SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE — REGULAR SESSION

AUSTIN, TEXAS

PROCEEDINGS

SEVENTY-FOURTH DAY

(Wednesday, May 21, 2003)

The Senate met at 11:00 a.m. pursuant to adjournment and was called to order by Senator Lucio.

The roll was called and the following Senators were present:iiArmbrister, Averitt, Barrientos, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

The Presiding Officer announced that a quorum of the Senate was present.

The Reverend Denise M. Bloomquist, First Christian Church (Disciples of Christ), Mertzon, offered the invocation as follows:

We pause in the moment of quiet to listen for that still, small voice which offers each one here the support and direction needed to do the work which must be done. And I ask for divine presence in this place of discussion, dissent, and decisions and pray for creative ideas, both old and new. May these Senators and the members of their staffs scatter the clouds of self-interest and personal agendas. Instead may their interchanges be vibrant, respectful of all Members and the resources of our state, and may the voices of all citizens, groups, and communities be heard and represented responsibly.

Grant these Members firmness in thinking, maturity in action, and the spiritual insight to realize that all good things come not because of selfish interests or actions, but rather through attentive hearts and open minds. And let them not be afraid of silence, and when they speak may it be both respectful and inclusive, allowing unity and justice to prevail. Now, for this day, may each Member have the vision to serve and be unwavering in duty. May all uphold the honor of this body and preserve the sacred trust given to them by the people they represent. And when this day is ended, may they all take with them the knowledge that life for our state is better because of the work they have done, and may the citizens know it, too. Amen.

Senator Whitmire moved that the reading of the Journal of the proceedings of yesterday be dispensed with and the Journal be approved as printed.

The motion prevailed without objection.

SENATE BILL ON FIRST READING

The following bill was introduced, read first time, and referred to the committee indicated:

SB 1956 by Ellis

Relating to the creation of the Fourth Ward Management District; providing the authority to impose taxes and issue bonds.ii(Local Bill)

To Committee on Intergovernmental Relations.

SESSION TO CONSIDER EXECUTIVE APPOINTMENTS

The Presiding Officer announced the time had arrived to consider executive appointments to agencies, boards, and commissions.iiNotice of submission of these names for consideration was given yesterday by Senator Lindsay.

Senator Lindsay moved confirmation of the nominees reported yesterday by the Committee on Nominations.

The Presiding Officer asked if there were requests to sever nominees.

There were no requests offered.

NOMINEES CONFIRMED

The following nominees, as reported by the Committee on Nominations, were confirmed by the following vote:iiYeasi31, Naysi0.

Members, Texas Racing Commission:iiJesse R. Adams, Bexar County; Comer J. Cottrell, Collin County.

Member, Board of Pardons and Paroles:iiStephen T. Rosales, Travis County.

Members, State Board of Dental Examiners:iiTammy Allen, Tarrant County; Oscar Xavier Garcia, Cameron County; Norman Lewis Mason, Travis County; GaryiW. McDonald, Harris County; Helen Hayes McKibben, Lubbock County; MartiiL. Morgan, Tarrant County; Phyllis A. Stine, Midland County; George Strunk, D.D.S., Gregg County; Paul E. Stubbs, D.D.S., Travis County; Juan D. Villarreal, Cameron County; Charles Field Wetherbee, Atascosa County.

Members, Texas State Board of Medical Examiners:iiPatricia S. Blackwell, Midland County; Roberta M. Kalafut, D.O., Taylor County; Thomas D. Kirksey, Travis County; Eddie J. Miles, Jr., Bexar County; Elvira G. Pascua-Lim, Lubbock County; John W. Pate, Jr., M.D., El Paso County.

Members, Texas Commission of Licensing and Regulation:iiFrank S. Denton, Montgomery County; Fred N. Moses, Collin County; Bill C. Pittman, Travis County.

Members, Texas Municipal Retirement System Board of Trustees:iiH. Frank Simpson, Galveston County; Kathryn M. Usrey, Denton County.

Member, Statewide Health Coordinating Council:iiRussell K. Tolman, Tarrant County.

Members, Coastal Coordination Council:iiJack Wayne Gibson, Brazoria County; Robert Elliott Jones, Nueces County.

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Member, On-site Wastewater Treatment Research Council:iiKaren S. Berryman, Travis County.

Members, Board of Nurse Examiners:iiThomas L. Barton, Gray County; Deborah H. Bell, Taylor County; Blanca Rosa Garcia, Ph.D., Nueces County; BrendaiS. Jackson, Ph.D., R.N., Bexar County.

Member, Texas Structural Pest Control Board:iiBrenda Hill, Nacogdoches County.

Members, Advisory Board of Athletic Trainers:iiD. Leilani Cronin, Travis County; Lawrence M. Sampleton, Jr., Travis County; Michael Alan Waters, Angelina County.

Members, Texas Workers' Compensation Commission:iiEdward J. Sanchez, Harris County; Carolyn J. Walls, Bexar County.

Member, Private Sector Prison Industries Oversight Authority:iiBrian L. Hatley, El Paso County.

Members, Texas Appraiser Licensing and Certification Board:iiMalcolm J. Deason, Angelina County; William A. Faulk, Jr., Cameron County; Larry D. Kokel, Williamson County; L. W. "Wayne" Mayo, Collin County.

Member, Texas Public Finance Authority Board of Directors:iiBarry Thomas Smitherman, Harris County.

Members, Texas Commission for the Blind:iiRobert Gene Griffith, Williamson County; Brenda Gail Saxon, Travis County; Beverley A. Stiles, Aransas County.

Members, Texas Council on Environmental Technology:iiDavid T. Allen, Travis County; Randall J. Charbeneau, Travis County; Purnendu K. "Sandy" Dasgupta, Lubbock County; Richard Edward Ewing, Brazos County; Robert L. Glover, Tarrant County; Kuruvilla John, Nueces County; Deborah June Roberts, Galveston County; Richard William Tock, Lubbock County; Arthur Vailas, Harris County; Mark R. Wiesner, Harris County; Kyriacos Zygourakis, Harris County.

SENATE BILL 252 WITH HOUSE AMENDMENT

Senator Staples called SBi252 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer, Senator Lucio in Chair, laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

Amend SB 252 as follows:

(1)iiIn SECTION 1 of the bill, in added Section 157.004(1), Finance Code (engrossed version, page 2, line 26), between "association," and "or credit" insert "Farm Credit System Institution,".

(2)iiIn SECTION 1 of the bill, in added Section 157.004(2), Finance Code (engrossed version, page 3, line 1), between "association," and "or credit" insert "Farm Credit System Institution,".

The amendment was read.

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Senator Staples moved to concur in the House amendment to SBi252.

The motion prevailed by a viva voce vote.

SENATE BILL 279 WITH HOUSE AMENDMENTS

Senator Jackson called SBi279 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Amendment

Amend SB 279 by substituting in lieu thereof the following:

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.

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

ARTICLE 1. TEXAS DEPARTMENT OF LICENSING
AND REGULATION

SECTIONi1.001.iiSection 51.002, Occupations Code, is amended to read as follows:

Sec.i51.002.iiAPPLICATION 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].

SECTIONi1.002.iiSubchapter A, Chapter 51, Occupations Code, is amended by adding Section 51.003 to read as follows:

Sec.i51.003.iiAPPLICABILITY. This chapter applies to each regulatory program administered by the department, including any program under which a license is issued by the department.

SECTIONi1.003.iiSection 51.052(a), Occupations Code, is amended to read as follows:

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

SECTIONi1.004.iiSection 51.053(b), Occupations Code, is amended to read as follows:

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

(1)iiis regulated by the department;

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

(3)iiowns 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;

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

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

[(7)iiis 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].

SECTIONi1.005.iiSubchapter B, Chapter 51, Occupations Code, is amended by adding Section 51.0535 to read as follows:

Sec.i51.0535.iiCONFLICT 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)iiA 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)iithe person is an officer, employee, or paid consultant of a Texas trade association in a field regulated by the department; or

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

(c)iiA 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.

SECTIONi1.006.iiSubchapter B, Chapter 51, Occupations Code, is amended by adding Section 51.054 to read as follows:

Sec.i51.054.iiTRAINING. (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)iiThe training program must provide the person with information regarding:

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

(2)iithe programs operated by the department;

(3)iithe role and functions of the department;

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

(5)iithe current budget for the department;

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

(7)iithe requirements of:

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

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

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

(D)iiother laws relating to public officials, including conflict-of-interest laws; and

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

(c)iiA 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.

SECTIONi1.007.iiSection 51.055(a), Occupations Code, is amended to read as follows:

(a)iiMembers of the commission serve staggered six-year terms. The terms of one or two members expire on February 1 of each odd-numbered year.

SECTIONi1.008.iiSection 51.056(a), Occupations Code, is amended to read as follows:

(a)iiThe 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].

SECTIONi1.009.iiSections 51.057(a) and (c), Occupations Code, are amended to read as follows:

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

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

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

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

(4)iicannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)iiis 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)iiIf [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.

SECTIONi1.010.iiSection 51.105, Occupations Code, is amended to read as follows:

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Sec.i51.105.iiDIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly separate the policy-making [define the respective] responsibilities of the commission and the management responsibilities of[,] the executive director[,] and the staff of the department.

SECTIONi1.011.iiSubchapter C, Chapter 51, Occupations Code, is amended by adding Section 51.106 to read as follows:

Sec.i51.106.iiINFORMATION 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.

SECTIONi1.012.iiSection 51.108, Occupations Code, is amended to read as follows:

Sec.i51.108.iiEQUAL 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)iiThe policy statement must include:

(1)iipersonnel 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)iian 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)iiprocedures 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)iireasonable methods to appropriately address those areas of significant underuse].

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

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

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

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

SECTIONi1.013.iiSubchapter C, Chapter 51, Occupations Code, is amended by adding Section 51.109 to read as follows:

Sec.i51.109.iiSTATE 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.

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SECTIONi1.014.iiSections 51.203 and 51.204, Occupations Code, are amended to read as follows:

Sec.i51.203.iiRULES 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.i51.204.iiRULES 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)iiThe commission [executive director] may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:

(1)iirestricts the use of any advertising medium;

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

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

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

SECTIONi1.015.iiSubchapter D, Chapter 51, Occupations Code, is amended by adding Sections 51.207 and 51.208 to read as follows:

Sec.i51.207.iiUSE 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)iiensure that the public is able to easily find information about the department on the Internet;

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

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

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

(3)iibe cost-effective and developed through the department's planning processes.

Sec.i51.208.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The commission shall develop and implement a policy to encourage the use of:

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

(2)iiappropriate 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)iiThe 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)iiThe commission shall designate a trained person to:

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

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

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

SECTIONi1.016.iiSection 51.252, Occupations Code, is amended to read as follows:

Sec.i51.252.iiCOMPLAINTS. (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)iiThe 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)iithe name of the person who filed the complaint;

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

(3)iithe subject matter of the complaint;

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

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

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

(c)iiThe [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)iiThe 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.

SECTIONi1.017.iiSection 51.302, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c)iiThe 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.

SECTIONi1.018.iiSection 51.353, Occupations Code, is amended to read as follows:

Sec.i51.353.iiADMINISTRATIVE 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

Wednesday, May 21, 2003 SENATE JOURNAL 1887

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

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

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

(b)iiThe 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)iireport regularly to the department on matters that are the basis of the probation;

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

(3)iicontinue 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].

SECTIONi1.019.iiChapter 51, Occupations Code, is amended by adding Subchapter H to read as follows:

SUBCHAPTER H. LICENSE REQUIREMENTS

Sec.i51.401.iiLICENSE 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)iiA 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 1-1/2 times the normally required renewal fee.

(c)iiA 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)iiA 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)iiA 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)iiNot 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.

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Sec.i51.402.iiEXAMINATIONS. (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)iiIf the examination is graded or reviewed by a testing service:

(1)iithe 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)iiif 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.

(c)iiThe department may require a testing service to notify a person of the results of the person's examination.

(d)iiIf requested in writing by a person who fails a license examination, the department shall furnish the person with an analysis of the person's performance on the examination.

Sec.i51.403.iiEXAMINATION FEE REFUND. (a) The department may refund a license examination fee to a person who is unable to take the examination if the person:

(1)iiprovides reasonable advance notice to the department; or

(2)iicannot take the examination because of an emergency.

(b)iiThe commission by rule shall define what constitutes reasonable notice and an emergency under this section.

Sec.i51.404.iiENDORSEMENT; RECIPROCITY. (a) The commission may waive any prerequisite to obtaining a license for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license issued by another jurisdiction that has licensing requirements substantially equivalent to those of this state.

(b)iiThe commission may waive any prerequisite to obtaining a license for an applicant who holds a license issued by another jurisdiction with which this state has a reciprocity agreement. The commission may make an agreement, subject to the approval of the governor, with another state to allow for licensing by reciprocity.

Sec.i51.405.iiCONTINUING EDUCATION. The commission shall recognize, prepare, or administer continuing education programs for license holders. A license holder must participate in the programs to the extent required by the commission to keep the person's license.

SECTIONi1.020.iiSection 51.205, Occupations Code, is renumbered as Section 51.406, Occupations Code, and amended to read as follows:

Sec.i51.406 [51.205].iiSTAGGERED [LICENSE EXPIRATION AND] RENEWAL OF LICENSES. [(a)] The commission by rule [executive director] may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, the department shall prorate license fees on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable [annually and may provide for a renewal period that exceeds 12 months.

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[(b)iiThe executive director shall notify a person regulated by the department of the impending expiration of the person's license].

SECTIONi1.021.iiChapter 51, Occupations Code, is amended by adding Subchapter I to read as follows:

SUBCHAPTER I. TELEPHONE INFORMATION SYSTEM

Sec.i51.451.iiDEFINITION. In this subchapter, "licensing entity" means a department, commission, board, office, authority, or other agency or governmental entity of this state that issues an occupational license.

Sec.i51.452.iiTELEPHONE INFORMATION SYSTEM. The department shall establish and operate a toll-free telephone information system to provide assistance and referral services for persons who inquire about a program regulated by a licensing entity.

Sec.i51.453.iiTELEPHONE LISTING. A licensing entity shall list the toll-free telephone number of the information system with the entity's regular telephone number.

Sec.i51.454.iiFEES.iiThe department shall charge licensing entities fees in amounts sufficient to cover the cost of implementing this subchapter, including fees on a subscription basis, on the basis of each transaction, or on another service basis.

SECTIONi1.022.ii(a) Except as provided by Subsection (b) of this section, the changes in law made by this article in the prohibitions or qualifications applying to members of the Texas Commission of Licensing and Regulation do not affect the entitlement of a member serving on the commission immediately before September 1, 2003, to continue to serve and function as a member of the commission for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

(b)iiTo implement the changes in law made by this article to the composition of the Texas Commission of Licensing and Regulation under Section 51.052(a), Occupations Code, of the two positions that have terms scheduled to expire on February 1, 2005, one of the positions is abolished on September 1, 2003. On or before September 1, 2003, the two members whose terms are scheduled to expire on February 1, 2005, shall determine by unanimous agreement or by lot which of the two positions shall be abolished on September 1, 2003, and shall inform the presiding officer of the Texas Commission of Licensing and Regulation of that determination.

SECTIONi1.023.iiNot later than September 1, 2004, the Texas Department of Licensing and Regulation shall implement the toll-free telephone information system required by Section 51.452, Occupations Code, as added by this article.

SECTIONi1.024.ii(a) In this section:

(1)ii"Department" means the Texas Department of Licensing and Regulation.

(2)ii"Licensing entity" means a department, commission, board, office, authority, or other agency or governmental entity of this state that issues an occupational license.

(3)ii"TexasOnline" means the project implemented under Subchapter I, Chapter 2054, Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001.

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(b)iiNot later than March 1, 2004, the department shall identify licensing entities that do not use TexasOnline.

(c)iiNot later than September 1, 2004, the department shall assist those entities to develop websites for, and to convert to, TexasOnline.

(d)iiLicensing entities shall cooperate with the department to implement this section.

SECTIONi1.025.iiNot later than March 1, 2004, the Texas Commission of Licensing and Regulation shall adopt the rules required by Section 51.302(c), Occupations Code, as added by this article.

SECTIONi1.026.iiSection 51.053(c), Occupations Code, is repealed.

SECTIONi1.027.iiSection 51.252, Occupations Code, as amended by this article, takes effect January 1, 2004.

ARTICLE 2. AIR CONDITIONING AND
REFRIGERATION CONTRACTORS

SECTIONi2.001.iiSection 1302.002, Occupations Code, is amended by amending Subdivision (5) and adding Subdivision (11-a) to read as follows:

(5)ii"Air conditioning and refrigeration maintenance work" means all work, including repair work, required for the continued normal performance of an environmental air conditioning system, a process cooling or heating system, a commercial refrigeration system, or commercial refrigeration equipment. The term does not include:

(A)iithe total replacement of a system; or

(B)iithe installation or repair of a boiler or pressure vessel that must be installed in accordance with rules adopted by the commission [commissioner] under Chapter 755, Health and Safety Code.

(11-a)ii"Executive director" means the executive director of the department.

SECTIONi2.002.iiThe heading to Subchapter C, Chapter 1302, Occupations Code, is amended to read as follows:

SUBCHAPTER C. [COMMISSIONER AND DEPARTMENT]
POWERS AND DUTIES

SECTIONi2.003.iiSection 1302.101, Occupations Code, is amended to conform to Section 2, Chapter 790, Acts of the 77th Legislature, Regular Session, 2001, and is further amended to read as follows:

Sec.i1302.101.iiGENERAL POWERS AND DUTIES [OF COMMISSIONER]. (a) The commission [commissioner] shall[:

[(1)]iiadopt rules for the practice of air conditioning and refrigeration contracting that are at least as strict as the standards provided by:

(1)i[(A)]iithe Uniform Mechanical Code [published jointly by the International Conference of Building Officials and the International Association of Plumbing and Mechanical Officials, as that code exists at the time the rules are adopted]; and [or]

(2)i[(B)]iithe International [Standard] Mechanical Code.

(b)iiThe executive director shall [published by the Southern Building Code Congress International, Inc., as that code exists at the time the rules are adopted;

[(2)]iiprescribe the design of an original and a renewal license.

(c)iiThe commission shall[; and

Wednesday, May 21, 2003 SENATE JOURNAL 1891

[(3)]iimaintain a record of the commission's [commissioner's] proceedings under this chapter.

(d)i[(b)]iiThe executive director [commissioner] may authorize disbursements necessary to implement this chapter, including disbursements for office expenses, equipment costs, and other necessary facilities.

SECTIONi2.004.iiSection 1302.103, Occupations Code, is amended to read as follows:

Sec.i1302.103.iiRULES REGARDING USE AND DISPLAY OF LICENSE. The commission [commissioner], with the advice of the advisory board, shall adopt rules relating to the use, display, and advertisement of a license.

SECTIONi2.005.iiSection 1302.201, Occupations Code, is amended to read as follows:

Sec.i1302.201.iiADVISORY BOARD MEMBERSHIP. The air conditioning and refrigeration contractors advisory board consists of six members appointed by the presiding officer of the commission, with the commission's approval, [governor with the advice and consent of the senate] and two ex officio nonvoting members.

SECTIONi2.006.iiSection 1302.204(a), Occupations Code, is amended to read as follows:

(a)iiThe advisory board shall advise the commission [commissioner] in adopting rules and in administering and enforcing this chapter.

SECTIONi2.007.iiSection 1302.205(b), Occupations Code, is amended to read as follows:

(b)iiIf a vacancy occurs during an appointed member's term, the presiding officer of the commission, with the commission's approval, [governor] shall fill the vacancy for the remainder of the unexpired term with a person who represents the same interests as the predecessor.

SECTIONi2.008.iiSection 1302.206, Occupations Code, is amended to read as follows:

Sec.i1302.206.iiPRESIDING OFFICER. The presiding officer of the commission, with the commission's approval, [governor] shall designate one member of the advisory board to serve as presiding officer of the board for two years.

SECTIONi2.009.iiSection 1302.261, Occupations Code, is amended to read as follows:

Sec.i1302.261.iiTEMPORARY LICENSE. The commission [commissioner] by rule may provide for the issuance of a temporary air conditioning and refrigeration contracting license to an applicant who:

(1)iisubmits to the executive director [commissioner] an application on a form prescribed by the executive director [commissioner]; and

(2)iipays the required fees.

SECTIONi2.010.iiSection 1302.354(b), Occupations Code, is amended to read as follows:

(b)iiThe commission [commissioner] by rule shall adopt requirements governing the registration and issuance of a certificate of registration.

SECTIONi2.011.iiSection 1302.355(c), Occupations Code, is amended to read as follows:

1892 78th Legislature — Regular Session 74th Day

(c)iiThe commission [commissioner] by rule shall establish requirements for evidence that satisfies this section.

SECTIONi2.012.iiThe following laws are repealed:

(1)iiSection 1302.002(8), Occupations Code;

(2)iiSection 1302.107, Occupations Code;

(3)iiSection 1302.152, Occupations Code;

(4)iiSection 1302.258, Occupations Code;

(5)iiSection 1302.259, Occupations Code; and

(6)iiChapter 790, Acts of the 77th Legislature, Regular Session, 2001.

SECTIONi2.013.iiThe changes in law made by this article applying to members of the air conditioning and refrigeration contractors advisory board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLE 3. ARCHITECTURAL BARRIERS

SECTIONi3.001.iiSection 4, Article 9102, Revised Statutes, is amended by adding Subdivision (6-a) to read as follows:

(6-a)ii"Executive director" means the executive director of the department.

SECTIONi3.002.iiArticle 9102, Revised Statutes, is amended by adding Section 4A to read as follows:

Sec.i4A.iiAPPLICABILITY OF OTHER LAW.iiSection 51.404, Occupations Code, does not apply to this article.

SECTIONi3.003.iiSections 5A(c)-(h) and (j), Article 9102, Revised Statutes, are amended to read as follows:

(c)iiAn applicant for a certificate of registration must file with the commission an application on a form prescribed by the executive director [commissioner].

(d)iiTo be eligible for a certificate of registration, an applicant must satisfy any requirements adopted by the commission [commissioner] by rule, including education and examination requirements.

(e)iiThe executive director [commissioner] may issue a certificate of registration to perform review functions of the commission, inspection functions of the commission, or both review and inspection functions.

(f)iiThe executive director [commissioner] may administer separate examinations for applicants for certificates of registration to perform review functions, inspection functions, or both review and inspection functions. [Not later than the 30th day after the examination date, the commissioner shall notify each examinee of the results of the examination.]

(g)iiThe executive director [commissioner] shall issue an appropriate certificate of registration to an applicant who meets the requirements for a certificate.

(h)iiThe commission [commissioner] by rule shall specify the term of a certificate of registration issued under this section.

(j)iiA certificate holder shall perform a review or inspection function of the commission in a competent and professional manner and in compliance with:

(1)iistandards and specifications adopted by the commission under this article; and

Wednesday, May 21, 2003 SENATE JOURNAL 1893

(2)iirules adopted by the commission [commissioner] under this article.

SECTIONi3.004.iiSection 7, Article 9102, Revised Statutes, is amended to read as follows:

Sec.i7.iiADVISORY COMMITTEE; REVIEW OF AND COMMENT ON RULES. (a) The presiding officer of the commission, with the commission's approval, shall appoint an advisory committee for the architectural barriers program. The committee shall be composed of building professionals and persons with disabilities who are familiar with architectural barrier problems and solutions. The committee shall be composed of at least eight members. Persons with disabilities must make up a majority of the membership.

(b)iiA committee member serves at the will of the presiding officer of the commission. A member may not receive compensation for service on the committee but is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a member.

(c)iiThe presiding officer of the commission, with the commission's approval, [committee] shall appoint [elect] a member of the committee as chair for two years. The committee shall meet at least twice each calendar year at the call of the committee chair or at the call of the commission [commissioner].

(d)iiThe committee periodically shall review the rules relating to the architectural barriers program and recommend changes in the rules to the commission [and the commissioner]. The commission shall submit all proposed changes to rules and procedures that relate to the architectural barriers program to the committee for review and comment before adoption or implementation of the new or amended rule or procedure.

SECTIONi3.005.iiArticle 9102, Revised Statutes, is amended by adding Section 9 to read as follows:

Sec.i9.iiCOMPLAINTS. (a) A complaint made under Section 51.252, Occupations Code, that alleges that a building or facility is not in compliance with the standards and specifications adopted by the commission under this article is not eligible for final disposition until the commission determines that:

(1)iithe building or facility has been brought into compliance or cannot be brought into compliance; or

(2)iithe building or facility is exempt from compliance by statute or rule.

(b)iiIf the building or facility cannot be brought into compliance or if the building or facility is exempt, the department shall, before final disposition of the complaint, notify the person filing the complaint that the building or facility cannot be brought into compliance or provide a reference to any rule or law that states an applicable exemption.

SECTIONi3.006.iiThe following laws are repealed:

(1)iiSection 4(3), Article 9102, Revised Statutes; and

(2)iiSection 5A(i), Article 9102, Revised Statutes.

SECTIONi3.007.iiThe changes in law made by this article applying to members of the advisory committee for the program for the elimination of architectural barriers do not affect the entitlement of a member serving on the committee immediately

1894 78th Legislature — Regular Session 74th Day

ARTICLE 4. AUCTIONEERS

SECTIONi4.001.iiSection 1802.001, Occupations Code, is amended by adding Subdivision (8-a) to read as follows:

(8-a) "Executive director" means the executive director of the department.

SECTIONi4.002.iiSections 1802.059(a), (b), and (d), Occupations Code, are amended to read as follows:

(a)iiAn applicant for an auctioneer's license who is not a resident of this state but is licensed as an auctioneer in another state must submit to the executive director [commissioner]:

(1)iia license application;

(2)iia certified copy of the auctioneer's license issued to the applicant by the state or political subdivision in which the applicant resides; and

(3)iiproof that the state or political subdivision in which the applicant is licensed has competency standards equivalent to or stricter than those of this state.

(b)iiThe executive director [commissioner] shall accept the applicant's auctioneer's license submitted under Subsection (a)(2) as proof of the applicant's professional competence and waive the examination and training requirements of Section 1802.052 if the state or political subdivision that issued the nonresident a license extends similar recognition and courtesies to this state.

(d)iiA nonresident applicant must submit with the application a written irrevocable consent to service of process. The consent must be in the form and supported by additional information that the commission [commissioner] by rule requires. The consent must:

(1)iiprovide that an action relating to any transaction subject to this chapter may be commenced against the license holder in the proper court of any county of this state in which the cause of action may arise or in which the plaintiff may reside by service of process on the executive director [commissioner] as the license holder's agent; and

(2)iiinclude a statement stipulating and agreeing that service provided by this section is as valid and binding as if service had been made on the person according to the laws of this or any other state.

SECTIONi4.003.iiSection 1802.101, Occupations Code, is amended to read as follows:

Sec.i1802.101.iiAUCTIONEER EDUCATION ADVISORY BOARD. The advisory board shall advise the commission [commissioner] on educational matters.

SECTIONi4.004.iiSections 1802.102(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe advisory board consists of five members appointed as follows:

(1)iithree members who are licensed auctioneers appointed by the presiding officer of the commission, with the commission's approval [commissioner];

(2)iithe executive director of the Texas Department of Economic Development or the director's designee; and

(3)iithe commissioner of education or the commissioner's designee.

Wednesday, May 21, 2003 SENATE JOURNAL 1895

(b)iiIn appointing advisory board members under Subsection (a)(1), the presiding officer of the commission [commissioner] may not appoint members who reside in contiguous senatorial districts.

SECTIONi4.005.iiSection 1802.103(a), Occupations Code, is amended to read as follows:

(a)iiThe members appointed under Section 1802.102(a)(1) serve two-year terms that expire on September 1. If a vacancy occurs during the term of such a member, the presiding officer of the commission, with the commission's approval, [commissioner] shall appoint a replacement to serve for the remainder of the term.

SECTIONi4.006.iiSection 1802.104, Occupations Code, is amended to read as follows:

Sec.i1802.104.iiPRESIDING OFFICER. The presiding officer of the commission, with the commission's approval, shall appoint a member of the advisory board to serve [shall designate one of its members] as presiding officer of the board. The presiding officer serves for two years.

SECTIONi4.007.iiSection 1802.109, Occupations Code, is amended to read as follows:

Sec.i1802.109.iiAUCTIONEER EDUCATION PROGRAMS. (a) The advisory board shall:

(1)iievaluate educational programs, seminars, and training projects; and

(2)iimake recommendations to the commission [commissioner] on their usefulness and merit as continuing education tools.

(b)iiOn the recommendation of the advisory board, the commission [commissioner] may fund or underwrite specific classes, seminars, or events for the education and advancement of the auctioneering profession in this state.

SECTIONi4.008.iiSection 1802.153(a), Occupations Code, is amended to read as follows:

(a)iiIn addition to any other fees required by this chapter, an applicant entitled to receive a license under this chapter must pay a fee [of $100] before the executive director [commissioner] issues the license.

SECTIONi4.009.iiSection 1802.201, Occupations Code, is amended to read as follows:

Sec.i1802.201.iiINVESTIGATION OF COMPLAINTS. The executive director [commissioner] may, on the executive director's [commissioner's] motion, and shall, on the written [and verified] complaint of a person aggrieved by the actions of an auctioneer in an auction, investigate an alleged violation of this chapter by a licensed or unlicensed auctioneer or an applicant.

SECTIONi4.010.iiSections 1802.202(a) and (b), Occupations Code, are amended to read as follows:

(a)iiA person who deals with an auctioneer licensed under this chapter and who is aggrieved by an action of the auctioneer as a result of a violation of a contract made with the auctioneer may initiate a claim against the fund by[:

[(1)]iifiling with the department a [sworn] complaint against the auctioneer[; and

[(2)iipaying to the department a filing fee of $50].

1896 78th Legislature — Regular Session 74th Day

(b)iiThe executive director [commissioner] may not pay a claim against an auctioneer who was not licensed at the time of the transaction on which the claim is based.

SECTIONi4.011.iiSection 1802.203(c), Occupations Code, is amended to read as follows:

(c)iiAfter the hearing, the hearings examiner shall prepare a proposal for decision for the commission [commissioner].

SECTIONi4.012.iiSection 1802.204, Occupations Code, is amended to read as follows:

Sec.i1802.204.iiAPPEAL. A party may appeal a decision of the commission [commissioner] in the manner provided for a contested case under Chapter 2001, Government Code.

SECTIONi4.013.iiSection 1802.207, Occupations Code, is amended to read as follows:

Sec.i1802.207.iiREIMBURSEMENT; INTEREST. (a) If the executive director [commissioner] pays a claim against an auctioneer, the auctioneer shall:

(1)iireimburse the fund immediately or agree in writing to reimburse the fund on a schedule to be determined by rule of the commission [commissioner]; and

(2)iiimmediately pay the aggrieved party any amount due to that party or agree in writing to pay the party on a schedule to be determined by rule of the commission [commissioner].

(b)iiPayments made by an auctioneer to the fund or to an aggrieved party under this section include interest accruing at the rate of eight percent a year beginning on the date the executive director [commissioner] pays the claim.

SECTIONi4.014.iiSection 1802.209(a), Occupations Code, is amended to read as follows:

(a)iiThis subchapter and Section 1802.252 do not limit the commission's [commissioner's] authority to take disciplinary action against a license holder for a violation of this chapter or a rule adopted under this chapter.

SECTIONi4.015.iiSection 1802.251, Occupations Code, is amended to read as follows:

Sec.i1802.251.iiDENIAL OF APPLICATION; SUSPENSION OR REVOCATION OF LICENSE. The commission [commissioner] may deny an application for a license or suspend or revoke the license of any auctioneer for:

(1)iiviolating this chapter or a rule adopted under this chapter;

(2)iiobtaining a license through false or fraudulent representation;

(3)iimaking a substantial misrepresentation in an application for an auctioneer's license;

(4)iiengaging in a continued and flagrant course of misrepresentation or making false promises through an agent, advertising, or otherwise;

(5)iifailing to account for or remit, within a reasonable time, money belonging to another that is in the auctioneer's possession and commingling funds of another with the auctioneer's funds or failing to keep the funds of another in an escrow or trust account; or

(6)ii[being convicted in a court of this state or another state of a criminal offense involving moral turpitude or a felony; or

Wednesday, May 21, 2003 SENATE JOURNAL 1897

[(7)]iiviolating the Business & Commerce Code in conducting an auction.

SECTIONi4.016.iiSection 1802.252, Occupations Code, is amended to read as follows:

Sec.i1802.252.iiREVOCATION FOR CLAIM ON FUND. (a) The commission [commissioner] may revoke a license issued under this chapter if the executive director [commissioner] makes a payment from the fund as the result of an action of the license holder.

(b)iiThe commission [commissioner] may probate an order revoking a license.

(c)iiAn auctioneer is not eligible for a new license until the auctioneer has repaid in full the amount paid from the fund on the auctioneer's account, including interest, unless:

(1)iia hearing is held; and

(2)iithe executive director [commissioner] issues a new probated license.

SECTIONi4.017.iiSection 1802.253, Occupations Code, is amended to read as follows:

Sec.i1802.253.iiHEARING. (a) Before denying an application for a license [or suspending or revoking a license], the commission [commissioner] shall:

(1)iiset the matter for a hearing; and

(2)iibefore the [30th day before the] hearing date, notify the applicant [or license holder] in writing of:

(A)iithe charges alleged or the question to be determined at the hearing; and

(B)iithe date and location of the hearing.

(b)iiAt a hearing under this section, the applicant [or license holder] may:

(1)iibe present and be heard in person or by counsel; and

(2)iihave an opportunity to offer evidence by oral testimony, affidavit, or deposition.

(c)iiWritten notice may be served by personal delivery to the applicant [or license holder] or by certified mail to the last known mailing address of the applicant [or license holder].

(d)iiIf the applicant [or license holder] who is the subject of the hearing is an associate auctioneer, the commission [commissioner] shall provide written notice to the auctioneer who employs the associate auctioneer or who has agreed to employ the associate auctioneer by mailing the notice by certified mail to the auctioneer's last known mailing address.

SECTIONi4.018.iiSection 1802.303(a), Occupations Code, is amended to read as follows:

(a)iiA person commits an offense if the person violates a provision of this chapter or a rule adopted by the commission [commissioner] under this chapter for which a penalty is not provided.

SECTIONi4.019.iiThe following laws are repealed:

(1)iiSection 1802.001(7), Occupations Code;

(2)iiSection 1802.057, Occupations Code;

(3)iiSection 1802.061, Occupations Code; and

(4)iiSection 1802.254, Occupations Code.

1898 78th Legislature — Regular Session 74th Day

SECTIONi4.020.iiThe changes in law made by this article applying to members of the Auctioneer Education Advisory Board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLEi5.iiBACKFLOW PREVENTION ASSEMBLY TESTERS

SECTIONi5.001.iiSection 341.034(c), Health and Safety Code, is amended to read as follows:

(c)iiA person who repairs or tests the installation or operation of backflow prevention assemblies must hold a license issued by the Texas Department of Licensing and Regulation [commission] under Chapter 51, Occupations [37, Water] Code.

SECTIONi5.002.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Section 341.034(c), Health and Safety Code, performed by the Texas Commission on Environmental Quality immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the Texas Commission on Environmental Quality that relates to Section 341.034(c), Health and Safety Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(3)iia license or other document issued by the Texas Commission on Environmental Quality that relates to Section 341.034(c), Health and Safety Code, is considered a license or other document issued by the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(4)iia reference in law or an administrative rule to the Texas Commission on Environmental Quality that relates to Section 341.034(c), Health and Safety Code, means the Texas Department of Licensing and Regulation;

(5)iia complaint, investigation, or other proceeding before the Texas Commission on Environmental Quality that is related to Section 341.034(c), Health and Safety Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Commission on Environmental Quality in an action or proceeding to which the Texas Commission on Environmental Quality is a party;

(6)iiall money, contracts, leases, property, and obligations of the Texas Commission on Environmental Quality related to Section 341.034(c), Health and Safety Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Commission on Environmental Quality related to Section 341.034(c), Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Environmental Quality related to Section 341.034(c), Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation.

Wednesday, May 21, 2003 SENATE JOURNAL 1899

(b)iiBefore November 1, 2003, the Texas Commission on Environmental Quality may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Commission on Environmental Quality to the Texas Department of Licensing and Regulation to implement the transfer required by this article.

(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Environmental Quality shall continue to perform functions and activities under Section 341.034(c), Health and Safety Code, as if that section had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLEi6.iiBOILERS

SECTIONi6.001.iiSection 755.001, Health and Safety Code, is amended by amending Subdivisions (5), (6), and (23) and adding Subdivision (7-a) to read as follows:

(5)ii"Certificate of operation" means a certificate issued by the executive director [commissioner] to allow the operation of a boiler.

(6)ii"Commission" ["Commissioner"] means the Texas Commission of Licensing and Regulation [commissioner of licensing and regulation].

(7-a)ii"Executive director" means the executive director of the department.

(23)ii"Standard boiler" means a boiler that bears a Texas stamp, the stamp of a nationally recognized engineering professional society, or the stamp of any jurisdiction that has adopted a standard of construction equivalent to the standard required by the executive director [commissioner].

SECTIONi6.002.iiSections 755.011(b) and (d), Health and Safety Code, are amended to read as follows:

(b)iiThe board is composed of the following nine members appointed by the presiding officer of the commission, with the commission's approval [commissioner]:

(1)iithree members representing persons who own or use boilers in this state;

(2)iithree members representing companies that insure boilers in this state;

(3)iione member representing boiler manufacturers or installers;

(4)iione member who is a mechanical engineer and a member of the faculty of a recognized college of engineering in this state; and

(5)iione member representing a labor union.

(d)iiThe executive director [commissioner] serves as an ex officio board member.

SECTIONi6.003.iiSection 755.013, Health and Safety Code, is amended to read as follows:

Sec.i755.013.iiPRESIDING OFFICER [CHAIRMAN]. The chief inspector serves as presiding officer [chairman] of the board.

SECTIONi6.004.iiSection 755.014, Health and Safety Code, is amended to read as follows:

Sec.i755.014.iiREMOVAL OF BOARD MEMBERS; VACANCY. (a) The commission [commissioner] may remove a board member for inefficiency or neglect of official duty.

(b)iiA board member's office becomes vacant on the resignation, death, suspension, or incapacity of the member. The presiding officer of the commission [commissioner] shall appoint, in the same manner as the original appointment, a person to serve for the remainder of the unexpired term.

1900 78th Legislature — Regular Session 74th Day

SECTIONi6.005.iiSection 755.016, Health and Safety Code, is amended to read as follows:

Sec.i755.016.iiMEETINGS. The board shall meet at least twice each year at the call of the presiding officer [chairman] at a place designated by the board.

SECTIONi6.006.iiSection 755.017, Health and Safety Code, is amended to read as follows:

Sec.i755.017.iiPOWERS AND DUTIES. The board shall advise the commission [commissioner] in the adoption of definitions and rules relating to the safe construction, installation, inspection, operating limits, alteration, and repair of boilers and their appurtenances.

SECTIONi6.007.iiSection 755.030(a), Health and Safety Code, is amended to read as follows:

(a)iiIn addition to the fees described by Section 51.202, Occupations Code, the commission may authorize the collection of fees for:

(1)iiboiler inspections, including fees for special inspections; and

(2)iiother activities administered by the boiler inspection section and authorized by rule of the commission [executive director of the department].

SECTIONi6.008.iiSection 755.032, Health and Safety Code, is amended to read as follows:

Sec.i755.032.iiRULES. (a) The commission [commissioner] may adopt and enforce rules, in accordance with standard boiler usage, for the construction, inspection, installation, use, maintenance, repair, alteration, and operation of boilers.

(b)iiThe executive director [commissioner] may exchange information, including data on experience, with other authorities that inspect boilers or their appurtenances, to obtain information necessary to adopt rules.

(c)iiThe executive director [commissioner] or a department employee may not prescribe the make, brand, or kind of boilers or any appurtenances on the boiler to purchase.

(d)iiThe executive director [commissioner] or a department employee may not prescribe the make, brand, or kind of boilers to purchase.

SECTIONi6.009.iiSection 755.033, Health and Safety Code, is amended to read as follows:

Sec.i755.033.iiINTERAGENCY INSPECTION AGREEMENTS. (a) The executive director [commissioner] shall enter into interagency agreements with the Texas Department of Health, the Texas Commission on Fire Protection, and the Texas Department [State Board] of Insurance under which inspectors, marshals, or investigators from those agencies who discover unsafe or unregistered boilers in the course and scope of inspections conducted as part of regulatory or safety programs administered by those agencies are required to report the unsafe or unregistered boilers to the executive director [commissioner].

(b)iiThe executive director [commissioner] may enter into analogous agreements with local fire marshals.

(c)iiThe commission [commissioner] shall adopt rules relating to the terms and conditions of an interagency agreement entered into under this section.

SECTIONi6.010.iiSections 755.041(b) and (d), Health and Safety Code, are amended to read as follows:

Wednesday, May 21, 2003 SENATE JOURNAL 1901

(b)iiOn written request, an owner or operator who does not comply with a preliminary order is entitled to a hearing before the executive director [commissioner] to show cause for not enforcing the preliminary order. If, after the hearing, the executive director [commissioner] determines that the boiler is unsafe and that the preliminary order should be enforced, or that other acts are necessary to make the boiler safe, the executive director [commissioner] may order or confirm the withholding of the certificate of operation for that boiler, and may impose additional requirements as necessary for the repair or alteration of the boiler or the correction of the unsafe conditions.

(d)iiThis section does not limit the executive director's [commissioner's] authority under Section 755.028 or the commission's authority under Section 755.032.

SECTIONi6.011.iiSection 755.043(a), Health and Safety Code, is amended to read as follows:

(a)iiA person, firm, or corporation commits an offense if:

(1)iithe person, firm, or corporation owns a boiler in this state, has the custody, management, use, or operation of a boiler in this state, or is otherwise subject to this chapter or a rule adopted under this chapter; and

(2)iithe person, firm, or corporation violates this chapter, a rule adopted under this chapter, or an order issued by the commission, the executive director, [commissioner] or a regularly employed inspector authorized to enforce this chapter and rules and orders.

SECTIONi6.012.iiSection 755.045, Health and Safety Code, is amended to read as follows:

Sec.i755.045.iiNOTICE OF RULE OR ORDER REQUIRED BEFORE PROSECUTION. A criminal action may not be maintained against any person relating to the violation of a rule adopted or an order issued under this chapter until the commission [commissioner] gives notice of the rule or order.

SECTIONi6.013.iiSection 755.046, Health and Safety Code, is amended to read as follows:

Sec.i755.046.iiAFFIDAVIT OF ORDERS. An affidavit is admissible as evidence in any civil or criminal action involving an order adopted by the commission or the executive director [commissioner] and the publication of the order, without further proof of the order's issuance or publication or of the contents of the order, if the affidavit:

(1)iiis issued under the seal of the commission or the executive director [commissioner];

(2)iiis executed by the commission, the executive director [commissioner], the chief inspector, or a deputy inspector;

(3)iistates the terms of the order;

(4)iistates that the order was issued and published; and

(5)iistates that the order was in effect during the period specified by the affidavit.

SECTIONi6.014.iiThe following laws are repealed:

(1)iiSections 755.024(c), (d), (e), and (h), Health and Safety Code; and

(2)iiSection 755.031, Health and Safety Code.

1902 78th Legislature — Regular Session 74th Day

SECTIONi6.015.iiThe changes in law made by this article applying to members of the board of boiler rules do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLEi7.iiCAREER COUNSELING SERVICES

SECTIONi7.001.iiSection 2502.001, Occupations Code, is amended by amending Subdivision (3) and adding Subdivision (4-a) to read as follows:

(3)ii"Commission" [Commissioner"] means the Texas Commission of Licensing and Regulation [commissioner of licensing and regulation].

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi7.002.iiSection 2502.056, Occupations Code, is amended to read as follows:

Sec.i2502.056.iiRULES. The commission [commissioner] may adopt rules relating to the administration and enforcement of the certificate of authority program created under this subchapter.

SECTIONi7.003.iiSubchapter B, Chapter 2502, Occupations Code, is amended by adding Section 2502.058 to read as follows:

Sec.i2502.058.iiAPPLICABILITY OF OTHER LAW. Section 51.404 does not apply to this chapter.

SECTIONi7.004.iiSection 2502.202(b), Occupations Code, is amended to read as follows:

(b)iiNot later than 10 days [48 hours] after a career counseling service receives a written complaint, the service shall respond to the complaint. Not later than the 30th [10th] day after the date the complaint is received, the service shall resolve the complaint.

SECTIONi7.005.iiSection 2502.203(a), Occupations Code, is amended to read as follows:

(a)iiIf a career counseling service cannot resolve a complaint within the period described by Section 2502.202, the service shall:

(1)iirefer the complaint to a qualified independent arbitration organization recognized by the department; and

(2)iiresolve the complaint not later than the 60th [30th] day after the date the arbitration begins [complaint is referred for arbitration].

SECTIONi7.006.iiSection 2502.252, Occupations Code, is amended to read as follows:

Sec.i2502.252.iiCOMPLAINT AND INVESTIGATION. (a) A person [by sworn affidavit] may file with the executive director [commissioner] a complaint alleging a violation of this chapter.

(b)iiOn receipt of the complaint, the executive director [commissioner] shall investigate the alleged violation and may:

(1)iiinspect any record relevant to the complaint; and

(2)iisubpoena the record and any necessary witness.

SECTIONi7.007.iiSections 2502.253(a) and (c), Occupations Code, are amended to read as follows:

Wednesday, May 21, 2003 SENATE JOURNAL 1903

(a)iiIf the executive director [commissioner] determines as a result of an investigation that a violation of this chapter may have occurred, the executive director [commissioner] shall hold a hearing [not later than the 45th day after the date the complaint was filed under Section 2502.252].

(c)iiThe executive director [commissioner] shall render a decision on the alleged violation [not later than the eighth day] after [the date] the hearing is concluded.

SECTIONi7.008.iiSection 2502.254, Occupations Code, is amended to read as follows:

Sec.i2502.254.iiSANCTIONS. (a) If, after a hearing, the commission [commissioner] determines that a career counseling service has violated this chapter, the commission [commissioner] may, as appropriate:

(1)iiissue a warning to the service; or

(2)iisuspend or revoke the certificate of authority issued to the service.

(b)iiIf, after a hearing, the commission [commissioner] determines that a career counseling service has violated this chapter, the executive director [commissioner] may award the complainant an amount equal to the amount of the fee charged by the service.

SECTION 7.009.iiSection 2502.255, Occupations Code, is amended to read as follows:

Sec.i2502.255.iiREISSUANCE OF CERTIFICATE AFTER REVOCATION. If the commission [commissioner] revokes the certificate of authority of a career counseling service under Section 2502.254, the service and any owner of that service may not apply for a new certificate until after the third anniversary of the date the certificate was revoked.

SECTIONi7.010.iiSections 2502.057 and 2502.101, Occupations Code, are repealed.

ARTICLE 8. COMBATIVE SPORTS

SECTIONi8.001.iiSection 2052.002, Occupations Code, is amended by amending Subdivision (4) and adding Subdivision (8-a) to read as follows:

(4)ii"Commission" ["Commissioner"] means the Texas Commission of Licensing and Regulation [commissioner of licensing and regulation or the commissioner's designated representative].

(8-a)ii"Executive director" means the executive director of the department.

SECTIONi8.002.iiSubchapter A, Chapter 2052, Occupations Code, is amended by adding Section 2052.003 to read as follows:

Sec.i2052.003.iiAPPLICABILITY OF OTHER LAW. Section 51.401 does not apply to this chapter.

SECTIONi8.003.iiThe heading to Subchapter B, Chapter 2052, Occupations Code, is amended to read as follows:

SUBCHAPTERiB.iiPOWERS AND DUTIES [OF DEPARTMENT
AND COMMISSIONER]

SECTIONi8.004.iiSection 2052.052, Occupations Code, is amended to read as follows:

Sec.i2052.052.iiRULES. (a) The commission [commissioner] shall adopt reasonable and necessary rules to administer this chapter.

(b)iiThe commission [commissioner] may adopt rules:

1904 78th Legislature — Regular Session 74th Day

(1)iigoverning professional kickboxing contests and exhibitions; and

(2)iiestablishing reasonable qualifications for an applicant seeking a license from the department under this chapter.

SECTIONi8.005.iiSection 2052.054, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiThe commission [commissioner] may recognize, prepare, or administer continuing education programs for persons licensed under this chapter.

(c)iiSection 51.405 does not apply to this chapter.

SECTIONi8.006.iiSection 2052.103, Occupations Code, is amended to read as follows:

Sec.i2052.103.iiELIMINATION TOURNAMENT BOXING PROMOTER LICENSE APPLICATION REQUIREMENTS. (a) An applicant for an elimination tournament boxing promoter's license under this chapter must apply on a form furnished by the executive director [commissioner].

(b)iiAn application must be accompanied by an application fee [of not more than $1,000] and, if the applicant charges a fee for admission to the elimination tournament or awards a trophy, prize, including a prize of money, or other item of value of more than $50 to a contestant winning the elimination tournament:

(1)iia $50,000 surety bond subject to approval by the executive director [commissioner] and conditioned on the applicant's payment of:

(A)iithe tax imposed under Section 2052.151; and

(B)iia claim against the applicant as described by Section 2052.109(a)(3); and

(2)iiproof of not less than $10,000 accidental death or injury insurance coverage for each contestant participating in the elimination tournament.

SECTIONi8.007.iiSection 2052.251, Occupations Code, is amended to read as follows:

Sec.i2052.251.iiBOXING GLOVES. A boxing event contestant, other than an elimination tournament contestant under Subchapter E, shall wear eight-ounce boxing gloves, unless the commission [commissioner] by rule requires or permits a contestant to wear heavier gloves.

SECTIONi8.008.iiThe following laws are repealed:

(1)iiSection 2052.104, Occupations Code;

(2)iiSection 2052.112, Occupations Code; and

(3)iiSection 2052.301, Occupations Code.

ARTICLE 9. COURT INTERPRETERS

SECTIONi9.001.iiSection 57.041, Government Code, is amended by adding Subdivision (4-a) to read as follows:

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi9.002.iiSections 57.042(a), (c), (e), and (g), Government Code, are amended to read as follows:

(a)iiThe licensed court interpreter advisory board is established as an advisory board to the commission [department]. The board is composed of nine members appointed by the presiding officer of the commission, with the commission's approval [governor]. Members of the board serve staggered six-year terms, with the terms of one-third of the members expiring on February 1 of each odd-numbered year.

Wednesday, May 21, 2003 SENATE JOURNAL 1905

(c)iiThe presiding officer of the commission, with the commission's approval, [At the initial meeting of the board and at the first meeting after new members take office, the board] shall select from the board [its] members a presiding officer of the board to serve for two years.

(e)iiThe presiding officer of the commission, with the commission's approval, [commissioner] may remove a member of the board for inefficiency or neglect of duty in office. If a vacancy occurs on the board, the presiding officer of the commission, with the commission's approval, [governor] shall appoint a member who represents the same interests as the former member to serve the unexpired term.

(g)iiThe board shall advise the commission [commissioner] regarding the adoption of rules and the design of a licensing examination.

SECTIONi9.003.iiSections 57.043(a) and (b), Government Code, are amended to read as follows:

(a)iiThe executive director [commissioner] shall issue a court interpreter license to an applicant who:

(1)iican interpret for an individual who can hear but who does not comprehend English or communicate in English;

(2)iipasses the appropriate examination prescribed by the executive director [commissioner]; and

(3)iipossesses the other qualifications for the license required by this subchapter or by rules adopted under this subchapter.

(b)iiThe commission [commissioner] shall[:

[(1)]iiadopt rules relating to licensing under this subchapter[;] and the executive director shall

[(2)]iiprescribe all forms required under this subchapter.

SECTIONi9.004.iiSection 57.048, Government Code, is amended to read as follows:

Sec.i57.048.iiSUSPENSION AND REVOCATION OF LICENSES; REISSUANCE. (a) After a hearing, the commission [commissioner] shall suspend or revoke a court interpreter license on a finding that the individual:

(1)iimade a material misstatement in an application for a license;

(2)ii[wilfully] disregarded or violated this subchapter or a rule adopted under this subchapter; or

(3)ii[has been convicted of a felony or of any crime in which an essential element of the offense is misstatement, fraud, or dishonesty; or

[(4)]iiengaged in dishonorable or unethical conduct likely to deceive, defraud, or harm the public or a person for whom the interpreter interprets.

(b)iiThe executive director [commissioner] may reissue a license to an individual whose license has been revoked if the individual applies in writing to the department and shows good cause to justify reissuance of the license.

SECTIONi9.005.iiSection 57.041(3), Government Code, is repealed.

SECTIONi9.006.iiThe changes in law made by this article applying to members of the licensed court interpreter advisory board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to

1906 78th Legislature — Regular Session 74th Day

ARTICLEi10.iiCUSTOMER SERVICE INSPECTORS

SECTIONi10.001.iiSection 341.034(d), Health and Safety Code, is amended to read as follows:

(d)iiA person who inspects homes and businesses to identify potential or actual cross-connections or other contaminant hazards in public water systems must hold a license issued by the Texas Department of Licensing and Regulation [commission] under Chapter 51, Occupations [37, Water] Code, unless the person is licensed by the Texas State Board of Plumbing Examiners as a plumbing inspector or water supply protection specialist.

SECTIONi10.002.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Section 341.034(d), Health and Safety Code, performed by the Texas Commission on Environmental Quality immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the Texas Commission on Environmental Quality that relates to Section 341.034(d), Health and Safety Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(3)iia license or other document issued by the Texas Commission on Environmental Quality that relates to Section 341.034(d), Health and Safety Code, is considered a license or other document issued by the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(4)iia reference in law or an administrative rule to the Texas Commission on Environmental Quality that relates to Section 341.034(d), Health and Safety Code, means the Texas Department of Licensing and Regulation;

(5)iia complaint, investigation, or other proceeding before the Texas Commission on Environmental Quality that is related to Section 341.034(d), Health and Safety Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Commission on Environmental Quality in an action or proceeding to which the Texas Commission on Environmental Quality is a party;

(6)iiall money, contracts, leases, property, and obligations of the Texas Commission on Environmental Quality related to Section 341.034(d), Health and Safety Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Commission on Environmental Quality related to Section 341.034(d), Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Environmental Quality related to Section 341.034(d), Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation.

Wednesday, May 21, 2003 SENATE JOURNAL 1907

(b)iiBefore November 1, 2003, the Texas Commission on Environmental Quality may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Commission on Environmental Quality to the Texas Department of Licensing and Regulation to implement the transfer required by this article.

(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Environmental Quality shall continue to perform functions and activities under Section 341.034(d), Health and Safety Code, as if that section had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLEi11.iiELEVATORS, ESCALATORS, AND
RELATED EQUIPMENT

SECTIONi11.001.iiSection 754.011, Health and Safety Code, is amended by adding Subdivision (6-a) to read as follows:

(6-a)ii"Executive director" means the executive director of the department.

SECTIONi11.002.iiSections 754.012(a)-(c), Health and Safety Code, are amended to read as follows:

(a)iiThe elevator advisory board is composed of nine members appointed by the presiding officer of the commission, with the commission's approval, [commissioner] as follows:

(1)iia representative of the insurance industry or a certified elevator inspector;

(2)iia representative of elevator, escalator, and related equipment constructors;

(3)iia representative of owners or managers of buildings having fewer than six stories and having an elevator, an escalator, or related equipment;

(4)iia representative of owners or managers of buildings having six stories or more and having an elevator, an escalator, or related equipment;

(5)iia representative of independent elevator, escalator, and related equipment maintenance companies;

(6)iia representative of elevator, escalator, and related equipment manufacturers;

(7)iia representative of professional engineers or architects;

(8)iia public member; and

(9)iia public member with a physical disability.

(b)iiBoard members serve at the will of the commission [commissioner].

(c)iiThe presiding officer of the commission, with the commission's approval, [commissioner] shall appoint a presiding officer of the board to serve for two years.

SECTIONi11.003.iiSection 754.013, Health and Safety Code, is amended to read as follows:

Sec.i754.013.iiBOARD DUTIES.iiTo protect public safety and to identify and correct potential hazards, the board shall advise the commission [commissioner] on:

(1)iithe adoption of appropriate standards for the installation, alteration, operation, and inspection of elevators, escalators, and related equipment;

(2)iithe status of elevators, escalators, and related equipment used by the public in this state; and

(3)iiany other matter considered relevant by the commission [commissioner].

1908 78th Legislature — Regular Session 74th Day

SECTIONi11.004.iiThe heading to Section 754.014, Health and Safety Code, is amended to read as follows:

Sec.i754.014.iiSTANDARDS ADOPTED BY COMMISSION [COMMISSIONER].

SECTIONi11.005.iiSectionsi754.014(a)-(h) and (j), Health and Safety Code, are amended to read as follows:

(a)iiThe commission [commissioner] shall adopt standards for the installation, alteration, operation, and inspection of elevators, escalators, and related equipment used by the public in:

(1)iibuildings owned or operated by the state, a state-owned institution or agency, or a political subdivision of the state; and

(2)iibuildings that contain an elevator, an escalator, or related equipment that is open to the general public, including a hotel, motel, apartment house, boardinghouse, church, office building, shopping center, or other commercial establishment.

(b)iiStandards adopted by the commission [commissioner] may not contain requirements in addition to the requirements in the ASME Code A17.1 or ASME Code A17.3.

(c)iiStandards adopted by the commission [commissioner] must require elevators, escalators, and related equipment to comply with the installation requirements of the following, whichever is the least restrictive:

(1)iithe ASME Code A17.1 that was in effect on the date of installation of the elevators, escalators, and related equipment; or

(2)iian applicable municipal ordinance governing the installation of elevators, escalators, and related equipment that was in effect on the date of installation.

(d)iiStandards adopted by the commission [commissioner] must require elevators, escalators, and related equipment to comply with the installation requirements of the 1994 ASME Code A17.3 that contains minimum safety standards for all elevators, escalators, and related equipment, regardless of the date of installation.

(e)iiOn written request, the executive director [commissioner] shall grant a delay for compliance with the applicable ASME Code A17.1 or the 1994 ASME Code A17.3 until a specified time if compliance is not readily achievable, as that phrase is defined in the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.), or regulations adopted under that Act.

(f)iiOn written request, the executive director [commissioner] shall grant a delay until September 1, 2005, for compliance with the requirements for door restrictors or firefighter's service in the 1994 ASME Code A17.3 if those requirements were not included in the ASME Code A17.1 that was in effect on the date of installation of the elevator, escalator, or related equipment and that equipment was not subsequently installed by an owner of the elevator, escalator, or related equipment.

(g)iiThe executive director [commissioner] may grant a waiver of compliance with the applicable ASME Code A17.1 or the 1994 ASME Code A17.3 if the executive director [commissioner] finds that:

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(1)iithe building in which the elevator, escalator, or related equipment is located is a qualified historic building or facility or the noncompliance is due to structural components of the building; and

(2)iinoncompliance will not constitute a significant threat to passenger safety.

(h)iiThe executive director [commissioner] may grant a waiver of compliance with the firefighter's service provisions of the ASME Code A17.1 or the 1994 ASME Code A17.3 in an elevator that exclusively serves a vehicle parking garage in a building that:

(1)iiis used only for parking;

(2)iiis constructed of noncombustible materials; and

(3)iiis not greater than 75 feet in height.

(j)iiThe executive director [commissioner] may charge a reasonable fee as set by the commission for an application for waiver or delay. One application for a waiver or delay may contain all requests related to a particular building. A delay may not be granted indefinitely but must be granted to a specified time.

SECTIONi11.006.iiSection 754.015, Health and Safety Code, is amended to read as follows:

Sec.i754.015.iRULES.ii(a)iiThe commission [commissioner] by rule shall provide for:

(1)iithe inspection and certification once each calendar year of elevators, escalators, and related equipment covered by standards adopted under this subchapter;

(2)iithe enforcement of those standards;

(3)iithe certification of qualified persons as inspectors for the purposes of this subchapter; and

(4)iithe form of the inspection report and certificate of compliance.

(b)iiThe commission [commissioner] by rule may not require that:

(1)iiinspection be made more often than once per year of elevators, escalators, and related equipment; or

(2)iipersons post a bond or furnish insurance as a condition of certification[; and

[(3)iiinspection reports or certificates of compliance be placed in locations other than one provided in Section 754.019(4)].

SECTIONi11.007.iiSection 754.016, Health and Safety Code, is amended to read as follows:

Sec.i754.016.iiINSPECTION REPORTS [REPORT] AND CERTIFICATES [CERTIFICATE] OF COMPLIANCE.ii(a)iiInspection reports [An inspection report] and certificates [a certificate] of compliance required under this subchapter must cover all elevators, escalators, and related equipment in a building or structure appurtenant to the building, including a parking facility, that are owned by the same person or persons. [There shall be only one inspection report and one certificate of compliance for each building.]

(b)iiAn inspector shall date and sign an inspection report and shall issue the report to the building owner. The inspection report shall be on forms designated by the executive director [commissioner].

1910 78th Legislature — Regular Session 74th Day

(c)iiThe executive director [commissioner] shall date and sign a certificate of compliance and shall issue the certificate to the building owner. The certificate of compliance shall state:

(1)iithat the elevators, escalators, and related equipment have been inspected by a certified inspector and found by the inspector to be in compliance, except for any delays or waivers granted by the executive director [commissioner] and stated in the certificate;

(2)iithe date of the last inspection and the due date for the next inspection; and

(3)iicontact information at the department to report a violation of this subchapter.

(d)iiThe commission by rule shall:

(1)iispecify what information must be contained in a certificate of compliance;

(2)iidescribe the procedure by which a certificate of compliance is issued;

(3)iirequire that a certificate of compliance related to an elevator be posted in a publicly visible area of the building; and

(4)iidetermine what constitutes a "publicly visible area" under Subdivision (3).

SECTIONi11.008.iiSections 754.017(b) and (c), Health and Safety Code, are amended to read as follows:

(b)iiThe commission [commissioner] may not by rule prohibit an ASME-QEI-1 certified inspector who is registered with the department from inspecting under this subchapter an elevator, an escalator, or related equipment. A person assisting a certified inspector is not required to be ASME-QEI-1 certified.

(c)iiThe executive director [commissioner] may charge a [$15] fee to certified inspectors for registering with the department.

SECTIONi11.009.iiSections 754.019(a), (b), (d), and (e), Health and Safety Code, are amended to read as follows:

(a)iiThe owner of real property on which an elevator, an escalator, or related equipment covered by this subchapter is located shall:

(1)iihave the elevator, escalator, or related equipment inspected by an ASME-QEI-1 certified inspector in accordance with the commission's [commissioner's] rules;

(2)iiobtain inspection reports [an inspection report] from the inspector evidencing that all elevators, escalators, and related equipment in a building on the real property were inspected in accordance with this subchapter and rules adopted under this subchapter;

(3)iifile with the executive director [commissioner] a copy of each inspection report and a [$20] filing fee for each report, plus a fee [$5] for each elevator, escalator, or related equipment not later than the 60th day after the date on which an inspection is made under this subchapter;

(4)iidisplay the certificate of compliance:

(A)iiin a publicly visible area of the building, as determined by commission rule under Section 754.016, [the elevator mechanical room] if the certificate relates to an elevator;

Wednesday, May 21, 2003 SENATE JOURNAL 1911

(B)iiin the escalator box if the certificate relates to an escalator; or

(C)iiin a place designated by the executive director [commissioner] if the certificate relates to related equipment; and

(5)iidisplay the inspection report at the locations designated in Subdivision (4) until a certificate of compliance is issued by the executive director [commissioner].

(b)iiWhen an inspection report is filed with the executive director [commissioner], the owner shall submit to the executive director [commissioner]:

(1)iiverification that any deficiencies in the inspector's report have been remedied or that a bona fide contract to remedy the deficiencies has been entered into; or

(2)iiany application for delay or waiver of an applicable standard.

(d)iiFor the purpose of determining timely filing under Subsection (a)(3), an inspection report and fee are considered filed on the date of mailing by United States mail if properly addressed to the executive director [commissioner].

(e)iiIf the inspection report and fee required by Subsection (a)(3) are not timely filed, the executive director [commissioner] may charge the owner of the real property on which the elevator, escalator, or related equipment is located an additional [$100] fee for late filing.

SECTIONi11.010.iiSection 754.023, Health and Safety Code, is amended to read as follows:

Sec.i754.023.iiINVESTIGATION; LICENSE PROCEEDINGS; INJUNCTION. (a) If there is good cause for the executive director [commissioner] to believe that an elevator, an escalator, or related equipment on real property is dangerous or that an accident involving an elevator, an escalator, or related equipment occurred on the property and serious bodily injury or property damage resulted, the executive director [commissioner] may enter the property during regular business hours after notice to the owner, operator, or person in charge of the property to inspect the elevator, escalator, or related equipment or investigate the accident at no cost to the owner.

(b)iiThe executive director [commissioner] may enter real property during regular business hours after notice to the owner, operator, or person in charge of the property to verify, at no cost to the owner, whether an inspection report or certificate of compliance has been displayed as required under Section 754.019(a).

(c)iiThe commission [commissioner] may deny, suspend, or revoke the registration of any ASME-QEI-1 certified inspector for:

(1)iiobtaining registration with the executive director [commissioner] by fraud or false representation;

(2)iifalsifying any inspection report submitted to the executive director [commissioner]; or

(3)iiviolating this subchapter or a rule adopted under this subchapter.

(d)iiThe executive director [commissioner] is entitled to appropriate injunctive relief to prevent a violation or threatened violation of this subchapter or a rule adopted under this subchapter.

1912 78th Legislature — Regular Session 74th Day

(e)iiThe executive director [commissioner] may bring suit in a district court in Travis County or in the county in which the violation or threatened violation occurs. If requested, the attorney general shall represent the executive director [commissioner] in the suit.

SECTIONi11.011.iiSubchapter B, Chapter 754, Health and Safety Code, is amended by adding Section 754.025 to read as follows:

Sec.i754.025.iiAPPLICABILITY OF OTHER LAW. Sections 51.401 and 51.404, Occupations Code, do not apply to this subchapter.

SECTIONi11.012.iiThe following laws are repealed:

(1)iiSection 754.011(5), Health and Safety Code; and

(2)iiSection 754.019(f), Health and Safety Code.

SECTIONi11.013.iiNot later than March 1, 2004, the Texas Commission of Licensing and Regulation shall adopt the rules required by Sections 754.016 and 754.019(a), Health and Safety Code, as amended by this article.

SECTION 11.014. The changes in law made by this article apply only to an inspection report or certificate of compliance issued on or after the effective date of this Act. An inspection report or certificate issued before the effective date of this Act is covered by the law in effect when the report or certificate was issued and is valid until the renewal date of that report or certificate under the terms of the former law, and the former law is continued in effect for that purpose. On renewal, an inspection report or certificate is subject to Chapter 754, Health and Safety Code, as amended by this article.

SECTIONi11.015.iiThe changes in law made by this article applying to members of the elevator advisory board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLE 12.iiINDUSTRIALIZED HOUSING AND BUILDINGS

SECTIONi12.001.iiSection 1202.001, Occupations Code, is amended by amending Subdivision (2) and adding Subdivision (4-a) to read as follows:

(2)ii"Construction site office building" means a commercial structure that is:

(A)iinot open to the public; and

(B)iiused as an office at a commercial site by a person constructing a building, road, bridge, utility, or other infrastructure or improvement to real property ["Commissioner" means the commissioner of licensing and regulation].

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi12.002.iiSection 1202.003(a), Occupations Code, is amended to read as follows:

(a)iiAn industrialized building is a commercial structure that is:

(1)iiconstructed in one or more modules or constructed using one or more modular components built at a location other than the commercial [permanent] site; and

(2)iidesigned to be used as a commercial building when the module or the modular component is transported to the permanent site and erected or installed on a permanent foundation system.

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SECTIONi12.003.iiSection 1202.101, Occupations Code, is amended to read as follows:

Sec.i1202.101.iiRULES;iiORDERS.ii(a)iiThe commission [commissioner] shall adopt rules and issue orders as necessary to:

(1)iiensure compliance with the purposes of this chapter; and

(2)iiprovide for uniform enforcement of this chapter.

(b)iiThe commission [commissioner] shall adopt rules as appropriate to implement the council's actions, decisions, interpretations, and instructions.

SECTIONi12.004.iiSection 1202.102, Occupations Code, is amended to read as follows:

Sec.i1202.102.iiRULES PROVIDING FOR REGISTRATION AND REGULATION.iiThe commission [commissioner] by rule shall provide for registration and regulation of manufacturers or builders of industrialized housing or buildings.

SECTIONi12.005.iiSection 1202.104(a), Occupations Code, is amended to read as follows:

(a)iiThe commission shall set fees, in amounts sufficient to cover the costs of the inspections described by this chapter and the administration of this chapter, for:

(1)iithe registration of manufacturers or builders of industrialized housing or buildings;

(2)iithe inspection of industrialized housing or buildings [at the manufacturing facility]; and

(3)iithe issuance of decals or insignia required under Section 1202.204 or 1202.206.

SECTIONi12.006.iiSubchapter C, Chapter 1202, Occupations Code, is amended by adding Section 1202.106 to read as follows:

Sec.i1202.106.iiAPPLICABILITY OF OTHER LAW.iiSections 51.401 and 51.404 do not apply to this chapter.

SECTIONi12.007.iiSubchapter D, Chapter 1202, Occupations Code, is amended by adding Section 1202.1535 to read as follows:

Sec.i1202.1535.iiEFFECT OF BUILDING CODE AMENDMENT. (a) An industrialized building that bears an approved decal or insignia indicating that the building complies with the mandatory building codes and that has not been modified or altered is considered to be in compliance with a new mandatory building code adopted by the council or an amendment to a code approved by the council under Section 1202.152 or 1202.153.

(b)iiThe owner of an industrialized building that bears an approved decal or insignia indicating the building complies with the mandatory building codes and that is modified or altered after the date the council adopts a new mandatory building code or the council approves a building code amendment must ensure:

(1)iithe entire building complies with the mandatory building code or building code amendment if the cost of the modification or alteration to the building is at least 50 percent of the value of the modules or modular components used in the construction of the building; or

1914 78th Legislature — Regular Session 74th Day

(2)iithe modified or altered portion of the building complies with the mandatory building code or building code amendment if the cost of the modification or alteration is less than 50 percent of the value of the modules or modular components.

SECTIONi12.008.iiSection 1202.154, Occupations Code, is amended to read as follows:

Sec.i1202.154.iiDESIGN REVIEW. To ensure compliance with the mandatory building [construction] codes, the department or approved design review agency shall review all designs, plans, and specifications of industrialized housing and buildings in accordance with council interpretations and instructions.

SECTIONi12.009.iiSection 1202.156(b), Occupations Code, is amended to read as follows:

(b)iiWith reference to the standards and requirements of the mandatory building [construction] codes, the council shall determine, from an engineering performance standpoint, all questions concerning:

(1)iicode equivalency; or

(2)iialternative materials or methods of construction.

SECTIONi12.010.iiSection 1202.202, Occupations Code, is amended to read as follows:

Sec.i1202.202.iiDEPARTMENT [IN-PLANT] INSPECTIONS. (a) To ensure compliance with the mandatory building codes or approved designs, plans, and specifications, the department shall inspect the construction of industrialized housing and buildings [at the manufacturing facility]. The executive director [commissioner] may designate approved third-party inspectors to perform the inspections subject to the rules of the commission [commissioner].

(b)iiLocal building officials may witness department [in-plant] inspections to enable the local officials to make recommendations on inspection procedures to the council.

SECTIONi12.011.iiSection 1202.203, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiA municipal building official shall inspect all construction involving [at the permanent site of] industrialized housing and buildings to be located in the municipality to ensure compliance with designs, plans, and specifications, including inspection of:

(1)iithe construction of the foundation system; and

(2)iithe erection and installation of the modules or modular components on the [permanent] foundation.

(c)iiAn inspection under Subsection (a) shall be conducted:

(1)iiat the permanent site, if the inspection is of industrialized housing; and

(2)iiat the commercial site, if the inspection is of industrialized buildings.

SECTIONi12.012.iiSection 1202.204, Occupations Code, is amended to read as follows:

Sec.i1202.204.iiRULES PROVIDING FOR DECALS OR INSIGNIA. (a) The commission [commissioner] by rule shall provide for the placement of decals or insignia on each transportable modular section or modular component to indicate compliance with the mandatory building [construction] codes.

Wednesday, May 21, 2003 SENATE JOURNAL 1915

(b)iiThe commission by rule shall exempt a construction site office building from the requirements of this section.

SECTIONi12.013.iiSection 1202.252, Occupations Code, is amended to read as follows:

Sec.i1202.252.iiMUNICIPAL REGULATION OF INDUSTRIALIZED HOUSING AND BUILDINGS. (a) A municipality that regulates the on-site construction or installation of industrialized housing and buildings may:

(1)iirequire and review, for compliance with mandatory building [construction] codes, a complete set of designs, plans, and specifications bearing the council's stamp of approval for each installation of industrialized housing or buildings in the municipality;

(2)iirequire that all applicable local permits and licenses be obtained before construction begins on a building site;

(3)iirequire, in accordance with commission [commissioner] rules, that all modules or modular components bear an approved decal or insignia indicating inspection by the department [at the manufacturing facility]; and

(4)iiestablish procedures for the inspection of:

(A)iithe erection and installation of industrialized housing or buildings to be located in the municipality, to ensure compliance with mandatory building [construction] codes and commission [commissioner] rules; and

(B)iiall foundation and other on-site construction, to ensure compliance with approved designs, plans, and specifications.

(b)iiProcedures described by Subsection (a)(4) may require:

(1)iibefore occupancy, a final inspection or test in accordance with mandatory building [construction] codes; and

(2)iicorrection of any deficiency identified by the test or discovered in the final inspection.

SECTIONi12.014.iiSection 1202.301(b), Occupations Code, is amended to read as follows:

(b)iiA person may not construct, sell or offer to sell, lease or offer to lease, or transport over a street or highway of this state any industrialized housing or building, or modular section or component of a modular section, in violation of this chapter or a rule of the commission or order of the commission or executive director [commissioner].

SECTIONi12.015.iiSection 1202.302, Occupations Code, is amended to read as follows:

Sec.i1202.302.iiDENIAL OF CERTIFICATE; DISCIPLINARY ACTION. In addition to imposing sanctions allowed under Section 51.353, the commission [The commissioner] may deny, permanently revoke, or suspend for a definite period and specified location or geographic area a certificate of registration if the commission [commissioner] finds that the applicant or registrant:

(1)iiprovided false information on an application or other document filed with the department;

(2)iifailed to pay a fee or file a report required by the department for the administration or enforcement of this chapter;

1916 78th Legislature — Regular Session 74th Day

(3)iiengaged in a false, misleading, or deceptive act or practice as described by Subchapter E, Chapter 17, Business & Commerce Code; or

(4)iiviolated:

(A)iithis chapter;

(B)iia rule adopted by the commission or order issued by the commission or the executive director [commissioner] under this chapter; or

(C)iia decision, action, or interpretation of the council.

SECTIONi12.016.iiSection 1202.351(b), Occupations Code, is amended to read as follows:

(b)iiA person commits an offense if the person [knowingly and wilfully] violates this chapter or a published rule of the commission or order of the commission or the executive director [commissioner].

SECTIONi12.017.iiThe following laws are repealed:

(1)iiSection 1202.001(2), Occupations Code; and

(2)iiSection 1202.103, Occupations Code.

ARTICLE 13.iiIRRIGATORS

SECTIONi13.001.iiSection 1903.001, Occupations Code, is amended by amending Subdivisions (1) and (3) and adding Subdivision (2-a) to read as follows:

(1)ii"Commission" means the Texas [Natural Resource Conservation] Commission of Licensing and Regulation.

(2-a)ii"Department" means the Texas Department of Licensing and Regulation.

(3)ii"Executive director" means the executive director of the department [commission].

SECTIONi13.002.iiSection 1903.151(a), Occupations Code, is amended to read as follows:

(a)iiThe Texas Irrigators Advisory Council consists of nine members appointed by the presiding officer of the commission, with the commission's approval, as follows:

(1)iisix members who are irrigators, residents of this state, experienced in the irrigation business, and familiar with irrigation methods and techniques; and

(2)iithree public members.

SECTIONi13.003.iiSection 1903.155, Occupations Code, is amended to read as follows:

Sec.i1903.155.iiPRESIDING OFFICER. The presiding officer of the commission, with the commission's approval, [council] shall appoint a council member to serve for two years as [elect a] presiding officer of the council [by a majority vote at the first meeting each fiscal year].

SECTIONi13.004.iiThe following laws are repealed:

(1)iiSection 1903.052, Occupations Code;

(2)iiSection 1903.055, Occupations Code;

(3)iiSubchapter C, Chapter 1903, Occupations Code;

(4)iiSubchapter E, Chapter 1903, Occupations Code;

(5)iiSection 1903.255, Occupations Code;

(6)iiSection 1903.304, Occupations Code;

(7)iiSection 1903.351, Occupations Code;

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(8)iiSection 1903.352, Occupations Code; and

(9)iiSections 1903.353(b) and (c), Occupations Code.

SECTIONi13.005.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Chapter 1903, Occupations Code, performed by the Texas Commission on Environmental Quality immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the Texas Commission on Environmental Quality that relates to Chapter 1903, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(3)iia license or other document issued by the Texas Commission on Environmental Quality that relates to Chapter 1903, Occupations Code, is considered a license or other document issued by the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(4)iia reference in law or an administrative rule to the Texas Commission on Environmental Quality that relates to Chapter 1903, Occupations Code, means the Texas Department of Licensing and Regulation;

(5)iia complaint, investigation, or other proceeding before the Texas Commission on Environmental Quality that is related to Chapter 1903, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Commission on Environmental Quality in an action or proceeding to which the Texas Commission on Environmental Quality is a party;

(6)iiall money, contracts, leases, property, and obligations of the Texas Commission on Environmental Quality related to Chapter 1903, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Commission on Environmental Quality related to Chapter 1903, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Environmental Quality related to Chapter 1903, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.

(b)iiBefore November 1, 2003, the Texas Commission on Environmental Quality may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Commission on Environmental Quality to the Texas Department of Licensing and Regulation to implement the transfer required by this article.

(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Environmental Quality shall continue to perform functions and activities under Chapter 1903, Occupations Code, as if that chapter had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLEi14.iiPERSONNEL EMPLOYMENT SERVICES

SECTIONi14.001.iiSection 2501.001, Occupations Code, is amended by amending Subdivision (2) and adding Subdivisions (3-a) and (4-a) to read as follows:

1918 78th Legislature — Regular Session 74th Day

(2)ii"Commission" ["Commissioner"] means the Texas Commission of Licensing and Regulation [commissioner of licensing and regulation].

(3-a)ii"Department" means the Texas Department of Licensing and Regulation.

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi14.002.iiSection 2501.152, Occupations Code, is amended to read as follows:

Sec.i2501.152.iiCOMPLAINT AND INVESTIGATION. (a) A person [by sworn affidavit] may file with the executive director [commissioner] a complaint alleging a violation of Section 2501.102.

(b)iiOn receipt of a complaint, the executive director [commissioner] shall investigate the alleged violation and may:

(1)iiinspect any records relevant to the complaint; and

(2)iisubpoena those records and any necessary witnesses.

SECTIONi14.003.iiSections 2501.153(a) and (c), Occupations Code, are amended to read as follows:

(a)iiIf the executive director [commissioner] determines as a result of an investigation that a violation of Section 2501.102 may have occurred, the commission [commissioner] shall hold a hearing [not later than the 45th day after the date the complaint was filed under Section 2501.152].

(c)iiThe commission [commissioner] shall render a decision on the alleged violation [not later than the eighth day] after [the date] the hearing is concluded.

SECTIONi14.004.iiSection 2501.154, Occupations Code, is amended to read as follows:

Sec.i2501.154.iiSANCTIONS. (a) If, after a hearing, the commission [commissioner] determines that a personnel service has violated Section 2501.102, the commission [commissioner] may, as appropriate:

(1)iiissue a warning to the personnel service; or

(2)iisuspend or revoke the certificate of authority issued to the personnel service.

(b)iiIf, after a hearing, the commission [commissioner] determines that a personnel service has violated Section 2501.102, the commission [commissioner] may award the complainant an amount equal to the amount of the fee charged by the personnel service.

SECTIONi14.005.iiSections 2501.058 and 2501.155, Occupations Code, are repealed.

ARTICLEi15.iiPROPERTY TAX CONSULTANTS

SECTIONi15.001.iiSection 1152.001, Occupations Code, is amended by adding Subdivision (3-a) to read as follows:

(3-a)ii"Executive director" means the executive director of the department.

SECTIONi15.002.iiThe heading to Subchapter B, Chapter 1152, Occupations Code, is amended to read as follows:

SUBCHAPTER B. DUTIES OF COMMISSION, EXECUTIVE
DIRECTOR, [COMMISSIONER] AND DEPARTMENT

SECTIONi15.003.iiSection 1152.051, Occupations Code, is amended to read as follows:

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Sec.i1152.051.iiSTANDARDS OF CONDUCT FOR REGISTRANTS. The commission [commissioner] by rule shall establish standards of practice, conduct, and ethics for registrants.

SECTIONi15.004.iiSections 1152.102(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe council is composed of six members appointed by the presiding officer of the commission, with the commission's approval.

(b)iiThe presiding officer of the commission may appoint not more than two members who are qualified for an exemption under Section 1152.002(a)(3).

SECTIONi15.005.iiSection 1152.104(b), Occupations Code, is amended to read as follows:

(b)iiIf a vacancy occurs during a member's term, the presiding officer of the commission, with the commission's approval, [commissioner] shall appoint to fill the unexpired part of the term a replacement who meets the qualifications of the vacated office.

SECTIONi15.006.iiSection 1152.105, Occupations Code, is amended to read as follows:

Sec.i1152.105.iiPRESIDING OFFICER. The presiding officer of the commission, with the commission's approval, [Before March 1 of each year, the council] shall appoint [elect] a member of the council to serve as presiding officer of the council for two years [until the last day of February of the following year].

SECTIONi15.007.iiSection 1152.108, Occupations Code, is amended to read as follows:

Sec.i1152.108.iiCOUNCIL POWERS. The council shall:

(1)iirecommend to the commission [commissioner] standards of practice, conduct, and ethics for registrants to be adopted under this chapter;

(2)iirecommend to the commission amounts for the fees it may set under this chapter;

(3)iirecommend to the commission [commissioner] contents for the senior property tax consultant registration examination and standards of acceptable performance;

(4)iiassist and advise the commission [commissioner] in recognizing continuing education programs and educational courses for registrants; and

(5)iiadvise the commission [commissioner] in establishing educational requirements for initial applicants.

SECTIONi15.008.iiSection 1152.155(a), Occupations Code, is amended to read as follows:

(a)iiTo be eligible for registration, an applicant must:

(1)iibe at least 18 years of age;

(2)iihold a high school diploma or its equivalent;

(3)iipay the fees required by the commission;

(4)iihave a place of business in this state or designate a resident of this state as the applicant's agent for service of process; and

(5)iimeet any additional qualifications required by this chapter or by the commission [commissioner] under this chapter or Chapter 51.

1920 78th Legislature — Regular Session 74th Day

SECTIONi15.009.iiSection 1152.160, Occupations Code, is amended to read as follows:

Sec.i1152.160.iiSENIOR PROPERTY TAX CONSULTANT REGISTRATION EXAMINATION. (a) The executive director [commissioner] shall:

(1)iiadopt an examination for registration as a senior property tax consultant; and

(2)iiestablish the standards for passing the examination.

(b)iiThe department shall offer the examination at times and places designated by the executive director [commissioner].

(c)iiTo be eligible to take the examination, an applicant must pay to the department an examination fee. [The commissioner by rule may establish conditions for refunding the examination fee to an applicant who does not take the examination.]

(d)iiThe examination must:

(1)iitest the applicant's knowledge of:

(A)iiproperty taxation;

(B)iithe property tax system;

(C)iiproperty tax administration;

(D)iiethical standards; and

(E)iigeneral principles of appraisal, accounting, and law as they relate to property tax consulting services; and

(2)iibe graded according to rules adopted by the commission [commissioner].

SECTIONi15.010.iiSection 1152.201, Occupations Code, is amended to read as follows:

Sec.i1152.201.iiTERM OF CERTIFICATE OF REGISTRATION. Except as otherwise provided by the commission, a certificate of registration expires on the first [second] anniversary of the date of issuance.

SECTIONi15.011.iiSection 1152.202(a), Occupations Code, is amended to read as follows:

(a)iiThe executive director [commissioner] shall issue to an eligible registrant a certificate of renewal of registration on the timely receipt of the required renewal fee. [The certificate expires on the second anniversary of the date of issuance.]

SECTIONi15.012.iiSection 1152.204, Occupations Code, is amended to read as follows:

Sec.i1152.204.iiRECOGNITION OF EDUCATIONAL PROGRAMS AND COURSES. (a) The commission [commissioner] by rule shall recognize appropriate continuing education programs for registrants.

(b)iiThe commission [commissioner] shall recognize a continuing education course, including a course on the legal issues and law related to property tax consulting services, that is:

(1)iiapproved by the Texas Real Estate Commission or the Texas Appraiser Licensing and Certification Board; and

(2)iicompleted by a registrant who also holds:

(A)iian active real estate broker license or an active real estate salesperson license under Chapter 1101; or

Wednesday, May 21, 2003 SENATE JOURNAL 1921

(B)iian active real estate appraiser license or certificate under Chapter 1103.

(c)iiThe commission [commissioner] may recognize an educational program or course:

(1)iirelated to property tax consulting services; and

(2)iioffered or sponsored by a public provider or a recognized private provider, including:

(A)iithe comptroller;

(B)iithe State Bar of Texas;

(C)iithe Texas Real Estate Commission;

(D)iian institution of higher education that meets program and accreditation standards comparable to those for public institutions of higher education as determined by the Texas Higher Education Coordinating Board; or

(E)iia nonprofit and voluntary trade association, institute, or organization:

(i)iiwhose membership consists primarily of persons who represent property owners in property tax or transactional tax matters;

(ii)iithat has written experience and examination requirements for membership or for granting professional designation to its members; and

(iii) that subscribes to a code of professional conduct or ethics.

(d)iiThe commission [commissioner] may recognize a private provider of an educational program or course if the provider:

(1)iiapplies to the department on a printed form prescribed by the executive director [commissioner]; and

(2)iipays in the amounts set by the commission:

(A)iia nonrefundable application fee; and

(B)iian educational provider's fee.

(e)iiThe department shall refund the educational provider's fee if the commission [commissioner] does not recognize the provider's educational program or course.

SECTIONi15.013.iiSection 1152.251, Occupations Code, is amended to read as follows:

Sec.i1152.251.iiDISCIPLINARY POWERS OF COMMISSION [COMMISSIONER]. After a hearing, the commission [commissioner] may deny a certificate of registration and may impose an administrative sanction or penalty and seek injunctive relief and a civil penalty against a registrant as provided by Chapter 51 for:

(1)iia violation of this chapter or a rule applicable to the registrant adopted by the commission [commissioner] under this chapter;

(2)iigross incompetency in the performance of property tax consulting services;

(3)iidishonesty or fraud committed while performing property tax consulting services; or

(4)iia violation of the standards of ethics adopted by the commission [commissioner].

SECTIONi15.014.iiThe following laws are repealed:

(1)iiSection 1152.001(2), Occupations Code;

1922 78th Legislature — Regular Session 74th Day

(2)iiSection 1152.161, Occupations Code;

(3)iiSection 1152.163, Occupations Code;

(4)iiSections 1152.202(b) and (c), Occupations Code; and

(5)iiEffective March 1, 2004, Section 1152.203, Occupations Code.

SECTIONi15.015.iiThe change in law made by this article to Section 1152.201, Occupations Code, applies only to a certificate of registration issued or renewed on or after the effective date of this Act. A certificate of registration issued or renewed before the effective date of this Act is governed by that section as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTIONi15.016.iiThe changes in law made by this article applying to members of the Property Tax Consultants Advisory Council do not affect the entitlement of a member serving on the council immediately before September 1, 2003, to continue to serve and function as a member of the council for the remainder of the member's term. Those changes in law apply only to a member appointed on or after Septemberi1, 2003.

ARTICLEi16.iiSERVICE CONTRACT PROVIDERS

SECTIONi16.001.iiSection 1304.002, Occupations Code, is amended by adding Subdivision (5-a) to read as follows:

(5-a)ii"Executive director" means the executive director of the department.

SECTIONi16.002.iiSection 1304.051, Occupations Code, is amended to read as follows:

Sec.i1304.051.iiSERVICE CONTRACT PROVIDERS ADVISORY BOARD. (a) The Service Contract Providers Advisory Board consists of six members appointed by the presiding officer of the commission, with the commission's approval, [commissioner] and one ex officio nonvoting member.

(b)iiOf the appointed members:

(1)iitwo must be officers, directors, or employees of a provider of service contracts that have been approved by the executive director [commissioner];

(2)iitwo must be officers, directors, or employees of a retail outlet or other entity in this state that provides to consumers service contracts approved by the executive director [commissioner] for sale to consumers;

(3)iione must be an officer, director, or employee of an entity authorized by the Texas Department of Insurance to sell reimbursement insurance policies; and

(4)iione must be a resident of this state who holds, as a consumer, a service contract that is in force in this state on the date of the member's appointment and was issued by a provider registered under this chapter.

(c)iiThe executive director [commissioner] or the executive director's [commissioner's] designee serves as an ex officio nonvoting member of the advisory board.

SECTIONi16.003.iiSection 1304.052(a), Occupations Code, is amended to read as follows:

(a)iiThe advisory board shall advise the commission [commissioner] in adopting rules and in administering and enforcing this chapter.

SECTIONi16.004.iiSection 1304.053(b), Occupations Code, is amended to read as follows:

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(b)iiIf a vacancy occurs during an appointed member's term, the presiding officer of the commission [commissioner] shall fill the vacancy for the remainder of the unexpired term with a person who represents the same interests as the predecessor.

SECTIONi16.005.iiSection 1304.054, Occupations Code, is amended to read as follows:

Sec.i1304.054.iiPRESIDING OFFICER. The presiding officer of the commission [commissioner] shall designate one member of the advisory board to serve as presiding officer of the board for two years.

SECTIONi16.006.iiSections 1304.103(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe executive director [commissioner] shall develop a tiered schedule of annual registration fees under which a provider's registration fee is based on the number of service contracts the provider sold in this state during the preceding 12-month period.

(b)iiThe commission shall set the amounts of the fees to cover the costs of administering this chapter. [The maximum fee may not exceed $2,000.]

SECTIONi16.007.iiSubchapter C, Chapter 1304, Occupations Code, is amended by adding Section 1304.105 to read as follows:

Sec.i1304.105.iiRENEWAL.iiThe commission shall adopt rules regarding the renewal of a registration issued under this chapter.

SECTIONi16.008.iiSections 1304.151(a)-(c) and (e), Occupations Code, are amended to read as follows:

(a)iiTo ensure the faithful performance of a provider's obligations to its service contract holders, each provider must:

(1)iiinsure the provider's service contracts under a reimbursement insurance policy issued by an insurer authorized to transact insurance in this state or by a surplus lines insurer eligible to place coverage in this state under Chapter 981 [Article 1.14-2], Insurance Code;

(2)iimaintain a funded reserve account covering the provider's obligations under its service contracts that are issued and outstanding in this state and place in trust with the executive director [commissioner] a financial security deposit consisting of:

(A)iia surety bond issued by an authorized surety;

(B)iisecurities of the type eligible for deposit by an authorized insurer in this state;

(C)iia statutory deposit of cash or cash equivalents;

(D)iia letter of credit issued by a qualified financial institution; or

(E)iianother form of security prescribed by rules adopted by the commission [commissioner]; or

(3)iimaintain, or have a parent company that maintains, a net worth or stockholders' equity of at least $100 million.

(b)iiIf the provider ensures its obligations under Subsection (a)(2), the amount maintained in the reserve account may not be less than an amount equal to 40 percent of the gross consideration the provider received from consumers from the sale of all

1924 78th Legislature — Regular Session 74th Day

(1)ii$25,000; or

(2)iian amount equal to five percent of the gross consideration the provider received from consumers from the sale of all service contracts issued and outstanding in this state, minus any claims paid.

(c)iiIf the provider ensures its obligations under Subsection (a)(3), the provider must give to the executive director [commissioner] on request:

(1)iia copy of the provider's or the provider's parent company's most recent Form 10-K or Form 20-F filed with the Securities and Exchange Commission within the preceding calendar year; or

(2)iiif the provider or the provider's parent company does not file with the Securities and Exchange Commission, a copy of the provider's or the provider's parent company's audited financial statements showing a net worth of the provider or its parent company of at least $100 million.

(e)iiThe executive director [commissioner] may not require a provider to meet any additional financial security requirement.

SECTIONi16.009.iiSection 1304.201(a), Occupations Code, is amended to read as follows:

(a)iiOn a finding that a ground for disciplinary action exists under this chapter, the commission [commissioner] may impose an administrative sanction, including an administrative penalty, as provided by Chapter 51.

SECTIONi16.010.iiThe following laws are repealed:

(1)iiSection 1304.002(3), Occupations Code; and

(2)iiSection 1304.201(b), Occupations Code.

SECTIONi16.011.iiThe changes in law made by this article applying to members of the Service Contract Providers Advisory Board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLEi17.iiSTAFF LEASING SERVICES

SECTIONi17.001.iiSection 91.001, Labor Code, is amended by adding Subdivision (8-a) to read as follows:

(8-a)ii"Executive director" means the executive director of the department.

SECTIONi17.002.iiSections 91.002(a) and (b), Labor Code, are amended to read as follows:

(a)iiThe commission [commissioner] shall adopt rules as necessary to administer this chapter.

(b)iiEach person who offers staff leasing services is subject to this chapter and the rules adopted by the commission [commissioner].

SECTIONi17.003.iiSubchapter A, Chapter 91, Labor Code, is amended by adding Section 91.008 to read as follows:

Sec.i91.008.iiAPPLICABILITY OF CONTINUING EDUCATION LAW.iiSection 51.405, Occupations Code, does not apply to this chapter.

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SECTIONi17.004.iiSection 91.016(b), Labor Code, is amended to read as follows:

(b)iiA license issued or renewed by the department under this chapter is valid for one year [two years] from the date of the issuance or renewal. The department shall renew a license on receipt of a complete renewal application form and payment of the license renewal fee.

SECTIONi17.005.iiSection 91.017(a), Labor Code, is amended to read as follows:

(a)iiEach applicant for an original or renewal staff leasing services company license shall pay to the department before the issuance of the license or license renewal a fee set by the commission by rule [in an amount not to exceed $6,000 for the two-year license period].

SECTIONi17.006.iiSections 91.018(b) and (d), Labor Code, are amended to read as follows:

(b)iiA license holder may change the license holder's licensed name at any time by notifying the department and paying a fee for each change of name. The commission by rule shall set the fee for a name change [in an amount not to exceed $50]. A license holder may change the license holder's name on renewal of the license without the payment of the name change fee.

(d)iiA license holder may amend the name specified in its license to add a trade name, trademark, service mark, or parent company name. An amendment made under this subsection must comply with the requirements imposed under Subsection (a). The department may charge a fee [not to exceed $50] for processing of such an amendment.

SECTIONi17.007.iiSection 91.019(a), Labor Code, is amended to read as follows:

(a)iiThe commission [commissioner] by rule shall provide for the issuance of a limited license to a person who seeks to offer limited staff leasing services in this state.

SECTIONi17.008.iiSection 91.020, Labor Code, is amended to read as follows:

Sec.i91.020.iiGROUNDS FOR DISCIPLINARY ACTION. [(a)] The department may take disciplinary action against a license holder on any of the following grounds:

(1)ii[being convicted or having a controlling person of the license holder who is convicted of:

[(A)iibribery, fraud, or intentional or material misrepresentation in obtaining, attempting to obtain, or renewing a license;

[(B)iia crime that relates to the operation of a staff leasing service or the ability of the license holder or any controlling person of the license holder to operate a staff leasing service;

[(C)iia crime that relates to the classification, misclassification, or under-reporting of employees under Subtitle A, Title 5;

[(D)iia crime that relates to the establishment or maintenance of a self-insurance program, whether health insurance, workers' compensation insurance, or other insurance; or

1926 78th Legislature — Regular Session 74th Day

[(E)iia crime that relates to fraud, deceit, or misconduct in the operation of a staff leasing service;

[(2)]iiengaging in staff leasing services or offering to engage in the provision of staff leasing services without a license;

(2)i[(3)]iitransferring or attempting to transfer a license issued under this chapter;

(3)i[(4)]iiviolating this chapter or any order or rule issued by the executive director [department] or commission [commissioner] under this chapter;

(4)i[(5)]iifailing after the 31st day after the date on which a felony conviction of a controlling person is final to notify the department in writing of the conviction;

(5)i[(6)]iifailing to cooperate with an investigation, examination, or audit of the license holder's records conducted by the license holder's insurance company or the insurance company's designee, as allowed by the insurance contract or as authorized by law by the Texas Department of Insurance;

(6)i[(7)]iifailing after the 31st day after the effective date of a change in ownership, principal business address, or the address of accounts and records to notify the department and the Texas Department of Insurance of the change;

(7)i[(8)]iifailing to correct any tax filings or payment deficiencies within a reasonable time as determined by the executive director [commissioner];

(8)i[(9)]iirefusing, after reasonable notice, to meet reasonable health and safety requirements within the license holder's control and made known to the license holder by a federal or state agency;

(9)i[(10)]iibeing delinquent in the payment of the license holder's insurance premiums other than those subject to a legitimate dispute;

(10)i[(11)]iibeing delinquent in the payment of any employee benefit plan premiums or contributions other than those subject to a legitimate dispute;

(11)i[(12)]iiknowingly making a material misrepresentation to an insurance company or to the department or other governmental agency;

(12)i[(13)]iifailing to maintain the net worth requirements required under Section 91.014; or

(13)i[(14)]iiusing staff leasing services to avert or avoid an existing collective bargaining agreement.

[(b)iiFor purposes of this section, "conviction" includes a plea of nolo contendere or a finding of guilt, regardless of adjudication.]

SECTIONi17.009.iiSection 91.041(c), Labor Code, is amended to read as follows:

(c)iiThe commission [commissioner] by rule may require a license holder to file other reports that are reasonably necessary for the implementation of this chapter.

SECTIONi17.010.iiThe following laws are repealed:

(1)iiSection 91.001(5), Labor Code; and

(2)iiSection 91.021, Labor Code.

Wednesday, May 21, 2003 SENATE JOURNAL 1927

SECTIONi17.011.iiThe change in law made by this article to Section 91.016(b), Labor Code, applies only to a license issued or renewed on or after January 1, 2004. A license issued or renewed before January 1, 2004, is governed by that section as it existed immediately before that date, and that law is continued in effect for that purpose.

ARTICLEi18.iiTALENT AGENCIES

SECTIONi18.001.iiSection 2105.001, Occupations Code, is amended by amending Subdivision (2) and adding Subdivision (3-a) to read as follows:

(2)ii"Commission" ["Commissioner"] means the Texas Commission of Licensing and Regulation [commissioner of licensing and regulation].

(3-a)ii"Executive director" means the executive director of the department.

SECTIONi18.002.iiSection 2105.002, Occupations Code, is amended to read as follows:

Sec.i2105.002.iiPOWERS AND DUTIES [OF DEPARTMENT]. (a) The executive director [department] shall[:

[(1)]iiprescribe application forms for original and renewal certificates of registration.

(b)iiThe commission shall:[;]

(1)i[(2)]iiset application and registration fees in amounts that are reasonable and necessary to defray the costs of administering this chapter; and

(2)i[(3)]iiadopt rules as necessary to implement this chapter.

(c)i[(b)]iiThe commission [department] may[:

[(1)]iiadopt rules as necessary to administer the registration program created under this chapter.

(d)iiThe department may[; and

[(2)]iitake other action as necessary to enforce this chapter.

SECTIONi18.003.iiSubchapter A, Chapter 2105, Occupations Code, is amended by adding Section 2105.003 to read as follows:

Sec.i2105.003.iiAPPLICABILITY OF OTHER LAW.iiSection 51.405 does not apply to this chapter.

SECTIONi18.004.iiSection 2105.053, Occupations Code, is amended to read as follows:

Sec.i2105.053.iiREGISTRATION FEE.iiThe department may charge a talent agency a reasonable fee [not to exceed $100] to cover the cost of filing a registration statement or an update of a registration statement.

SECTIONi18.005.iiSection 2105.104, Occupations Code, is amended to read as follows:

Sec.i2105.104.iiAGENCY RECORDS.iiA certificate holder shall maintain records relating to the operation of the talent agency as required by commission [department] rule.

SECTIONi18.006.iiSection 2105.105(b), Occupations Code, is amended to read as follows:

(b)iiFunds deposited under this section may be disbursed only as prescribed by commission [department] rule.

SECTIONi18.007.iiThe following laws are repealed:

(1)iiSections 2105.055(b) and (c), Occupations Code;

1928 78th Legislature — Regular Session 74th Day

(2)iiSections 2105.056(a), (b), and (c), Occupations Code; and

(3)iiSection 2105.252, Occupations Code.

ARTICLE 19. TEMPORARY COMMON WORKER EMPLOYERS

SECTIONi19.001.iiSection 92.002, Labor Code, is amended by adding Subdivision (4-a) to read as follows:

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi19.002.iiSubchapter A, Chapter 92, Labor Code, is amended by adding Section 92.004 to read as follows:

Sec.i92.004.iiAPPLICABILITY OF OTHER LAW. Section 51.405, Occupations Code, does not apply to this chapter.

SECTIONi19.003.iiSection 92.022(c), Labor Code, is amended to read as follows:

(c)iiInformation received by the commission [commissioner] or department under this section is privileged and confidential and is for the exclusive use of the commission [commissioner] or department. The information may not be disclosed to any other person except on the entry of a court order requiring disclosure or on the written consent of a person under investigation who is the subject of the records.

SECTIONi19.004.iiThe following laws are repealed:

(1)iiSection 92.002(2), Labor Code; and

(2)iiSections 92.015(b) and (c), Labor Code.

ARTICLE 20. TRANSPORTATION SERVICE PROVIDERS

SECTIONi20.001.iiSection 2401.001(2), Occupations Code, is amended to read as follows:

(2)ii"Department" means the [Texas] Department of Public Safety [Licensing and Regulation].

SECTIONi20.002.iiThe heading to Subchapter B, Chapter 2401, Occupations Code, is amended to read as follows:

SUBCHAPTER B. POWERS AND DUTIES [OF COMMISSION,
COMMISSIONER, AND DEPARTMENT]

SECTIONi20.003.iiSection 2401.052, Occupations Code, is amended to read as follows:

Sec.i2401.052.iiEXAMINATION OR AUDIT. (a) To administer this chapter, the department may:

(1)iiexamine:

(A)iia record maintained under Section 2401.152; or

(B)iia record or object the department determines is necessary to conduct a complete examination; or

(2)iiquestion under oath any person who[:

[(A)]iiis associated with the business of a transportation service provider[; or

[(B)iiclaims the person was negatively affected by a violation of this chapter committed by a transportation service provider].

(b)iiThe department may periodically audit the business records of a transportation service provider [registered under this chapter].

SECTIONi20.004.iiSection 2401.251, Occupations Code, is amended to read as follows:

Wednesday, May 21, 2003 SENATE JOURNAL 1929

Sec.i2401.251.iiCIVIL PENALTY. A transportation service provider who knowingly violates this chapter [or a rule adopted under this chapter] is liable for a civil penalty of not less than $100 or more than $500 for each violation.

SECTIONi20.005.iiSection 2401.253, Occupations Code, is amended to read as follows:

Sec.i2401.253.iiAUTHORITY TO INVESTIGATE AND FILE COMPLAINT. (a) The department [commissioner, with the assistance of the Texas Department of Public Safety,] may investigate a violation of this chapter [or a rule adopted under this chapter].

(b)iiAny [The commissioner or any] law enforcement agency may file a complaint with:

(1)iithe district attorney of Travis County; or

(2)iithe prosecuting attorney of the county in which a violation is alleged to have occurred.

SECTIONi20.006.iiThe following laws are repealed:

(1)iiSection 2401.001(1), Occupations Code;

(2)iiSection 2401.051, Occupations Code;

(3)iiSection 2401.053, Occupations Code;

(4)iiSection 2401.054, Occupations Code;

(5)iiSubchapter C, Chapter 2401, Occupations Code;

(6)iiSection 2401.151, Occupations Code; and

(7)iiSubchapter E, Chapter 2401, Occupations Code.

SECTIONi20.007.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Chapter 2401, Occupations Code, performed by the Texas Department of Licensing and Regulation immediately before that date are transferred to the Department of Public Safety;

(2)iia reference in law or an administrative rule to the Texas Department of Licensing and Regulation that relates to Chapter 2401, Occupations Code, means the Department of Public Safety;

(3)iia complaint, investigation, or other proceeding before the Texas Department of Licensing and Regulation that is related to Chapter 2401, Occupations Code, is transferred without change in status to the Department of Public Safety, and the Department of Public Safety assumes, as appropriate and without a change in status, the position of the Texas Department of Licensing and Regulation in an action or proceeding to which the Texas Department of Licensing and Regulation is a party;

(4)iiall money, contracts, leases, property, and obligations of the Texas Department of Licensing and Regulation related to Chapter 2401, Occupations Code, are transferred to the Department of Public Safety;

(5)iiall property in the custody of the Texas Department of Licensing and Regulation related to Chapter 2401, Occupations Code, is transferred to the Department of Public Safety; and

(6)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Department of Licensing and Regulation related to Chapter 2401, Occupations Code, is transferred to the Department of Public Safety.

1930 78th Legislature — Regular Session 74th Day

(b)iiAn offense or other violation related to Chapter 2401, Occupations Code, committed before the effective date of this Act is covered by the law as it existed on the date on which the offense or other violation was committed, and the former law is continued in effect for that purpose.

(c)iiBefore November 1, 2003, the Texas Department of Licensing and Regulation may agree with the Department of Public Safety to transfer any property of the Texas Department of Licensing and Regulation to the Department of Public Safety to implement the transfer required by this article.

(d)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Department of Licensing and Regulation shall continue to perform functions and activities under Chapter 2401, Occupations Code, as if that chapter had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLE 21. UNDERGROUND STORAGE TANK OPERATORS

SECTIONi21.001.iiSection 26.451, Water Code, is amended by adding Subdivision (3-a) to read as follows:

(3-a)ii"Department" means the Texas Department of Licensing and Regulation.

SECTIONi21.002.iiSections 26.452(a) and (b), Water Code, are amended to read as follows:

(a)iiA person who offers to undertake, represents that the person is able to undertake, or undertakes to install, repair, or remove an underground storage tank must hold a registration issued by the department [commission] under Chapter 51, Occupations Code [37]. If the person is a partnership or joint venture, it need not register in its own name if each partner or joint venture is registered.

(b)iiAn underground storage tank contractor must have an on-site supervisor who is licensed by the department [commission] under Chapter 51, Occupations Code, [37] at the site at all times during the critical junctures of the installation, repair, or removal.

SECTIONi21.003.iiSection 26.456(a), Water Code, is amended to read as follows:

(a)iiA person supervising the installation, repair, or removal of an underground storage tank must hold a license issued by the department [commission] under Chapter 51, Occupations Code [37].

SECTIONi21.004.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Subchapter K, Chapter 26, Water Code, performed by the Texas Commission on Environmental Quality immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the Texas Commission on Environmental Quality that relates to Subchapter K, Chapter 26, Water Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(3)iia license or other document issued by the Texas Commission on Environmental Quality that relates to Subchapter K, Chapter 26, Water Code, is considered a license or other document issued by the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

Wednesday, May 21, 2003 SENATE JOURNAL 1931

(4)iia reference in law or an administrative rule to the Texas Commission on Environmental Quality that relates to Subchapter K, Chapter 26, Water Code, means the Texas Department of Licensing and Regulation;

(5)iia complaint, investigation, or other proceeding before the Texas Commission on Environmental Quality that is related to Subchapter K, Chapter 26, Water Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Commission on Environmental Quality in an action or proceeding to which the Texas Commission on Environmental Quality is a party;

(6)iiall money, contracts, leases, property, and obligations of the Texas Commission on Environmental Quality related to Subchapter K, Chapter 26, Water Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Commission on Environmental Quality related to Subchapter K, Chapter 26, Water Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Environmental Quality related to Subchapter K, Chapter 26, Water Code, is transferred to the Texas Department of Licensing and Regulation.

(b)iiBefore November 1, 2003, the Texas Commission on Environmental Quality may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Commission on Environmental Quality to the Texas Department of Licensing and Regulation to implement the transfer required by this article.

(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Environmental Quality shall continue to perform functions and activities under Subchapter K, Chapter 26, Water Code, as if that subchapter had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLE 22. VEHICLE PROTECTION PRODUCT WARRANTORS

SECTIONi22.001.iiSection 2, Article 9035, Revised Statutes, is amended by adding Subdivision (4-a) to read as follows:

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi22.002.iiArticle 9035, Revised Statutes, is amended by adding Section 3A to read as follows:

Sec.i3A.iiAPPLICABILITY OF OTHER LAW. Section 51.405, Occupations Code, does not apply to this article.

SECTIONi22.003.iiSection 4, Article 9035, Revised Statutes, is amended to read as follows:

Sec.i4.iiPOWERS AND DUTIES [OF COMMISSIONER]. (a) The commission [commissioner] may adopt rules as necessary to implement this article.

(b)iiThe executive director [commissioner] may conduct investigations of warrantors or other persons as reasonably necessary to enforce this article and to protect consumers in this state. On request of the executive director [commissioner], a warrantor shall make the warrantor's records maintained under Section 10 of this

1932 78th Legislature — Regular Session 74th Day

SECTIONi22.004.iiSections 5(a)-(g), Article 9035, Revised Statutes, are amended to read as follows:

(a)iiThe Vehicle Protection Product Warrantor Advisory Board is an advisory body to the commission [department]. The advisory board shall advise[:

[(1)]iithe commission [commissioner] on adopting rules, [and] enforcing and administering this article,[;] and

[(2)iithe commission on] setting fees.

(b)iiThe advisory board consists of six members appointed by the presiding officer of the commission [commissioner] as follows:

(1)iitwo members who are officers, directors, or employees of a warrantor who has been approved or expects to be approved by the department;

(2)iitwo members who are officers, directors, or employees of a retail outlet or other entity located in this state that sells vehicle protection products and is approved or expected to be approved by the department; and

(3)iitwo members who are residents of this state and, at the time of appointment, are consumers of vehicle protection products issued by warrantors registered or expected to be registered under this article.

(c)iiMembers of the advisory board serve staggered six-year terms, with the terms of two members expiring on February 1 of each odd-numbered year. [The commissioner shall appoint the initial six board members to terms of six years or less in order to create staggered terms for the subsequent members of the advisory board.]

(d)iiThe presiding officer of the commission [commissioner] shall designate one member of the advisory board to serve as presiding officer of the board for two years.

(e)iiThe executive director [commissioner] or the executive director's [commissioner's] designee serves as an ex officio nonvoting member of the advisory board.

(f)iiThe presiding officer of the commission [commissioner] shall fill any vacancy on the advisory board by appointing an individual who meets the qualifications for the vacant advisory board position to serve the remainder of the unexpired term.

(g)iiThe advisory board shall meet at least every six months and may meet at other times at the call of the presiding officer of the board or the presiding officer of the commission [commissioner]. The advisory board shall meet at a location in this state designated by the [advisory] board.

SECTIONi22.005.iiSections 6(c) and (d), Article 9035, Revised Statutes, are amended to read as follows:

(c)iiEach registered warrantor shall pay an annual registration fee [not to exceed $2,500] as set by the commission to cover the costs of administering this article. The department shall develop a tiered fee structure under which registration fees are assessed on warrantors based on the number of vehicle protection products sold within this state in the 12 months preceding the date of registration. The information submitted to the department under this section regarding the number of vehicle protection products sold by a warrantor may only be used by the department in

Wednesday, May 21, 2003 SENATE JOURNAL 1933

(d)iiThe commission [commissioner] shall adopt rules providing for the renewal of a warrantor's registration.

SECTIONi22.006.iiSection 10(e), Article 9035, Revised Statutes, is amended to read as follows:

(e)iiThe commission [commissioner] shall adopt rules governing how a warrantor shall protect nonpublic personal information provided by a consumer to the warrantor.

SECTIONi22.007.iiSections 16(a) and (c), Article 9035, Revised Statutes, are amended to read as follows:

(a)iiThe executive director [commissioner] may bring an action against a warrantor for injunctive relief under Section 51.352, Occupations Code, for a threatened or existing violation of this article or of the [commissioner's] orders or rules adopted under this article.

(c)iiFor purposes of this section [and Section 15 of this article], violations are of a similar nature if the violations consist of the same or a similar course of conduct, action, or practice, regardless of the number of times the conduct, act, or practice determined to be a violation of this article occurred.

SECTIONi22.008.iiThe following laws are repealed:

(1)iiSection 2(2), Article 9035, Revised Statutes; and

(2)iiSection 15, Article 9035, Revised Statutes.

SECTIONi22.009.iiThe changes in law made by this article applying to members of the Vehicle Protection Product Warrantor Advisory Board do not affect the entitlement of a member serving on the board immediately before September 1, 2003, to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

ARTICLE 23. WATER TREATMENT SPECIALISTS

SECTIONi23.001.iiSection 341.034(e), Health and Safety Code, is amended to read as follows:

(e)iiUnless the person is licensed by the Texas State Board of Plumbing Examiners, a person must hold a license issued by the Texas Department of Licensing and Regulation [commission] under Chapter 51, Occupations [37, Water] Code, if, under a contract, the person:

(1)iiinstalls, exchanges, connects, maintains, or services potable water treatment equipment and appliances in public or private water systems; or

(2)iianalyzes water to determine how to treat influent or effluent water, alter or purify water, or add or remove a mineral, chemical, or bacterial content or substance as part of the complete installation, exchange, connection, maintenance, or service of potable water treatment equipment and appliances.

SECTIONi23.002.iiSection 341.101, Health and Safety Code, is amended by amending Subdivision (1) and adding Subdivision (1-a) to read as follows:

(1)ii"Commission" means the Texas [Natural Resource Conservation] Commission of Licensing and Regulation.

1934 78th Legislature — Regular Session 74th Day

(1-a)ii"Department" means the Texas Department of Licensing and Regulation.

SECTIONi23.003.iiSection 341.103, Health and Safety Code, is amended to read as follows:

Sec.i341.103.iiCERTIFICATION REQUIRED. A person may not engage in water treatment unless the person first obtains a certificate from the department [commission] under the program established under this subchapter.

SECTIONi23.004.iiSection 341.104, Health and Safety Code, is amended to read as follows:

Sec.i341.104.iiAPPLICATION FOR CERTIFICATION. A person desiring to obtain certification under the program established under this subchapter shall file with the department [commission]:

(1)iian application in the form prescribed by the department [commission] and containing the information required by the department [commission]; and

(2)iithe appropriate certification fee.

SECTIONi23.005.iiSection 341.105(a), Health and Safety Code, is amended to read as follows:

(a)iiOn receipt of an application that meets department [commission] requirements and the required fee, the department [commission] shall issue to a person who meets department [commission] standards for certification a certificate stating that the person is qualified to install, exchange, service, and repair residential, commercial, or industrial water treatment facilities.

SECTIONi23.006.iiSection 3, Chapter 504, Acts of the 77th Legislature, Regular Session, 2001, is repealed.

SECTIONi23.007.ii(a) On November 1, 2003:

(1)iiall functions and activities relating to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, performed by the Texas Commission on Environmental Quality immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the Texas Commission on Environmental Quality that relates to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(3)iia license or other document issued by the Texas Commission on Environmental Quality that relates to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, is considered a license or other document issued by the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;

(4)iia reference in law or an administrative rule to the Texas Commission on Environmental Quality that relates to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, means the Texas Department of Licensing and Regulation;

(5)iia complaint, investigation, or other proceeding before the Texas Commission on Environmental Quality that is related to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, is

Wednesday, May 21, 2003 SENATE JOURNAL 1935

(6)iiall money, contracts, leases, property, and obligations of the Texas Commission on Environmental Quality related to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Commission on Environmental Quality related to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Environmental Quality related to Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, is transferred to the Texas Department of Licensing and Regulation.

(b)iiBefore November 1, 2003, the Texas Commission on Environmental Quality may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Commission on Environmental Quality to the Texas Department of Licensing and Regulation to implement the transfer required by this article.

(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Environmental Quality shall continue to perform functions and activities under Section 341.034(e), Health and Safety Code, or Subchapter G, Chapter 341, Health and Safety Code, as if those provisions had not been amended by this Act, and the former law is continued in effect for that purpose.

ARTICLE 24. WATER WELL DRILLERS

SECTIONi24.001.iiSection 1901.001, Occupations Code, is amended by adding Subdivisions (7-a) and (7-b) to read as follows:

(7-a)ii"Executive director" means the executive director of the department.

(7-b)ii"Groundwater conservation district" means a district to which Chapter 36, Water Code, applies.

SECTIONi24.002.iiSection 1901.051, Occupations Code, is amended to read as follows:

Sec.i1901.051.iiLICENSING. (a) The department, with the advice of the council, shall prepare licensing examinations.

(b)iiThe department shall [and] evaluate the qualifications of license applicants.

(c)i[(b)]iiThe executive director [commissioner] shall issue licenses to applicants who qualify.

SECTIONi24.003.iiSection 1901.052, Occupations Code, is amended to read as follows:

Sec.i1901.052.iiRULES.ii(a)iiThe commission [commissioner, with advice and comment from the Texas Natural Resource Conservation Commission,] shall adopt rules as necessary to enforce this chapter, including rules governing:

(1)iilicense applications;

(2)iiqualifications of applicants;

1936 78th Legislature — Regular Session 74th Day

(3)iistandards of conduct for drillers, including standards for marking well drilling rigs and equipment; and

(4)iiprocedures and practices before the department.

(b)iiThe commission [commissioner] may not adopt a rule under this chapter that:

(1)iiregulates the installation or repair of well pumps and equipment by:

(A)iia person on property the person owns or controls for the person's own use;

(B)iian employee of a person described by Paragraph (A); or

(C)iia person who is not hired or compensated and who acts on behalf of a person described by Paragraph (A); or

(2)iirequires a person who owns or controls property or possesses a well to complete, repair, or retrofit the well to any standard other than a standard in effect at the time the well was originally completed unless the well is found to be a threat to public health and safety or to water quality.

SECTIONi24.004.iiSection 1901.101(a), Occupations Code, is amended to read as follows:

(a)iiThe Texas Water Well Drillers Advisory Council consists of nine members appointed by the presiding officer of the commission, with the commission's approval, [department] as follows:

(1)iisix members who are drillers experienced in the well drilling business and familiar with well drilling, completion, and plugging methods and techniques; and

(2)iithree public members.

SECTIONi24.005.iiSection 1901.105, Occupations Code, is amended to read as follows:

Sec.i1901.105.iiPRESIDING OFFICER. The presiding officer of the commission [council] shall appoint [elect] a member of the council to serve as presiding officer of the council for two years [by a majority vote at the first meeting each year].

SECTIONi24.006.iiSections 1901.109(a) and (d), Occupations Code, are amended to read as follows:

(a)iiThe council may propose rules for adoption by the commission [commissioner] relating to the regulation of drillers registered under this chapter.

(d)iiThe council shall assist the commission [department] in evaluating continuing education programs.

SECTIONi24.007.iiSection 1901.152(b), Occupations Code, is amended to read as follows:

(b)iiAn applicant must pay to the department an [a nonrefundable] examination fee at the time the application is submitted.

SECTIONi24.008.iiSection 1901.162, Occupations Code, is amended to read as follows:

Sec.i1901.162.iiWAIVER FOR APPLICANT LICENSED IN ANOTHER STATE. The commission [commissioner] may adopt rules allowing waiver of a license requirement for an applicant who is licensed in another state that has license requirements substantially equivalent to those of this state.

Wednesday, May 21, 2003 SENATE JOURNAL 1937

SECTIONi24.009.iiSection 1901.251(a), Occupations Code, is amended to read as follows:

(a)iiEach driller who drills, deepens, or otherwise alters a water well in this state shall make and keep a legible and accurate well log in accordance with rules adopted by the commission and on forms prescribed by the executive director [commissioner]. The well log shall be recorded at the time of drilling, deepening, or otherwise altering the well and must contain:

(1)iithe depth, thickness, and character of the strata penetrated;

(2)iithe location of water-bearing strata;

(3)iithe depth, size, and character of casing installed; and

(4)iiany other information required by rules adopted by the commission [commissioner].

SECTIONi24.010.iiSection 1901.252(b), Occupations Code, is amended to read as follows:

(b)iiThe commission [commissioner] shall adopt rules specifying the manner for marking a rig.

SECTIONi24.011.iiSection 1901.253, Occupations Code, is amended to read as follows:

Sec.i1901.253.iiCOMPLETING WATER WELL. A driller shall complete a well under standards and procedures adopted by the commission [commissioner].

SECTIONi24.012.iiSection 1901.254(b), Occupations Code, is amended to read as follows:

(b)iiThe driller shall ensure that the well is plugged, repaired, or properly completed under standards and procedures adopted by the commission [commissioner].

SECTIONi24.013.iiSection 1901.255, Occupations Code, is amended by amending Subsections (c) and (d) and adding Subsection (e) to read as follows:

(c)iiNot later than the 180th day after the date a landowner or other person who possesses an abandoned or deteriorated well learns of its condition, the landowner or other person shall have the well plugged or capped under standards and procedures adopted by the commission [commissioner].

(d)iiNot later than the 30th day after the date the well is plugged, a [A] driller, licensed pump installer, or well owner who plugs an abandoned or deteriorated well shall submit a plugging report to:

(1)iithe board of directors of the groundwater conservation district in which the well is located, if the well is located in the boundaries of a groundwater conservation district; and

(2)iithe executive director [commissioner not later than the 30th day after the date the well is plugged].

(e)iiThe department or the groundwater conservation district in which the well is located shall furnish plugging report forms on request. The executive director shall prescribe the content of the forms.

SECTIONi24.014.iiSubchapter F, Chapter 1901, Occupations Code, is amended by adding Section 1901.256 to read as follows:

1938 78th Legislature — Regular Session 74th Day

Sec.i1901.256.iiENFORCEMENT BY GROUNDWATER CONSERVATION DISTRICT. (a) This section applies only to a violation related to a well located in the boundaries of the groundwater conservation district seeking to bring an action under this section.

(b)iiA groundwater conservation district shall enforce compliance with Section 1901.255 related to wells located in the boundaries of the district.

(c)iiA groundwater conservation district may bring an action to enjoin a person from violating Section 1901.255.

(d)iiA groundwater conservation district may enforce by injunction or other appropriate remedy in a court any rule, decision, determination, or order adopted or entered under this chapter that is related to Section 1901.255.

(e)iiA groundwater conservation district may bring an action to recover a civil penalty under Section 1901.401 for a violation of this chapter or a rule adopted under this chapter related to Section 1901.255.

(f)iiThe groundwater conservation district may bring the action in the county in which:

(1)iithe offending activity occurred; or

(2)iithe person engaging in the activity resides.

SECTIONi24.015.iiSubchapter F, Chapter 1901, Occupations Code, is amended by adding Section 1901.257 to read as follows:

Sec.i1901.257.iiMEMORANDUM OF UNDERSTANDING REGARDING ABANDONED WELLS. (a) In this section, "abandoned well" and "deteriorated well" have the meanings assigned by Section 1901.255.

(b)iiThe Texas Commission on Environmental Quality and the department shall by rule adopt or revise a joint memorandum of understanding to coordinate the efforts of the department, groundwater conservation districts, and the field offices of the Texas Commission on Environmental Quality relating to investigative procedures for referrals of complaints regarding abandoned and deteriorated wells.

(c)iiEach groundwater conservation district in which an abandoned or deteriorated well is located shall join the memorandum of understanding adopted under Subsection (b).

SECTIONi24.016.iiSection 1901.301, Occupations Code, is amended to read as follows:

Sec.i1901.301.iiGROUNDS FOR DISCIPLINARY ACTION. The commission [commissioner] may discipline a person under Section 51.353 for a violation of this chapter or a rule adopted under this chapter, including:

(1)iian intentional misstatement or misrepresentation of a fact on an application or well log or to a person for whom a well is being drilled, deepened, or otherwise altered;

(2)iithe failure to keep, deliver, or send a well log as required by Section 1901.251;

(3)iithe failure to advise a person for whom a well is being drilled that:

(A)iiinjurious water has been encountered;

(B)iithe water is a pollution hazard; and

(C)iithe well must be immediately plugged in an acceptable manner; or

Wednesday, May 21, 2003 SENATE JOURNAL 1939

(4)iithe failure to complete a well in accordance with standards and procedures adopted by the commission [commissioner].

SECTIONi24.017.iiThe following laws are repealed:

(1)iiSection 1901.001(2), Occupations Code;

(2)iiSection 1901.109(e), Occupations Code;

(3)iiSection 1901.155(b), Occupations Code;

(4)iiSection 1901.156, Occupations Code;

(5)iiSection 1901.157, Occupations Code;

(6)iiSection 1901.160, Occupations Code;

(7)iiSection 1901.205, Occupations Code;

(8)iiSection 1901.302, Occupations Code;

(9)iiSection 1901.303, Occupations Code;

(10)iiSection 1901.304, Occupations Code; and

(11)iiSubchapter H, Chapter 1901, Occupations Code.

SECTIONi24.018.iiThe changes in law made to Section 1901.255, Occupations Code, by this article do not affect the status of a complaint, investigation, or other proceeding that commenced before September 1, 2003. A groundwater conservation district, as appropriate and without a change in status, assumes the position of the executive director of the Texas Department of Licensing and Regulation in an action or proceeding relating to a well located in the boundaries of that groundwater conservation district.

SECTIONi24.019.iiThe changes in law made by this article applying to members of the Texas Water Well Drillers Advisory Council do not affect the entitlement of a member serving on the council immediately before September 1, 2003, to continue to serve and function as a member of the council for the remainder of the member's term. Those changes in law apply only to a member appointed on or after Septemberi1, 2003.

ARTICLE 25. WATER WELL PUMP INSTALLERS

SECTIONi25.001.iiSection 1902.001, Occupations Code, is amended by adding Subdivision (4-a) to read as follows:

(4-a)ii"Executive director" means the executive director of the department.

SECTIONi25.002.iiSection 1902.051, Occupations Code, is amended to read as follows:

Sec.i1902.051.iiLICENSING. (a) The department, with the advice of the council, shall prepare licensing examinations.

(b)iiThe department shall [and] evaluate the qualifications of license applicants.

(c)i[(b)]iiThe executive director [commissioner] shall issue licenses to applicants who qualify.

SECTIONi25.003.iiSection 1902.052, Occupations Code, is amended to read as follows:

Sec.i1902.052.iiRULES. (a) The commission [commissioner] shall adopt rules as necessary to enforce this chapter.

(b)iiThe commission [commissioner] may not adopt a rule under this chapter that:

(1)iiregulates the installation or repair of well pumps and equipment by:

1940 78th Legislature — Regular Session 74th Day

(A)iia person on property the person owns or controls for the person's own use;

(B)iian employee of a person described by Paragraph (A); or

(C)iia person who is not hired or compensated and who acts on behalf of a person described by Paragraph (A); or

(2)iirequires a person who owns or controls property or possesses a well to complete, repair, or retrofit the well to any standard other than a standard in effect at the time the well was originally completed unless the well is found to be a threat to public health and safety or to water quality.

SECTIONi25.004.iiSection 1902.152(b), Occupations Code, is amended to read as follows:

(b)iiAn applicant must pay to the department an [a nonrefundable] examination fee at the time the application is submitted.

SECTIONi25.005.iiSection 1902.162, Occupations Code, is amended to read as follows:

Sec.i1902.162.iiWAIVER FOR APPLICANT LICENSED IN ANOTHER STATE. The commission [commissioner] may adopt rules allowing waiver of a license requirement for an applicant who is licensed in another state that has license requirements substantially equivalent to those of this state.

SECTIONi25.006.iiSection 1902.251, Occupations Code, is amended to read as follows:

Sec.i1902.251.iiINSTALLING AND REPAIRING PUMPS. An installer shall install or repair pumps under standards and procedures adopted by the commission [commissioner] with the advice of the council.

SECTIONi25.007.iiSection 1902.252(b), Occupations Code, is amended to read as follows:

(b)iiTo avoid injury or pollution, the installer shall repair or properly complete the well under standards and procedures adopted by the commission [commissioner].

SECTIONi25.008.iiThe following laws are repealed:

(1)iiSection 1902.001(2), Occupations Code;

(2)iiSection 1902.101, Occupations Code;

(3)iiSection 1902.155(b), Occupations Code;

(4)iiSection 1902.156, Occupations Code;

(5)iiSection 1902.157, Occupations Code;

(6)iiSection 1902.160, Occupations Code;

(7)iiSection 1902.204, Occupations Code; and

(8)iiSubchapters G and H, Chapter 1902, Occupations Code.

ARTICLE 26. WEATHER MODIFICATION

SECTIONi26.001.iiSection 1.01, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended by amending Subdivision (1) and adding Subdivision (2-a) to read as follows:

(1)ii"Commission" ["Commissioner"] has the meaning assigned by Section 51.001, Occupations Code.

(2-a)ii"Executive director" means the executive director of the department.

Wednesday, May 21, 2003 SENATE JOURNAL 1941

SECTIONi26.002.iiArticle 1, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended by adding Section 1.02 to read as follows:

Sec.i1.02.iiAPPLICABILITY OF OTHER LAW. Sections 51.404 and 51.405, Occupations Code, do not apply to this article.

SECTIONi26.003.iiSection 1.11, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.11.iiRULES. The commission [department] may adopt rules necessary to:

(1)iiexercise the powers and perform the duties under this article;

(2)iiestablish procedures and conditions for the issuance of licenses and permits under this article; and

(3)iiestablish standards and instructions to govern the carrying out of research or projects in weather modification and control that the commission [department] considers necessary or desirable to minimize danger to health or property.

SECTIONi26.004.iiSection 1.13, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.13.iiADVISORY COMMITTEES. The commission [department] may establish advisory committees to advise the commission [department] and to make recommendations to the commission [department] concerning legislation, policies, administration, research, and other matters related to the department's duties, powers, or functions under this article. If the commission establishes an advisory committee under this section, the presiding officer of the commission, with the commission's approval, shall appoint a member of the committee to serve as the presiding officer of the committee for a two-year term.

SECTIONi26.005.iiSection 1.16, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.16.iiINTERSTATE COMPACTS. The commission [commissioner] may represent the state in matters pertaining to plans, procedures, or negotiations for interstate compacts relating to weather modification and control.

SECTIONi26.006.iiSection 1.18(b), Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

(b)iiThe department with approval of the commission [commissioner] may conduct and may contract for research and development activities relating to the purposes of this section.

SECTIONi26.007.iiSection 1.31, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.31.iiLICENSE AND PERMIT REQUIRED. Except as provided by rule of the commission [department] under Section 1.32 of this article, a person may not engage in activities for weather modification and control:

1942 78th Legislature — Regular Session 74th Day

(1)iiwithout a weather modification license and weather modification permit issued by the department; or

(2)iiin violation of any term or condition of the license or permit.

SECTIONi26.008.iiSection 1.32, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.32.iiEXEMPTIONS. (a) The commission [department] by rule, to the extent it considers exemptions practical, shall provide for exempting the following activities from the license and permit requirements of this article:

(1)iiresearch, development, and experiments conducted by state and federal agencies, institutions of higher learning, and bona fide nonprofit research organizations;

(2)iilaboratory research and experiments;

(3)iiactivities of an emergent nature for protection against fire, frost, sleet, or fog; and

(4)iiactivities normally conducted for purposes other than inducing, increasing, decreasing, or preventing precipitation or hail.

(b)iiThe commission [department] by rule may modify or revoke an exemption.

SECTIONi26.009.iiSection 1.41(v), Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

(v)iiThe commission [department] by rule shall define hail suppression as used in this section, using the most current scientifically accepted technological concepts.

SECTIONi26.010.iiSection 1.64, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.64.iiPROCEDURES. The commission [department] by rule shall establish procedures for public notice and any public hearing under this subchapter.

SECTIONi26.011.iiSection 1.65, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.65.iiHEARINGS. A hearing under this article [subchapter] shall be conducted in accordance with the hearing rules adopted by the commission [department] and the applicable provisions of Chapters 51, Occupations Code, and [Chapter] 2001, Government Code.

SECTIONi26.012.iiSection 1.66, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.66.iiCONSENT. If a permit holder or license holder requests or consents to the revocation or suspension of the permit or license, the commission [commissioner] may revoke or suspend the permit or license without a hearing.

SECTIONi26.013.iiThe following laws are repealed:

(1)iiSection 1.34, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes);

(2)iiSection 1.38, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes); and

Wednesday, May 21, 2003 SENATE JOURNAL 1943

(3)iiSection 1.68, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes).

ARTICLE 27. CONFORMING AMENDMENTS RELATED TO
CERTAIN PROGRAMS TRANSFERRED FROM THE TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY

SECTIONi27.001.iiThe heading to Chapter 37, Water Code, is amended to read as follows:

CHAPTER 37. OCCUPATIONAL LICENSING AND REGISTRATION
PROGRAMS ADMINISTERED BY TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY

SECTIONi27.002.iiSection 37.002, Water Code, is amended to read as follows:

Sec.i37.002.iiRULES. The commission shall adopt any rules necessary to:

(1)iiestablish occupational licenses and registrations prescribed by Sections 26.0301 and [,] 26.3573 [, 26.452, 26.456, and 34.007] of this code and Sections 341.033, 341.034(a) and (b) [341.034], 361.027, and 366.071, Health and Safety Code;

(2)iiestablish classes and terms of occupational licenses and registrations; and

(3)iiadminister the provisions of this chapter and other laws governing occupational licenses and registrations under the commission's jurisdiction.

SECTIONi27.003.iiSection 37.003, Water Code, is amended to read as follows:

Sec.i37.003.iiLICENSE OR REGISTRATION REQUIRED. A person may not engage in a business, occupation, or profession described by Section 26.0301 or [,] 26.3573 [, 26.452, 26.456, or 34.007] of this code or Section 341.033, 341.034(a) or (b) [341.034], 361.027, 366.014, or 366.071, Health and Safety Code, unless the person holds the appropriate license or registration issued by the commission.

SECTIONi27.004.iiSubtitle F, Title 2, Water Code, is amended by adding Chapter 38 to read as follows:

CHAPTER 38. OCCUPATIONAL LICENSING PROGRAMS
ADMINISTERED BY TEXAS DEPARTMENT OF LICENSING
AND REGULATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i38.001.iiDEFINITIONS. In this chapter, terms have the meanings assigned by Section 51.001, Occupations Code.

[Sections 38.002-38.050 reserved for expansion]

SUBCHAPTER B. POWERS AND DUTIES

Sec.i38.051.iiADMINISTRATION. The department shall administer this chapter.

Sec.i38.052.iiRULES. The commission shall adopt any rules necessary to:

(1)iiestablish occupational licenses prescribed by Sections 26.452 and 26.456 of this code and Sections 341.034(c), (d), and (e), Health and Safety Code; and

(2)iiestablish classes and terms of occupational licenses.

Sec.i38.053.iiCONTRACTS. The department may contract with persons to provide services required by this chapter. The department may authorize contractors to collect reasonable fees for the services provided.

1944 78th Legislature — Regular Session 74th Day

Sec.i38.054.iiCOMPLIANCE INFORMATION. In administering this chapter, the department may require a person to provide information about any other occupational license held by the person, including:

(1)iithe state in which the license was issued;

(2)iithe current status of the license; and

(3)iiwhether the license was ever denied, suspended, revoked, surrendered, or withdrawn.

Sec.i38.055.iiROSTER OF LICENSE HOLDERS. The department shall maintain and make available to the public a roster of persons who hold licenses issued under this chapter.

[Sections 38.056-38.100 reserved for expansion]

SUBCHAPTER C. LICENSE REQUIREMENTS

Sec.i38.101.iiLICENSE REQUIRED. A person may not engage in a business, occupation, or profession described by Section 26.452 or 26.456 of this code or Section 341.034(c), (d), or (e), Health and Safety Code, unless the person holds the appropriate license.

Sec.i38.102.iiQUALIFICATIONS. The commission may establish qualifications for each license issued under this chapter.

Sec.i38.103.iiISSUANCE AND DENIAL OF LICENSES. (a) The commission shall establish requirements and uniform procedures for issuing licenses under this chapter.

(b)iiAfter notice and hearing, the commission may deny an application for a license by an applicant who:

(1)iihas a record in the preceding five years of continuing violations of statutes or rules adopted under statutes;

(2)iihas engaged in fraud or deceit in obtaining or applying for a license;

(3)iihas demonstrated gross negligence, incompetence, or misconduct in the performance of activities authorized by a license;

(4)iimade an intentional misstatement or misrepresentation of fact in information required to be maintained or submitted to the commission by the license holder;

(5)iifailed to keep and transmit records as required by a statute or a rule adopted under a statute; or

(6)iiat the time the application is submitted, is indebted to the state for a fee, penalty, or tax imposed by a statute or a rule adopted under a statute.

Sec.i38.104.iiRENEWAL OF LICENSE. The commission shall establish requirements and uniform procedures for renewing licenses.

Sec.i38.105.iiLICENSING EXAMINATIONS. (a) The department shall prescribe the content of licensing examinations. The department shall base the examinations on laws, rules, job duties, and standards relating to licenses issued under this chapter.

(b)iiThe department shall determine the location and frequency of examinations.

(c)iiThe department shall ensure that an otherwise qualified person with a physical, mental, or developmental disability is provided with a reasonable opportunity to take a licensing examination.

Wednesday, May 21, 2003 SENATE JOURNAL 1945

ARTICLE 28. GENERAL CONFORMING AMENDMENTS

SECTIONi28.001.iiSection 57.044, Government Code, is amended to read as follows:

Sec.i57.044.iiCOURT INTERPRETER LICENSE. To qualify for a court interpreter license under this subchapter, an individual must apply on a form prescribed by the executive director [commissioner] and demonstrate, in the manner required by the executive director [commissioner], reasonable proficiency in interpreting English and court proceedings for individuals who can hear but who do not comprehend English or communicate in English.

SECTIONi28.002.iiSections 57.046(a) and (c), Government Code, are amended to read as follows:

(a)iiThe executive director [commissioner] shall prepare examinations under this subchapter that test an applicant's knowledge, skill, and efficiency in interpreting under this subchapter.

(c)iiExaminations shall be offered in the state at least twice a year at times and places designated by the executive director [commissioner].

SECTIONi28.003.iiThe heading to Section 57.047, Government Code, is amended to read as follows:

Sec.i57.047.ii[COMMISSIONER AND] DEPARTMENT DUTIES; INSPECTIONS.

SECTIONi28.004.iiSection 57.047(a), Government Code, is amended to read as follows:

(a)iiThe executive director [commissioner] shall enforce this subchapter.

SECTIONi28.005.iiSection 754.020, Health and Safety Code, is amended to read as follows:

Sec.i754.020.iiDEPOSIT OF FEES. Fees collected under this subchapter shall be deposited to the credit of an account in the general revenue fund that may be used by the executive director [commissioner] only to administer and enforce this subchapter and to reimburse expenses of board members provided by this subchapter.

SECTIONi28.006.iiSection 754.021, Health and Safety Code, is amended to read as follows:

Sec.i754.021.iiLIST OF INSPECTORS; PERSONNEL. The executive director [commissioner] may:

(1)iicompile a list of ASME-QEI-1 certified inspectors who are registered with the department to perform an inspection under this subchapter; and

(2)iiemploy personnel as necessary to enforce this subchapter.

SECTIONi28.007.iiSection 754.022, Health and Safety Code, is amended to read as follows:

Sec.i754.022.iiNOTICE OF NONCOMPLIANCE. If the executive director [commissioner] learns of a situation of noncompliance under Section 754.019, the executive director [commissioner] shall send notice by certified mail of the noncompliance and the actions required to remedy the noncompliance to the record owner of the real property on which the equipment that is the subject of the noncompliance is located.

SECTIONi28.008.iiSections 755.023(a), (c), and (d), Health and Safety Code, are amended to read as follows:

1946 78th Legislature — Regular Session 74th Day

(a)iiThe executive director [commissioner] shall appoint a chief inspector of boilers to administer the boiler program. The chief inspector must:

(1)iibe a resident of this state and a citizen of the United States;

(2)iihave at least five years' experience in the construction, installation, inspection, operation, maintenance, or repair of boilers; and

(3)iipass a written examination that demonstrates the necessary ability to judge the safety of boilers.

(c)iiAs needed, the executive director [commissioner] shall appoint persons with qualifications similar to those of the chief inspector to serve as deputy inspectors.

(d)iiThe executive director [commissioner] may employ clerical assistants as necessary to carry out this chapter.

SECTIONi28.009.iiSections 755.024(a), (b), (f), and (g), Health and Safety Code, are amended to read as follows:

(a)iiTo be an authorized inspector, a person must obtain a commission as a boiler inspector from the executive director [commissioner] and must be continuously employed by an inspection agency.

(b)iiThe executive director [commissioner], by written examination, shall determine the qualifications of an applicant for a commission to be an authorized inspector.

(f)iiAfter proper investigation, the executive director [commissioner] may accept an inspection commission issued to a person by any other jurisdiction that has a written examination equal to that of this state.

(g)iiFor good cause, the executive director [commissioner] may rescind a commission issued by this state.

SECTIONi28.010.iiSections 755.025(a), (f), and (g), Health and Safety Code, are amended to read as follows:

(a)iiThe executive director [commissioner] shall require each boiler to be inspected internally and externally at the time of initial installation and at subsequent intervals as provided by this section. The executive director [commissioner] may provide that the inspection be performed by any inspector.

(f)iiThe executive director [commissioner] shall designate the manner of inspection for nuclear boilers, the form of the inspection report, and the information to be reported. The executive director [commissioner] and the owner of a nuclear boiler shall establish the intervals of inspection for the boiler.

(g)iiThe executive director [commissioner] may authorize the inspection of a boiler at any reasonable time if the executive director [commissioner] determines that the boiler may be in an unsafe condition. The executive director [commissioner] shall notify the inspection agency that insures that boiler and request the authorized inspector employed by that agency to participate with the chief inspector or a deputy inspector in a joint inspection of the boiler not later than the 20th day after the date on which the executive director [commissioner] notifies the inspection agency. An additional charge may not be made for the joint inspection.

SECTIONi28.011.iiSections 755.026(a), (c), (d), and (e), Health and Safety Code, are amended to read as follows:

Wednesday, May 21, 2003 SENATE JOURNAL 1947

(a)iiWith the approval of the executive director [commissioner] and the inspection agency that has jurisdiction for the power boiler, the interval between internal inspections may be extended to a period not exceeding a total of 48 months. For other unfired steam boilers or steam collection or liberation drums of process steam generators, the inspection interval may be extended to the next scheduled downtime of the boiler, but not exceeding a total of 84 months.

(c)iiThe executive director [commissioner] and the inspection agency may grant an additional extension for a period not exceeding 120 days to the inspection interval covered by the boiler's certificate of operation on receipt of a request for extension stating that an emergency exists. Before the extension may be granted, the inspection agency must make an external inspection of the boiler, and the conditions imposed under Subsection (b) must be met.

(d)iiIf an extended period between internal inspections is approved by the executive director [commissioner] and the inspection agency, the executive director [commissioner] shall issue a new certificate of operation for the extended period of operation.

(e)iiIf the interval between internal inspections of a gas fired boiler is extended under Subsection (a), the executive director [commissioner] and inspection agency shall require that an inspection of the gas regulator or pressure reducing valve that services the boiler be performed as part of the next regularly scheduled external certificate inspection of the boiler to verify proper venting of gas to a safe point of discharge.

SECTIONi28.012.iiSections 755.027(a) and (c), Health and Safety Code, are amended to read as follows:

(a)iiNot later than the 30th day after the date on which a certificate inspection is performed by an authorized inspector, the inspection agency employing the authorized inspector shall file a report with the executive director [commissioner] in the manner specified by the executive director [department].

(c)iiAn inspection agency shall notify the executive director [commissioner] in writing of the cancellation or expiration of any insurance policy issued by that agency to cover a boiler located in this state, and shall include in the notice the reason for the cancellation or expiration. The notice must state the date the policy was issued and the date on which the cancellation or expiration takes effect.

SECTIONi28.013.iiSection 755.028, Health and Safety Code, is amended to read as follows:

Sec.i755.028.iiSPECIAL INSPECTIONS. The executive director [commissioner] may provide a special inspection service to the owners, operators, and manufacturers of boilers. The service may include surveys required for certification to construct, assemble, or repair boilers or pressure vessels.

SECTIONi28.014.iiSection 755.029(a), Health and Safety Code, is amended to read as follows:

(a)iiThe executive director [commissioner] shall issue to the owner or operator of a boiler a certificate of operation for the boiler if after a certificate inspection:

(1)iithe boiler is found to be in a safe condition for operation; and

(2)iithe owner or operator has paid the fees assessed under Section 755.030.

1948 78th Legislature — Regular Session 74th Day

SECTIONi28.015.iiSection 755.042, Health and Safety Code, is amended to read as follows:

Sec.i755.042.iiPROSECUTION; INJUNCTION. (a) A prosecution may not be maintained if the issuance or renewal of a certificate of operation has been requested for a boiler but has not been acted on. However, the executive director [commissioner] may petition a district court for an injunction to restrain the operation of the boiler until the condition restraining its use is corrected and a certificate of operation is issued if the executive director [commissioner] determines that the operation of the boiler without a certificate of operation constitutes a serious menace to the life and safety of the persons in or about the premises. The attorney general or the district or county attorney may bring the suit, and venue is in the county in which the boiler is located or in Travis County. It is not necessary for the prosecutor to verify the pleadings or for the state to execute a bond.

(b)iiThe executive director's [commissioner's] affidavit that a certificate of operation or an application for a certificate does not exist for a boiler, and the affidavit of the chief inspector or a deputy inspector that the operation of the boiler constitutes a menace to the life and safety of persons in or about the premises, are sufficient proof to warrant the immediate issuance of a temporary restraining order.

SECTIONi28.016.iiSection 91.003(a), Labor Code, is amended to read as follows:

(a)iiEach state agency that in performing duties under other law affects the regulation of staff leasing services shall cooperate with the department[, the commissioner,] and other state agencies as necessary to implement and enforce this chapter.

SECTIONi28.017.iiSection 91.015(c), Labor Code, is amended to read as follows:

(c)iiBefore denying a license application, the department shall provide written notice to an applicant specifying the reasons for the denial. The department shall provide the applicant at least 30 days after the date of the notice to address the reasons for the denial. For good cause and on a showing of a good faith effort to remedy the reasons for the denial, the executive director [commissioner] may grant an additional 30 days to remedy the reasons for denial.

SECTIONi28.018.iiSection 91.048, Labor Code, is amended to read as follows:

Sec.i91.048.iiREQUIRED INFORMATION. Each license holder shall:

(1)iimaintain adequate books and records regarding the license holder's duties and responsibilities;

(2)iimaintain and make available at all times to the executive director [commissioner] the following information, which shall be treated as proprietary and confidential and is exempt from disclosure to persons other than other governmental agencies having a reasonable, legitimate purpose for obtaining the information:

(A)iithe correct name, address, and telephone number of each client company;

(B)iieach client company contract; and

(C)iia listing by classification code as described in the "Standard Industrial Classification Manual" published by the United States Office of Management and Budget, of each client company;

Wednesday, May 21, 2003 SENATE JOURNAL 1949

(3)iinotify the department of any addition or deletion of a controlling person as listed on the license application or renewal form by providing the name of the person not later than the 45th day after the date on which the person is added or deleted as a controlling person; and

(4)iiprovide a biographical history to the department in connection with the addition of a new controlling person.

SECTIONi28.019.iiSection 91.062(a), Labor Code, is amended to read as follows:

(a)iiThe executive director [commissioner] may notify the attorney general of a violation of this chapter. The attorney general may apply to a district court in Travis County for permission to file for quo warranto relief, injunctive relief, or both.

SECTIONi28.020.iiSection 92.014(a), Labor Code, is amended to read as follows:

(a)iiThe department shall issue a temporary common worker employer license to a person who meets the application requirements established by the executive director [commissioner] and pays the application and registration fees set by the commission.

SECTIONi28.021.iiSection 92.031(a), Labor Code, is amended to read as follows:

(a)iiA person commits an offense if the person knowingly or intentionally violates:

(1)iithis chapter;

(2)iia rule adopted under this chapter; or

(3)iian administrative order adopted [by the commissioner] under this chapter.

SECTIONi28.022.iiSections 1152.154(a) and (c), Occupations Code, are amended to read as follows:

(a)iiAn applicant for registration must file an application with the department on a printed form prescribed by the executive director [commissioner].

(c)iiThe department shall refund the registration fee if the executive director [commissioner] does not approve the application.

SECTIONi28.023.iiSection 1152.156, Occupations Code, is amended to read as follows:

Sec.i1152.156.iiELIGIBILITY TO REGISTER AS PROPERTY TAX CONSULTANT. (a) In addition to satisfying the requirements of Section 1152.155, an applicant for registration as a property tax consultant must:

(1)iicomplete at least 15 classroom hours of educational courses approved by the executive director [commissioner], including at least four hours of instruction on laws and legal issues in this state related to property tax consulting services; or

(2)iiif the person is eligible for registration under Section 1152.155(b), submit to the commission evidence that the applicant has completed at least four classroom hours of educational programs or courses on the laws and legal issues in this state related to property tax consulting services.

(b)iiThe executive director [commissioner] may give appropriate credit to an initial applicant for:

1950 78th Legislature — Regular Session 74th Day

(1)iieducational courses on principles of law related to property tax consulting services completed by the applicant not more than two years before the date of application; and

(2)iieducational programs or courses completed by the applicant on:

(A)iiproperty taxation;

(B)iithe property tax system;

(C)iiproperty tax administration;

(D)iiethical standards; or

(E)iigeneral principles of appraisal, accounting, or law as they relate to property tax consulting services.

SECTIONi28.024.iiSection 1152.159, Occupations Code, is amended to read as follows:

Sec.i1152.159.iiCREDITS FOR SENIOR PROPERTY TAX CONSULTANT APPLICANTS. (a) The executive director [commissioner] shall grant credit to an applicant for registration as a senior property tax consultant as follows:

(1)iitwo credits for each year the applicant completed at an institution of higher education that meets program and accreditation standards comparable to those for public institutions of higher education as determined by the Texas Higher Education Coordinating Board, not to exceed six credits;

(2)iifour credits to an applicant who holds a bachelor's degree or equivalent from an institution of higher education described by Subdivision (1); and

(3)iione credit for each year in excess of five years that the applicant's primary occupation involved the performance or supervision of property tax consulting services or property appraisal, assessment, or taxation, not to exceed 10 credits.

(b)iiThe executive director [commissioner] may grant additional credits to an applicant for registration as a senior property tax consultant for:

(1)iisuccessful completion of educational programs or courses on:

(A)iiproperty taxation;

(B)iithe property tax system;

(C)iiproperty tax administration;

(D)iiethical standards; or

(E)iigeneral principles of appraisal, accounting, and law as they relate to property tax consulting services;

(2)iicompletion of other educational programs or courses; or

(3)iiadvanced or postgraduate educational achievement, occupational experience, professional licenses, or professional designations obtained from recognized associations, institutes, or organizations.

(c)iiThe executive director [commissioner] may assign not less than one credit or more than five credits to a program or course described by Subsection (b)(1). In determining the amount of credit for the program or course, the executive director [commissioner] shall consider:

(1)iithe nature of the program or course;

(2)iithe number of actual instructional hours in the program or course;

(3)iiwhether an examination is required for successful completion of the program or course; and

Wednesday, May 21, 2003 SENATE JOURNAL 1951

(4)iiother factors the executive director [commissioner] determines appropriate.

SECTIONi28.025.iiSection 1152.162, Occupations Code, is amended to read as follows:

Sec.i1152.162.iiISSUANCE OF CERTIFICATE OF REGISTRATION. (a) The executive director [commissioner] shall act on an initial application for registration filed under Section 1152.154 not later than the 31st day after the date the department receives the application.

(b)iiThe executive director [commissioner] shall issue to an applicant who qualifies for registration the appropriate certificate of registration.

SECTIONi28.026.iiSection 1202.055, Occupations Code, is amended to read as follows:

Sec.i1202.055.iiSECRETARY; PERSONNEL. The executive director [commissioner] shall:

(1)iiact as secretary of the council; and

(2)iiprovide personnel from the department necessary to perform staff functions for the council.

SECTIONi28.027.iiSections 1202.105(b) and (c), Occupations Code, are amended to read as follows:

(b)iiThe executive director [commissioner] shall recommend qualified third-party inspectors and design review agencies to the council.

(c)iiThe executive director [commissioner] shall publish a list of all approved inspectors and design review agencies.

SECTIONi28.028.iiSection 1302.002(12), Occupations Code, is amended to conform to Section 1, Chapter 790, Acts of the 77th Legislature, Regular Session, 2001, to read as follows:

(12)ii"Mechanical integrity" means the condition of a product, a system, or equipment installed in accordance with its intended purpose and according to:

(A)iistandards at least as strict as the standards provided by:

(i)iithe Uniform Mechanical Code [published jointly by the International Conference of Building Officials and the International Association of Plumbing and Mechanical Officials, or their successor organizations]; and [or]

(ii)iithe International [Standard] Mechanical Code [published by the Southern Building Code Congress International, Inc., or its successor organization];

(B)iiall other applicable codes; and

(C)iithe manufacturer's specifications.

SECTIONi28.029.iiSection 1302.102, Occupations Code, is amended to read as follows:

Sec.i1302.102.iiINSURANCE REQUIREMENTS. (a) The executive director [commissioner] shall set insurance requirements for a license holder under this chapter.

(b)iiThe executive director [commissioner] may waive the insurance requirements for a license holder who does not engage in air conditioning and refrigeration contracting for the public.

SECTIONi28.030.iiSection 1302.151, Occupations Code, is amended to read as follows:

1952 78th Legislature — Regular Session 74th Day

Sec.i1302.151.iiCONSUMER INTEREST INFORMATION. (a) The executive director [commissioner] shall prepare information of consumer interest describing:

(1)iithe functions performed by the executive director [commissioner] under this chapter; and

(2)iithe rights of a consumer affected by this chapter.

(b)iiThe information must describe the procedure by which a consumer complaint is filed with and resolved by the executive director [commissioner].

(c)iiThe executive director [commissioner] shall make the information available to the public.

SECTIONi28.031.iiSection 1302.203, Occupations Code, is amended to read as follows:

Sec.i1302.203.iiEX OFFICIO MEMBERS. The executive director [commissioner] and the chief administrator of this chapter serve as ex officio, nonvoting members of the advisory board.

SECTIONi28.032.iiSection 1302.253(a), Occupations Code, is amended to read as follows:

(a)iiThe executive director [commissioner] shall issue a Class A or Class B air conditioning and refrigeration contractor license.

SECTIONi28.033.iiSections 1302.256(a) and (c), Occupations Code, are amended to read as follows:

(a)iiAn applicant for a license must submit a verified application on a form prescribed by the executive director [commissioner].

(c)iiThe application must be accompanied by:

(1)iia statement containing evidence satisfactory to the executive director [commissioner] of the applicant's practical experience required by Section 1302.255(a)(2); and

(2)iithe examination fee.

SECTIONi28.034.iiSection 1302.257, Occupations Code, is amended to read as follows:

Sec.i1302.257.iiEXAMINATIONS. (a) The executive director [commissioner] shall prescribe:

(1)iia separate examination for each class of license; and

(2)iiwithin each class of license, a separate examination for:

(A)iian environmental air conditioning endorsement; and

(B)iia commercial refrigeration and process cooling or heating endorsement.

(b)iiThe executive director [commissioner] shall prescribe the method and content of an examination administered under this chapter and shall set compliance requirements for the examination. To obtain an endorsement, an applicant must pass the examination for the endorsement.

(c)iiThe examination shall be offered on a monthly basis or more frequently as determined by the executive director [commissioner].

(d)iiThe examination shall be offered at locations within the state as determined by the executive director [commissioner]. The examination may be offered by computer at locations within the state as determined by the executive director [commissioner].

Wednesday, May 21, 2003 SENATE JOURNAL 1953

SECTIONi28.035.iiSection 1302.260(a), Occupations Code, is amended to read as follows:

(a)iiOn payment of the license fee, the executive director [commissioner] shall issue an air conditioning and refrigeration contractor license to an applicant who:

(1)iimeets the requirements of this subchapter;

(2)iiprovides evidence of insurance coverage required by the executive director [commissioner] in accordance with this chapter; and

(3)iipasses the applicable examination.

SECTIONi28.036.iiSection 1302.303(b), Occupations Code, is amended to read as follows:

(b)iiThe municipality shall report a violation of the ordinance to the executive director [commissioner] not later than the 10th day after the date the municipality acts to enforce the ordinance.

SECTIONi28.037.iiSection 1302.451, Occupations Code, is amended to read as follows:

Sec.i1302.451.iiEMERGENCY AND CEASE AND DESIST ORDERS. (a) The executive director [commissioner] may issue an emergency order as necessary to enforce this chapter if the executive director [commissioner] determines that an emergency exists requiring immediate action to protect the public health and safety.

(b)iiThe executive director [commissioner] may issue the emergency order without notice and hearing or with any notice and hearing the executive director [commissioner] considers practicable under the circumstances. The executive director [commissioner] shall set the time and place for a hearing to affirm, modify, or set aside an emergency order that was issued without a hearing.

(c)iiThe executive director [commissioner] may issue a cease and desist order.

SECTIONi28.038.iiSection 1304.007, Occupations Code, is amended to read as follows:

Sec.i1304.007.iiGENERAL INVESTIGATIVE POWER OF EXECUTIVE DIRECTOR [COMMISSIONER]. (a) The executive director [commissioner] may investigate a provider, administrator, or other person as necessary to enforce this chapter and protect service contract holders in this state.

(b)iiOn request of the executive director [commissioner], a provider shall make the records required by Section 1304.155 available to the executive director [commissioner] as necessary to enable the executive director [commissioner] to reasonably determine compliance with this chapter.

SECTIONi28.039.iiSection 1304.102, Occupations Code, is amended to read as follows:

Sec.i1304.102.iiAPPLICATION FOR REGISTRATION. (a) An applicant for registration must submit an application to the executive director [commissioner].

(b)iiThe application must:

(1)iibe in the form prescribed by the executive director [commissioner]; and

(2)iiinclude evidence satisfactory to the executive director [commissioner] of compliance with the applicable financial security requirements prescribed by Section 1304.151.

SECTIONii28.040.iiSection 1304.104, Occupations Code, is amended to read as follows:

1954 78th Legislature — Regular Session 74th Day

Sec.i1304.104.iiINFORMATION CONCERNING NUMBER OF SERVICE CONTRACTS SOLD. Information concerning the number of service contracts sold by a provider that is submitted under Section 1304.103:

(1)iiis a trade secret to which Section 552.110, Government Code, applies; and

(2)iimay be used only by the executive director [commissioner] and the department in developing the tiered fee schedule under Section 1304.103.

SECTIONi28.041.iiSection 1304.152(b), Occupations Code, is amended to read as follows:

(b)iiThe insurer may not cancel the policy until the insurer delivers to the provider a written notice of cancellation that complies with the notice requirements prescribed by Articles 21.49-2A and 21.49-2B, Insurance Code, for cancellation of an insurance policy under those articles. The provider shall forward a copy of the cancellation notice to the executive director [commissioner] not later than the 15th business day after the date the notice is delivered to the provider. Cancellation of the policy does not reduce the insurer's responsibility for a service contract issued by the provider and insured under the policy before the date of the cancellation.

SECTIONi28.042.iiSections 1304.155(b) and (d), Occupations Code, are amended to read as follows:

(b)iiThe records required by this section may be maintained in an electronic medium or through other recordkeeping technology. If a record is not in a hard copy, the provider must be able to reformat the record into a legible hard copy at the request of the executive director [commissioner].

(d)iiA provider that discontinues business in this state shall retain its records until the provider furnishes the executive director [commissioner] with proof satisfactory to the executive director [commissioner] that the provider has discharged all obligations to service contract holders in this state.

SECTIONi28.043.iiSection 1304.202, Occupations Code, is amended to read as follows:

Sec.i1304.202.iiINJUNCTIVE RELIEF; CIVIL PENALTY. (a) The executive director [commissioner] may institute an action under Section 51.352 for injunctive relief to restrain a violation or a threatened violation of this chapter or an order issued or rule adopted under this chapter.

(b)iiIn addition to the injunctive relief provided by Subsection (a), the executive director [commissioner] may institute an action for a civil penalty as provided by Section 51.352. The amount of a civil penalty assessed under this section may not exceed:

(1)ii$2,500 for each violation; or

(2)ii$50,000 in the aggregate for all violations of a similar nature.

SECTIONi28.044.iiSection 1802.002, Occupations Code, is amended to read as follows:

Sec.i1802.002.iiAPPLICABILITY. This chapter does not apply to:

(1)iia sale conducted by order of a United States court under Title 11, United States Code;

(2)iia sale conducted by an employee of the United States, this state, or a political subdivision of this state in the course and scope of employment;

Wednesday, May 21, 2003 SENATE JOURNAL 1955

(3)iia sale conducted by a charitable or nonprofit organization, if the auctioneer receives no compensation;

(4)iia sale conducted by an individual of the individual's property if the individual is not engaged in the business of selling property as an auctioneer on a recurring basis;

(5)iia foreclosure sale of real property personally conducted by a trustee under a deed of trust;

(6)iia foreclosure sale of personal property personally conducted by:

(A)iia person who holds a security interest in the property, including a mortgage; or

(B)iian employee or agent of a person described by Paragraph (A) acting in the course and scope of employment, if:

(i)iithe employee or agent is not otherwise engaged in the auction business; and

(ii)iiall property for sale in the auction is subject to a security agreement;

(7)iia sale conducted by sealed bid;

(8)iian auction conducted only for student training purposes as part of a course of study approved by the executive director [commissioner] for auctioneers;

(9)iian auction conducted by a posted stockyard or market agency as defined by the federal Packers and Stockyards Act (7 U.S.C. Section 181 et seq.), as amended;

(10)iian auction of livestock conducted by a nonprofit livestock trade association chartered in this state, if the auction involves only the sale of livestock owned by members of the trade association; or

(11)iian auction conducted by a charitable or nonprofit organization chartered in this state, if the auction:

(A)iiis part of a fair that is organized under state, county, or municipal authority; and

(B)iiinvolves only the sale of property owned by the organization's members.

SECTIONi28.045.iiSection 1802.051(a), Occupations Code, is amended to read as follows:

(a)iiA person may not act as an auctioneer or associate auctioneer in an auction held in this state unless the person is an individual who holds a license issued by the executive director [commissioner] under this chapter.

SECTIONi28.046.iiSection 1802.054, Occupations Code, is amended to read as follows:

Sec.i1802.054.iiAPPLICATION FOR LICENSE. An applicant for a license must apply to the executive director [commissioner] on a form provided by the executive director [commissioner] that establishes the applicant's eligibility for the license. The application must be accompanied by:

(1)iithe required bond;

(2)iithe required license fee; and

(3)iieither:

(A)iithe permit number of a sales tax permit issued to the applicant by the comptroller under Subchapter F, Chapter 151, Tax Code; or

1956 78th Legislature — Regular Session 74th Day

(B)iiproof of exemption from the tax permit requirement under Chapter 151, Tax Code.

SECTIONi28.047.iiSections 1802.055(a) and (b), Occupations Code, are amended to read as follows:

(a)iiAn individual who establishes that the individual is eligible for an auctioneer's license may apply to the executive director [commissioner] to take the license examination. The application must be accompanied by the examination fee.

(b)iiOn receipt of an examination application and fee, the executive director [commissioner] shall furnish the applicant with:

(1)iistudy materials and references on which the examination will be based; and

(2)iia schedule specifying the dates and places the examination will be offered.

SECTIONi28.048.iiSections 1802.056(b) and (c), Occupations Code, are amended to read as follows:

(b)iiThe license examination shall be offered at least four times each year at locations designated by the executive director [commissioner].

(c)iiThe executive director [commissioner] shall prepare:

(1)iiexaminations for an auctioneer's license; and

(2)iistudy and reference materials on which the examinations are based.

SECTIONi28.049.iiSection 1802.152(a), Occupations Code, is amended to read as follows:

(a)iiThe department is the manager of the fund and shall:

(1)iiadminister the fund without appropriation;

(2)iimaintain books and records as required by the executive director [commissioner];

(3)iiappear at hearings or judicial proceedings; and

(4)iiinvest and reinvest the fund's assets as instructed by the executive director [commissioner].

SECTIONi28.050.iiSection 1802.155(b), Occupations Code, is amended to read as follows:

(b)iiIf the fund contains insufficient assets to pay the consumer:

(1)iithe department shall record the time and date an order for payment to a consumer was received; and

(2)iithe executive director [commissioner] shall pay consumers for whom an order is recorded under Subdivision (1) as funds become available in the order of the recorded time and date of the order.

SECTIONi28.051.iiSection 1802.156, Occupations Code, is amended to read as follows:

Sec.i1802.156.iiEDUCATION EXPENDITURES PERMITTED. The executive director [commissioner] may use amounts in excess of $250,000 in the fund to:

(1)iiadvance education and research in the auctioneering profession for the benefit of license holders and to improve and increase the efficiency of the industry;

(2)iiunderwrite educational seminars, training centers, and other educational projects for the use and benefit of license holders;

Wednesday, May 21, 2003 SENATE JOURNAL 1957

(3)iisponsor, contract, and underwrite other educational and research projects that advance the auctioneering profession in this state; and

(4)iicooperate with associations of auctioneers and other groups for the education and advancement of the auctioneering profession in this state.

SECTIONi28.052.iiSections 1802.205(a) and (b), Occupations Code, are amended to read as follows:

(a)iiIf the department's determination under Section 1802.202 is not disputed by the auctioneer or the aggrieved party, the executive director [commissioner] shall pay the claim from the fund, subject to Section 1802.206.

(b)iiIf a hearing is held on the department's determination, the executive director [commissioner] shall pay to the aggrieved party the amount of actual damages determined by the executive director [commissioner].

SECTIONi28.053.iiSection 1802.206(a), Occupations Code, is amended to read as follows:

(a)iiThe executive director [commissioner] may not pay a single aggrieved party more than $10,000.

SECTIONi28.054.iiSection 1802.208, Occupations Code, is amended to read as follows:

Sec.i1802.208.iiSUBROGATION. If the executive director [commissioner] pays a claim against an auctioneer, the department is subrogated to all rights of the aggrieved party against the auctioneer to the extent of the amount paid to the aggrieved party.

SECTIONi28.055.iiSection 1901.051(b), Occupations Code, is amended to read as follows:

(b)iiThe executive director [commissioner] shall issue licenses to applicants who qualify.

SECTIONi28.056.iiSection 1901.151, Occupations Code, is amended to read as follows:

Sec.i1901.151.iiLICENSE REQUIRED. A person may not act or offer to act as a driller unless the person holds a license issued by the executive director [commissioner] under this chapter and rules adopted under this chapter.

SECTIONi28.057.iiSection 1901.402, Occupations Code, is amended to read as follows:

Sec.i1901.402.iiINJUNCTION AND OTHER ENFORCEMENT PROVISIONS. (a) The executive director [commissioner] may bring an action to enjoin a person from violating this chapter.

(b)iiThe executive director [commissioner] may enforce by injunction or other appropriate remedy in a court any rule, decision, determination, or order adopted or entered under this chapter.

SECTIONi28.058.iiSection 1901.403, Occupations Code, is amended to read as follows:

Sec.i1901.403.iiVENUE. The executive director [commissioner] may bring an action in:

(1)iiTravis County; or

(2)iithe county in which:

(A)iithe offending activity occurred; or

(B)iithe person engaging in the activity resides.

1958 78th Legislature — Regular Session 74th Day

SECTIONi28.059.iiSection 1901.404(b), Occupations Code, is amended to read as follows:

(b)iiAt the request of the executive director [commissioner], the attorney general shall bring an action in the name of the state for injunctive relief, to recover a civil penalty, or for both injunctive relief and a civil penalty, as authorized by this subchapter.

SECTIONi28.060.iiSection 1902.151, Occupations Code, is amended to read as follows:

Sec.i1902.151.iiLICENSE REQUIRED. A person may not act or offer to act as an installer unless the person holds a license issued by the executive director [commissioner] under rules adopted under this chapter.

SECTIONi28.061.iiSection 1902.402, Occupations Code, is amended to read as follows:

Sec.i1902.402.iiINJUNCTION AND OTHER ENFORCEMENT PROVISIONS. (a) The executive director [commissioner] may bring an action to enjoin a person from violating this chapter.

(b)iiThe executive director [commissioner] may enforce by injunction or other appropriate remedy in a court any rule, decision, determination, or order adopted or entered under this chapter.

SECTIONi28.062.iiSection 1902.403, Occupations Code, is amended to read as follows:

Sec.i1902.403.iiVENUE. The executive director [commissioner] may bring an action in:

(1)iiTravis County; or

(2)iithe county in which:

(A)iithe offending activity occurred; or

(B)iithe person engaging in the activity resides.

SECTIONi28.063.iiSection 1902.404(b), Occupations Code, is amended to read as follows:

(b)iiAt the request of the executive director [commissioner], the attorney general shall bring an action in the name of the state for injunctive relief, to recover a civil penalty, or for both injunctive relief and a civil penalty, as authorized by this subchapter.

SECTIONi28.064.iiSection 2052.053, Occupations Code, is amended to read as follows:

Sec.i2052.053.iiINVESTIGATIVE AUTHORITY. (a) The executive director [commissioner] shall investigate allegations of activity that may violate this chapter.

(b)iiThe executive director [commissioner] may enter, at a reasonable time, a place of business or an establishment in which activity alleged to violate this chapter may occur. The executive director [commissioner] is not required to give advance notice before entering.

SECTIONi28.065.iiSection 2052.102, Occupations Code, is amended to read as follows:

Sec.i2052.102.iiBOXING PROMOTER LICENSE APPLICATION REQUIREMENTS. (a) An applicant for a boxing promoter's license under this chapter must apply on a form furnished by the executive director [commissioner].

Wednesday, May 21, 2003 SENATE JOURNAL 1959

(b)iiAn application must be accompanied by:

(1)iia license fee in an amount set by the commission; and

(2)iia surety bond:

(A)iisubject to approval by the executive director [commissioner]; and

(B)iiconditioned on the applicant's payment of the tax imposed under Section 2052.151.

(c)iiThe executive director [commissioner] shall establish the amount of the surety bond required under Subsection (b). The bond amount may not be less than $300.

SECTIONi28.066.iiSection 2052.108(a), Occupations Code, is amended to read as follows:

(a)iiAn application for a license under Section 2052.107 must be made on a form furnished by the executive director [commissioner].

SECTIONi 28.067.iiSection 2052.110, Occupations Code, is amended to read as follows:

Sec.i2052.110.iiLICENSE AND BONDING EXCEPTIONS. The licensing and bonding requirements of this subchapter do not apply to:

(1)iia boxing event in which the participants do not receive a money remuneration, purse, or prize for their performances or services if the event is promoted, conducted, or maintained by:

(A)iian educational institution;

(B)iia law enforcement organization;

(C)iia Texas National Guard Unit; or

(D)iian amateur athletic organization recognized by the executive director [commissioner];

(2)iia nonprofit amateur athletic association chartered under the law of this state, including a membership club affiliated with the association located within this state and recognized by the executive director [commissioner];

(3)iian event conducted by a college, school, or university that is part of the institution's athletic program in which only students of different educational institutions participate; or

(4)iian event in which only members of a troop, battery, company, or unit of the Texas National Guard or a law enforcement agency participate.

SECTIONi28.068.iiSection 2052.111, Occupations Code, is amended to read as follows:

Sec.i2052.111.iiDENIAL OF APPLICATION. The executive director [commissioner] may deny an application for a license if:

(1)iithe applicant does not meet the qualifications for the license; or

(2)iiafter conducting an investigation and a hearing, the executive director [commissioner] determines that the applicant has violated this chapter or a rule adopted under this chapter.

SECTIONi28.069.iiSection 2052.203(b), Occupations Code, is amended to read as follows:

1960 78th Legislature — Regular Session 74th Day

(b)iiThe elimination tournament boxing promoter of a local, regional, or championship elimination tournament is not required to require that each elimination tournament contestant wear headgear approved by the department if the promoter under department rules notifies the executive director [commissioner] of the decision not to use the approved headgear.

SECTIONi28.070.iiSections 2052.252(b) and (e), Occupations Code, are amended to read as follows:

(b)iiThe event may take place only if the executive director [commissioner] approves the event not later than seven days before the date the event begins.

(e)iiThe event is subject to the supervision of the executive director [commissioner].

SECTIONi28.071.iiSection 2052.302, Occupations Code, is amended to read as follows:

Sec.i2052.302.iiFORFEITURE OF PURSE. The executive director [commissioner] may order a boxer or manager to forfeit to this state a purse in an amount of not more than $1,000 for violating this chapter or a rule adopted under this chapter.

SECTIONi28.072.iiSections 2052.304(a) and (b), Occupations Code, are amended to read as follows:

(a)iiA person may seek review of a decision or an order of the executive director [commissioner] under this chapter by filing a petition for review in a district court in Travis County not later than the 30th day after the date on which the decision or order of the executive director [commissioner] is final if the person is:

(1)iia party to an administrative hearing in which the decision or order is issued; and

(2)iiaggrieved by the decision or order.

(b)iiThe filing of a petition for review under Subsection (a) does not stay the effect of the decision or order of the executive director [commissioner] that is the subject of the petition. The executive director [commissioner] or the district court in which the petition for review is filed may order a stay on appropriate terms.

SECTIONi28.073.iiSection 2052.305, Occupations Code, is amended to read as follows:

Sec.i2052.305.iiSERVICE OF PROCESS. A petition for review filed under Section 2052.304 must be served on:

(1)iithe executive director [commissioner]; and

(2)iiall parties of record to a hearing before the executive director [commissioner] that relates to the matter for which the petition for review is filed.

SECTIONi28.074.iiSection 2052.306(a), Occupations Code, is amended to read as follows:

(a)iiOn receipt of a petition for review served under Section 2052.305, the executive director [commissioner], not later than the date on which the answer to the petition must be filed or the date on which the record is made available to the executive director [commissioner], whichever date is later, shall certify to the district court in which the petition is filed the record of the proceedings to which the petition relates.

Wednesday, May 21, 2003 SENATE JOURNAL 1961

SECTIONi28.075.iiSection 2052.307, Occupations Code, is amended to read as follows:

Sec.i2052.307.iiJUDICIAL REVIEW. (a) A district court reviewing a decision or an order of the executive director [commissioner] under this subchapter shall try the action without a jury in the same manner as a civil action, except that evidence is not admissible unless the evidence was presented at the hearing or noticed in the record of the hearing before the executive director [commissioner]. The petitioner has the burden of proof in the action.

(b)iiThe court may:

(1)iiaffirm the decision or order of the executive director [commissioner]; or

(2)iiremand the matter to the executive director [commissioner] for further proceedings.

SECTIONi28.076.iiSection 2052.308, Occupations Code, is amended to read as follows:

Sec.i2052.308.iiAPPEAL. (a) The petitioner or executive director [commissioner] may appeal a final judgment of a court conducting a review under this subchapter in the same manner as a civil action.

(b)iiThe executive director [commissioner] is not required to file an appeal bond.

SECTIONi28.077.iiSection 2151.101(a), Occupations Code, is amended to read as follows:

(a)iiA person may not operate an amusement ride unless the person:

(1)iihas had the amusement ride inspected at least once a year by an insurer or a person with whom the insurer has contracted;

(2)iiobtains a written certificate from the insurer or person with whom the insurer has contracted stating that the amusement ride:

(A)iihas been inspected;

(B)iimeets the standards for insurance coverage; and

(C)iiis covered by the insurance required by Subdivision (3);

(3)iihas an insurance policy currently in effect written by an insurance company authorized to do business in this state or by a surplus lines insurer, as defined by Chapter 981 [Article 1.14-2], Insurance Code, or has an independently procured policy subject to Chapter 101 [Article 1.14-1], Insurance Code, insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride in an amount of not less than:

(A)ii$100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides; and

(B)ii$1,000,000 per occurrence for Class B amusement rides;

(4)iifiles with the executive director [commissioner], as required by this chapter, the inspection certificate and the insurance policy or a photocopy of the certificate or policy authorized by the executive director [commissioner]; and

(5)iifiles with each sponsor, lessor, landowner, or other person responsible for the amusement ride being offered for use by the public a photocopy of the inspection certificate and the insurance policy required by this subsection.

SECTIONi28.078.iiSection 2501.053(a), Occupations Code, is amended to read as follows:

1962 78th Legislature — Regular Session 74th Day

(a)iiNot later than the 30th day before the date a personnel service begins operating in this state, the owner of the service must file notice with the executive director [commissioner].

SECTIONi28.079.iiSection 2501.055(a), Occupations Code, is amended to read as follows:

(a)iiOn receipt of a notice filed under Section 2501.053, the executive director [commissioner] shall issue to the owner a certificate of authority to do business as a personnel service not later than the 15th day after the date the notice is filed if the owner:

(1)iipays the filing fee required for the certificate; and

(2)iicomplies with the requirements of Section 2501.054.

SECTIONi28.080.iiSection 2501.057, Occupations Code, is amended to read as follows:

Sec.i2501.057.iiRENEWAL OF CERTIFICATE. The executive director [commissioner] shall issue a renewal of a certificate of authority on the receipt of:

(1)iia renewal notice from the owner that contains the information required by Section 2501.053;

(2)iia renewal fee; and

(3)iisecurity that complies with Section 2501.054.

SECTIONi28.081.iiThe heading to Subchapter D, Chapter 2501, Occupations Code, is amended to read as follows:

SUBCHAPTER D. ENFORCEMENT [BY COMMISSIONER]

SECTIONi28.082.iiSection 2501.151, Occupations Code, is amended to read as follows:

Sec.i2501.151.iiENFORCEMENT. (a) The executive director [commissioner] shall enforce Section 2501.102 and may investigate a personnel service as necessary to enforce that section.

(b)iiThe attorney general shall assist the executive director [commissioner] on request.

SECTIONi28.083.iiSection 2501.253(a), Occupations Code, is amended to read as follows:

(a)iiIn addition to the amount awarded to a complainant under Section 2501.154(b), the executive director [commissioner] may impose on the personnel service an administrative penalty equal to two times the amount awarded under that subsection. A penalty collected under this section shall be deposited in the state treasury.

SECTIONi28.084.iiSections 2502.052(a) and (b), Occupations Code, are amended to read as follows:

(a)iiTo obtain a certificate of authority, an owner must:

(1)iifile with the executive director [commissioner] a sworn application accompanied by the required application fee; and

(2)iifile with the department security that complies with Section 2502.053.

(b)iiThe application must be in the form prescribed by the executive director [commissioner] and include:

(1)iithe address of the principal location of the career counseling service;

Wednesday, May 21, 2003 SENATE JOURNAL 1963

(2)iithe assumed name, if any, under which the career counseling service will operate;

(3)iithe name and address of each owner; and

(4)iia statement that the owner has read and is familiar with this chapter.

SECTIONi28.085.iiSection 2502.053(a), Occupations Code, is amended to read as follows:

(a)iiBefore the executive director [commissioner] may issue a certificate of authority to an owner, the owner must file with the department a bond in the amount of $10,000 that is:

(1)iiexecuted by a surety company authorized to do business in this state;

(2)iipayable to the state; and

(3)iiconditioned on the faithful performance of the owner's obligations under this chapter.

SECTIONi28.086.iiSections 2502.054(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe executive director [commissioner] shall issue a certificate of authority to do business as a career counseling service to an applicant who meets the requirements of this subchapter.

(b)iiThe executive director [commissioner] shall process a certificate application not later than the 15th day after the date the application is filed.

SECTIONi28.087.iiSection 2502.251, Occupations Code, is amended to read as follows:

Sec.i2502.251.iiENFORCEMENT. (a) The executive director [commissioner] shall enforce this chapter and may investigate a career counseling service as necessary.

(b)iiThe attorney general shall assist the executive director [commissioner] on request.

SECTIONi28.088.iiSection 2502.301, Occupations Code, is amended to read as follows:

Sec.i2502.301.iiADMINISTRATIVE PENALTY. In addition to the amount awarded to a complainant under Section 2502.254(b), the executive director [commissioner] may impose on the career counseling service an administrative penalty equal to two times the amount awarded under that subsection. A penalty collected under this section shall be deposited in the state treasury.

SECTIONi28.089.iiSection 7(a), Article 9035, Revised Statutes, is amended to read as follows:

(a)iiTo ensure the adequate performance of a warrantor's obligations to a consumer, each warrantor shall comply with financial security requirements by:

(1)iiinsuring its vehicle protection products under a reimbursement insurance policy issued by an insurer authorized to engage in the business of insurance in this state or under a surplus lines insurance policy issued by an insurer eligible to place coverage in this state as regulated under Chapter 981 [Article 1.14-2], Insurance Code; or

(2)iiproviding any other form of comparable financial security approved by the executive director [commissioner].

1964 78th Legislature — Regular Session 74th Day

SECTIONi28.090.iiSection 1.14, Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i1.14.iiPERSONNEL. The executive director [commissioner] may, as provided by the General Appropriations Act, appoint and fix the compensation of any personnel, including specialists and consultants, necessary to perform duties and functions under this article.

SECTIONi28.091.iiSection 1.41(e), Chapter 376, Acts of the 77th Legislature, Regular Session, 2001 (Article 165c, Vernon's Texas Civil Statutes), is amended to read as follows:

(e)iiOn written request of at least 25 qualified voters residing in the target area or operational area mentioned in the notice requesting an election accompanied by unsigned petitions, the county clerk of each county within the target area or operational area shall certify and mark for identification petitions for circulation. An application for a petition seeking an election to disapprove the issuance of a permit must be headed: "Application for Election to Disapprove a Weather Modification Permit." The application shall contain a statement just ahead of the signatures of the applicants stating the following: "It is the hope, purpose, and intent of the applicants whose signatures appear on this application to see disapproved the issuance of a permit for weather modification, including hail suppression." An application for a petition seeking an election to approve the issuance of a permit shall be headed: "Application for Election to Approve a Weather Modification Permit." The application shall contain a statement just ahead of the signatures of the applicants as follows: "It is the hope, purpose, and intent of the applicants whose signatures appear on this petition to see approved the issuance of a permit for weather modification, including hail suppression." On the return to the county clerks of petitions signed by at least 10 percent of the qualified voters residing in each county within the target area or operational area in the notice requesting an election, the commissioners court of each county shall call and hold an election. Notice under Chapter 111, Local Government Code, of the commissioners court meeting to call and hold the election is not required. The date of the election shall be determined by the commissioners court in accordance with this section, notwithstanding Sections 41.004 and 41.0041, Election Code. The petition must be filed with the clerk of each county within 30 days immediately following the first publication of notice. The election must be held within 45 days after the date the petition is received to determine whether or not the qualified voters in the target area or operational area approve the issuance of the permit. Immediately on calling the election, the clerk of each county within the target area or operational area shall notify the executive director [commissioner] of the date of the election. Except as otherwise provided in this article, elections must be held in accordance with the Election Code.

SECTIONi28.092.iiThe changes in law made by this article to Section 755.024, Health and Safety Code, regarding the terminology used to identify a commission or license issued by the Texas Department of Licensing and Regulation, do not affect the validity of a commission or license issued by the department under that section.

Wednesday, May 21, 2003 SENATE JOURNAL 1965

ARTICLE 29. GENERAL TRANSITION; EFFECTIVE DATE

SECTIONi29.001.iiThe changes in law made by this Act regarding the powers and duties of the executive director of the Texas Department of Licensing and Regulation that are transferred to the Texas Commission of Licensing and Regulation do not affect the status of a complaint, investigation, or other proceeding. A rule or form adopted by the executive director before the effective date of this Act remains in effect as a rule or form of the department until amended or changed.

SECTIONi29.002.iiThis Act takes effect September 1, 2003.

Floor Amendment No. 1

Amend CSSB 279 on page 1, lines 4-5, by striking "the Texas Department of Insurance and".

Floor Amendment No. 2

Amend CSSB 279 on page 17 by striking lines 9-16.

Floor Amendment No. 3

Amend CSSB 279 (House committee report) in SECTION 3.005 of the bill (page 26, lines 5-19) by striking added Section 9, Article 9102, Revised Statutes, and substituting a new Section 9 to read as follows:

Sec.i9.iiCOMPLAINTS. (a) The department shall continue to monitor a complaint made under Section 51.252, Occupations Code, that alleges that a building or facility is not in compliance with the standards and specifications adopted by the commission under this article until the department determines that:

(1)iithe building or facility has been brought into compliance; or

(2)iithe building or facility is not required to be brought into compliance because of a rule or statute, including Section 2(c) of this article.

(b)iiIf the building or facility is not required to be brought into compliance, the department shall, on final disposition of the complaint, notify in writing the person filing the complaint that the building or facility is not required to be brought into compliance because of a rule or statute and provide a reference to the rule or statute.

(c)iiThe department, at least quarterly and for as long as the department continues to monitor the complaint under Subsection (a) of this section, shall notify the person filing the complaint of the status of the monitoring.

Floor Amendment No. 4

Amend CSSB 279 by striking Articles 5, 10, 21, 23, and 27 of the bill.

Floor Amendment No. 5

Amend CSSB 279 as follows:

(1)iiOn page 65, strike lines 18-19 and substitute:

SECTIONi12.002.iiSection 1202.003, Occupations Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

(2)iiOn page 65, strike lines 26-27 and substitute:

the module or the modular component is transported to the commercial [permanent] site and erected or installed [on a permanent foundation system].

1966 78th Legislature — Regular Session 74th Day

(d)iiAn industrialized building includes a permanent commercial structure and a commercial structure designed to be transported from one commercial site to another commercial site.

(3)iiOn page 66, line 27, strike "or 1202.206".

(4)iiOn page 69, between lines 25 and 26, insert:

SECTIONi12.013.iiSection 1202.205, Occupations Code, is amended to read as follows:

Sec.i1202.205.iiRECIPROCITY. (a) The commission [commissioner] by rule may authorize an inspection of industrialized housing or buildings constructed in another state to be performed by an inspector of the equivalent regulatory agency of the other state.

(b)iiThe commission [commissioner] by rule may authorize an inspection of industrialized housing or buildings constructed in this state for use in another state.

(c)iiThe commission [commissioner] shall enter into a reciprocity agreement with the equivalent regulatory agency of the other state as necessary to implement this section.

(5)iiRenumber the sections of Article 12 of the bill accordingly.

(6)iiOn page 86, line 2, between "commission" and "[commissioner]", insert
", with the commission's approval,".

(7)iiOn page 104, line 10, between "commission" and "[commissioner]", insert
", with the commission's approval,".

(8)iiOn page 104, line 27, between "commission" and "[commissioner]", insert
", with the commission's approval,".

(9)iiOn page 105, line 6, between "commission" and "[commissioner]", insert
", with the commission's approval,".

(10)iiOn page 113, line 7, between "commission" and "[council]", insert ", with the commission's approval,".

(11)iiStrike page 162, line 25 through page 164, line 5.

(12)iiStrike page 169, line 27 through page 170, line 5.

(13)iiRenumber the sections of Article 28 of the bill accordingly.

Floor Amendment No. 7

Amend CSSB 279 by adding an appropriately numbered ARTICLE and renumbering the subsequent ARTICLES of the bill appropriately:

ARTICLE 28. RENTAL-PURCHASE AGREEMENTS

SECTION 1. Section 35.71, Business & Commerce Code, is amended by adding Subdivisions (3-a) to read as follows:

(3-a) "Loss damage waiver" means a merchant's agreement not to hold a consumer liable for loss from all or part of any damage to merchandise.

SECTION 2. Section 35.72(c), Business & Commerce Code, is amended to read as follows:

(c) A rental-purchase agreement may not contain a provision:

(1) requiring a confession of judgment;

(2) authorizing a merchant or an agent of the merchant to commit a breach of the peace in the repossession of the merchandise;

(3) waiving a defense, counterclaim, or right the consumer may have against the merchant or an agent of the merchant;

Wednesday, May 21, 2003 SENATE JOURNAL 1967

(4) requiring the purchase of insurance or a loss damage waiver from the merchant to cover the merchandise;

(5) requiring the payment of a late charge or reinstatement fee unless a periodic payment is delinquent for more than seven days if the payment is due monthly, or is delinquent for more than three days if the payment is due more frequently than monthly, and the charge or fee is in an amount equal to not more than the lesser of five percent of the delinquent payment or $5, and not less than $2; or

(6) requiring a payment at the end of the scheduled rental-purchase term in excess of or in addition to a regular periodic payment in order to acquire ownership of the merchandise. In no event shall the consumer be required to pay a sum greater than the total amount to be paid to acquire ownership, as directed in Subsection (g)(3) of this section.

SECTION 3. Subchapter F, chapter 35, Business & Commerce Code, is amended by adding Section 35.721 to read as follows:

Sec. 35.721. LOSS DAMAGE WAIVER. (a) In addition to other charges permitted by this subchapter, a consumer may contract for a loss damage waiver. A loss damage waiver is not insurance.

(b) A merchant may not sell a loss damage waiver unless the consumer agrees to the waiver in writing. A merchant may not impose or require the purchase of a loss damage waiver as a mandatory charge.

(c) A loss damage waiver may exclude loss or damage to the merchandise that is caused by an unexplained disappearance or abandonment of the merchandise, or any other damage that is intentionally caused by the consumer or that results from the consumer's wilful or wanton misconduct.

(d) A loss damage waiver agreement must include a statement of the total charge for the loss damage waiver.

(e) A merchant may charge a periodic fee for a loss damage waiver that may not exceed 10 percent of the periodic rental payment.

(f) A contract that offers a loss damage waiver must include the following notice:

"This contract offers an optional loss damage waiver for a additional charge to cover your responsibility for loss of or damage to the merchandise. You do not have to purchase this coverage. Before deciding whether or not to purchase this loss damage waiver, you may consider whether your homeowners' or casualty insurance policy affords you coverage for loss of or damage to rental merchandise and the amount of the deductible you would pay under your policy."

(g) a merchant may not sell a loss damage waiver unless the form of the contract containing the waiver has been approved by the Texas Department of Licensing and Regulation.

(h) The Texas Commission of Licensing and Regulation shall by rule:

(1) provide for annual submission of a all contract forms, and all amendments to contract forms, containing a loss damage waiver for review; and

(2) establish a reasonable fee to be paid by the merchant for the review of contract forms and for Texas Department of Licensing and Regulation administration of this subchapter.

1968 78th Legislature — Regular Session 74th Day

SECTION 4. Subchapter F, Chapter 35, Business and Commerce Code, is amended by adding Section 35.722 to read as follows:

Section 35.722 ENFORCEMENT; INVESTIGATION; HEARING.

(a) The Executive Director of the Texas Department of Licensing and Regulation shall enforce Section 35.721 and may investigate any merchant who has one or more contracts that include loss damage waivers as necessary.

(b) A person may file a complaint alleging a violation of Section 35.721 with the Executive Director of the Texas Department of Licensing and Regulation, who shall investigate the alleged violation on receipt of the complaint, and may inspect any records relevant to the complaint.

(c) If, as a result of an investigation, the Executive Director of the Texas Department of Licensing and Regulation determines that a violation may have occurred, an opportunity for a hearing shall be provided pursuant to the provisions of the Administrative Procedure Act, Gov't Code, Chapter 2001.

(d) If, after opportunity for hearing, the Texas Commission of Licensing and Regulation determines that the merchant has violated Section 35.721, the Commission may, as appropriate:

(1) impose an administrative penalty pursuant to Occupations Code, Chapter 51, Subchapter F, ad

(2) award the complaint damages in an amount up to the amount of the contract price for the merchandise.

SECTION 5. The change in law made by this article applies only to a rental-purchase agreement entered into on or after the effective date of this Act. A rental-purchase agreement entered into before the effective date of this Act is governed by the law in effect on the date on which the rental-purchase agreement was entered into, and the former law is continued in effect for that purpose.

Floor Amendment No. 8

Amend CSSB 279 by adding the following appropriately numbered sections to the bill and renumbering subsequent sections accordingly:

SECTION 29. Subchapter I, Chapter 2054, Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Sections 2054.255 and 2054.256 to read as follows:

Sec. 2054.255. CHANGE OF ADDRESS AND OTHER INFORMATION. (a) The system adopted under Section 2054.253, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, must allow a person regulated by one or more licensing authorities to file a single change of address on-line with the department. The department shall provide the new address to each appropriate licensing authority.

(b) The department may expand the system to include additional categories of updated information that license holders may need to provide to more than one licensing authority.

(c) If the department uses TexasOnline to implement the system, the department may recover costs incurred under this section as provided by Section 2054.252, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001.

Wednesday, May 21, 2003 SENATE JOURNAL 1969

Sec. 2054.256. SHARING OF INFORMATION. (a) Each licensing authority shall electronically share information regarding license holders, especially information regarding disciplinary information, with other licensing authorities to the extent it is feasible to do so and allowed by other law, under appropriate controls for the privacy, security, accuracy, and, when applicable, confidentiality of the information.

(b) A licensing authority may only use information it receives electronically under this section for regulatory purposes.

SECTION 30. This Act takes effect September 1, 2003.

Floor Amendment No. 9

Amend CSSB 279 in Article 3 of the bill by adding the following new SECTION, appropriately numbered, and renumbering subsequent SECTIONS of Article 3 appropriately:

SECTIONi____.iiSection 2, Article 9102, Revised Statutes, is amended by adding Subsection (h) to read as follows:

(h)iiIf any portion of a building described by Subsection (a)(1) of this section is occupied solely for residential use and the remaining occupied portion of the building is occupied for nonresidential use, the executive director shall consider only the nonresidential portion of the building in determining whether the building complies with the standards and specifications adopted under this article.

Floor Amendment No. 10

Amend CSSB 279 by striking Article 11 of the bill (House committee printing, page 54, line 8, through page 65, line 4) and substituting the following:

ARTICLE 11. ELEVATORS, ESCALATORS, AND
RELATED EQUIPMENT

SECTIONi11.01.iiSubchapter B, Chapter 754, Health and Safety Code, is amended to read as follows:

SUBCHAPTERiB.iiINSPECTION, [AND] CERTIFICATION,
AND REGISTRATION

Sec.i754.011.iiDEFINITIONS. In this subchapter:

(1)ii"Acceptance inspection" means an inspection performed at the completion of the initial installation or alteration of equipment and in accordance with the applicable ASME Code A17.1.

(2)ii"Accident" means an event involving equipment that results in death or serious bodily injury to a person.

(3)ii"Alteration" means a change in or modernization of existing equipment. The term does not include maintenance, repair, replacement, or a cosmetic change that does not affect the operational safety of the equipment or diminish the safety of the equipment below the level required by the ASME Code A17.1, ASME Code A17.3, ASME Code A18.1, or ASCE Code 21, as applicable, at the time of alteration.

(4)ii"Annual inspection" means an inspection of equipment performed in a 12-month period in accordance with the applicable ASME Code A17.1, ASME Code A17.3, ASME Code A18.1, or ASCE Code 21. The term includes an acceptance inspection performed within that period.

(5)ii"ASCE Code 21" means the American Society of Civil Engineers Code 21 for people movers operated by cables.

1970 78th Legislature — Regular Session 74th Day

(6)ii"ASME Code A17.1" means the American Society of Mechanical Engineers Safety Code for Elevators and Escalators A17.1.

(6-a)ii"Executive director" means the executive director of the department.

(7)i[(2)]ii"ASME Code A17.3" means the 2002 American Society of Mechanical Engineers Safety Code for Elevators and Escalators A17.3.

(8)ii"ASME Code A18.1" means the American Society of Mechanical Engineers Safety Code for Platform Lifts and Stairway Chairlifts A18.1.

(9)i[(3)]ii"Board" means the elevator advisory board.

(10)i[(4)]ii"Commission" means the Texas Commission of Licensing and Regulation.

(11)i[(5)]ii"Commissioner" means the commissioner of licensing and regulation.

(12)ii"Contractor" means a person engaged in the installation, repair, or maintenance of equipment. The term does not include an employee of a contractor or a person engaged in cleaning or any other work performed on equipment that does not affect the operational safety of the equipment or diminish the safety of the equipment below the level required by the ASME Code A17.1, ASME Code A17.3, ASME Code A18.1, or ASCE Code 21, as applicable.

(13)i[(6)]ii"Department" means the Texas Department of Licensing and Regulation.

(14)ii"Equipment" means an elevator, escalator, chairlift, platform lift, automated people mover operated by cables, or moving sidewalk, or related equipment.

(15)ii"Industrial facility" means a facility to which access is primarily limited to employees or contractors working in that facility.

(16)i[(7)]ii"Qualified historic building or facility" means a building or facility that is:

(A)iilisted in or eligible for listing in the National Register of Historic Places; or

(B)iidesignated as a Recorded Texas Historic Landmark or State Archeological Landmark.

(17)i[(8)]ii"Related equipment" means:

(A)iiautomatic equipment that is used to move a person in a manner that is similar to that of an elevator, an [or] escalator, a chairlift, a platform lift, an automated people mover operated by cables, or [and includes] a moving sidewalk; and

(B)iihoistways, pits, and machine rooms for equipment.

(18)ii"Serious bodily injury" means a major impairment to bodily function or serious dysfunction of any bodily organ or part requiring medical attention.

(19)ii"Unit of equipment" means one elevator, escalator, chairlift, platform lift, automated people mover operated by cables, or moving sidewalk, or related equipment.

Sec.i754.0111.iiEXEMPTION. (a)iiThis subchapter does not apply to [an elevator, escalator, or related] equipment in a private building for a labor union, trade association, private club, or charitable organization that has two or fewer floors.

Wednesday, May 21, 2003 SENATE JOURNAL 1971

(b)iiThis subchapter does not apply to an elevator located in a single-family dwelling, except as provided by Section 754.0141.

Sec.i754.012.iiELEVATOR ADVISORY BOARD. (a)iiThe elevator advisory board is composed of nine members appointed by the presiding officer of the commission [commissioner] as follows:

(1)iia representative of the insurance industry or a certified elevator inspector;

(2)iia representative of [elevator, escalator, and related] equipment constructors;

(3)iia representative of owners or managers of a building [buildings] having fewer than six stories and having [an elevator, an escalator, or related] equipment;

(4)iia representative of owners or managers of a building [buildings] having six stories or more and having [an elevator, an escalator, or related] equipment;

(5)iia representative of independent [elevator, escalator, and related] equipment maintenance companies;

(6)iia representative of [elevator, escalator, and related] equipment manufacturers;

(7)iia licensed or registered engineer or architect [representative of professional engineers or architects];

(8)iia public member; and

(9)iia public member with a physical disability.

(b)iiBoard members serve at the will of the commission [commissioner].

(c)iiThe presiding officer of the commission [commissioner] shall appoint a presiding officer of the board to serve for two years.

(d)iiThe board shall meet at least twice each calendar year.

(e)iiA board member serves without compensation but is entitled to reimbursement for travel as provided for in the General Appropriations Act [and other necessary expenses incurred in performing duties under this subchapter].

Sec.i754.013.iiBOARD DUTIES. To protect public safety and to identify and correct potential hazards, the board shall advise the commission [commissioner] on:

(1)iithe adoption of appropriate standards for the installation, alteration, operation, and inspection of [elevators, escalators, and related] equipment;

(2)iithe status of [elevators, escalators, and related] equipment used by the public in this state; [and]

(3)iisources of information relating to equipment safety;

(4)iipublic awareness programs related to elevator safety, including programs for sellers and buyers of single-family dwellings with elevators, chairlifts, or platform lifts; and

(5)iiany other matter considered relevant by the commission [commissioner].

Sec.i754.014.iiSTANDARDS ADOPTED BY COMMISSION [COMMISSIONER]. (a)iiThe commission [commissioner] shall adopt standards for the installation, maintenance, alteration, operation, and inspection of [elevators, escalators, and related] equipment used by the public in:

(1)iibuildings owned or operated by the state, a state-owned institution or agency, or a political subdivision of the state; and

1972 78th Legislature — Regular Session 74th Day

(2)iibuildings that contain [an elevator, an escalator, or related] equipment that is open to the general public, including a hotel, motel, apartment house, boardinghouse, church, office building, shopping center, or other commercial establishment.

(b)iiStandards adopted by the commission [commissioner] may not contain requirements in addition to the requirements in the ASME Code A17.1, [or] ASME Code A17.3, ASME Code A18.1, or ASCE Code 21. The standards must allow alteration of existing equipment if the alteration does not diminish the safety of the equipment below the level required by this subchapter at the time of alteration.

(c)iiStandards adopted by the commission [commissioner] must require [elevators, escalators, and related] equipment to comply with the installation requirements of the [following, whichever is the least restrictive:

[(1)iithe] ASME Code A17.1, ASME Code A18.1, or ASCE Code 21 that was in effect and applicable on the date of installation of the [elevators, escalators, and related] equipment[; or

[(2)iian applicable municipal ordinance governing the installation of elevators, escalators, and related equipment that was in effect on the date of installation].

(d)iiStandards adopted by the commission [commissioner] must require [elevators, escalators, and related] equipment to comply with the installation requirements of the [1994] ASME Code A17.3 that contains minimum safety standards for all [elevators, escalators, and related] equipment, regardless of the date of installation.

(e)iiThe executive director [On written request, the commissioner] shall grant a delay for compliance with the applicable ASME Code A17.1, [or the 1994] ASME Code A17.3, or ASME Code A18.1 until a specified time if compliance is not readily achievable, as that phrase is defined in the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.), or regulations adopted under that Act. The accumulated total time of all delays may not exceed three years, except as provided by Subsection (f) or as allowed in the discretion of the executive director.

(f)iiThe executive director [On written request, the commissioner] shall grant a delay until September 1, 2005, for compliance with the requirements for door restrictors or firefighter's service in the [1994] ASME Code A17.3 if those requirements were not included in the ASME Code A17.1 that was in effect on the date of installation [of the elevator, escalator, or related equipment] and the [that] equipment was not subsequently installed [by an owner of the elevator, escalator, or related equipment].

(g)iiThe executive director [commissioner] may grant a waiver of compliance from an applicable code requirement [with the applicable ASME Code A17.1 or the 1994 ASME Code A17.3] if the executive director [commissioner] finds that:

(1)iithe building in which the [elevator, escalator, or related] equipment is located is a qualified historic building or facility or the noncompliance is due to structural components of the building; [and]

(2)iinoncompliance will not constitute a significant threat to passenger safety; and

Wednesday, May 21, 2003 SENATE JOURNAL 1973

(3)iinoncompliance, with adequate alternative safeguards, will not constitute a significant threat to worker safety.

(h)iiThe executive director shall grant a waiver of compliance if the noncompliance resulted from compliance with a municipal equipment construction code at the time of the original installation and the noncompliance does not pose imminent and significant danger. The executive director [commissioner] may grant a waiver of compliance with the firefighter's service provisions of the ASME Code A17.1 or the [1994] ASME Code A17.3 in an elevator that exclusively serves a vehicle parking garage in a building that:

(1)iiis used only for parking;

(2)iiis constructed of noncombustible materials; and

(3)iiis not greater than 75 feet in height.

(i)iiThis subchapter does not apply to [an elevator, an escalator, or related] equipment in an industrial facility, or in a grain silo, radio antenna, bridge tower, underground facility, or dam, to which access is limited primarily [principally] to employees of or working in that facility or structure.

(j)ii[The commissioner may charge a reasonable fee as set by the commission for an application for waiver or delay.] One application for a waiver or delay may contain all requests related to a unit of equipment [particular building]. A delay may not be granted indefinitely but must be granted for [to] a specified time not to exceed three years.

(k)iiFor purposes of this section, the date of installation or alteration of equipment is the date that the owner of the real property entered into a contract for the installation or alteration of the [purchase of the elevators, escalators, or related] equipment. If that date cannot be established, the date of installation or alteration is the date of issuance of the municipal building permit under which the [elevators, escalators, or related] equipment was installed or altered [constructed] or, if a municipal building permit was not issued, the date that electrical consumption began for the construction of the building in which the [elevators, escalators, or related] equipment was installed.

Sec.i754.0141.iiSTANDARDS FOR EQUIPMENT IN SINGLE-FAMILY DWELLINGS; REQUIRED INFORMATION. (a)iiElevators, chairlifts, or platform lifts installed in a single-family dwelling on or after January 1, 2004, must comply with the ASME Code A17.1 or A18.1, as applicable, and must be inspected by a QEI-1 certified inspector after the installation is complete. The inspector shall provide the dwelling owner a copy of the inspection report.

(b)iiThe commission shall, before Januaryi1, 2004, adopt rules containing minimum safety standards that must be used by QEI-1 certified inspectors when inspecting elevators, chairlifts, and platform lifts installed in single-family dwellings.

(c)iiA municipality may withhold a certificate of occupancy for a dwelling or for the installation of the elevator or chairlift until the owner provides a copy of the QEI-1 inspection report to the municipality.

(d)iiA contractor is not required to report to the department any information concerning equipment in a single-family dwelling or the contractor's work on the equipment.

1974 78th Legislature — Regular Session 74th Day

(e)iiOn completing installation of equipment in a single-family dwelling, a contractor shall provide the dwelling owner with relevant information, in writing, about use, safety, and maintenance of the equipment, including the advisability of having the equipment periodically and timely inspected by a QEI-1 certified inspector.

(f)iiAn inspection by a QEI-1 certified inspector of equipment in a single-family dwelling may be performed only at the request and with the consent of the owner. The owner of a single-family dwelling is not subject to Section 754.022, 754.023, or 754.024.

Sec.i754.015.iiRULES. (a)iiThe commission [commissioner] by rule shall provide for:

(1)iian annual [the] inspection and certification of the [once each calendar year of elevators, escalators, and related] equipment covered by standards adopted under this subchapter;

(2)ii[the] enforcement of those standards;

(3)iiregistration [the certification] of qualified [persons as] inspectors and contractors [for the purposes of this subchapter]; [and]

(4)iithe form of [the] inspection documents, contractor reports, [report] and certificates [certificate] of compliance;

(5)iinotification to building owners, architects, and other building industry professionals regarding the necessity of annually inspecting equipment;

(6)iiapproval of continuing education programs for registered QEI-1 certified inspectors; and

(7)iistandards of conduct for individuals who are registered under this subchapter.

(b)iiThe commission [commissioner] by rule may not [require that]:

(1)iirequire inspections of equipment to [inspection] be made more often than every 12 months, except as provided by Subsection (c) [once per year of elevators, escalators, and related equipment];

(2)iirequire persons to post a bond or furnish insurance or to have minimum experience or education as a condition of certification or registration; [and]

(3)iirequire building owners to submit to the department proposed plans for equipment installation or alteration; or

(4)iiprohibit a QEI-1 certified inspector who is registered with the department from inspecting equipment.

(c)iiThe commission by rule may require a reinspection or recertification of equipment if the equipment has been altered and poses a significant threat to passenger or worker safety or if an annual inspection report indicates an existing violation has continued longer than permitted in a delay granted by the executive director.

(d)iiThe executive director may charge a reasonable fee as set by the commission for:

(1)iiregistering or renewing registration of an inspector;

(2)iiregistering or renewing registration of a contractor;

(3)iiapplying for a certificate of compliance;

Wednesday, May 21, 2003 SENATE JOURNAL 1975

(4)iifiling an inspection report as required by Section 754.019(a)(3), 30 days or more after the date the report is due, for each day the report remains not filed after the date the report is due;

(5)iiapplying for a waiver or delay; and

(6)iiattending a continuing education program sponsored by the department for registered QEI-1 inspectors [inspection reports or certificates of compliance be placed in locations other than one provided in Section 754.019(4)].

Sec.i754.016.iiINSPECTION REPORTS [REPORT] AND CERTIFICATES [CERTIFICATE] OF COMPLIANCE. (a)iiInspection reports [An inspection report] and certificates [a certificate] of compliance required under this subchapter must cover all [elevators, escalators, and related] equipment in a building or structure appurtenant to the building, including a parking facility, that is [are] owned by the same person or persons. [There shall be only one inspection report and one certificate of compliance for each building.]

(b)iiAn inspector shall date and sign an inspection report and shall issue the report to the building owner not later than the 10th calendar day after the date of inspection. [The inspection report shall be on forms designated by the commissioner.]

(c)iiThe executive director [commissioner] shall date and sign a certificate of compliance and shall issue the certificate to the building owner. The certificate of compliance shall state:

(1)iithat the [elevators, escalators, and related] equipment has [have] been inspected by a certified inspector and found by the inspector to be in compliance, except for any delays or waivers granted by the executive director [commissioner] and stated in the certificate;

(2)iithe date of the last inspection and the due date for the next inspection; and

(3)iicontact information at the department to report a violation of this subchapter.

(d)iiThe commission by rule shall:

(1)iispecify what information must be contained in a certificate of compliance;

(2)iidescribe the procedure by which a certificate of compliance is issued;

(3)iirequire that a certificate of compliance related to an elevator be posted in a publicly visible area of the building; and

(4)iidetermine what constitutes a "publicly visible area" under Subdivision (3).

Sec.i754.017.iiCERTIFIED INSPECTORS. (a)iiIn order to inspect equipment, an individual must:

(1)iibe registered [An inspector must register] with the department;

(2)iiattend educational programs approved by the department;

(3)ii[and] be certified as a QEI-1 [an ASME-QEI-1] inspector by an organization accredited by the American Society of Mechanical Engineers; and

(4)iipay all applicable fees. [Any certification charges or fees shall be paid by the inspector.]

1976 78th Legislature — Regular Session 74th Day

(b)ii[The commissioner may not by rule prohibit an ASME-QEI-1 certified inspector who is registered with the department from inspecting under this subchapter an elevator, an escalator, or related equipment.] A person assisting a certified inspector and working under the direct, on-site supervision of the inspector is not required to be [ASME-QEI-1] certified.

(c)iiA registration expires on the first anniversary of the date of issuance.

(d)iiA certified inspector may not be required to attend more than seven hours of continuing education during each licensing period. [The commissioner may charge a $15 fee to certified inspectors for registering with the department.]

Sec.i754.0171.iiCONTRACTOR REGISTRATION. (a)iiA person may not install, repair, or maintain equipment without registering as a contractor with the department as required by this subchapter.

(b)iiA contractor shall submit an application for registration and pay appropriate fees to the department. The registration application form may require information concerning the background, experience, or identity of the applicant.

(c)iiA registration expires on the first anniversary of the date of issuance.

(d)iiA person registering as a contractor under this subchapter shall submit to the department an initial report, not later than the 60th day following the application date, containing:

(1)iithe street address of each building or location at which the person performed installation, repair, alteration, or maintenance of equipment for the previous two years; and

(2)iithe name and mailing address of the building owner.

(e)iiAfter the initial report required by Subsection (d), a contractor registered as required by this subchapter shall submit to the department a quarterly report containing:

(1)iithe street address of each building or location at which the contractor performed installation, repair, alteration, or maintenance of equipment not reported in the contractor's initial report to the department under Subsection (d); and

(2)iithe name and mailing address of the building owner.

(f)iiInstallation, repair, alteration, and maintenance standards for contractors must be consistent with ASME Code A17.1, ASME Code A17.3, ASME Code A18.1, and ASCE Code 21.

Sec.i754.0172.iiINSPECTION FEE. [(a)iiA person inspecting an elevator, an escalator, or related equipment under this subchapter may not charge more than $65 per elevator cab or per escalator for each inspection.

[(b)]iiThe amount charged for an inspection or the performance of an inspection of equipment under this subchapter may not be contingent on the existence of a maintenance contract between the person performing the inspection and any other person.

Sec.i754.018.iiPOWERS OF MUNICIPALITIES. Subject to Section 754.014(h), if [If] a municipality operates a program for the installation, maintenance, alteration, inspection, or [and] certification of [elevators, escalators, and related] equipment, this subchapter shall not apply to the [elevators, escalators, and related]

Wednesday, May 21, 2003 SENATE JOURNAL 1977

Sec.i754.019.iiDUTIES OF REAL PROPERTY OWNERS. (a)iiThe owner of real property on which [an elevator, an escalator, or related] equipment covered by this subchapter is located shall:

(1)iihave the [elevator, escalator, or related] equipment inspected annually by a [an ASME-QEI-1] certified inspector [in accordance with the commissioner's rules];

(2)iiobtain an inspection report from the inspector evidencing that all [elevators, escalators, and related] equipment in a building on the real property was [were] inspected in accordance with this subchapter and rules adopted under this subchapter;

(3)iifile with the executive director [commissioner a copy of] each inspection report, and all applicable fees, [and a $20 filing fee for each report, plus $5 for each elevator, escalator, or related equipment] not later than the 60th day after the date on which an inspection is made under this subchapter;

(4)iidisplay the certificate of compliance:

(A)iiin a publicly visible area of the building, as determined by commission rule under Section 754.016, [the elevator mechanical room] if the certificate relates to an elevator;

(B)iiin the escalator box if the certificate relates to an escalator; or

(C)iiin a place designated by the executive director [commissioner] if the certificate relates to [related] equipment other than an elevator or escalator; and

(5)iidisplay the inspection report at the locations designated in Subdivision (4) until a certificate of compliance is issued [by the commissioner].

(b)iiWhen an inspection report is filed [with the commissioner], the owner shall submit to the executive director, as applicable [commissioner]:

(1)iiverification that any deficiencies in the inspector's report have been remedied or that a bona fide contract to remedy the deficiencies has been entered into; or

(2)iiany application for delay or waiver of an applicable standard.

(c)ii[An inspection must be made not later than 18 months after the previous calendar year's inspection. This subsection does not affect the requirement that elevators, escalators, or related equipment be inspected at least once each calendar year.

[(d)]iiFor the purpose of determining timely filing under Subsection (a)(3) and Section 754.016(b), an inspection report and filing fees [fee] are considered filed on the earlier of:

(1)iithe date of personal delivery;

(2)iithe date of postmark [mailing] by United States mail if properly addressed to the executive director; or

(3)iithe date of deposit with a commercial courier service, if properly addressed to the executive director [commissioner].

1978 78th Legislature — Regular Session 74th Day

(d)ii[(e)iiIf the inspection report and fee required by Subsection (a)(3) are not timely filed, the commissioner may charge the owner of the real property on which the elevator, escalator, or related equipment is located an additional $100 fee for late filing.

[(f)iiThe commissioner may not require that an inspection report or certificate of compliance be placed inside or immediately outside an elevator cab or escalator or in the lobby or hallways of a building.

[(g)]iiA fee may not be charged or collected for a certificate of compliance for an institution of higher education as defined in Section 61.003, Education Code.

(e)iiAn owner shall report to the department each accident involving equipment not later than 72 hours following the accident.

Sec.i754.020.iiCHIEF ELEVATOR INSPECTOR [DEPOSIT OF FEES]. The executive director may appoint a chief elevator inspector to administer the equipment inspection and registration program. The chief elevator inspector:

(1)iimay not have a financial or commercial interest in the manufacture, maintenance, repair, inspection, installation, or sale of equipment; and

(2)iimust possess a QEI-1 certification or obtain the certification within six months after becoming chief inspector [Fees collected under this subchapter shall be deposited to the credit of an account in the general revenue fund that may be used by the commissioner only to administer and enforce this subchapter and to reimburse expenses of board members provided by this subchapter].

Sec.i754.021.iiLIST OF REGISTERED INSPECTORS AND CONTRACTORS [; PERSONNEL]. The executive director shall [commissioner may]:

(1)iicompile a list of [ASME-QEI-1] certified inspectors and contractors who are registered with the department [to perform an inspection under this subchapter]; and

(2)iiemploy personnel who are [as] necessary to enforce this subchapter.

Sec.i754.022.iiNOTICE OF NONCOMPLIANCE. If the department [commissioner] learns of a situation of noncompliance under Section 754.019, the department [commissioner] shall send notice by certified mail of the noncompliance and the actions required to remedy the noncompliance to the record owner of the real property on which the equipment that is the subject of the noncompliance is located.

Sec.i754.023.iiINVESTIGATION; REGISTRATION [LICENSE] PROCEEDINGS; INJUNCTION; EMERGENCY ORDERS. (a)iiIf there is good cause for the executive director [commissioner] to believe that [an elevator, an escalator, or related] equipment on real property poses an imminent and significant danger [is dangerous] or that an accident involving [an elevator, an escalator, or related] equipment occurred on the property and serious bodily injury or property damage resulted, the executive director [the commissioner] may enter the property during regular business hours after notice to the owner, operator, or person in charge of the property to inspect the [elevator, escalator, or related] equipment or investigate the danger or accident at no cost to the owner.

(b)iiThe executive director [commissioner] may enter real property during regular business hours after notice to the owner, operator, or person in charge of the property to verify, at no cost to the owner, whether an inspection report or certificate of compliance has been displayed as required under Section 754.019(a).

Wednesday, May 21, 2003 SENATE JOURNAL 1979

(c)iiThe commission [commissioner] may deny, suspend, or revoke a [the] registration under this subchapter and may assess an administrative penalty [of any ASME-QEI-1 certified inspector] for:

(1)iiobtaining registration with the executive director [commissioner] by fraud or false representation;

(2)iifalsifying a [any inspection] report submitted to the executive director [commissioner]; or

(3)iiviolating this subchapter or a rule adopted under this subchapter.

(d)iiProceedings for the denial, suspension, or revocation of a registration and appeals from those proceedings are governed by Chapter 2001, Government Code.

(e)iiThe executive director [commissioner] is entitled to appropriate injunctive relief to prevent a violation or threatened violation of this subchapter or a rule adopted under this subchapter.

(f)i[(e)]iiThe executive director [commissioner] may bring suit in a district court in Travis County or in the county in which the violation or threatened violation occurs. If requested, the attorney general shall represent the executive director [commissioner] in the suit.

(g)iiThe executive director may issue an emergency order as necessary to enforce this subchapter if the executive director determines that an emergency exists requiring immediate action to protect the public health and safety.

(h)iiThe executive director may issue an emergency order with simultaneous notice and without hearing or with the notice and opportunity for hearing practicable under the circumstances.

(i)iiIf an emergency order is issued under this section without a hearing, the executive director shall set the time and place for a hearing to affirm, modify, or set aside the emergency order not later than the 10th day after the date the order was issued.

(j)iiAn emergency order may direct a building owner or manager to disconnect power to or lock out equipment if:

(1)iithe department determines imminent and significant danger to passenger safety exists if action is not taken immediately and reasonable effort has been made for voluntary compliance by notification to the building owner or manager of the danger before the issuance of an emergency order; or

(2)iian annual inspection has not been performed in more than two years and:

(A)iithe department gives the building owner or manager, or the agent of the building owner or manager, 60 days' written notice by certified mail directing the equipment to be inspected according to this subchapter; and

(B)iiafter the expiration of the notice period under Paragraph (A), the department gives the building owner or manager, or the agent of the building owner or manager, written notice by certified mail stating that an order to disconnect power or lock out equipment will be made after the seventh day after the date notice is delivered.

(k)iiIf an emergency order to disconnect power or lock out equipment is issued, the building owner or manager may have the power reconnected or the equipment unlocked only if:

1980 78th Legislature — Regular Session 74th Day

(1)iia registered inspector or contractor or a department representative has filed a written form with the department verifying the imminent and significant danger has been removed by repair, replacement, or other means; and

(2)iithe building owner, before the reconnection of power or unlocking of equipment, reimburses the department for all expenses incurred relating to the disconnection of power or lockout.

(l)iiThe executive director or the executive director's designee may allow delayed payment if the building owner or manager commits in writing to pay the department for the expenses required by Subsection (k) not later than the 10th day after the date power is reconnected or equipment is unlocked.

(m)iiIf an emergency order to disconnect power or lock out equipment is issued and the building owner later notifies the department that the imminent and significant danger no longer exists, the executive director or the executive director's designee shall, after the requirements of Subsection (k) are satisfied, promptly issue written permission to reconnect power or unlock the equipment and notify the owner.

Sec.i754.024.iCRIMINAL PENALTY. (a)iiA person commits an offense if the person receives notice of noncompliance under Section 754.022 and the person has not remedied the noncompliance or entered into a bona fide contract to remedy the noncompliance before the 61st day after the date on which the notice is received.

(b)iiAn offense under this section is a Class C misdemeanor.

(c)iiEach day of an offense under Subsection (a) constitutes a separate offense.

Sec.i754.025.iiAPPLICATION OF CERTAIN LAW. (a) Chapter 53, Occupations Code, applies to a registration under this subchapter.

(b)iiSections 51.401 and 51.404, Occupations Code, do not apply to this subchapter.

SECTIONi11.02.iiNot later than Decemberi1, 2003, the Texas Commission of Licensing and Regulation shall adopt the rules required by Section 754.016 and Subsection (a), Section 754.019, Health and Safety Code, as amended by this article.

SECTIONi11.03.iiThe changes in law made by this article apply only to an inspection report or certificate of compliance issued on or after the effective date of this article. An inspection report or certificate issued before the effective date of this article is covered by the law in effect when the report or certificate was issued and is valid until the renewal date of that report or certificate under the terms of the former law, and the former law is continued in effect for that purpose. On renewal, an inspection report or certificate is subject to Chapter 754, Health and Safety Code, as amended by this article.

SECTIONi11.04.ii(a)iiThis article takes effect Septemberi1, 2003, except that:

(1)iia contractor is not required to be registered under Section 754.0171, Health and Safety Code, as amended by this article, before Januaryi1, 2004; and

(2)iian escalator constructed before Septemberi1, 2003, is not required to comply with step/skirt index requirements imposed under the 2002 American Society of Mechanical Engineers Safety Code for Elevators and Escalators A17.3 before Septemberi1, 2009.

(b)iiA member of the elevator advisory board serving on the effective date of this article continues to serve until removed by the governor or until the member's successor is appointed by the governor.

Wednesday, May 21, 2003 SENATE JOURNAL 1981

Floor Amendment No. 11

Amend CSSB 279 by striking Article 13 of the bill and renumbering the subsequent articles of the bill appropriately.

Floor Amendment No. 13

Amend Floor Amendment No. 10 by Geren to CSSB 279 as follows:

(1)iiIn SECTION 11.01, in amended Section 754.012(a), Health and Safety Code (page 3, line 28), between "commission" and "[commissioner]", insert ", with the commission's approval,".

(2)iiIn SECTION 11.01, in amended Section 754.012(c), Health and Safety Code (page 4, line 18), between "commission" and "[commissioner]", insert ", with the commission's approval,".

(3)iiIn SECTION 11.01, in amended Section 754.019(a)(1), Health and Safety Code (page 14, line 23), strike "[in accordance with the commissioner's rules]" and substitute "in accordance with the commission's [commissioner's] rules".

(4)iiIn SECTION 11.02 (page 20, line 29), strike "December 1, 2003" and substitute "March 1, 2004".

Floor Amendment No. 16

Amend CSSB 279 by adding appropriately numbered sections in Article 12 of the bill to read as follows:

SECTIONi____.iiSection 1202.251(b), Occupations Code, is amended to read as follows:

(b)iiExcept as provided by Section 1202.253, requirements [Requirements] and regulations not in conflict with this chapter or with other state law relating to transportation, erection, installation, or use of industrialized housing or buildings must be reasonably and uniformly applied and enforced without distinctions as to whether the housing or buildings are manufactured or are constructed on-site.

SECTIONi____.iiSubchapter F, Chapter 1202, Occupations Code, is amended by adding Section 1202.253 to read as follows:

Sec.i1202.253.iiMUNICIPAL REGULATION OF SINGLE-FAMILY AND DUPLEX INDUSTRIALIZED HOUSING. (a) Single-family or duplex industrialized housing must have all local permits and licenses that are applicable to other single-family or duplex dwellings.

(b)iiFor purposes of this section, single-family or duplex industrialized housing is real property.

(c)iiA municipality may adopt regulations that require single-family or duplex industrialized housing to:

(1)iihave a value equal to or greater than the median taxable value for each single-family dwelling located within 500 feet of the lot on which the industrialized housing is proposed to be located, as determined by the most recent certified tax appraisal roll for each county in which the properties are located;

(2)iihave exterior siding, roofing, foundation fascia, and fenestration compatible with the single-family dwellings located within 500 feet of the lot on which the industrialized housing is proposed to be located;

1982 78th Legislature — Regular Session 74th Day

(3)iicomply with municipal aesthetic standards, building setbacks, side and rear yard offsets, subdivision control, architectural landscaping, square footage, and other site requirements applicable to single-family dwellings; or

(4)iibe securely fixed to a permanent foundation.

(d)iiFor purposes of Subsection (c), "value" means the taxable value of the industrialized housing and the lot after installation of the housing.

(e)iiExcept as provided by Subsection (c), a municipality may not adopt a regulation under this section that is more restrictive for industrialized housing than that required for a new single-family or duplex dwelling constructed on-site.

(f)iiThis section does not:

(1)iilimit the authority of a municipality to adopt regulations to protect historic properties or historic districts; or

(2)iiaffect deed restrictions.

Amendment No. 17

Amend Floor Amendment No. 16 to CSSB 279 on page 1, line 27 by inserting the words "roof pitch" between the words "roofing," and "foundation fascia".

Floor Amendment No. 20

Amend CSSB 279 by adding the following ARTICLE and SECTIONS, appropriately numbered, and renumbering the ARTICLES and SECTIONS of the bill as appropriate:

ARTICLEi____.iiREGULATION OF PRIVATE PROCESS SERVERS

Section ____.01. The Civil Practice and Remedies Code is amended by adding Title 8 to read as follows:

TITLEi8.iiCIVIL PROCESS

CHAPTERi191.iiPRIVATE PROCESS SERVERS

Sec.i191.001.iiDEFINITIONS.iiIn this chapter:

(1)ii"Commission" means the Texas Commission of Licensing and Regulation.

(2)ii"Department" means the Texas Department of Licensing and Regulation.

(3)ii"Executive director" means the executive director of the department.

Sec.i191.002.iiAPPLICABILITY OF CHAPTER.ii(a) This chapter does not apply to a sheriff, constable, or clerk of a court engaged in the discharge of that person's official duties.

(b)iiThis chapter does not limit or restrict the service of process in this state as provided by a court order.

(c)iiChapter 51, Occupations Code, applies to this chapter.

Sec.i191.003.iiRULES.iiThe commission shall adopt rules for the implementation of this chapter.

Sec.i191.004.iiFEES.iiThe commission by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter.

Sec.i191.005.iiLICENSE OR REGISTRATION REQUIRED.iiA person may not serve civil process in this state unless the person is licensed or registered under this chapter.

Wednesday, May 21, 2003 SENATE JOURNAL 1983

Sec.i191.006.iiLICENSE APPLICATION; TEMPORARY LICENSE.ii(a) An applicant for an initial process server license under this chapter must submit an application on a form prescribed by the executive director. To be eligible for a license under this section, an applicant must:

(1)iibe at least 18 years of age;

(2)iinot have been convicted of a misdemeanor involving moral turpitude or a felony;

(3)iisubmit the nonrefundable application fee; and

(4)iicomply with the requirements adopted under Subsection (b).

(b)iiEach license applicant must provide proof to the department, in a manner acceptable to the department, of:

(1)iicompletion of a department-approved seminar consisting of at least eight hours of instruction in civil process; and

(2)iimaintenance of insurance coverage as required by rules adopted by the commission.

(c)iiAn applicant who is employed in this state as a sheriff, constable, or clerk of a court is exempt from any requirement for a criminal background check and any civil process instruction requirements for a license under this chapter.

(d)iiThe executive director shall issue a temporary license not later than the 30th day after the date an applicant submits evidence satisfactory to the department that the applicant has properly completed the application, has paid all required fees, and meets all of the qualifications established by this chapter and by rule of the commission. A temporary license is valid for not more than 90 days after the date of issuance. If, on completion of the license application process, the executive director denies an application for a license, the applicant shall return the applicant's temporary license and immediately stop serving process under this chapter.

Sec.i191.007.iiAGENT REGISTRATION.ii(a) A person registered under this chapter as the agent of a license holder may execute civil process under this chapter on behalf of the license holder.

(b)iiAn applicant for an agent registration shall submit an application to the department on a form prescribed by the executive director. To be eligible for registration under this section, an applicant must:

(1)iibe at least 18 years of age;

(2)iinot have been convicted of a misdemeanor involving moral turpitude or a felony;

(3)iiprovide proof to the department, in a manner acceptable to the department, that the applicant:

(A)iihas completed a department-approved seminar consisting of at least eight hours of instruction in civil process; and

(B)iimaintains insurance coverage as required by rules adopted by the commission; and

(4)iisubmit the nonrefundable application fee and the registration fee.

(c)iiAn applicant who is employed in this state as a sheriff, constable, or clerk of a court is exempt from any requirement for a criminal background check and any civil process instruction requirements for an agent registration under this chapter.

1984 78th Legislature — Regular Session 74th Day

Sec.i191.008.iiPOWERS AND DUTIES OF LICENSE HOLDERS AND REGISTERED AGENTS.iiA license holder or registered agent may serve civil process issued by the courts of this state in the manner provided by law for service by sheriffs and constables. The person may serve the process on any day of the week anywhere in this state.

Sec.i191.009.iiPUBLIC SERVANT; OFFICER OF COURT.iiEach license holder and registered agent shall be considered to be a public servant when performing duties related to serving process and considered to be an officer of the civil courts of this state, but may not be considered to be a peace officer based on that license or registration. An assault on a license holder or registered agent shall be treated as an assault on a public servant.

Sec.i191.010.iiENFORCEMENT.ii(a) The commission may assess and collect administrative penalties for a violation of this chapter or a commission rule or order under Chapter 51, Occupations Code.

(b)iiThe commission may issue administrative sanctions for a violation of this chapter or a commission rule or order under Chapter 51, Occupations Code.

(c)iiThe department may issue cease and desist orders.

SECTIONi____.02.ii(a) Except as provided by Subsection (b) of this section, this article takes effect September 1, 2003.

(b)iiSection 191.005, Civil Practice and Remedies Code, as added by this Act, takes effect March 31, 2004.

Floor Amendment No. 21

Amend CSSB 279 by inserting the following appropriately numbered article in the bill and renumbering the subsequent articles of the bill accordingly:

ARTICLEi____.iiWEATHER MODIFICATION

SECTIONi____.001.iiSection 20.001, Agriculture Code, as added by Chapter 376, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:

Sec.i20.001.iiFINDINGS.iiThe legislature finds that weather modification and control activities may have a significant impact on Texas agriculture. The legislature further finds that the Texas Department of Licensing and Regulation [Agriculture] is the proper state agency to administer grants to political subdivisions for weather modification and control activities.

SECTIONi____.002.iiSection 20.002, Agriculture Code, as added by Chapter 376, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:

Sec.i20.002.iiDEFINITIONS [DEFINITION]. In this chapter:

(1)ii"Department" means the Texas Department of Licensing and Regulation.

(2)ii"Weather[, "weather] modification and control" means changing or controlling, or attempting to change or control, by artificial methods the natural development of atmospheric cloud forms or precipitation forms that occur in the troposphere.

SECTIONi____.003.ii(a) On the effective date of this article, in accordance with the General Appropriations Act enacted by the 78th Legislature:

(1)iiall powers, duties, obligations, rights, and contracts of the Department of Agriculture associated with the weather modification and control grant program are transferred to the Texas Department of Licensing and Regulation;

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(2)iiall authority to fill full-time equivalent positions to administer the weather modification and control grant program and all unspent and unobligated appropriations to and other money held by the Department of Agriculture in connection with the program are transferred to the Texas Department of Licensing and Regulation; and

(3)iiall files, records, equipment, and other property of the Department of Agriculture that are used by that agency in connection with the administration of the weather modification and control grant program become the property of the Texas Department of Licensing and Regulation, but remain in the same location unless moved in accordance with the memorandum of understanding adopted under Subsection (b) of this section.

(b)iiThe Department of Agriculture and the Texas Department of Licensing and Regulation shall adopt a memorandum of understanding not later than the 30th day after the effective date of this article that provides for the transfer, by that date, of any files, records, equipment, property, and personnel necessary to accomplish the transfer of the weather modification and control grant program from the Department of Agriculture to the Texas Department of Licensing and Regulation.

Floor Amendment No. 22

Amend CSSB 279 by adding the following appropriately numbered ARTICLE and SECTIONS and renumbering the ARTICLES and SECTIONS of the bill accordingly:

ARTICLEi____.iiCOMBATIVE SPORTS

SECTIONi____.001.iiChapter 2052, Occupations Code, is amended to read as follows:

CHAPTERi2052.iiCOMBATIVE SPORTS

SUBCHAPTERiA.iiGENERAL PROVISIONS

Sec.i2052.001.iiLEGISLATIVE DECLARATION.iiThis chapter shall be liberally construed and applied to promote its underlying purposes.

Sec.i2052.002.iiDEFINITIONS.iiIn this chapter:

(1)ii"Boxing" includes kickboxing, in which a person delivers blows with any part of the arm below the shoulder, including the hand, and any part of the leg below the hip, including the foot.

(2)ii"Boxing promoter" means a person who arranges, advertises, or conducts a boxing event.

(3)ii"Commission" means the Texas Commission of Licensing and Regulation ["Championship tournament" means a state, regional, national, or international elimination tournament in which the winners of elimination tournaments compete for a championship in each weight category].

(4)ii["Commissioner" means the commissioner of licensing and regulation or the commissioner's designated representative.

[(5)]ii"Department" means the Texas Department of Licensing and Regulation.

(5) [(6)]ii"Elimination tournament" means a boxing contest in which elimination tournament contestants compete in a series of matches until not more than one contestant remains in any weight category. The term does not include a boxing event described by Section 2052.108.

1986 78th Legislature — Regular Session 74th Day

(6)ii"Executive director" means the executive director of the department or the executive director's designated representative.

(7)ii["Elimination tournament boxing promoter" means a person who arranges, advertises, or conducts an elimination tournament.

[(8) "Elimination tournament contestant" means a person who competes in an elimination tournament.

[(9)] "Exhibition" means a boxing or wrestling skills demonstration.

(8) [(10)] "Event" means a contest, match, or exhibition.

(9) [(11)] "Judge" means a person who is:

(A)iilocated at ringside during a boxing match; and

(B)iiresponsible for scoring the performances of the participants in the match.

(10) [(12) "Local tournament" means an elimination tournament in which only a resident of this state may compete.

[(13)] "Professional boxer" means a person who competes in a boxing event in this state conducted for a purse or compensation.

(11)ii"Promoter" means a boxing promoter or wrestling promoter.

(12) [(14)]ii"Referee" means a person who:

(A)iiis present in the ring during a boxing event; and

(B)iiexercises general supervision of the event.

(13)ii"Ringside physician" means an individual licensed to practice medicine in this state who is registered with the department.

(14) [(15) "Regional tournament" means an elimination tournament in which a contestant from outside of the immediate area in which the tournament is conducted may compete against local contestants.

[(16)] "Wrestling promoter" means a person who arranges, advertises, or conducts a wrestling event.

SUBCHAPTERiB.iiPOWERS AND DUTIES OF DEPARTMENT

AND COMMISSIONER

Sec.i2052.051.iiADMINISTRATION OF CHAPTER.iiThe department shall administer this chapter.

Sec.i2052.052.iiRULES.ii(a) The executive director [commissioner] shall adopt reasonable and necessary rules to administer this chapter.

(b)iiThe executive director [commissioner] may adopt rules:

(1)iigoverning professional kickboxing contests and exhibitions; [and]

(2)iiestablishing reasonable qualifications for an applicant seeking a license from the department under this chapter;

(3)iirecognizing a sanction, medical suspension, or disqualification of a license holder by a combative sports authority in any state, provided that if licensure is denied based on those actions, an applicant has a right to a hearing as prescribed by rule;

(4)iiestablishing practice requirements or specialty certifications that a person licensed to practice medicine in this state must meet to register as a ringside physician;

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(5)iirequiring a contestant to present to the executive director at the time of weigh-in an original copy of recent blood test results that demonstrate whether the contestant is free from hepatitis B virus, hepatitis C virus, human immunodeficiency virus, and any other communicable disease designated by rule of the executive director and providing that a contestant's failure to provide the required blood test results will disqualify the contestant;

(6)iiproviding that to participate in any event a contestant must be free of hepatitis B virus, hepatitis C virus, human immunodeficiency virus, and any other communicable disease designated by rule;

(7)iirequiring that a contestant undergo a physical examination, including an ophthalmological examination, at or near the time of weigh-in and providing for disqualification of a contestant who is determined by an examining physician to be unfit; and

(8)iiestablishing additional responsibilities for promoters.

Sec.i2052.053.iiINVESTIGATIVE AUTHORITY. (a) The executive director [commissioner] shall investigate allegations of activity that may violate this chapter.

(b)iiThe executive director [commissioner] may enter, at a reasonable time, a place of business or an establishment in which activity alleged to violate this chapter may occur. The executive director [commissioner] is not required to give advance notice before entering.

Sec.i2052.054.iiCONTINUING EDUCATION. (a) The executive director [commissioner] may recognize, prepare, or administer continuing education programs for persons licensed under this chapter.

(b)iiParticipation in a continuing education program under Subsection (a) is voluntary.

Sec.i2052.055.iiMEDICAL ADVISORY COMMITTEE. (a) The executive director may appoint a medical advisory committee to advise the department concerning health issues for boxing event contestants.

(b)iiIf the executive director elects to appoint an advisory committee, the executive director by rule shall establish:

(1)iithe number of committee members;

(2)iiqualifications for appointment to the committee; and

(3)iithe purpose and duties of the committee.

SUBCHAPTERiC.iiLICENSING, REGISTRATION, AND PERMITS

Sec.i2052.101.iiBOXING PROMOTER LICENSE. A person may not act as a boxing promoter [or an elimination tournament boxing promoter] unless the person holds a license issued under this chapter.

Sec.i2052.102.iiBOXING PROMOTER LICENSE APPLICATION REQUIREMENTS.ii(a) An applicant for a boxing promoter's license under this chapter must apply on a form furnished by the executive director [commissioner].

(b)iiAn application must be accompanied by:

(1)iia license fee in an amount set by the department [commission]; and

(2)iia surety bond:

(A)iisubject to approval by the executive director [commissioner]; and

(B)iiconditioned on the applicant's payment of the tax imposed under Section 2052.151.

1988 78th Legislature — Regular Session 74th Day

(c)iiThe executive director [commissioner] shall establish the amount of the surety bond required under Subsection (b). The bond amount may not be less than $300.

Sec.i2052.103.ii[ELIMINATION TOURNAMENT BOXING PROMOTER LICENSE APPLICATION REQUIREMENTS. (a) An applicant for an elimination tournament boxing promoter's license under this chapter must apply on a form furnished by the commissioner.

[(b)iiAn application must be accompanied by an application fee of not more than $1,000 and, if the applicant charges a fee for admission to the elimination tournament or awards a trophy, prize, including a prize of money, or other item of value of more than $50 to a contestant winning the elimination tournament:

[(1)iia $50,000 surety bond subject to approval by the commissioner and conditioned on the applicant's payment of:

[(A)iithe tax imposed under Section 2052.151; and

[(B)iia claim against the applicant as described by Section 2052.109(a)(3); and

[(2)iiproof of not less than $10,000 accidental death or injury insurance coverage for each contestant participating in the elimination tournament.

[Sec. 2052.104. ELIMINATION TOURNAMENT BOXING PROMOTER ANNUAL LICENSE FEE. The annual fee for an elimination tournament boxing promoter's license may not exceed $1,000.

[Sec. 2052.105.] WRESTLING PROMOTER REGISTRATION.iiA person may not act as a wrestling promoter unless the person is registered with the secretary of state under this chapter.

Sec. 2052.104 [2052.106]. WRESTLING PROMOTER APPLICATION REQUIREMENTS. (a) Registration as a wrestling promoter must be made on a form furnished by the secretary of state.

(b)iiA registration must be accompanied by:

(1)iia registration fee prescribed by the secretary of state in an amount reasonably necessary to cover the costs of administering the wrestling promoters registration program; and

(2)iia $5,000 surety bond to be filed with the secretary of state.

Sec. 2052.105 [2052.107].iiOTHER BOXING LICENSES.iiUnless a person holds a license or registration issued under this chapter, the person may not act as a:

(1)iiprofessional boxer;

(2)iimanager of a professional boxer;

(3)iireferee;

(4)iijudge;

(5)iisecond;

(6)iitimekeeper; [or]

(7)iimatchmaker; or

(8)iiringside physician.

Sec. 2052.106 [2052.108].iiAPPLICATION REQUIREMENTS FOR OTHER LICENSES.ii(a) An application for a license under Section 2052.105 [2052.107] must be made on a form furnished by the executive director [commissioner].

(b)iiAn application must be accompanied by the required license fee.

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Sec. 2052.107 [2052.109].iiSURETY BOND.ii(a) A surety bond required under this subchapter must:

(1)iibe issued by a company authorized to conduct business in this state;

(2)iicomply with the applicable requirements of the Insurance Code;

(3)iibe payable to the state for use by the state or a political subdivision that establishes that the boxing or wrestling promoter is liable to it for damages, penalties, taxes, or other expenses resulting from promotional activities conducted in this state; and

(4)iibe open to more than one claim, except that the claims may not exceed the face value of the bond.

(b)iiA person required to file a surety bond under this subchapter shall file a new bond annually.

(c)iiA company that issues a bond shall notify the department in writing of the cancellation of the bond not later than the 30th day before the date on which the bond is canceled.

Sec. 2052.108 [2052.110].iiLICENSE AND BONDING EXCEPTIONS.iiThe licensing and bonding requirements of this subchapter do not apply to:

(1)iia boxing event in which the participants do not receive a money remuneration, purse, or prize for their performances or services if the event is promoted, conducted, or maintained by:

(A)iian educational institution;

(B)iia law enforcement organization;

(C)iia Texas National Guard Unit; or

(D)iian amateur athletic organization recognized by the executive director [commissioner];

(2)iian event conducted by a nonprofit amateur athletic association chartered under the law of this state, including a membership club affiliated with the association located within this state and recognized by the executive director [commissioner];

(3)iian event conducted by a college, school, or university that is part of the institution's athletic program in which only students of different educational institutions participate; [or]

(4)iian event in which only members of a troop, battery, company, or unit of the Texas National Guard or a law enforcement agency participate; or

(5)iian event conducted by an organization of the Olympic Games, the Paralympic Games, or the Pan-American Games.

Sec. 2052.109 [2052.111].iiDENIAL OF APPLICATION.iiThe executive director [commissioner] may deny an application for a license if:

(1)iithe applicant does not meet the qualifications for the license; or

(2)iiafter conducting an investigation and a hearing, the executive director [commissioner] determines that the applicant has violated this chapter or a rule adopted under this chapter.

Sec. 2052.110 [2052.112]. RECIPROCITY AGREEMENT. The executive director [commissioner] may waive a license requirement under this subchapter if the applicant holds a license issued by another state that has a reciprocity agreement with this state.

1990 78th Legislature — Regular Session 74th Day

Sec. 2052.111 [2052.113]. LICENSE AND PERMIT REQUIRED FOR CLOSED CIRCUIT BOXING TELECAST. A person who exhibits in this state a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast in which a fee is charged for admission to the telecast must:

(1)iihold a boxing promoter's license under this chapter; and

(2)iiobtain a permit for the closed circuit telecast.

Sec.i2052.112.iiLICENSE, REGISTRATION, AND PERMIT TERM AND RENEWAL. (a) A license, registration, or permit issued under this chapter is valid for one year after the date of issuance.

(b)iiThe holder of a license, registration, or permit may renew the license, registration, or permit by paying a renewal fee and complying with other renewal requirements prescribed by department rule before the expiration date. The department shall issue a renewal certificate to the holder at the time of renewal.

Sec.i2052.113.iiPROMOTER RESPONSIBILITIES.iiFor each promoted event, a promoter shall:

(1)iiassure that all contestants scheduled to participate are licensed before the event;

(2)iiprovide that an ambulance, serviced by at least two emergency medical technicians, is present on the premises where the event is held;

(3)iiprovide for a physical examination of each contestant that complies with rules adopted under this chapter; and

(4)iicomply with all applicable rules adopted by the executive director or the commission.

SUBCHAPTERiD.iiGROSS RECEIPTS TAX

Sec.i2052.151.iiIMPOSITION AND RATE OF TAX. (a) A tax is imposed on a person who:

(1)iiconducts a boxing event[, including an elimination tournament,] in which a fee is charged for admission to the event;

(2)iiexhibits in this state a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast, in which a fee is charged for admission to the telecast; or

(3)iiconducts or sponsors an amateur boxing event, other than an event exempt from licensing under Section 2052.108(2) [2052.110(2)], (3), [or] (4), or (5), in which a fee is charged for admission to the event.

(b)iiThe rate of the tax is three percent of the gross receipts obtained from the event.

Sec.i2052.152.iiTAX REPORT AND PAYMENT. (a) A person on whom a tax is imposed under Section 2052.151, not later than 72 hours after the end of the event or telecast for which the tax is due, shall submit to the department a verified report on a form furnished by the department stating:

(1)iithe number of tickets sold to the event;

(2)iithe ticket prices charged; [and]

(3)iithe gross price charged for the sale or lease of broadcasting, television, and motion picture rights without any deductions for commissions, brokerage fees, distribution fees, advertising, or other expenses or charges; and

(4)iithe amount of gross receipts obtained from the event.

Wednesday, May 21, 2003 SENATE JOURNAL 1991

(b)iiThe person shall attach to the report a cashier's check or money order payable to this state in the amount of the tax imposed on the event covered by the report.

(c)iiThe department may audit a report filed under Subsection (b).

Sec.i2052.153.iiCLOSED CIRCUIT TELECAST. A person exhibiting a simultaneous telecast of a live, spontaneous, or current boxing event on a closed circuit telecast in which a fee is charged for admission to the exhibition:

(1)iimust:

(A)iibe a boxing promoter; and

(B)iiobtain a permit for each telecast exhibited; and

(2)iishall comply with the tax provisions of Section 2052.151.

[Sec. 2052.154. CERTAIN AMATEUR EVENTS. A person shall comply with the tax requirements imposed under Section 2052.151 if the person:

[(1)iiconducts or sponsors an amateur boxing event, except an event conducted under Section 2052.110(2), (3), or (4); and

[(2)iicharges an event admission fee.]

SUBCHAPTERiE.ii[REGULATION OF] ELIMINATION
TOURNAMENTS

Sec.i2052.201.iiELIMINATION TOURNAMENTS PROHIBITED [GENERAL RULES]. [(a)] An elimination tournament may not [only] be held in this state [conducted as a one-night or two-night event].

[(b)iiAn elimination tournament match consists of three one-minute rounds with an interval of at least one minute between rounds.

[(c)iiThe standing-eight-count and the three-knock-down rules apply to an elimination tournament.

[(d)iiAn elimination tournament contestant must be randomly matched with an opponent in the same weight category as the contestant during the preliminary round of an elimination tournament.

[Sec. 2052.202. CONTESTANT PARTICIPATION. (a) An elimination tournament contestant may not participate in more than:

[(1)iione match during the first night of a two-night elimination tournament other than a championship tournament; or

[(2)iitwo matches during the first night of a two-night championship tournament.

[(b)iiAn elimination tournament contestant may participate in any number of matches during the second night of a two-night elimination tournament.

[(c)iiExcept as provided by Subsection (d), an elimination tournament boxing promoter may permit an elimination tournament contestant who does not win a match during the first night of a two-night elimination tournament to participate in the tournament during the second night of the tournament.

[(d)iiAn elimination tournament contestant who is knocked out during the tournament may not continue to participate in the tournament.

[Sec. 2052.203. ELIMINATION TOURNAMENT BOXING PROMOTER RESPONSIBILITIES. (a) An elimination tournament boxing promoter shall require that each elimination tournament contestant:

[(1)iibe at least 18 years old and younger than 36 years old;

1992 78th Legislature — Regular Session 74th Day

[(2)iisubmit proof that the contestant has received proper training, including a written description of the contestant's training program during the 28 days before the elimination tournament;

[(3)iihave no professional boxing experience;

[(4)iihave fewer than six boxing match wins during the preceding five years that are recognized by an amateur boxing organization that is recognized under department rules for this purpose;

[(5)iiuse 16-ounce gloves; and

[(6)iiwear the following protective gear provided by the promoter:

[(A)iiexcept as provided by Subsection (b), headgear approved by the department;

[(B)iia mouthpiece; and

[(C)iia groin guard or kidney-groin guard approved by the department.

[(b)iiThe elimination tournament boxing promoter of a local, regional, or championship elimination tournament is not required to require that each elimination tournament contestant wear headgear approved by the department if the promoter under department rules notifies the commissioner of the decision not to use the approved headgear.

[Sec. 2052.204. ELIMINATION TOURNAMENT RINGSIDE PHYSICIAN. (a) An elimination tournament boxing promoter shall provide a ringside physician for each elimination tournament.

[(b)iiAn elimination tournament ringside physician shall:

[(1)iiperform a complete medical examination of each elimination tournament contestant at the tournament's location before the tournament begins;

[(2)iiremain at ringside at all times during a scheduled elimination tournament match;

[(3)iioffer solutions to boxing-related medical problems to the elimination tournament boxing promoter and contestants;

[(4)iiexamine each elimination tournament contestant between matches;

[(5)iiimmediately before the second night of a two-night elimination tournament, perform a complete physical examination of each elimination tournament contestant who is scheduled to participate during the second night; and

[(6)iiimmediately notify the elimination tournament boxing promoter if the physician disqualifies an elimination tournament contestant.

[Sec. 2052.205. NEGATIVE PREGNANCY TEST RESULT. A female elimination tournament contestant may not participate in an elimination tournament unless the contestant provides the ringside physician with proof of a negative pregnancy test result.

[Sec. 2052.206. WEIGHT CATEGORIES. (a) The weight categories for an elimination tournament are:

[(1)iiless than 112 pounds;

[(2)ii112 pounds or more and less than 119 pounds;

[(3)ii119 pounds or more and less than 127 pounds;

[(4)ii127 pounds or more and less than 136 pounds;

[(5)ii136 pounds or more and less than 148 pounds;

[(6)ii148 pounds or more and less than 161 pounds;

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[(7)ii161 pounds or more and less than 176 pounds;

[(8)ii176 pounds or more and less than 190 pounds; and

[(9)ii190 pounds or more.

[(b)iiAn elimination tournament contestant may not compete in a weight category other than the contestant's weight category as listed under Subsection (a) unless the contestant:

[(1)iicompetes in the next heavier weight category for the contestant; and

[(2)iithe contestant's weight is within three percent of the minimum weight for that next heavier weight category.

[Sec. 2052.207. RING REQUIREMENTS. (a) An elimination tournament match must be conducted in a square ring. Each side of the ring must be not less than 16 feet or more than 24 feet in length.

[(b)iiThe floor of the ring must be:

[(1)iithree-fourths inch thick; and

[(2)iipadded with one-inch thick closed-cell foam material.]

SUBCHAPTERiF.iiOTHER COMBATIVE SPORT REGULATIONS

Sec.i2052.251.iiBOXING GLOVES. A boxing event contestant[, other than an elimination tournament contestant under Subchapter E,] shall wear eight-ounce boxing gloves[,] unless the executive director [commissioner] by rule requires or permits a contestant to wear heavier gloves.

Sec.i2052.252.iiCERTAIN AMATEUR EVENTS.ii(a) This section applies to an amateur boxing event, other than an event described by Section 2052.108(2), (3), (4), or (5) [elimination tournament subject to Subchapter E], in which a fee is charged for admission to the event.

(b)iiThe event may take place only if the executive director [commissioner] approves the event not later than seven days before the date the event begins.

(c)iiEach entry in the event must be filed with the amateur organization not later than the third day before the date the event begins.

(d)iiThe amateur organization shall determine the amateur standing of the event contestants.

(e)iiThe event is subject to the supervision of the executive director [commissioner].

(f)iiAll profits from the event must be used to develop amateur athletics.

(g)iiOnly a referee or judge licensed under this chapter may participate in the event.

(h)iiEach contestant participating in the event must be examined by a licensed physician within a reasonable time before the event begins. A licensed physician must be present at ringside during the entire event.

(i)iiA professional boxer licensed under this chapter may not participate in any capacity in the event.

Sec.i2052.253.iiKICKBOXING. A professional kickboxing event must be fought on the basis of the contestants' best efforts.

1994 78th Legislature — Regular Session 74th Day

SUBCHAPTERiG.iiDISCIPLINARY PROCEDURES; PENALTIES;

CRIMINAL OFFENSE

Sec.i2052.301.iiADMINISTRATIVE PENALTIES AND SANCTIONS [REVOCATION AND SUSPENSION OF LICENSE OR PERMIT]. On a determination that a person has violated this chapter, a rule adopted under this chapter, or a rule adopted under Chapter 51, the executive director may impose administrative sanctions as provided by Subchapter G, Chapter 51, or the commission may impose administrative penalties as provided by Subchapter F, Chapter 51 [The commissioner may revoke or suspend the license or permit of a license or permit holder under this chapter for violating this chapter or a rule adopted under this chapter].

Sec.i2052.3015.iiPROMOTER PENALTY FOR LATE LICENSE. A promoter who does not comply with Section 2052.113(1) in a timely manner is subject to a penalty under this chapter for each contestant who obtains a license less than 72 hours before an event in which the contestant is scheduled to participate.

Sec.i2052.302.iiWITHHOLDING OF PURSE AND FORFEITURE OF PURSE. (a) The executive director [commissioner] may order a promoter [boxer or manager] to withhold any [forfeit to this state a] purse or other funds payable to the holder of a license or registration under this chapter if it appears more likely than not that the holder has violated [in an amount of not more than $1,000 for violating] this chapter or a rule adopted under this chapter.

(b)iiThe promoter shall surrender any purse or funds withheld as provided by Subsection (a) to the executive director on demand. Not later than the fifth working day after the event, the department shall notify in writing the promoter and any person from whom a sum was withheld of the date of a hearing to determine whether all or part of the purse or funds withheld should be forfeited to the state. The hearing must be scheduled for a date not later than the 10th day after the date of the notice. Not later than the 10th day after the date of the hearing, the executive director shall enter an order with findings of fact and conclusions of law determining whether all or part of the purse or funds should be forfeited. Any funds not forfeited shall be distributed to the persons entitled to the funds.

(c)iiExcept as otherwise provided by this subchapter, a proceeding under this section shall be conducted in the manner provided by Chapter 2001, Government Code.

(d)iiA person aggrieved by an order entered under this section may appeal the order by filing a petition in a district court in Travis County in the manner provided by Chapter 2001, Government Code.

Sec.i2052.303.iiCIVIL PENALTY; INJUNCTION.ii(a) A court may assess a civil penalty against a person who violates this chapter or a rule adopted under this chapter. The amount of the penalty may not exceed $1,000 for each violation.

(b)iiThe attorney general or the department may file a civil suit to:

(1)iiassess and recover a civil penalty under Subsection (a); or

(2)iienjoin a person who violates or threatens to violate this chapter or a rule adopted under this chapter from continuing the violation or threat.

(c)iiVenue for a suit filed under Subsection (b) is in a district court in Travis County.

(d)iiA civil penalty assessed under this section shall be paid to this state.

Wednesday, May 21, 2003 SENATE JOURNAL 1995

Sec.i2052.304.iiPETITION FOR REVIEW.ii(a) A person may seek review of a decision or an order of the executive director or the commission [commissioner] under this chapter by filing a petition for review in a district court in Travis County [not later than the 30th day after the date on which the decision or order of the commissioner is final if the person is:

[(1)iia party to an administrative hearing in which the decision or order is issued; and

[(2)iiaggrieved by the decision or order].

(b)iiChapter 2001, Government Code, governs any proceeding under this section [The filing of a petition for review under Subsection (a) does not stay the effect of the decision or order of the commissioner that is the subject of the petition. The commissioner or the district court in which the petition for review is filed may order a stay on appropriate terms].

[(c)iiIf a stay is ordered under Subsection (b), a supersedeas bond is not required.

[Sec. 2052.305. SERVICE OF PROCESS. A petition for review filed under Section 2052.304 must be served on:

[(1)iithe commissioner; and

[(2)iiall parties of record to a hearing before the commissioner that relates to the matter for which the petition for review is filed.

[Sec. 2052.306. CERTIFICATION OF RECORD. (a) On receipt of a petition for review served under Section 2052.305, the commissioner, not later than the date on which the answer to the petition must be filed or the date on which the record is made available to the commissioner, whichever date is later, shall certify to the district court in which the petition is filed the record of the proceedings to which the petition relates.

[(b)iiThe petitioner shall pay the costs of preparing and certifying the record under this section.

[(c)iiOn final determination of the review, the district court shall order payment of the costs described under Subsection (b) as part of the costs in the case.

[Sec. 2052.307. JUDICIAL REVIEW. (a) A district court reviewing a decision or an order of the commissioner under this subchapter shall try the action without a jury in the same manner as a civil action, except that evidence is not admissible unless the evidence was presented at the hearing or noticed in the record of the hearing before the commissioner. The petitioner has the burden of proof in the action.

[(b)iiThe court may:

[(1)iiaffirm the decision or order of the commissioner; or

[(2)iiremand the matter to the commissioner for further proceedings.]

Sec. 2052.305 [2052.308]. APPEAL. (a) The petitioner or executive director [commissioner] may appeal a final judgment of a court conducting a review under this subchapter in the same manner as a civil action.

(b)iiThe executive director [commissioner] is not required to file an appeal bond.

Sec. 2052.306 [2052.309]. CRIMINAL OFFENSE. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter.

(b)iiAn offense under this section is a Class A misdemeanor.

SECTIONi____.002.ii(a) Except as provided by Subsections (b) and (c) of this section, this article takes effect January 1, 2004.

1996 78th Legislature — Regular Session 74th Day

(b)iiThis section takes effect September 1, 2003.

(c)iiSection 2052.201, Occupations Code, as amended by this article, takes effect September 1, 2003, and applies to an elimination tournament scheduled to occur on or after that date. An elimination tournament scheduled to occur before that date is governed by the law in effect on the date that the tournament was scheduled, and the former law is continued in effect for that purpose.

SECTIONi____.003.iiSection 2052.302, Occupations Code, as amended by this article, applies to a forfeiture imposed on or after the effective date of this article. A forfeiture imposed before that date is governed by the law in effect on the date that the forfeiture was ordered, and the former law is continued in effect for that purpose.

Floor Amendment No. 23

Amend CSSB 279 by adding the following ARTICLES, appropriately numbered, and renumbering ARTICLE 29 of the bill as appropriate:

ARTICLEi29.iiABOLITION OF THE TEXAS FUNERAL
SERVICES COMMISSION AND TRANSFER OF POWERS
AND DUTIES TO TEXAS DEPARTMENT OF
LICENSING AND REGULATION