [executive director].

SECTION 1.019. Chapter 51, Occupations Code, is amended by adding Subchapter H to read as follows:

SUBCHAPTER H. LICENSE REQUIREMENTS

Sec. 51.401. LICENSE EXPIRATION AND RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the department before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed.

(b) A person whose license has been expired for 90 days or less may renew the license by paying to the department a renewal fee that is equal to 11/2 times the normally required renewal fee.

(c) A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the department a renewal fee that is equal to two times the normally required renewal fee.

(d) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures, including the examination requirements, for obtaining an original license.

(e) A person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person must pay to the department a fee that is equal to two times the normally required renewal fee for the license.

(f) Not later than the 30th day before the date a person's license is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department.

Sec. 51.402. EXAMINATIONS. (a) Not later than the 30th day after the date a person takes a license examination, the department shall notify the person of the results of the examination.

(b) If the examination is graded or reviewed by a testing service:

(1) the department shall notify the person of the results of the examination not later than the 14th day after the date the department receives the results from the testing service; and

(2) if notice of the examination results will be delayed for longer than 90 days after the examination date, the department shall notify the person of the reason for the delay before the 90th day.