Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Code Enforcement Officers
16 Texas Administrative Code, amendments to Chapter 62, §§62.10, 62.23, 62.24, and 62.70

The Texas Department of Licensing and Regulation (Department) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 62, §§62.10, 62.23, 62.24, and 62.70, regarding the Code Enforcement Officers program, without changes to the proposed text as published in the February 14, 2020, issue of the Texas Register (45 TexReg 983).

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 62 implement Texas Occupations Code, Chapter 1952, Code Enforcement Officers.

The adopted rules are necessary to implement House Bill (HB) 2584, 86th Legislature, Regular Session (2019). Section 1 of HB 2584 states that the provisions of Texas Penal Code §46.02 and §46.03, prohibiting the possession or carrying of a club, do not apply to a registered code enforcement officer who possesses or carries an instrument used specifically for deterring an animal bite while the officer is performing official duties, or while traveling to or from a place of duty. Section 2 of HB 2584 requires the initial training course required for registration as a code enforcement officer to include “education regarding the principles and procedures to be followed when possessing or carrying an instrument used specifically for deterring an animal bite.”

Section 3 of HB 2584 requires the Texas Commission of Licensing and Regulation (Commission) to “establish an approved curriculum that includes material regarding changes in applicable law and the principles and procedures to be followed when possessing or carrying an instrument used specifically for deterring an animal bite.” Section 4 of the bill requires a registered code enforcement officer to complete certain educational requirements before the officer may carry or possess an instrument used specifically for deterring an animal bite.

The adopted rules implement HB 2584 first by defining the term “bite stick,” which is the commonly used term for instruments designed specifically for deterring an animal bite. The adopted rules authorize “principles and procedures to be followed when possessing or carrying a bite stick” as an approved topic for continuing education and require the initial training course outlined in §62.23 to contain instruction in this topic. Further, the adopted rules require a registered code enforcement officer to have completed certain educational requirements before carrying or possessing a bite stick. Lastly, the adopted rules prohibit a code enforcement officer from misusing a bite stick while performing as a registrant.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §62.10, Definitions, to include the definition of “bite stick” as “[a] baton, club, or rod designed specifically to deter an animal bite.” “Bite stick” is the commonly used term for what HB 2584 refers to as “an instrument used specifically for deterring an animal bite.” The remaining definitions are also renumbered.

The adopted rules amend §62.23, Registration Requirements—Education, to require, pursuant to Section 2 of HB 2584, that the initial training course for registration include training on the principles and procedures to be followed when possessing or carrying a bite stick.

The adopted rules amend §62.24, Continuing Education, to add, pursuant to Section 3 of HB 2584, “principles and procedures to be followed when possessing or carrying a bite stick” as an acceptable topic for continuing education.

The adopted rules amend §62.70, Standards of Conduct for Engaging in Code Enforcement, to state in subsection (b) that a “registrant shall not misuse a bite stick while performing as a registrant.” Because bite sticks could cause harm to a person or animal if misused, it is important that registrants use reasonable care when using these instruments.

The adopted rules add new §62.70(d), pursuant to Section 4 of HB 2584. New §62.70(d) provides that a registrant “shall not possess or carry a bite stick in a place prohibited by Texas Penal Code Section 46.03(a)” unless the person has completed one of three types of training. A registrant desiring to carry or possess a bite stick must complete one of the following types of training: (1) an initial training course that meets the requirements of §62.23 and includes instruction on the principles and procedures to be followed when possessing or carrying a bite stick; (2) an approved continuing education course on the principles and procedures to be followed when possessing or carrying a bite stick; or (3) the Animal Control Officer basic training course provided by the Texas Department of State Health Services.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the February 14, 2020, issue of the Texas Register (45 TexReg 983). The deadline for public comments was March 16, 2020. The Department did not receive any comments from interested parties on the proposed rules during the 30-day public comment period.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Code Enforcement Advisory Committee met on November 8, 2019, to discuss the proposed rules and recommended publishing the proposed rules without changes in the Texas Register. The Committee did not hold a second meeting due to circumstances caused by the COVID-19 situation.

At its meeting on June 30, 2020, the Commission adopted the proposed rules as published in the Texas Register.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 1952, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 1952. No other statutes, articles, or codes are affected by the adopted rules.

  • 62.10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Occupations Code, Chapter 1952, concerning the registration of code enforcement officers.

(2) Advisory Committee--The Code Enforcement Officers Advisory Committee.

(3) Applicant--A person who applies for registration under the Act.

(4) Bite stick--A baton, club, or rod designed specifically to deter an animal bite.

(5) Code enforcement--The inspection of public or private premises for the purpose of:

(A) identifying environmental hazards, including:

(i) fire or health hazards;

(ii) nuisance violations;

(iii) unsafe building conditions; and

(iv) violations of any fire, health, or building regulation, statute, or ordinance; and

(B) improving and rehabilitating those premises with regard to those hazards.

(6) Code enforcement officer--An agent of this state or a political subdivision of this state who engages in code enforcement. This term does not include an agent of an agency of the federal government.

(7) Code enforcement officer in training (also referred to as Supervisee)--An agent of this state or a political subdivision of this state who possesses less than one year of full-time experience in the field of code enforcement and engages in code enforcement under the supervision of a code enforcement officer. This term does not include an agent of an agency of the federal government.

(8) Commission--The Texas Commission of Licensing and Regulation.

(9) Department--The Texas Department of Licensing and Regulation.

(10) Executive Director--The executive director of the Texas Department of Licensing and Regulation.

(11) Full-time experience--Employment, self-employment, or independent contracting in the field of code enforcement where the regularly assigned duties include code enforcement for a minimum of 32 hours per week.

(12) Registrant--A person registered under the Act.

(13) Supervisor--A code enforcement officer who supervises one or more code enforcement officers in training.

  • 62.23. Registration Requirements – Education.

(a) An applicant must complete a training program in code enforcement from an educational institution accredited or licensed by the Texas Education Agency or Texas Higher Education Coordinating Board.

(b) The program shall include, but shall not be limited to, training in the following subjects:

(1) zoning and zoning ordinance enforcement;

(2) sign regulations;

(3) home occupations;

(4) housing codes and ordinances;

(5) building abatement;

(6) nuisance violations;

(7) abandoned vehicles;

(8) junk vehicles;

(9) health ordinances;

(10) basic processes of law related to code enforcement; and

(11) principles and procedures to be followed when possessing or carrying a bite stick.

(c) The program shall consist of 36 classroom or laboratory hours. A classroom or laboratory hour shall constitute 50 minutes of actual classroom or laboratory time.

  • 62.24. Continuing Education.

(a) Each registered code enforcement officer must complete at least twelve continuing education hours as set forth in this section within the 24 months preceding renewal of a registration, at least one hour of which must be in legal or legislative issues as provided in subsection (i)(12).

(b) Each registered code enforcement officer in training must complete at least six continuing education hours as set forth in this section within the twelve months preceding renewal of a registration, at least one hour of which must be in legal or legislative issues as provided in subsection (i)(12).

(c) A code enforcement officer in training who applies to upgrade a registration pursuant to §62.20 is not required to submit continuing education hours in order to upgrade.

(d) Only continuing education activities conducted in accordance with this section shall be considered approved by the department and may be represented to the public as acceptable for registration renewal for registered code enforcement officers and code enforcement officers in training in Texas.

(e) Department-approved continuing education activities for registration renewal may include the following:

(1) conferences;

(2) home-study training modules (including professional journals requiring successful completion of a test document);

(3) lectures;

(4) panel discussions;

(5) seminars;

(6) accredited college or university courses;

(7) video or film presentations with live instruction;

(8) field demonstrations;

(9) teleconferences; or

(10) other activities approved by the department.

(f) Only the following continuing education activities shall serve as a basis for registration renewal:

(1) approved by the department or its designee in accordance with this section; or

(2) approved by another professional regulatory agency in the State of Texas as acceptable continuing education for registration renewal; and

(3) covering one or more of the curriculum areas listed in subsection (i).

(g) Continuing education activities must meet the following criteria in order to be accepted for continuing education credit:

(1) the activity must cover one or more of the curriculum areas listed in subsection (i);

(2) the activity must be conducted by an organization which is:

(A) an accredited college or university;

(B) a governmental agency, including local, state or federal agencies;

(C) an association with a membership of 25 or more persons, or its affiliate; or

(D) a commercial education business;

(3) the activity must have a record-keeping procedure which includes a register of who took the course and the number of continuing education hours earned;

(4) the organization must implement procedures for verifying participant attendance;

(5) the activity must be at least 50 minutes in length of actual instruction time. Round-table discussions and more than one speaker for the total of 50 minutes per activity is permissible. No credit will be given for time used for other non-relevant activities; and

(6) the activity must be conducted in compliance with all applicable federal and state laws, including the Americans with Disabilities Act requirements for access to activities.

(h) Commercial education businesses shall submit a request for approval on department forms, and shall not represent any course as approved until such approval is granted by the department in writing.

(i) The curriculum of an approved activity must include one or more of the following subjects:

(1) zoning and zoning ordinance enforcement;

(2) sign regulations;

(3) home occupations;

(4) housing codes and ordinances;

(5) building abatement;

(6) nuisance violations;

(7) abandoned vehicles;

(8) junk vehicles;

(9) health ordinances;

(10) basic processes of law related to code enforcement;

(11) professional, supervisory, or management training related to the profession of code enforcement;

(12) legislative or legal updates related to the profession of code enforcement; or

(13) principles and procedures to be followed when possessing or carrying a bite stick.

(j) Documentation of continuing education activity shall be maintained by the organization for five years, including:

(1) a roster which shall include the following:

(A) name, address, phone number, registration number, and signature of the registrant; and

(B) number of continuing education hours earned by each individual; and

(2) copies of all program materials sufficient to demonstrate compliance with this section.

(k) At the conclusion of the activity the organization shall distribute to those registered code enforcement officers and code enforcement officers in training who have successfully completed the activity a certificate of completion which shall include the name of the registrant, the name of the organization providing the training, the title of the activity, the date and location of the activity, and the continuing education hours earned. The certificate shall include a breakdown of the hours earned on each topic listed under subsection (i).

(l) Each registered code enforcement officer and code enforcement officer in training shall collect and keep certificates of completion of approved courses. These certificates of completion will be used to document the attendance of a registered code enforcement officer or code enforcement officer in training at approved courses. The department will conduct random audits for compliance with this requirement.

(m) Failure to comply with continuing education requirements may result in suspension of a code enforcement officer or code enforcement officer in training registration until the necessary credits for continuing education are successfully completed.

(n) The department may refuse to accept any or all courses for registration renewal if an organization fails to retain documentation related to the activity as required by this section, or fails to comply with any other requirements that are a basis for approval or that are a part of this chapter.

(o) Initial certification in the twelve months preceding renewal will be accepted as proof of the continuing education required by this section if the certification is listed as follows:

(1) International Code Council (ICC):

(A) residential building inspector;

(B) residential electrical inspector;

(C) residential mechanical inspector;

(D) residential plumbing inspector;

(E) commercial building inspector;

(F) commercial electrical inspector;

(G) commercial mechanical inspector;

(H) commercial plumbing inspector;

(I) fire inspector I;

(J) fire inspector II;

(K) residential combination inspector;

(L) commercial combination inspector;

(M) certified building official;

(N) accessibility inspector;

(O) zoning inspector;

(P) property maintenance and housing inspector; or

(Q) housing code official;

(2) International Association of Plumbing and Mechanical Officials (IAPMO):

(A) voluntary plumbing inspector; or

(B) voluntary mechanical inspector;

(3) National Fire Protection Association (NFPA):

(A) certified fire protection specialist;

(B) fire inspector I;

(C) fire inspector II;

(D) certified building inspector;

(E) certified residential electrical inspector; or

(F) certified master electrical inspector;

(4) International Association of Electrical Inspectors (IAEI):

(A) building 1 and 2 family dwelling;

(B) building general;

(C) electrical 1 and 2 family dwelling;

(D) electrical general;

(E) fire protection general;

(F) fire protection plan review;

(G) mechanical 1 and 2 family dwelling;

(H) mechanical general;

(I) plumbing 1 and 2 family dwelling; or

(J) plumbing general;

(5) National Swimming Pool Foundation (NSPF) certified pool-spa operator; or

(6) American Association of Code Enforcement (AACE):

(A) certified property maintenance and housing inspector;

(B) certified zoning enforcement officer;

(C) certified code enforcement officer; or

(D) code enforcement administrator.

  • 62.70. Standards of Conduct for Engaging in Code Enforcement.

(a) A registrant shall:

(1) be knowledgeable of and adhere to the Act, the rules, applicable codes, and all procedures established by the department for registrants; and

(2) be honest and trustworthy in the performance of all duties and work performed as a registrant, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited.

(b) A registrant shall not:

(1) participate, whether alone or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, the rules, or the standards adopted by the commission;

(2) furnish inaccurate, deceitful, or misleading information to the department;

(3) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing as a registrant;

(4) consume alcohol or take a controlled substance not prescribed by a physician, while performing as a registrant;

(5) verbally, physically, or sexually abuse, or attempt to abuse an individual while performing as a registrant;

(6) accept, or offer to accept, any form of compensation for not reporting a hazard as required, or for correcting a hazard which was found while performing as a registrant;

(7) fail to report a crime when the report is required by law;

(8) claim to be a code enforcement officer or code enforcement officer in training, or use the titles "code enforcement officer" or "code enforcement officer in training," while the registrant's registration is expired;

(9) use the registration number or certificate of another person, or allow another person to use his or her registration number or certificate;

(10) alter a registration certificate in a manner that is deceptive or misleading;

(11) be grossly negligent, incompetent, or engage in misconduct in the practice of code enforcement; or

(12) misuse a bite stick while performing as a registrant.

(c) A registrant shall notify consumers of the name, mailing address, internet address, and telephone number of the department for the purpose of directing complaints to the department by providing notification:

(1) on each written contract for services of a registrant;

(2) on a sign prominently displayed in the primary place of business of each registrant; or

(3) in a bill for services provided by a registrant to a third party.

(d) A registrant shall not possess or carry a bite stick in a place prohibited by Texas Penal Code Section 46.03(a) unless the registrant has completed either:

(1) a training course that meets the requirements of §62.23 of this chapter and includes instruction on the principles and procedures to be followed when possessing or carrying a bite stick;

(2) an approved continuing education course on the principles and procedures to be followed when possessing or carrying a bite stick; or

(3) the Animal Control Officer basic training course provided by the Texas Department of State Health Services.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.

Filed with the Office of the Secretary of State, on July 10, 2020.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation