Justification for Administrative Rules Adoption

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Massage Therapy
16 TAC Chapter 117, amendments Subchapter A, §117.2; Subchapter C, §117.20; Subchapter E, §117.40; Subchapter F, §§117.50, 117.60, and 117.62; Subchapter G, §117.80 and §117.82; Subchapter J, §117.111; and new rules Subchapter B §§117.10 - 117.14

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code, Chapter 117, Subchapter A, §117.2; Subchapter C, §117.20; Subchapter E, §117.40; Subchapter F, §§117.50, 117.60, and 117.62; Subchapter G, §117.80 and §117.82; Subchapter J, §117.111; and adopts new rules at 16 TAC, Subchapter B §§117.10 - 117.14 , regarding the Massage Therapy program, without changes to the proposed text as published in the January 12, 2018, issue of the Texas Register (43 TexReg 151). The rules will not be republished.

The adopted rules implement legislative changes from the 85th Legislature, Regular Session (2017), for the Massage Therapy Program, which includes updating the rules to reflect statutory requirements for criminal history investigations, conditions for license eligibility, conditions for revoking a license; and adding an advisory board. The adopted rules are necessary to implement the legislative changes.

The adopted amendments to §117.2 adds the definition “applicant” and renumbers the section accordingly.

The adopted new Subchapter B, provides for the Massage Therapy Advisory Board.

The adopted new §117.10 establishes the advisory board membership and composition.

The adopted new §117.11 explains the advisory board duties.

The adopted new §117.12 explains the advisory board terms and vacancies.

The adopted new §117.13 establishes the advisory board presiding officer.

The adopted new §117.14 details when the advisory board must meet.

The adopted amendments §117.20 makes editorial corrections.

The adopted amendments §117.40 requires passing a criminal history background check for massage therapy instructor applicants.

The adopted amendments §117.50 requires passing a criminal history background check for massage school license applicants.

The adopted amendments §117.60 makes editorial corrections.

The adopted amendments §117.62 details massage school enrollment procedures and makes editorial corrections.

The adopted amendments §117.80 requires passing a criminal history background check for massage establishment applicants.

The adopted amendments §117.82 makes editorial corrections.

The adopted amendments §117.111 details administrative penalties and sanctions.

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the January 12, 2018, issue of the Texas Register (43 TexReg 151). The deadline for public comment was February 12, 2018. During the 30-day public comment period the Department received comments from seven interested parties. The public comments received are summarized below.

Comment--One commenter is interested in studying for the Massage Therapy Instructor License and would like information on study materials.

Department Response -- This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter was concerned that their information was not appearing on the Department website and had trouble printing the receipt for their renewal payments.

Department Response --This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter is in support of the proposed rule changes and would like to know the process for criminal background checks.

Department Response --The requirement for the Department to conduct criminal background checks on all applicants for a license is a statutory requirement under Texas Occupations Code Chapter 455, §455.1525. The requirement has been in effect since September 1, 2005 (House Bill 2696, 79R) and is not a new requirement. The proposed rules clarify the existing statutory requirement. Applicants and licensees will not need to do anything different or additional when applying for or renewing their licenses. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter was previously licensed as a massage therapist in Texas and then moved to another state. The commenter would like to know the process for reinstating their license.

Department Response --This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter believes that the rule regarding ineligibility for a license due to criminal conviction needs to be better defined. Specifically, they are unsure of what the “fifth anniversary” means. The commenter would like to see those released from prison be able to obtain employment.

Department Response --Texas Occupations Code Chapter 455, §455.152 are the statutory provisions for ineligibility for licensure. The proposed rules reflect the current statutory requirement that a person convicted of a violation of Chapter 455, is ineligible for a license as a massage establishment, massage school, massage therapist, or massage therapy instructor until the fifth anniversary of the date of their conviction, five years after the date the individual was convicted. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter expressed concern with the skill level required to obtain an instructor license and feels that one year as a licensed massage therapist is not enough to be an effective instructor. The commenter would like to see a standardized entrance exam administered to students prior to enrollment and expressed support for the current Massage Therapy Exam (MBLEX).

Department Response --This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter would like to see the following terms removed from the definition of “massage therapists”: masseur, masseuse, body massager, body rubber.

Department Response --The term “massage therapist” is statutorily defined in Texas Occupations Code Chapter 455, §455.001(7) and includes the terms: masseur, masseuse, body massager, and body rubber. The Department cannot change the statutory definition of this term. This comment does not address any current proposed rule. The Department did not make any changes to the rules in response to this comment.

The Massage Therapy Advisory Board (Board) met on February 26, 2018, and recommended the proposed rules be adopted without changes. At its meeting held on March 27, 2018, the Commission adopted the proposed rules without changes as recommended by the Board and the Department.

The amendments are adopted under Texas Occupations Code, Chapters 51 and 455, 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 adoption are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

SUBCHAPTER A. GENERAL PROVISIONS.

§117.2. Definitions.

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

(1) Act--Texas Occupations Code, Chapter 455, relating to the regulation of massage therapists, massage therapy instructors, massage schools, and massage establishments.

(2) Anatomy--The study of the structure of the human body including the following areas: bones, joints and muscles, the skin, blood and blood vessels, cells, tissues and membranes, the heart, the brain, spinal cord and nerves, the lymphatic system, the digestive system, the respiratory system, the urinary system, the reproductive system, glands and hormones.

(3) Applicant--A person who submits an application to the department. The term includes: owner, owner’s agent, operator, principal, officer, or general manager of the applicant.

(4) Business practices and professional ethics--The study of standard bookkeeping and accounting practices, office practices, and advertising, and ethical guidelines for massage therapists established by law or the department.

(5) Client--An individual or patron seeking or receiving massage therapy services.

(6) Commission--The Texas Commission on Licensing and Regulation.

(7) Compensation--Any and all forms of payment as remuneration for the provision of massage therapy or other massage therapy services, including but not limited to, fees, tips, memberships, goods, services, barter, or any other exchange or any value made to or on behalf of a licensee, an unlicensed person, or an unlicensed business. Compensation includes discounted, reduced, or waived student fees for tuition, books, supplies, or other educational expenses.

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

(9) Executive Director --The executive director of the department.

(10) Health and hygiene--The study of recognized methods of sanitation and cleanliness including prophylaxis or disease prevention as applied to massage therapy services and current knowledge of elements of healthy life styles.

(11) Hydrotherapy--The use of generally accepted methods of external application of water for its mechanical, thermal, or chemical effect.

(12) Instructor--A person employed at a licensed massage school who instructs one or more students in any section of the course of instruction, other than massage therapy techniques, manipulation of soft tissue, or the internship.

(13) Kinesiology--The study of the anatomy, physiology, and mechanics of movement of

the human body.

(14) Licensee--A person or entity licensed under the Act as a massage therapist, massage school, massage therapy instructor, or massage establishment.

(15) Massage school--An entity that:

(A) teaches at a minimum the course of instruction required for a massage therapist license; and

(B) has at least two instructors.

(16) Massage therapist--A person who practices or administers massage therapy or other massage services to a client for compensation. The term includes a licensed massage therapist, therapeutic massage practitioner, massage technician, masseur, masseuse, myotherapist, body massager, body rubber, or any derivation of those titles.

(17) Massage therapy--The manipulation of soft tissue by hand or through a mechanical or electrical apparatus for the purpose of body massage. The term includes effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics. Massage therapy may include the use of oil, lubricant, salt glows, heat lamps, hot and cold packs, or tub, shower, jacuzzi, sauna, steam or cabinet baths. Equivalent terms for massage therapy are massage, therapeutic massage, massage technology, myo-therapy, body massage, body rub, or any derivation of those terms. Massage therapy is a health care service when the massage is for therapeutic purposes. The terms "therapy" and "therapeutic" do not include diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. Massage therapy does not constitute the practice of chiropractic.

(18) Massage therapy educational program--The minimum 500 hour supervised course of instruction described in the Act, §455.156, required for licensure and provided by a licensed massage school.

(19) Massage therapy establishment--A place of business that advertises or offers massage therapy or other massage services unless specifically exempted by the Act. The term includes a place of business that advertises or offers any service described by a derivation of the terms "massage therapy" or "other massage services" as defined by the Act.

(20) Massage therapy instructor--A licensed massage therapist who provides to one or more students instruction approved by the department in massage therapy or manipulation of soft tissue and who holds a license issued by the department as a massage therapy instructor.

(21) Owner--An owner is, in the case of a massage school or establishment, an individual, a partnership and any partners, a corporation, or any other legal business entity.

(22) Pathology--The scientific study of the nature of disease and its causes, processes, development, and consequences.

(23) Physiology--The study of the normal vital processes of the human body including the processes of cells, tissues, and organs including the contractibility of muscle tissue; coordination through the nervous system; digestion; circulatory; reproduction; and secretions.

(24) State approved educational institution--An institution which is approved by the Texas Education Agency or which is an institution of higher education as defined in the Texas Codes Annotated, Texas Education Code, Chapter 61 or a higher education institution approved by a similar agency in another state.

(25) Swedish gymnastics--Passive and active joint movements, nonspecific stretches, passive and active exercise, or any combination of these.

(26) Swedish massage therapy techniques--The manipulation of soft tissue utilizing effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve stroke, and Swedish gymnastics.

SUBCHAPTER B. MASSAGE THERAPY ADVISORY BOARD

§117.10. Advisory Board Membership

The advisory board consists of nine members appointed by the presiding officer of the commission with the approval of the commission as follows:

(1) Two members who are licensed massage therapists;

(2) Two members who represent licensed massage schools;

(3) Two members who represent licensed massage establishments;

(4) One member who is a peace officer with expertise in the enforcement of Chapter 20A, Penal Code, and Subchapter A, Chapter 43, Penal Code; and

(5) Two members of the public.

§117.11. Duties of Advisory Board

The advisory board shall provide advice and recommendations to the department on technical matters relevant to the administration of this chapter.

§117.12. Terms; Vacancies

(a) Members of the advisory board are appointed for staggered six-year terms. The terms of three members expire September 1 of each odd-numbered year.

(b) If a vacancy occurs on the advisory board during a member’s term, the presiding officer of the commission, with the commission’s approval, shall appoint a replacement who meets the qualifications for the vacant position to serve the remainder of the term.

(c) A member of the advisory board may be removed from the advisory board pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

§117.13. Presiding Officer

(a) The presiding officer of the commission shall designate a member of the advisory board to serve as presiding officer of the advisory board for a term of one year.

(b) The presiding officer of the advisory board may vote on any matter before the advisory

board.

§117.14. Meetings

The advisory board shall meet at the call of the executive director or the presiding officer of the commission.

SUBCHAPTER C. LICENSED MASSAGE THERAPIST

§117.20. Massage Therapist License--General Requirements and Application.

(a) To be eligible for a Massage Therapist license an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §117.100;

(3) be at least 18 years of age;

(4) submit a transcript(s) of all relevant course work, acceptable to the department;

(5) provide proof of successfully passing the required exam;

(6) provide proof of successfully passing the jurisprudence exam;

(7) successfully pass a criminal history background check performed by the department; and

(8) satisfactorily complete massage therapy studies in a minimum 500-hour department approved course at a licensed massage school in which includes at least:

(A) 200 hours of massage therapy techniques and theory and the practice of manipulation of soft tissue, with at least 125 hours of Swedish massage therapy techniques;

(B) 50 hours of anatomy;

(C) 25 hours of physiology;

(D) 50 hours of kinesiology;

(E) 40 hours of pathology;

(F) 20 hours of hydrotherapy;

(G) 45 hours of massage therapy laws and rules, business practices and professional ethics;

(H) 20 hours of health, hygiene, first aid, universal precautions, and cardiopulmonary

resuscitation (CPR); and

(I) 50-hour internship program.

(b) Unless otherwise indicated, an applicant for licensure as a massage therapist must submit all required information and documentation of credentials on department-approved forms.

(c) If the application is incomplete, the department will send a notice listing any additional materials required to complete the application.

(d) In the event that a deficiency is present in course work, the applicant may have up to one year to complete additional course work acceptable to the department; otherwise, the application may be voided.

SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS

§117.40. Massage Therapy Instructor--General Requirements and Application.

(a) A licensed massage therapy instructor shall instruct the 125 hours of Swedish massage therapy, any other instruction in massage techniques or manipulation of soft tissue, and the internship portion of the required course of instruction.

(b) To qualify for massage therapy instructor license, a person shall:

(1) be a licensed massage therapist;

(2) have a high school diploma, a general equivalence diploma (GED) or a transcript from an accredited college or university showing successful completion of at least twelve (12) semester hours;

(3) submit a statement of assurance that the licensee has been engaged in the practice of massage therapy for at least one year and has conducted 500 hours of hands-on experience (does not include internship hours);

(4) complete a 30-hour course on teaching adult learners. Courses attended may include an instructional certification program, a college level course in teaching adult learners, a continuing education course in teaching adult learners, or an advanced program approved by the department in teaching the course of instruction;

(5) submit a completed application on a department-approved form;

(6) pay the required feed under §117.100; and

(7) successfully pass a criminal history background check performed by the department.

(c) Persons qualified to instruct courses other than massage therapy technique or manipulation of soft tissue courses are not required to hold a massage therapy instructor license. These persons must hold:

(1) a baccalaureate or higher degree from an accredited college or university that includes:

(A) satisfactory completion of nine (9) semester hours or twelve (12) quarter hours in subjects related to the subject area to be taught; or

(B) a minimum of one year of practical experience within the last ten (10) years in the subject area to be taught; or

(2) an associate degree from an accredited college, university, or recognized post-secondary institution and must have:

(A) a minimum of one year of practical experience within the last ten years in the subject area to be taught and the associate degree must include satisfactory completion of nine (9) semester hours or twelve (12) quarter credit hours in subjects related to the subject area to be taught; or

(B) a minimum of two (2) years of practical experience within the last ten (10) years in the subject area to be taught; or

(3) a high school diploma, GED, or proof of satisfactory completion of relevant subject(s) from a recognized post-secondary institution and practical experience of a minimum of two years within the last ten years in the subject area to be taught.

(d) Instructors teaching CPR or First Aid must be certified as CPR instructors or First Aid instructors by:

(1) the American Heart Association;

(2) the American Red Cross;

(3) the National Safety Council; or

(4) another provider with curriculum that is in compliance with nationally accepted guidelines established by the above referenced organizations.

SUBCHAPTER F. LICENSED MASSAGE SCHOOLS

§117.50. Massage School License--General Requirements and Application.

(a) Unless exempt, an individual or entity who provides at a minimum the course of instruction required for licensure to one or more students constitutes a massage therapy educational program and must obtain a massage school license.

(b) Minimum standards of operation must be maintained by all massage therapy educational programs to ensure educational programs of high quality which will be of benefit to the student, the school, and the public.

(c) Each applicant for a massage school must:

(1) submit a completed application on a department-approved form;

(2) submit supporting documents that shall include:

(A) lease agreement;

(B) detailed floor plan; and

(C) inventory;

(3) provide the financial stability statements or documents as prescribed under §117.56;

(4) pay the required fee under §117.100; and

(5) successfully pass a criminal history background check performed by the department.

(d) The department shall conduct an inspection of a massage school before an educational program begins operation. No massage school may be operated, instruction given, or student solicited or enrolled at any location which has not been approved by the department.

(e) Each massage school shall maintain each instructional location in accordance with applicable state and local fire codes and regulations.

(f) The massage school license must be displayed in an appropriate and public manner at the location of the educational program.

§117.60. Massage School Advanced Course Work.

(a) Advanced course work offered by a massage school which is beyond and not a part of the minimum 500-hour course of instruction must be:

(1) directly related to the theory or clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue, business practices, professional ethics, massage therapy laws and rules, universal precautions, anatomy, physiology, kinesiology, pathology, hydrotherapy, and health and hygiene; and

(2) designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy or other massage therapy services.

(b) A massage school shall not offer advanced course work which authorizes the practice of diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy or podiatry is required by law.

(c) Massage schools shall maintain academic transcripts of advanced course work permanently and shall retain all other student records for at least three years from the last date attended for students of advanced course work. Financial records will be retained as required by federal retention requirements, if applicable.

(d) A massage school may not represent that advanced course work is approved by the department.

(e) Unlicensed students enrolled in advanced coursework may not provide massage therapy or other massage therapy services to the public.

§117.62. Massage School Enrollment Procedures.

(a) Before enrollment, each massage school shall provide each prospective student with the following:

(1) a program outline;

(2) the admission requirements;

(3) a schedule of tuition, fees, and other charges;

(4) a cancellation and refund policy;

(5) the length of time for completion of program, including internship hours;

(6) a class schedule including estimated break and meal times;

(7) the attendance and progress policies, including requirements and fees for make-up hours;

(8) grievance policies;

(9) the student-teacher ratio;

(10) the conduct policy;

(11) explanations of the difference between a loan and a grant, if the school participates in a loan or grant program;

(12) a copy of the enrollment agreement;

(13) a notice that clearly states the number of course hours which must be successfully completed before a student can be licensed as a massage therapist under this chapter;

(14) a list of instructors, their qualifications, and the subject area taught by each instructor;

(15) information indicating how a prospective student may obtain copies of the Massage Therapy Act, Texas Occupations Code, Chapter 455 and this chapter; and

(16) a statement that the Act sets out that a person is ineligible for licensure:

(A) if the person has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication to crimes or offenses under Chapter 20A, Penal Code, or Subchapter A, Chapter 43, Penal Code, or another sexual offense; or

(B) until the fifth anniversary of the date of a conviction of a violation of the Act.

(b) Each prospective student shall be given a reasonable time to review the material in subsection (a) and offered the opportunity to tour the instructional facility and inspect equipment before signing an enrollment agreement. The prospective student may decline the tour.

(c) Each massage school shall use a department-approved acknowledgment form to verify the prospective student's receipt of the information required in subsection (a). A signed copy of the form shall be given to the prospective student and the original shall be maintained in the student's file. The form shall include the following or similar statements:

(1) "I have furnished information disclosing my previous education, training, and work experiences. I understand this will be evaluated and may result in the program length being shortened and the cost reduced.";

(2) "I further realize that complaints may be made to the Texas Department of Licensing and Regulation, Massage Therapy Program, P.O. Box 12157, Austin, Texas 78711, (512) 539-5600, or www.tdlr.texas.gov.";

(3) "I have been offered the opportunity to read the Massage Therapy Act and the rules of the department included in 16 Texas Administrative Code Chapter 117."; and

(4) "I have been made aware that the State of Texas requires only the minimum 500-hour course of instruction for licensure as a massage therapist, and anything beyond that is strictly voluntary."

(d) Each massage therapy educational program shall develop an enrollment agreement which shall be used to enroll each student. The agreement shall include but is not limited to:

(1) the full and correct name and location of the massage school, massage therapy educational program, and the massage school director(s) and owner(s);

(2) the program title, tuition, fees, reasonable estimated cost of books and supplies, any other expenses, total cost of the program, items subject to cost change, method of payment and payment schedule, disclosure statement (if interest is charged on more than three payments), student's right to cancel;

(3) the number of classroom and internship hours included in the program;

(4) the date the program is to begin, the course length and course schedule;

(5) the name and address of the student; and

(6) a statement that the student has received a copy of the information in subsection (a) of this section.

(e) Each student shall be given a copy of his or her executed enrollment agreement and a copy shall be kept in the student's file maintained by the school along with a copy of the acknowledgment form required by subsection (c).

SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS.

§117.80. Massage Establishment Application Procedures and Licensure.

(a) Unless otherwise exempt under the Act, a place of business that advertises or offers massage therapy or other massage services must be licensed by the department as a massage establishment as provided by this section.

(b) A sexually oriented business may not obtain a license from the department or operate as a massage establishment.

(c) Each applicant for a massage establishment must:

(1) submit a completed application on a department approved form;

(2) pay the fee as prescribed under §117.100; and

(3) successfully pass a criminal history background check performed by the department.

§117.82. Massage Establishments--General Requirements.

(a) A massage establishment shall employ or contract with only licensed massage therapists to perform massage therapy or other massage services. Documentation of the employment or contract relationship and verification that the licensed massage therapist is a United States citizen or a legal permanent resident with a valid work permit shall be maintained by the massage establishment and made available during an inspection or investigation. Required documentation for each person providing massage therapy or other massage services shall include:

(1) a copy of the current massage therapist license;

(2) proof of eligibility to work in the United States; and

(3) if an employee, a completed I-9 form, or if under an independent contractor or contract labor agreement, a copy of the contract signed by both the owner or operator and the licensed massage therapist.

(b) No massage establishment shall be operated until the department has approved and licensed the establishment.

(c) A massage establishment must maintain separation from rooms used wholly or in part for residential or sleeping purposes by a solid wall or by a wall with a solid door which shall remain locked during business hours.

(d) A massage establishment must display the license in a prominent location in the establishment where it is available for inspection by the public.

(e) A license issued by the department is the property of the department and must be surrendered on demand.

(f) A massage establishment is subject to inspection to verify compliance with the Act and this chapter by authorized personnel of the department at any reasonable time.

(1) Massage establishments shall be inspected periodically and as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and this chapter.

(2) The department inspector will contact the establishment owner, manager, or their representative upon arrival at the establishment and before proceeding with the inspection.

(3) The establishment owner, manager, or their representative shall cooperate with the inspector in the performance of the inspection.

(4) Each establishment shall be inspected at least once every two years.

(5) Upon completion of the inspection, the owner, manager, or their representative shall be advised in writing of the results. The inspection report will list violations identified during the inspection.

(g) A massage establishment may not:

(1) employ or contract with an individual who is not a United States citizen or a legal permanent resident with a valid work permit;

(2) employ a minor unless the minor's parent or legal guardian authorizes in writing the minor's employment by the establishment;

(3) allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;

(4) allow any individual, including a client, student, license holder, or employee, to engage in sexual contact in the massage establishment;

(5) allow any individual, including a student, license holder, or employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual; or

(6) allow an unlicensed student to provide massage therapy or other massage services to the public beyond the department-approved internship.

(h) A massage establishment shall:

(1) properly maintain and secure for each client the initial consultation documents, all session notes, and related billing records; and

(2) maintain a current list of all establishment employees and/or contractors at all times which includes:

(A) full name; and

(B) license number and expiration date (if licensed as a massage therapist).

(i) For purposes of this section:

(1) "Nude" means a person who is:

(A) entirely unclothed; or

(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts or any portion of the genitals or buttocks.

(2) "Sexual contact" includes:

(A) any touching of any part of the genitalia or anus;

(B) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client through the signed consultation document referenced in §117.91;

(C) any offer or agreement to engage in any activity described in subparagraph (A) or (B);

(D) kissing;

(E) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotion of prostitution as described in Texas Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in such activities;

(F) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or

(G) inappropriate sexual comments about or to a client, including sexual comments about a person's body.

SUBCHAPTER J. ENFORCEMENT PROVISIONS

§117.111. Administrative Penalties and Sanctions.

(a) If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 455, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapters 51 and 455 and any associated rules.

(b) The commission or executive director may refuse to issue a license to a person, suspend or revoke the license of a person, or place a person licensed under the Act on probation if the person:

(1) obtains a license by fraud, misrepresentation, or concealment of material facts;

(2) sells, barters, or offers to sell or barter a license;

(3) violates a rule adopted by the commission;

(4) engages in unprofessional conduct that endangers or is likely to endanger the health, welfare, or safety of the public;

(5) violates an order or ordinance adopted by a political subdivision under Local Government Code, Chapter 243; or

(6) violates this chapter.

(c) The commission or executive director shall revoke the license of a person if:

(1) the person is convicted of, enters a plea of nolo contendere or guilty to, or receives deferred adjudication for an offense under Chapter 20A, Penal Code, or Subchapter A, Chapter 43, Penal Code or another sexual offense; or

(2) the department determines the person has practiced or administered massage therapy at or for sexually oriented business.

(d) The commission or executive director shall revoke the license of a person licensed as a massage school or massage establishment if the department determines that:

(1) the school or establishment is a sexually oriented business; or

(2) an offense involving prostitution or another sexual offense that resulted in a conviction for the offense, a plea of nolo contendere or guilty to the offense, or a grant of deferred adjudication for the offense occurred on the premises of the school or establishment.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on April 5, 2018.


Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation