Justification for Adoption of Administrative Rules

Electricians
16 Texas Administrative Code, new rule at Chapter 73, §73.71

The Texas Commission of Licensing and Regulation (Commission) adopts a new rule at 16 Texas Administrative Code (TAC), Chapter 73, §73.71, regarding the Electricians program, without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6651). The adopted changes are referred to as the “adopted rule.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC, Chapter 73, implement Texas Occupations Code, Chapter 1305, Electricians.

The adopted rule is necessary to implement House Bill (HB) 1342, 86th Legislature, Regular Session (2019). Section 2 of HB 1342 authorizes the Texas Commission of Licensing and Regulation (“Commission”) and the Department’s Executive Director to issue a restricted license to a person as an alternative to denying, revoking, suspending, or refusing to issue a license. Section 2 also authorizes the Department to impose reasonable conditions on a holder of a restricted license. Notably, a restricted license may only be issued to applicants within the Department’s Air Conditioning and Refrigeration (Texas Occupations Code, Chapter 1302) and Electricians (Texas Occupations Code, Chapter 1305) programs.

The adopted rule requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. Additionally, the adopted rule requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. Lastly, the adopted rule requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work.

SECTION-BY-SECTION SUMMARY

The adopted rule contains three subsections. Adopted rule §73.71(a) requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. A holder of a restricted license who does not comply with the terms of a restricted license may be subject to an administrative penalty or other sanction as allowed by Texas Occupations Code, Chapter 51.

Adopted rule §73.71(b) requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. This subsection simply restates Texas Occupations Code §51.357(d) as enacted by HB 1342.

Adopted rule §73.71(c) requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work under that license. Potential conditions that could be imposed by the Commission or Executive Director pursuant to Texas Occupations Code §51.357(b) are that the license holder be subject to close supervision, or be allowed to work in only nonresidential settings. Because HB 1342 and adopted rule §73.71(b) require supervisors to use care to ensure that persons under their supervision with restricted licenses comply with the terms of licensure, it is reasonable that licensees be required to inform their employers of those conditions.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the November 8, 2019, issue of the Texas Register (44 TexReg 6651). The deadline for public comments was December 9, 2019. The Department received comments from 15 interested parties on the proposed rule during the 30-day public comment period. The public comments are summarized below.

Comment: One commenter stated opposition to the proposed rule, stating, “If a person is competent at his craft he would not need a restricted license. It is not fair to the journeymen and apprentices that have completed the training to become competent craftsmen and would be a liability to the TDLR I think in the long run.”

Department Response: The Department appreciates the comment, but believes it reflects a misunderstanding of the proposed rule’s intent. House Bill 1342 would not allow the Commission or Department to issue a restricted license to a person who does not possess the requisite skill, experience, and competence to hold an electrical license. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated opposition to the proposed rule, claiming that the provisions regarding restricted licenses will add liability exposure for small businesses. The commenter did not elaborate further.

Department Response: The Department appreciates the comment. The proposed rule simply implements the restricted license provisions of HB 1342 and does not reflect a policy decision by the Commission or Department. It is not possible for the Department to determine whether or in what form the implementation of HB 1342 would result in increased liability for any business. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated opposition to the proposed rule, claiming that “Up to this point most people think that a person with a license has been vetted by the state and may allow them to do work thinking they are trustworthy and free of criminal convictions.”

Department Response: The Department appreciates the comment. However, persons with some degree of criminal history are eligible for licensure if the criminal offense is unrelated to the particular profession, or if the Department finds that the person has been rehabilitated. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter asked whether a person with no education or training in the field would be eligible for a restricted license.

Department Response: No. A person who has not met all of the conditions for licensure will not be eligible for a restricted license. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated approval of the proposed rule. The commenter stated that he or she was from outside of Texas and was not eligible for a license via reciprocity. The commenter said that the restricted license would help him or her work on electrical projects in Texas when needed.

Department Response: The Department appreciates the comment, but believes it reflects a misunderstanding of the proposed rule’s intent. House Bill 1342 would not allow the Commission or Department to issue a restricted license to a person who does not meet the requirements for licensure in Texas. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter expressed approval of the proposed rule and thanked the Department for the opportunity to share his opinion.

Department Response: The Department appreciates the comment. The Department did not make any changes to the proposed rule in response to this comment.

Comment: Two commenters asked the Department to state the purpose of a restricted license, to provide examples of persons who would need a restricted license, and to give examples of potential restrictions.

Department Response: The Department responded to the commenter directly. The Department pointed the commenter to the provisions of HB 1342, which provide the information sought by the commenter. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated opposition to the proposed rule, stating that the rule is an “accommodation to the underachievers.”

Department Response: The Department appreciates the comment. The proposed rule simply provides an implementation of HB 1342 and is not intended to accommodate persons who do not possess the qualifications for licensure. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter asked for information on how to become a testing center.

Department Response: The Department responded to the commenter directly. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter asked whether a restricted license would be available for electrical contractors, and how monitoring of contractors would work in practice.

Department Response: HB 1342 authorizes the issuance of a restricted license to any licensee within the Electricians program; therefore, an electrical contractor could potentially be issued a restricted license. If a contractor were to be issued a restricted license, the Commission or Executive Director would have to be certain that the contractor could be adequately monitored. In theory, the Commission or Executive Director could require a restricted electrical contractor to report regularly about the company’s operations, and/or to restrict the company’s electrical work to industrial or commercial settings. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated opposition to the proposed rule, stating that “It is becoming to (sic) hard for contractors to police the rules that the state mandates to contractors.”

Department Response: The Department appreciates the comment. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter expressed support for the proposed rule, stating that it “would allow an increase of licensees to become legal and therefore the safety of our industry and community would benefit from this proposed rule.”

Department Response: The Department appreciates the comment. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter expressed opposition to the inclusion of proposed subsection (b). The commenter characterized the subsection’s “reasonable care” standard as “vague, arbitrary, and capricious.” The commenter further equated subsection (b) with a tax on air conditioning and refrigeration contractors.

Department Response: Proposed rule 73.71(b) simply implements Texas Occupations Code
§ 51.357(d), which was added by Section 2 of HB 1342. Section 51.357(d) states, “A license holder who supervises the holder of a restricted license shall use reasonable care to ensure that the license holder complies with any condition imposed under this section.” We disagree with the commenter’s characterization of the proposed rule. The Department did not make any changes to the proposed rule in response to this comment.

Comment: One commenter stated disagreement with the proposed rule. Regarding proposed 73.71(a), the commenter asked how the Department would be able to monitor a licensee’s compliance with the conditions placed on a restricted license. Regarding proposed 73.71(b), the commenter stated that the proposed rule would place an undue burden on electrical contractors. Regarding proposed 73.71(c), the commenter expressed belief that restricted licensees would not be forthcoming in informing employers of the restrictions on their license.

Department Response: The Department appreciates the comment. Regarding the Department’s monitoring of compliance with the conditions of a restricted license, we do not anticipate that the Department’s electrical inspectors will be charged with monitoring all restricted licensees. Rather, we expect that reporting requirements will be imposed on restricted licensees. Regarding the commenter’s concern about proposed 73.71(b), we reiterate that the subsection simply implements Texas Occupations Code § 51.357(d), which was added by Section 2 of HB 1342. Section 51.357(d) states, “A license holder who supervises the holder of a restricted license shall use reasonable care to ensure that the license holder complies with any condition imposed under this section.” Regarding the commenter’s concern about proposed 73.71(c), the purpose of the proposed subsection is to provide a disincentive for restricted licensees to be less than forthcoming about the conditions attached to their license. The Department did not make any changes to the proposed rule in response to this comment.

COMMISSION ACTION

At its meeting on December 20, 2019, the Commission adopted the proposed rule without changes.

STATUTORY AUTHORITY

The new rule is adopted under Texas Occupations Code, Chapters 51 and 1305, 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. Texas Occupations Code §51.357, as enacted by HB 1342, also provides a basis for the adopted rule.

The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and 1305. No other statutes, articles, or codes are affected by the adopted rule.

73.71. Restricted Licenses.

(a) A person issued a restricted license in accordance with Texas Occupations Code, Chapter 51, Subchapter G, shall comply with any condition imposed by the commission or executive director.

(b) A licensee shall use reasonable care to ensure that the holder of a restricted license subject to the licensee’s supervision complies with any condition imposed by the commission or executive director.

(c) Before performing any work, the holder of a restricted license must inform his or her employer of the conditions placed on the license.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.

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


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation