OCCUPATIONS CODE
TITLE 2. GENERAL PROVISIONS RELATING TO LICENSING
CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION
SUBCHAPTER A. GENERAL PROVISIONS
§ 51.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Commission of
Licensing and Regulation.
(2) "Department" means the Texas Department of
Licensing and Regulation.
(3) "License" means a license, certificate,
registration, title, or permit issued by the department.
(4) "License holder" means a person who holds a
license issued by the department.
(5) "Respondent" means a person, regardless of whether
the person is a license holder, who is charged with violating a law
establishing a regulatory program administered by the department or
a rule adopted or order issued by the commission or executive
director.
(6) "Sanction" means an action by the executive
director against a license holder or another person, including the
denial, suspension, or revocation of a license, the reprimand of a
license holder, or the placement of a license holder on probation.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 6, eff. June 14, 2001.
§ 51.002. APPLICATION OF SUNSET ACT. The Texas
Commission of Licensing and Regulation and the Texas Department of
Licensing and Regulation are subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the commission and the department are abolished
September 1, 2015.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 816, § 1.001, eff. Sept. 1, 2003.
§ 51.003. APPLICABILITY. This chapter applies to each
regulatory program administered by the department, including any
program under which a license is issued by the department.
Added by Acts 2003, 78th Leg., ch. 816, § 1.002, eff. Sept. 1,
2003.
SUBCHAPTER B. DEPARTMENT AND COMMISSION
§ 51.051. TEXAS DEPARTMENT OF LICENSING AND
REGULATION. (a) The Texas Department of Licensing and Regulation
is the primary state agency responsible for the oversight of
businesses, industries, general trades, and occupations that are
regulated by the state and assigned to the department by the
legislature.
(b) The department is governed by the commission.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 7, eff. June 14, 2001.
§ 51.052. APPOINTMENT OF COMMISSION.
Text of subsec. (a) as amended by Acts 2003, 78th Leg., ch. 1170,
§ 25.01
(a) The commission consists of five members appointed by the
governor with the advice and consent of the senate.
Text of subsec. (a) as amended by Acts 2003, 78th Leg., ch. 816,
§ 1.003
(a) The commission consists of seven members appointed by
the governor with the advice and consent of the senate.
(b) Appointments to the commission shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 816, § 1.003, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1170, § 25.01, eff. Sept. 1, 2003.
§ 51.053. COMMISSION MEMBERSHIP;
ELIGIBILITY. (a) Each member of the commission must be a
representative of the general public.
(b) A person is not eligible for appointment as a member of
the commission if the person or the person's spouse:
(1) is regulated by the department;
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving funds from the department;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving funds from the department;
(4) uses or receives a substantial amount of tangible
goods, services, or funds from the department, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(5) is an employee of the department.
(c) Repealed by Acts 2003, 78th Leg., ch. 816, § 1.026.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 8, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.004, 1.026, eff. Sept. 1, 2003.
§ 51.0535. CONFLICT OF INTEREST. (a) In this section,
"Texas trade association" means a cooperative and voluntarily
joined statewide association of business or professional
competitors in this state designed to assist its members and its
industry or profession in dealing with mutual business or
professional problems and in promoting their common interest.
(b) A person may not be a member of the commission and may
not be a department employee employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), and its subsequent amendments, if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in a field regulated by the
department; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in a field regulated by the
department.
(c) A person may not be a member of the commission or act as
the general counsel to the commission or the department if the
person is required to register as a lobbyist under Chapter 305,
Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the department.
Added by Acts 2003, 78th Leg., ch. 816, § 1.005, eff. Sept. 1,
2003.
§ 51.054. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the commission may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the commission until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the department and
the commission;
(2) the programs operated by the department;
(3) the role and functions of the department;
(4) the rules of the department, with an emphasis on
the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the department;
(6) the results of the most recent formal audit of the
department;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
department or the Texas Ethics Commission.
(c) A person appointed to the commission is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
Added by Acts 2003, 78th Leg., ch. 816, § 1.006, eff. Sept. 1,
2003.
§ 51.055. TERMS; VACANCY. (a) Members of the
commission serve staggered six-year terms. The terms of one or two
members expire on February 1 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the governor
shall appoint a replacement to fill the unexpired term.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 816, § 1.007, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1170, § 25.02, eff. Sept. 1, 2003.
§ 51.056. PRESIDING OFFICER. (a) The governor shall
designate a member of the commission as the presiding officer of the
commission to serve in that capacity at the pleasure of the
governor.
(b) The presiding officer may vote on all matters before the
commission as provided by Robert's Rules of Order.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 9, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.008, eff. Sept. 1, 2003.
§ 51.057. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from the commission that a member:
(1) does not have at the time of taking office the
qualifications required by Section 51.053;
(2) does not maintain during service on the commission
the qualifications required by Section 51.053;
(3) is ineligible for membership under Section
51.0535;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled commission meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the commission.
(b) The validity of an action of the commission is not
affected by the fact that it is taken when a ground for removal of a
commission member exists.
(c) If the executive director has knowledge that a potential
ground for removal exists, the 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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 10, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.009, eff. Sept. 1, 2003.
§ 51.058. COMPENSATION; REIMBURSEMENT. (a) A
commission member may not receive compensation for service on the
commission.
(b) A commission member is entitled to reimbursement for
actual and necessary expenses incurred in performing functions as a
commission member, subject to any applicable limitation on
reimbursement provided by the General Appropriations Act.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 51.059. MEETINGS. (a) The commission shall meet at
least once in each quarter of the fiscal year.
(b) The commission may meet at other times at the call of the
presiding officer or as provided by commission rules.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 11, eff. June 14, 2001.
§ 51.060. CIVIL LIABILITY. A member of the commission
is not liable in a civil action for an act performed in good faith
while performing duties as a commission member.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER DEPARTMENT PERSONNEL
§ 51.101. EXECUTIVE DIRECTOR. The commission shall
appoint the executive director of the department. The executive
director serves at the will of the commission.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 13, eff. June 14, 2001.
§ 51.103. EXECUTIVE DIRECTOR POWERS AND
DUTIES. (a) The executive director shall:
(1) perform any duties assigned by the commission and
other duties specified by law;
(2) administer and enforce the department's programs;
and
(3) issue licenses authorized by the laws establishing
programs regulated by the department.
(b) The executive director may delegate any power or duty
assigned to the executive director unless prohibited by statute or
rule.
(c) The executive director may:
(1) impose sanctions and issue orders relating to a
sanction as provided by Section 51.353; and
(2) assess an administrative penalty or issue an order
relating to an administrative penalty as authorized by a law
establishing a program regulated by the department or as provided
by Sections 51.301 and 51.302.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 14, eff. June 14, 2001.
§ 51.104. PERSONNEL. The executive director may employ
persons to perform the department's work and may prescribe their
duties and compensation, subject to the personnel policies adopted
by the commission and the commission's approval of the budget.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 15, eff. June 14, 2001.
§ 51.105. DIVISION OF RESPONSIBILITIES. The commission
shall develop and implement policies that clearly separate the
policy-making responsibilities of the commission and the
management responsibilities of the executive director and the staff
of the department.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 16, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.010, eff. Sept. 1, 2003.
§ 51.106. INFORMATION ON STANDARDS OF CONDUCT. The
executive director or the executive director's designee shall
provide to members of the commission and to department employees,
as often as necessary, information regarding the requirements for
office or employment under this chapter, including information
regarding a person's responsibilities under applicable laws
relating to standards of conduct for state officers or employees.
Added by Acts 2003, 78th Leg., ch. 816, § 1.011, eff. Sept. 1,
2003.
§ 51.107. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS. (a) The executive director shall develop a career
ladder program. The program must require intra-agency postings of
all nonentry level positions concurrently with any public posting.
(b) The executive director shall develop a system of
employee performance evaluations. The system must require that
evaluations be conducted at least annually. All merit pay for
department employees must be based on the system established under
this subsection.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 17, eff. June 14, 2001.
§ 51.108. EQUAL EMPLOYMENT OPPORTUNITY
POLICY. (a) The executive director or the executive director's
designee shall prepare and maintain a written policy statement that
implements a program of equal employment opportunity to ensure that
all personnel decisions are made without regard to race, color,
disability, sex, religion, age, or national origin.
(b) The policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the department to avoid the
unlawful employment practices described by Chapter 21, Labor Code;
and
(2) an analysis of the extent to which the composition
of the department's personnel is in accordance with state and
federal law and a description of reasonable methods to achieve
compliance with state and federal law.
(c) The policy statement must:
(1) be updated annually;
(2) be reviewed by the state Commission on Human
Rights for compliance with Subsection (b)(1); and
(3) be filed with the governor's office.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 18, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.012, eff. Sept. 1, 2003.
§ 51.109. STATE EMPLOYEE INCENTIVE PROGRAM. The
executive director or the executive director's designee shall
provide to department employees information and training on the
benefits and methods of participation in the state employee
incentive program.
Added by Acts 2003, 78th Leg., ch. 816, § 1.013, eff. Sept. 1,
2003.
SUBCHAPTER D. POWERS AND DUTIES
§ 51.201. GENERAL POWERS AND DUTIES OF
COMMISSION. (a) The commission shall:
(1) supervise the executive director's administration
of the department;
(2) formulate the policy objectives for the
department; and
(3) approve the department's operating budget and the
department's requests for legislative appropriations.
(b) The commission:
(1) may adopt rules as necessary for its own
procedures; and
(2) shall adopt rules as necessary to implement this
chapter.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 19, eff. June 14, 2001.
§ 51.202. FEES. (a) The commission shall set fees, in
amounts reasonable and necessary to cover the costs of
administering the programs or activities, for:
(1) licenses issued by the department;
(2) license renewals and late renewals;
(3) examinations; and
(4) any other program or activity administered by the
department for which a fee is authorized.
(b) The executive director by rule may provide for prorating
fees for the issuance of a license, so that a person regulated by
the department pays only that portion of the applicable fee that is
allocable to the number of months during which the license is valid.
(c) The executive director shall develop cost management
procedures that enable the commission to determine with reasonable
accuracy the cost to the department of each program and activity for
which a fee is charged.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 20, eff. June 14, 2001.
§ 51.203. RULES REGARDING PROGRAMS REGULATED BY
DEPARTMENT. The commission shall adopt rules as necessary to
implement each law establishing a program regulated by the
department.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 21, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.014, eff. Sept. 1, 2003.
§ 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a) The commission may not adopt rules restricting
advertising or competitive bidding by a license holder except to
prohibit false, misleading, or deceptive practices.
(b) The commission may not include in rules to prohibit
false, misleading, or deceptive practices by a license holder a
rule that:
(1) restricts the use of any advertising medium;
(2) restricts the license holder's personal appearance
or the use of the license holder's voice in an advertisement;
(3) relates to the size or duration of an
advertisement; or
(4) restricts the use of a trade name in advertising.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 22, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.014, eff. Sept. 1, 2003.
§ 51.207. USE OF TECHNOLOGY. The commission shall
develop and implement a policy requiring the executive director and
department employees to research and propose appropriate
technological solutions to improve the department's ability to
perform its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the department on the Internet;
(2) ensure that persons who want to use the
department's services are able to:
(A) interact with the department through the
Internet; and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
department's planning processes.
Added by Acts 2003, 78th Leg., ch. 816, § 1.015, eff. Sept. 1,
2003.
§ 51.208. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
RESOLUTION PROCEDURES. (a) The commission shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of department rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the department's
jurisdiction.
(b) The department's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the department.
Added by Acts 2003, 78th Leg., ch. 816, § 1.015, eff. Sept. 1,
2003.
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
§ 51.251. PUBLIC INTEREST INFORMATION. (a) The
department shall prepare information of public interest describing
the functions of the commission and department and the procedures
by which complaints are filed with and resolved by the commission or
executive director.
(b) The department shall make the information available to
the public and appropriate state agencies.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 24, eff. June 14, 2001.
§ 51.252. COMPLAINTS. (a) The executive director
shall establish methods by which consumers and service recipients
are notified of the name, mailing address, and telephone number of
the department for the purpose of directing complaints to the
department. The department shall provide to the person filing the
complaint and to each person who is a subject of the complaint
information about the department's policies and procedures
relating to complaint investigation and resolution.
(b) The department shall maintain a file on each written
complaint filed with the department. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
department;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the department closed the file without taking action other than
to investigate the complaint.
(c) The department, at least quarterly and until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
(d) The commission shall adopt a procedure for documenting
complaints to the department from the time of the submission of the
initial complaint to the final disposition of the complaint. The
commission shall publish the procedure in the Texas Register.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 25, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.016, eff. Jan. 1, 2004.
§ 51.253. PUBLIC PARTICIPATION. (a) The commission
shall develop and implement policies that provide the public with a
reasonable opportunity to appear before the commission and to speak
on any issue under the commission's jurisdiction.
(b) The commission shall prepare and maintain a written plan
that describes how a person who does not speak English or who has a
physical, mental, or developmental disability may be provided
reasonable access to the commission's programs.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER F. ADMINISTRATIVE PENALTY
§ 51.301. IMPOSITION OF PENALTY. The executive
director or commission may impose an administrative penalty against
a person who violates:
(1) a law establishing a regulatory program
administered by the department; or
(2) a rule adopted or order issued by the executive
director or commission.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 26, eff. June 14, 2001.
§ 51.302. AMOUNT OF PENALTY. (a) If the relevant law
establishing a program regulated by the department does not state
the maximum amount of an administrative penalty under that law, the
amount of the penalty shall be assessed by the commission or
executive director in an amount that may not exceed $5,000 per day
for each violation. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the respondent's history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made by the respondent to correct the
violation; and
(5) any other matter that justice may require.
(c) The commission shall by rule or by procedure published
in the Texas Register establish a written enforcement plan that
provides notice to license holders of the specific ranges of
penalties that apply to specific alleged violations and the
criteria by which the department determines the amount of a
proposed administrative penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 27, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.017, eff. Sept. 1, 2003.
§ 51.3025. IMPOSITION OF SANCTION. A proceeding under
this subchapter imposing an administrative penalty may be combined
with a proceeding to impose an administrative sanction. If a
sanction is imposed in a proceeding under this subchapter, the
requirements of this subchapter apply to the imposition of the
sanction.
Added by Acts 2001, 77th Leg., ch. 836, § 28, eff. June 14, 2001.
§ 51.303. NOTICE OF VIOLATION AND PENALTY. If, after
investigation of a possible violation and the facts surrounding the
possible violation, the department determines that a violation
occurred, the department shall issue to the respondent a notice of
alleged violation stating:
(1) a brief summary of the alleged violation;
(2) the amount of the recommended administrative
penalty; and
(3) that the respondent has the right to a hearing to
contest the alleged violation, the amount of the penalty, or both.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 29, eff. June 14, 2001.
§ 51.304. PENALTY TO BE PAID OR HEARING
REQUESTED. (a) Not later than the 20th day after the date the
respondent receives the notice, the respondent may:
(1) accept the department's determination and
recommended administrative penalty; or
(2) make a written request for a hearing on that
determination.
(b) If the respondent accepts the department's
determination, the executive director by order shall approve the
determination and require the person to pay the recommended
penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 30, eff. June 14, 2001.
§ 51.305. HEARING ON RECOMMENDATIONS. (a) If the
respondent requests a hearing, the hearing shall be conducted by
the State Office of Administrative Hearings.
(b) The State Office of Administrative Hearings shall
consider the department's applicable substantive rules and
policies when conducting a hearing under this subchapter.
(c) An administrative law judge at the State Office of
Administrative Hearings shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commission a proposal for
decision as to the occurrence of the violation and the amount of any
proposed administrative penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 31, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 1215, § 11, eff. Sept. 1, 2003.
§ 51.306. DECISION BY COMMISSION. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the commission by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the
respondent.
(c) The order under this section must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty imposed;
(3) a statement of the right of the respondent to
judicial review of the order; and
(4) any other information required by law.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 32, eff. June 14, 2001.
§ 51.307. OPTIONS FOLLOWING DECISION: PAY OR
APPEAL. (a) Not later than the 30th day after the date the
commission's order becomes final, the respondent shall:
(1) pay the penalty; or
(2) file a petition for judicial review contesting the
order and:
(A) forward the penalty to the department for
deposit in an escrow account; or
(B) give the department a supersedeas bond in a
form approved by the executive director that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of
the decision is final.
(b) A respondent who is financially unable to comply with
Subsection (a)(2) is entitled to judicial review if the respondent
files with the court, as part of the respondent's petition for
judicial review, a sworn statement that the respondent is unable to
meet the requirements of that subsection.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 33, eff. June 14, 2001.
§ 51.308. COLLECTION OF PENALTY. If the person on whom
the administrative penalty is imposed violates Section 51.307(a),
the department or the attorney general may bring an action to
collect the penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 51.309. REMITTANCE OF PENALTY AND INTEREST. (a) If,
after judicial review, the administrative penalty is reduced or not
imposed, the executive director shall:
(1) remit to the person the appropriate amount, plus
accrued interest, if the person paid the amount of the penalty; or
(2) execute a release of the bond, if the person posted
a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is accrued at
the rate charged on loans to depository institutions by the New York
Federal Reserve Bank. The interest shall be paid for the period
beginning on the date the penalty is paid to the department and
ending on the date the penalty is remitted.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 34, eff. June 14, 2001.
§ 51.310. ADMINISTRATIVE PROCEDURE. (a) The executive
director by rule shall prescribe procedures for the determination
and appeal of a decision to impose an administrative penalty.
(b) A proceeding under this subchapter to impose an
administrative penalty is considered to be a contested case under
Chapter 2001, Government Code.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 35, eff. June 14, 2001.
SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
§ 51.351. INSPECTIONS AND INVESTIGATIONS. (a) The
department may conduct inspections or investigations as necessary
to enforce the laws administered by the department.
(b) The department, during reasonable business hours, may:
(1) enter the business premises of a person regulated
by the department or a person suspected of being in violation of or
threatening to violate a law establishing a regulatory program
administered by the department or a rule or order of the commission
or executive director related to a regulatory program administered
by the department; and
(2) examine and copy records pertinent to the
inspection or investigation.
(c) A department employee may check the license,
registration, or endorsement of a person regulated by the Texas
State Board of Plumbing Examiners in accordance with the memorandum
of understanding under Section 1301.259 and report any
noncompliance to that agency.
(d) The department shall conduct joint investigations with
the Texas State Board of Plumbing Examiners as circumstances
require.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 36, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 819, § 27, eff. Sept. 1, 2003.
§ 51.352. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
attorney general or the executive director may institute an action
for injunctive relief to restrain a violation by and to collect a
civil penalty from a person that appears to be in violation of or
threatening to violate a law establishing a regulatory program
administered by the department or a rule or order of the commission
or executive director related to the regulatory program.
(b) An action filed under this section must be filed in a
district court in Travis County.
(c) The attorney general and the department may recover
reasonable expenses incurred in obtaining injunctive relief under
this section, including court costs, reasonable attorney's fees,
investigative costs, witness fees, and deposition expenses.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 37, eff. June 14, 2001.
§ 51.353. ADMINISTRATIVE SANCTIONS. (a) The
commission shall revoke, suspend, or refuse to renew a license or
shall reprimand a license holder for a violation of this chapter, a
law establishing a regulatory program administered by the
department, or a rule or order of the commission.
(b) The commission may place on probation a person whose
license is suspended. If a license suspension is probated, the
commission may require the person to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
commission; or
(3) continue or renew professional education until the
person attains a degree of skill satisfactory to the commission in
those areas that are the basis for the probation.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 38, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 816, § 1.018, eff. Sept. 1, 2003.
§ 51.354. RIGHT TO HEARING; ADMINISTRATIVE
PROCEDURE. (a) A respondent is entitled to a hearing conducted by
the State Office of Administrative Hearings if the executive
director proposes to deny, suspend, or revoke a license.
(b) Repealed by Acts 2003, 78th Leg., ch. 1215, § 16.
(c) Repealed by Acts 2003, 78th Leg., ch. 1215, § 16.
(d) A proceeding under this chapter to deny, suspend, or
revoke a license is considered to be a contested case under Chapter
2001, Government Code.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 836, § 39, eff. June 14, 2001; Acts
2003, 78th Leg., ch. 1215, § 12, eff. Sept. 1, 2003; Acts 2003,
78th Leg., ch. 1215, § 16, eff. Sept. 1, 2003.
SUBCHAPTER H. LICENSE REQUIREMENTS
§ 51.401. LICENSE EXPIRATION AND RENEWAL. (a) A
person who is otherwise eligible to renew a license may renew an
unexpired license by paying the required renewal fee to the
department before the expiration date of the license. A person
whose license has expired may not engage in activities that require
a license until the license has been renewed.
(b) A person whose license has been expired for 90 days or
less may renew the license by paying to the department a renewal fee
that is equal to 1-1/2 times the normally required renewal fee.
(c) A person whose license has been expired for more than 90
days but less than one year may renew the license by paying to the
department a renewal fee that is equal to two times the normally
required renewal fee.
(d) A person whose license has been expired for one year or
more may not renew the license. The person may obtain a new license
by complying with the requirements and procedures, including the
examination requirements, for obtaining an original license.
(e) A person who was licensed in this state, moved to
another state, and is currently licensed and has been in practice in
the other state for the two years preceding the date of application
may obtain a new license without reexamination. The person must pay
to the department a fee that is equal to two times the normally
required renewal fee for the license.
(f) Not later than the 30th day before the date a person's
license is scheduled to expire, the department shall send written
notice of the impending expiration to the person at the person's
last known address according to the records of the department.
Added by Acts 2003, 78th Leg., ch. 816, § 1.019, eff. Sept. 1,
2003.
§ 51.402. EXAMINATIONS. (a) Not later than the 30th
day after the date a person takes a license examination, the
department shall notify the person of the results of the
examination.
(b) If the examination is graded or reviewed by a testing
service:
(1) the department shall notify the person of the
results of the examination not later than the 14th day after the
date the department receives the results from the testing service;
and
(2) if notice of the examination results will be
delayed for longer than 90 days after the examination date, the
department shall notify the person of the reason for the delay
before the 90th day.
(c) The department may require a testing service to notify a
person of the results of the person's examination.
(d) If 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.
Added by Acts 2003, 78th Leg., ch. 816, § 1.019, eff. Sept. 1,
2003.
§ 51.403. EXAMINATION 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) provides reasonable advance notice to the
department; or
(2) cannot take the examination because of an
emergency.
(b) The commission by rule shall define what constitutes
reasonable notice and an emergency under this section.
Added by Acts 2003, 78th Leg., ch. 816, § 1.019, eff. Sept. 1,
2003.
§ 51.404. ENDORSEMENT; 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) The 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.
Added by Acts 2003, 78th Leg., ch. 816, § 1.019, eff. Sept. 1,
2003.
§ 51.405. CONTINUING 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.
Added by Acts 2003, 78th Leg., ch. 816, § 1.019, eff. Sept. 1,
2003.
§ 51.406. STAGGERED RENEWAL OF LICENSES. The
commission by rule 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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
Renumbered from V.T.C.A., Occupations Code, § 51.205 and amended
by Acts 2003, 78th Leg., ch. 816, § 1.020, eff. Sept. 1, 2003.
SUBCHAPTER I. TELEPHONE INFORMATION SYSTEM
§ 51.451. DEFINITION. 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.
Added by Acts 2003, 78th Leg., ch. 816, § 1.021, eff. Sept. 1,
2003.
§ 51.452. TELEPHONE 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.
Added by Acts 2003, 78th Leg., ch. 816, § 1.021, eff. Sept. 1,
2003.
