Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Procedural Rules of the Commission and the Department
16 TAC Chapter 60, Subchapter K, new §60.518

The Texas Commission of Licensing and Regulation (Commission) adopts a new rule at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter K, §60.518, regarding the Procedural Rules of the Commission and the Department, with changes to the proposed text as published in the October 4, 2019, issue of the Texas Register (44 TexReg 5689).  The adopted rule will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 60 implement Texas Occupations Code, Chapter 51, regarding the Texas Department of Licensing and Regulation, and Chapter 55, regarding Licensing of Military Service Members, Military Veterans, and Military Spouses. 

The adopted rule implements Senate Bill (SB) 1200, 86th Legislature, Regular Session (2019), which amends Texas Occupations Code, Chapter 55, to authorize a military spouse to engage in a business or occupation for which a license is required without obtaining the applicable license if the military spouse is currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the licensing requirements in Texas.  SB 1200 also authorizes a licensing agency to issue a license to a military spouse who meets such requirements.

The adopted rule is necessary to establish a process for the Department to identify which jurisdictions have licensing requirements that are substantially equivalent to the requirements in Texas and to verify that a military spouse is licensed in good standing in one of such jurisdictions.  The adopted rule also provides for the issuance of a three-year license to a military spouse who meets these qualifications and successfully passes a criminal history background check.

SECTION-BY-SECTION SUMMARY

The adopted rule adds new §60.518(a) to specify the statute that the rule implements.

The adopted rule adds new §60.518(b) to specify the individuals to whom the rule is applicable.

The adopted rule adds new §60.518(c) to designate the method by which military spouses notify the Department of their intent to engage in a business or occupation.

The adopted rule adds new §60.518(d) to establish the process for the Department to identify the jurisdictions that have licensing requirements substantially equivalent to the requirements in Texas.

The adopted rule adds new §60.518(e) to establish the Department's process to verify that a military spouse is licensed in good standing in another jurisdiction.

The adopted rule adds new §60.518(f) to specify that the Department may not charge a fee for either the authority to engage in a business or occupation, or for a three-year license.  Changes were made to the proposed text previously published in the Texas Register to correct grammar by adding a comma and to create consistency in references by adding the word “subsection.”

The adopted rule adds new §60.518(g) to specify the time period during which a military spouse who receives Department confirmation is authorized to engage in a business or occupation; to establish the duty of the military spouse to immediately notify the Department when the military spouse no longer qualifies for such authorization; and to specify that a criminal history background check is not a prerequisite to such authorization.

The adopted rule adds new §60.518(h) to provide for the issuance of a license to a military spouse who receives Department confirmation of authority to practice in Texas and successfully passes a criminal history background check.  Such license expires three years after the Department provides confirmation that the military spouse is authorized to practice in Texas.

The adopted rule adds new §60.518(i) to specify the enforcement provisions applicable to an individual who receives confirmation of authority to practice or a license under §60.518.

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 October 4, 2019, issue of the Texas Register (44 TexReg 5689).  The deadline for public comments was November 4, 2019.  The Department received comments from 11 interested parties on the proposed rule during the 30-day public comment period.  The public comments are summarized below.

Comment--Two commenters are opposed to the proposed rule because they believe it is unfair to existing license holders, who have to pay annual renewal fees and take annual continuing education courses, to allow a three-year license for individuals who do not have to meet these requirements.

Department Response--The Department disagrees with the comments because the three-year license will only be issued to individuals who hold licenses in other jurisdictions with licensing requirements that are substantially equivalent to Texas requirements.  Therefore, holders of the three-year Texas license will still have to comply with similar licensing requirements in other jurisdictions, such as renewal and continuing education requirements.  With regard to the length of the license term, the proposed rule implements SB 1200’s three-year limitation on a military spouse’s authority to practice in Texas.  The Department did not make any changes to the proposed rule in response to these comments.

Comment--One commenter is in favor of the proposed rule because it supports military families who have to make difficult relocations due to change of stationing and removes obstacles to their economic success.

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

Comment--One commenter questioned whether the proposed rule could apply to the Speech-Language Pathologists and Audiologists (SPA) program because its licenses are linked to the requirements of the American Speech-Language-Hearing Association (ASHA) and published standards of ethics.

Department Response--The proposed rule implements SB 1200, which applies to “a business or occupation for which a license is required.”  This would necessarily include licenses of the SPA program.  However, SB 1200 limits recognition of out-of-state licenses to other jurisdictions with “licensing requirements that are substantially equivalent to the requirements for the license in this state.”  Therefore, if the requirements of an out-of-state license deviate significantly from the requirements in Texas, the individual would be denied the ability to practice in Texas under the out-of-state license.  The Department did not make any changes to the proposed rule in response to this comment.

Comment--Three commenters oppose the proposed rule because the commenters believe it will allow people to perform licensed work in Texas that does not meet the standards of Texas licensees.

Department Response--The Department disagrees with the comments because the proposed rule would only apply to individuals who are currently licensed in other jurisdictions with licensing requirements that are substantially equivalent to Texas requirements.  Those individuals would also be subject to the laws and regulations of Texas, including standards of practice, applicable to the occupation they are practicing.  The Department did not make any changes to the proposed rule in response to these comments.

Comment--One commenter questioned whether the proposed rule only applies to military personnel or whether it also applies to civilians.

Department Response--The proposed rule applies only to a military spouse, defined as “a person who is married to a military service member.”  The Department did not make any changes to the proposed rule in response to this comment.

Comment--One commenter opposes the proposed rule and offers an alternative rule whereby a temporary Texas license is issued to the holder of an out-of-state license that meets all the Texas requirements, and the temporary Texas license would expire when the out-of-state license expires, at which point the licensee would be required to apply for a regular Texas license.

Department Response--The Department disagrees with the comment because its suggested alternative would contradict SB 1200’s language granting out-of-state license holders the authority to practice in Texas for up to three years, as long as they meet the qualifications established by SB 1200.  The Department did not make any changes to the proposed rule in response to this comment.

Comment--One commenter opposes the proposed rule because the commenter does not believe that military spouses need the benefits derived from the proposed rule.  The commenter proposes an alternative rule that would apply instead to all individuals who live below the poverty line.

Department Response--The Department disagrees with the comment because its suggested alternative would contradict the language of SB 1200 regarding its applicability only to military spouses.  The Department did not make any changes to the proposed rule in response to this comment.

Comment--One commenter opposes the proposed rule because the commenter believes it improperly imposes the licensing requirements of Texas on other jurisdictions.  The commenter also believes the proposed rule unfairly grants privileges to certain individuals on the sole basis of being married to a military service member.

Department Response--The Department disagrees with the comment.  The proposed rule does not impose licensing requirements on other jurisdictions; rather, it recognizes the licenses of other jurisdictions that have licensing requirements that are substantially equivalent to Texas requirements.  Regarding the commenter’s second point, the proposed rule implements SB 1200, which applies exclusively to military spouses.  The Department did not make any changes to the proposed rule in response to this comment.

RECOMMENDATIONS AND COMMISSION ACTION

The Department staff recommended that the Commission adopt the proposed rule with changes to the proposed text as published in the Texas Register.  At its meeting on November 5, 2019, the Commission adopted the proposed rule with changes, as recommended by the staff.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapters 51 and 55, 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 adopted rule is also adopted under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department’s statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and 55.  In addition, the following statutes may be affected: Texas Agriculture Code, Chapters 301 and 302 (Weather Modification and Control); Texas Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Texas Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405, and 42A.406 (DWI Education Program); Articles 42A.404, 42A.405, and 42A.406 (DWI Intervention Program); and Article 42A.511 (Responsible Pet Owner); Texas Education Code, Chapter 1001 (Driver Education and Safety); Texas Health and Safety Code, Chapter 401, Subchapter M (Laser Hair Removal); Chapter 754 (Elevators, Escalators, and Related Equipment); and Chapter 755 (Boilers); Texas Government Code, Chapter 469 (Elimination of Architectural Barriers); Texas Labor Code, Chapter 91 (Professional Employer Organizations); Texas Occupations Code Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavior Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1601 (Barbers); 1602 (Cosmetologists); 1603 (Regulation of Barbering and Cosmetology); 1703 (Polygraph Examiners); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers); 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); and 2402 (Transportation Network Companies); and Texas Transportation Code, Chapter 521, §§521.375 – 521.376 (Drug Offender Education Program).  No other statutes, articles, or codes are affected by the adoption.

SUBCHAPTER K. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, MILITARY VETERANS, AND MILITARY SPOUSES.

§60.518. Recognition of Out-of-State License of Military Spouse.

(a) This section implements Texas Occupations Code §55.0041 (as added by Senate Bill 1200, 86th Legislature, Regular Session (2019)).

(b) This section applies to a military spouse, as defined under §60.501, who meets the requirements of Texas Occupations Code §55.0041.

(c) The notice required by Texas Occupations Code §55.0041(b)(1) must be provided by submitting the notice to the department on a completed department-approved form.

(d) The department will determine whether the licensing requirements of another jurisdiction are substantially equivalent to the licensing requirements of Texas as prescribed under §60.34.

(e) To be eligible for the confirmation described in Texas Occupations Code §55.0041(b)(3), a military spouse must provide the department with sufficient documentation to verify that the military spouse is currently licensed in another jurisdiction and has no restrictions, pending enforcement actions, or unpaid fees or penalties relating to the license.

(f) The department may not charge a fee for the authority to engage in a business or occupation, or for a three-year license, as set forth in subsections (g) and (h) below.

(g) Authority to engage in business or occupation.

(1) An individual who receives from the department the confirmation described in Texas Occupations Code §55.0041(b)(3):

(A) may engage in the authorized business or occupation only for the period during which the individual meets the requirements of Texas Occupations Code §55.0041(d); and

(B) must immediately notify the department if the individual no longer meets the requirements of Texas Occupations Code §55.0041(d).

(2) An individual is not required to undergo a criminal history background check to be eligible for the authority granted under this subsection.

(h) Three-year license.

(1) An individual who receives from the department the confirmation described in Texas Occupations Code §55.0041(b)(3) is eligible to receive a license issued by the department if the individual:

(A) submits a completed application on a department-approved form; and

(B) undergoes and successfully passes a criminal history background check.

(2) A license issued under this subsection expires on the third anniversary of the date the department provided the confirmation described in Texas Occupations Code §55.0041(b)(3) and may not be renewed.

(i) An individual who engages in a business or occupation under the authority or license established by this section is subject to the enforcement authority granted under Texas Occupations Code, Chapter 51, and the laws and regulations applicable to the business or occupation in Texas.

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 November 8, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation