Proposed Rules

Chapter 88. Polygraph Examiners.

Proposal Filed: August 6, 2021 – Published in the Texas Register: August 20, 2021

Deadline for Public Comment: September 20, 2021

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The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 88, §§88.1, 88.10, 88.20 - 88.29, 88.40, 88.70 - 88.80, 88.90, 88.91, 88.100, and 88.101, regarding the Polygraph Examiner Program. These proposed changes are referred to as “proposed repeals.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 88 implement Texas Occupations, Chapter 1703, Polygraph Examiners. 

The proposed repeals implement House Bill (HB) 1560, 87th Legislature, Regular Session (2021), which deregulates the polygraph examiners program by repealing Chapter 1703, Occupations Code, effective September 1, 2021. The proposed repeals are necessary to repeal the existing chapter establishing the regulatory structure for polygraph examiner licenses. Due to the pending repeal of Chapter 1703, Occupations Code, the Department will no longer have authority over the licensure of Polygraph Examiners, and the proposed repeals remove all rules related to the regulation of this program.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §88.1, Authority. This section states the authority for regulation by the Department.

The proposed repeal of §88.10, Definitions. This section provides definitions for Chapter 88.

The proposed repeal of §88.20, Licensing Requirements--Polygraph Examiner. This section establishes licensure requirements for the Polygraph Examiner license.

The proposed repeal of §88.21, Licensing Requirements--Polygraph Examiner Renewal. This section establishes renewal licensure requirements for the Polygraph Examiner license.

The proposed repeal of §88.22, Licensing Requirements--Polygraph Examiner Non-resident Applicants. This section establishes non-resident application requirements for the Polygraph Examiner license.

The proposed repeal of §88.23, Licensing Requirements--Registration with County Clerk. This section establishes the registration requirements with county clerks.

The proposed repeal of §88.24, Licensing Requirements--Polygraph Examiner Applicant with Out-of-State License. This section establishes the out-of-state reciprocity procedures for Polygraph Examiner license applications.

The proposed repeal of §88.25, Continuing Education. This section establishes continuing education requirements for the licenses issued under Chapter 88.

The proposed repeal of §88.26, Licensing Requirements--Polygraph Examiner Internship License. This section establishes licensure requirements for the Polygraph Examiner Internship license.

The proposed repeal of §88.27, Polygraph Examiner Internship License Term. This section establishes the term of a Polygraph Examiner Internship license.

The proposed repeal of §88.28, Responsibilities of Registered Curriculum Providers. This section establishes requirements for curriculum providers.

The proposed repeal of §88.29, State Examination for Polygraph Examiner License. This section establishes the requirements for examination eligibility and passage.

The proposed repeal of §88.40, Financial Security. This section establishes financial security requirements of $5,000 for Polygraph Examiner licensees.

The proposed repeal of §88.70, General Responsibilities—Sponsor. This section outlines the responsibilities of a sponsor for a trainee.

The proposed repeal of §88.71, General Responsibilities--Polygraph Examiner Internship. This section outlines the responsibilities of a trainee in an internship.

The proposed repeal of §88.72, Responsibility of Licensee--Change of Name and/or Address. This section establishes the requirement to inform the Department of a change of name or address.

The proposed repeal of §88.73, Responsibility of Licensee--Display of License. This section establishes the requirement to display a Polygraph Examiner license.

The proposed repeal of §88.74, Responsibility of Licensee--Conducting Polygraph Examinations. This section establishes the responsibilities of a Polygraph Examiner during a polygraph examination.

The proposed repeal of §88.75, Responsibility of Licensee--Prohibited Acts. This section establishes prohibited acts by licensees under Chapter 88.

The proposed repeal of §88.76, Responsibility of Licensee--Polygraph Examination Results. This section outlines the responsibilities of licensees after conducting a polygraph examination.

The proposed repeal of §88.77, Responsibility of Licensee--Confidentiality of Examination Results. This section establishes the confidentiality of polygraph examination results.

The proposed repeal of §88.78, Responsibility of Licensee--Contract for Services and Waiver of Liability. This section contains mandatory language that must be included in any contract for polygraph examinations or waivers of liability.

The proposed repeal of §88.79, Responsibility of Licensee--Record Keeping. This section establishes the recordkeeping requirements a licensee must observe for polygraph examinations.

The proposed repeal of §88.80, Fees. This section establishes the fees to be paid to the Department for licenses issued under Chapter 88.

The proposed repeal of §88.90, Sanctions and Administrative Penalties. This section establishes that the Department may apply sanctions or administrative penalties under Chapter 88 or other Department laws and rules.

The proposed repeal of §88.91, Enforcement Authority. This section establishes the Department’s enforcement authority.

The proposed repeal of §88.100, Technical Requirements--Polygraph Examiner Course Training Material and Internship. This section establishes the hours and subject matter requirements for Polygraph Examiner license training courses.

The proposed repeal of §88.101, Other Instruments and Instrumentation. This section states that the Texas Commission of Licensing and Regulation (Commission) may adopt rules to identify instruments acceptable for use in Texas.

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 repeals are in effect, there will be a reduction in costs to the state government as a result of enforcing or administering the proposed repeals. Chapter 1703 of the Occupations Code, the Polygraph Examiners statute, will be repealed on September 1, 2021, and state regulation of the program will end. With the repeal of the statute and rules, and the deregulation of the program, it is estimated there will be a reduction in costs of approximately $50,000 each year for resources the Department previously needed to regulate the program.

Additionally, for each year of the first five years the proposed repeals are in effect, Mr. Couvillon has determined that there will be a reduction in revenue to the state government as a result of enforcing or administering the proposed rules. With the repeal of the statute and rules, and the deregulation of the program, the state government will lose approximately $90,000 in revenue each year in license application fees and renewal application fees, continuing education provider fees and course fees, and penalties collected.

Mr. Couvillon has determined that for each year of the first five years the proposed repeals are in effect, enforcing or administering the proposed repeals does not have foreseeable implications relating to costs or revenues of local governments. 

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed repeals will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. The repeal of the statute and rules, and the deregulation of the polygraph examiners program, will not have an impact on local employment. There should be no increase or decrease in the number of polygraph examiners as a result of the repeal and deregulation, but any possible increase or decrease would not be large enough to have an impact on local employment, and cannot be calculated by the Department.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed repeals are in effect, the public benefit will be that the repeal of the statute and rules, and the deregulation of the program, removes unnecessary state regulation of the polygraph examiner industry, and will save polygraph examiners and examiner trainees the cost of the fees for an annual state license and continuing education.

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 repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeals. There could an economic cost in the form of lost revenue for licensed continuing education providers which offer polygraph examiner continuing education courses for a fee since there will no longer be a statutory requirement for continuing education for license holders, and no rule requirement for license holders to complete continuing education hours to renew a license. However, the possible loss of revenue is unclear and cannot be calculated by the Department.

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

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeals. Since the agency has determined that the proposed repeals 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. The proposed repeals will have no adverse economic impact on polygraph examiners or examiner trainees. However, the repeal of the rules, as required by the repeal of the polygraph examiners statute, could have adverse economic impact on some or all of the small and micro-business continuing education providers that offer polygraph examiner continuing education courses, especially those offering only the polygraph examiner course. However, the possible loss of revenue is unclear and cannot be calculated by the Department.

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

The proposed repeals 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 Department provides the following Government Growth Impact Statement for the proposed repeals. For each year of the first five years the proposed repeals will be in effect, the Department has determined the following:

  1. The proposed repeals do create or eliminate a government program. The proposed rules eliminate the polygraph examiner program.
  1. Implementation of the proposed repeals does not require the creation of new employee positions or the elimination of existing employee positions.
  1. Implementation of the proposed repeals does not require an increase or decrease in future legislative appropriations to the agency.
  1. The proposed repeals do require an increase or decrease in fees paid to the agency. The proposed repeals eliminate all fees paid for licenses, renewals, and continuing education for the polygraph examiner program.
  1. The proposed repeals do not create a new regulation.
  1. The proposed repeals do expand, limit, or repeal an existing regulation. The proposed repeals repeal the existing 16 TAC Chapter 88, Polygraph Examiners.
  1. The proposed repeals do increase or decrease the number of individuals subject to the rules’ applicability. The proposed repeals decrease the number of individuals subject to the polygraph examiner program rules by eliminating all requirements for licensure.
  1. The proposed repeals 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 repeals and the proposed repeals 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 repeals do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed repeals may be submitted electronically on the Department’s website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code, Chapters 51 and 1703, 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 proposed repeals are those set forth in Texas Occupations Code, Chapters 51 and 1703. No other statutes, articles, or codes are affected by the proposed repeals.

  • 88.1. Authority.
  • 88.10. Definitions.
  • 88.20. Licensing Requirements--Polygraph Examiner.
  • 88.21. Licensing Requirements--Polygraph Examiner Renewal.
  • 88.22. Licensing Requirements--Polygraph Examiner Non-resident Applicants.
  • 88.23. Licensing Requirements--Registration with County Clerk.
  • 88.24. Licensing Requirements--Polygraph Examiner Applicant with Out-of-State License.]
  • 88.25. Continuing Education.
  • 88.26. Licensing Requirements--Polygraph Examiner Internship License.
  • 88.27. Polygraph Examiner Internship License Term.
  • 88.28. Responsibilities of Registered Curriculum Providers.
  • 88.29. State Examination for Polygraph Examiner License.
  • 88.40. Financial Security.
  • 88.70. General Responsibilities—Sponsor.
  • 88.71. General Responsibilities--Polygraph Examiner Internship.
  • 88.72. Responsibility of Licensee--Change of Name and/or Address.
  • 88.73. Responsibility of Licensee--Display of License.
  • 88.74. Responsibility of Licensee--Conducting Polygraph Examinations.
  • 88.75. Responsibility of Licensee--Prohibited Acts.
  • 88.76. Responsibility of Licensee--Polygraph Examination Results.
  • 88.77. Responsibility of Licensee--Confidentiality of Examination Results.
  • 88.78. Responsibility of Licensee--Contract for Services and Waiver of Liability.
  • 88.79. Responsibility of Licensee--Record Keeping.
  • 88.80. Fees.
  • 88.90. Sanctions and Administrative Penalties.
  • 88.91. Enforcement Authority.
  • 88.100. Technical Requirements--Polygraph Examiner Course Training Material and Internship.
  • 88.101. Other Instruments and Instrumentation.]

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 August 6, 2021.

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation