Proposed Amendments to Procedural Rules of the Commission and the Department 16 TAC Chapter 60

Chapter 60. Procedural Rules of the Commission and the Department Proposal Filed: October 14, 2019 – Published in the Texas Register: October 25, 2019

Deadline for Public Comment: November 25, 2019

Underlined text is new language.

[ Strikethrough text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter B, §60.23; Subchapter D, §60.40, and Subchapter I, §60.306; new rule Subchapter D, §60.36; and the repeal of Subchapter I, §60.302, regarding the Procedural Rules of the Commission and the Department.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 60 implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation, and Chapter 53, Consequences of Criminal Conviction.

The proposed rules implement House Bill (HB) 1342, 86th Legislature, Regular Session (2019). HB 1342 amends Texas Occupations Code, Chapter 51, to provide the Texas Commission of Licensing and Regulation (Commission) and the Executive Director of the agency the authority to issue restricted licenses to persons within the Department’s Air Conditioning and Refrigeration and Electricians programs. Further, HB 1342 amends Chapter 51 to state that a person whose license has been revoked for failure to pay an administrative penalty is eligible to reapply once the penalty has been paid in full, or the person is paying the administrative penalty under a payment plan with the Department and is in good standing with respect to that plan.

The proposed rules also implement HB 1899, 86th Legislature, Regular Session (2019). HB 1899 amends Texas Occupations Code, Chapter 108, to require mandatory denial or revocation of licensure for certain health care professionals.

The proposed rules also make several non-substantive organizational and clean-up changes.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §60.23 to include the addition of subsection (b)(4), which implements Texas Occupations Code §51.357, as enacted by HB 1342, §2. This addition makes it clear that the Commission and the Executive Director have the authority to issue restricted licenses in accordance with Texas Occupations Code, Chapter 51, Subchapter G.

The proposed rules amend §60.23(b)(5) to better align the rule text with the requirements of Texas Occupations Code, Chapter 53, relating to the consequences of criminal conviction. The proposed changes include a reference to deferred adjudication missing from the existing rule and replace the reference to offenses carrying the possibility of confinement in a state or federal facility with “an offense identified in Texas Occupations Code, §53.021.”

The remaining proposed amendments to §60.23 are non-substantive and represent organizational or clean-up changes.

The proposed rules add new §60.36 (a) – (c) to implement HB 1342, §1, by stating that a person whose license has been revoked for failure to pay an administrative penalty may reapply once the person has either paid the penalty in full, or is paying the administrative penalty under a payment plan with the Department and is in good standing with respect to that plan. The proposed new subsection (c) provides a definition for “good standing” for purposes of the section.

The proposed rules add new §60.36(d) which is not a new provision but has been moved to the new rule from its former place at §60.40(c)(1). This change was made for organizational purposes and is not substantive.

The proposed rules add new §60.36(e) to implement Texas Occupations Code §108.054 and §108.055, as enacted by HB 1899, §8. New §60.36(e) simply states that a health care professional subject to mandatory denial or revocation by Texas Occupations Code §108.052 or §108.053, respectively, may reapply or seek reinstatement pursuant to Texas Occupations Code, Chapter 108, Subchapter B.

The proposed rules amend §60.40 to include the repeal of subsection (c). As mentioned above, the proposed rules move subsection (c)(1) of this rule to new proposed §60.36. Subsection (c)(2) has been removed, as it is no longer necessary in light of proposed new §60.36.

The repeal of §60.302 is proposed because the rule is redundant in light of the proposed changes to §60.306, summarized below.

The proposed changes to §60.306(a) and (b) implement Texas Occupations Code §51.358(c) and (d), as enacted by HB 1342, §2. Sections 51.358(c) and (d) create a new type of contested case under the Administrative Procedure Act. Section 51.358(c) states that upon the expiration of a restricted license, there is a rebuttable presumption that the applicant is entitled to an unrestricted license. In order to retain restrictions on a license upon renewal, the Department must determine, pursuant to §51.358(d), either that: the applicant failed to comply with any condition imposed on the license, the applicant is not in good standing with the Department, or issuing an unrestricted license to the applicant would result in an increased risk of harm to any person or property. The proposed changes to §60.306(a) and (b) include a reference to this new type of contested case.

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 may be a slight revenue gain, as there could be individuals who will obtain a restricted license who would not have obtained a license previously. However, the number of individuals who will obtain a restricted license cannot be estimated, and therefore any revenue gain also cannot be estimated.

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

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 has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be a possible increase in the number of licensed electricians, as well as the number of licensed air conditioning and refrigeration contractors and technicians. The proposed rules may allow persons with past criminal convictions to become employed within these industries, subject to reasonable restrictions and under supervision by a licensee. Additionally, the proposed rules will allow earlier reinstatement of licensure for those persons whose licenses have been revoked for failure to pay an administrative penalty, so they will spend less time not being able to work because of the lack of a license.

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 may be additional costs to persons who are required to comply with the proposed rules. Because existing licensees will be required by the proposed rules (and by HB 1342) to ensure that persons under their supervision comply with the terms of a restricted license, there may be negligible costs involved for the supervising licensees. Any cost the supervising licensee may incur cannot be estimated, however. Additionally, no licensee will be required to take on supervision of a restricted licensee, so this cost is optional.

Restricted licensees will be required to comply with the conditions imposed by the Commission or Executive Director, but these conditions should not impose a cost.

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 rules 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, is 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 create a new regulation. Proposed §60.36 is a new rule, but it is required by HB 1342.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules make several necessary amendments to existing rules in light of HB 1342 and HB 1899, along with non-substantive organizational and clean-up changes.

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, Legal Assistant, Texas Department of Licensing and Regulation, PO 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 Chapter 51 and Texas Health and Safety Code Chapter 755, 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 Chapter 51 and Texas Health and Safety Code Chapter 755. No other statutes, articles, or codes are affected by the proposed rules.

§60.23. Commission and Executive Director--Imposing Sanctions and Penalties.

(a) The commission [ Commission ] or executive director [ Executive Director ] may sanction a license holder, applicant, or other person [ deny a license application or license renewal, or suspend or revoke any license ], if the person:

(1) obtains or attempts to obtain a license [ the license was obtained or attempted to be obtained ] by fraud or false representation;

(2) falsifies any document [ required documents ] submitted to the department or commission [ as part of the initial or renewal application packet are falsified ];

(3) refuses [ the person refused ] to permit inspection or interferes [ interfered ] with an inspection or investigation by an authorized representative of the commission [ Commission ] or department [ Executive Director ];

(4) permits [ the person permitted ] the use or display of a [ his ] license by a person not authorized by law to use that license;

(5) [ the person ] has been convicted of, or placed on deferred adjudication for, [ a crime or ] an offense identified in Texas Occupations Code, §53.021(a) [ that carries the possibility of confinement in a state or federal facility ]; or

(6) [ the person ] violates a law establishing a regulatory program administered by the department [ Department ], or a rule or order of the commission [ Commission ] or department [ the Department ].

(b) The commission [ Commission ] or executive director [ Executive Director shall consider the factors set forth in Texas Occupations Code, §51.302(b) and ] may:

(1) issue a written reprimand [ to the person that specifies the violation ];

(2) revoke, suspend, or deny the person's license;

(3) place on probation a person whose license has been suspended or revoked;

(4) issue a restricted license to the person in accordance with Texas Occupations Code, Chapter 51, Subchapter G;

(5) [ (4) ] refuse to renew the person's license; or

(6) [ (5) ] impose administrative penalties against [ on ] the person after considering the factors set forth in Texas Occupations Code, §51.302(b) .

(c) If the suspension or revocation of a license is probated, the commission [ Commission ] or executive director [ Executive Director ] may require the person to:

(1) report regularly to the department [ Executive Director ] on matters that are the basis of the probation;

(2) limit practice to the areas prescribed by the commission [ Commission ] or executive director [ Executive Director ];

(3) complete professional education until the person attains a degree of skill satisfactory to the commission [ Commission ] or executive director [ Executive Director ] in those areas that are the basis for the probation; or

(4) complete any other remedial actions agreed to by the parties.

(d) If a person has outstanding [ or unpaid ] administrative penalties[ , which were imposed by the Commission or the Executive Director ], the department [ Department ] may place a hold on the person's license and the person may [ will ] not [ be able to ] renew the license until the administrative penalties are paid.

SUBCHAPTER D. CRIMINAL HISTORY AND LICENSE ELIGIBILITY

§60.36. License Eligibility After Denial or Revocation.

(a) Except as stated below or by other law, a person whose license is revoked by order of the commission or the executive director must wait one year from the date of revocation before applying for a new license.

(b) A person whose license has been revoked solely because of a failure to pay an administrative penalty may reapply at any time if the person either:

(1) has paid the administrative penalty in full; or

(2) is paying the administrative penalty under a payment plan with the department and is in good standing with respect to that plan.

(c) For purposes of this section, a person is in good standing with respect to a payment plan if, at the time of application, the person is current on the payment plan and has made timely payments on the plan for the preceding two months.

(d) A person whose license is revoked by operation of law pursuant to Texas Occupations Code, §53.021(b) must wait until release from imprisonment before applying for a new license.

(e) A person whose application for licensure as a health care professional has been denied, or whose license as a health care professional has been revoked, pursuant to Texas Occupations Code, Chapter 108, Subchapter B, may reapply or seek reinstatement as provided by that subchapter.

§60.40. License Eligibility for Persons with Criminal Convictions.

(a) Texas Occupations Code, Chapter 53 provides that the commission or executive director may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to be examined for a license if the person has been convicted of an offense listed under §53.021(a) or has a deferred adjudication that qualifies as a conviction under §53.021(d). Any such action shall be made after consideration of the factors listed in Texas Occupations Code, §53.022 and §53.023 and the guidelines issued by the department under §53.025.

(b) A person who is incarcerated because of a felony conviction is not eligible to obtain a license or renew a previously issued license under this chapter or any statute governing a program regulated by the department.

[ (c) Revocation Waiting Periods. ]

[ (1) A person whose license is revoked by operation of law under Texas Occupations Code §53.021(b) must wait until release from imprisonment before applying for a new license. ]

[ (2) A person whose license is revoked by order of the commission or the executive director must wait one year from the date of revocation before applying for a new license. ]

SUBCHAPTER I. CONTESTED CASES

60.302. Notice of alleged violation. ]

§60.306. Request for Hearing and Defaults.

(a) If, within twenty days after receiving a Notice of Alleged Violation or notice of continuation of restrictions on a license, the respondent fails to accept the department's determination and recommended administrative penalty, sanction, or both, or fails to make a written request for a hearing on the determination, the department may propose entry of a default order against the respondent unless otherwise provided by applicable law. There is a rebuttable presumption that notice is received three days after the notice was mailed.

(b) If [ Where ] a respondent fails to answer to the Notice of Alleged Violation or notice of continuation of restrictions on a license, the department may present to the commission or the executive director a motion for default order along with a proposed default order containing findings of fact and conclusions of law. Respondents will be notified as to the time and place the motion for default order will be considered. If a respondent attends at the time and place prescribed in the notice, an administrative hearing may be set.

(c) - (d) (No change.)

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 October 14, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation