Proposed Administrative Rules

Chapter 62. Code Enforcement Officers
Proposal Filed: February 3, 2020 – Published in the Texas Register: February 14, 2020
Deadline for Public Comment: March 16, 2020

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The Texas Department of Licensing and Regulation (Department) proposes 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.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed 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 proposed 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 proposed 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 proposed rules require a registered code enforcement officer to have completed certain educational requirements before carrying or possessing a bite stick. Lastly, the proposed rules prohibit a code enforcement officer from misusing a bite stick while performing as a registrant.

The proposed rules were presented to and discussed by the Code Enforcement Officers Advisory Committee (Advisory Committee) at its meeting on November 8, 2019. The Advisory Committee did not make any changes to the proposed rules. The Advisory Committee voted and recommended that the proposed rules be published without changes in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed 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 proposed 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 proposed 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 proposed 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 proposed 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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the proposed rules will benefit the public by requiring that registered code enforcement officers who opt to carry a bite stick will be trained in the principles and procedures of carrying such an instrument. The proposed rules will also benefit the public by allowing code enforcement officers to protect themselves from dangerous animals.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do expand an existing regulation by adding a standard of conduct, namely, a prohibition on misuse of a bite stick while performing as a registrant. Further, the rules expand existing regulations by requiring certain registrants—those that desire to carry a bite stick—to receive instruction on the principles and procedures to be followed when possessing or carrying an instrument used specifically for deterring an animal bite.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner’s rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 1952, which authorize the Texas Commission of Licensing and Regulation, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 1952. No other statutes, articles, or codes are affected by the proposed 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) – (3) (No change.)

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

(5) [ (4) ] 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) [ (5) ] 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) [ (6) ] 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) [ (7) ] Commission--The Texas Commission of Licensing and Regulation.

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

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

(11) [ (10) ] 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) [ (11) ] Registrant--A person registered under the Act.

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

§62.23. Registration Requirements – Education.

(a) (No change.)

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

(1) - (8) (No change.)

(9) health ordinances; [ and ]

(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) (No change.)

§62.24. Continuing Education.

(a) – (h) (No change.)

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

(1) – (10) (No change.)

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

(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) – (o) (No change.)

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

(a) (No change.)

(b) A registrant shall not:

(1) – (9) (No change.)

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

(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) (No change.)

(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 February 3, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation