Justification for Administrative Rule Adoption

Procedural Rules of the Commission and the Department
16 TAC Chapter 60, amendments, 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

The Texas Commission of Licensing and Regulation (Commission) adopts 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, without changes to the proposed text as published in the October 25, 2019, issue of the Texas Register (44 TexReg 6178).

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 adopted 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 Further, HB 1342 amends Chapter 51 to state that a person whose license has been revoked for failure to pay an administrative penalty is eligible to reapply once the penalty has been paid in full, or the person is paying the administrative penalty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 adopted 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 adopted rules also make several non-substantive organizational and clean-up changes.

SECTION-BY-SECTION SUMMARY

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

The adopted 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 adopted new subsection (c) provides a definition for “good standing” for purposes of the section.

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

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

The adopted 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 adopted changes to §60.306(a) and (b) include a reference to this new type of contested case.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 25, 2019, issue of the Texas Register (44 TexReg 6178). The deadline for public comments was November 25, 2019. The Department received comments from 11 interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment: One commenter stated opposition to the proposed rules, 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 rules’ 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 or air conditioning and refrigeration license. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One commenter stated opposition to the proposed rules, 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 rules simply implement the restricted license provisions of HB 1342 and do 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 rules in response to this comment.

Comment: One commenter stated opposition to the proposed rules, 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, the Department commonly issues licenses to persons with some degree of criminal history 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 rules 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 rules in response to this comment.

Comment: One commenter stated approval of the proposed rules. 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 rules’ 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 rules in response to this comment.

Comment: One commenter expressed approval of the proposed rules, 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 rules in response to this comment.

Comment: One commenter 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 rules in response to this comment.

Comment: One commenter stated opposition to the proposed rules, stating that they are “accommodation to the underachievers.”

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

Comment: One commenter asked whether the proposed rules would be applicable to registered air conditioning and refrigeration technicians.

Department Response: Yes. The proposed rules would allow the Commission or Executive Director to issue a restricted license to a registered air conditioning and refrigeration technician. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One commenter inquired about the application requirements for a restricted license, and asked what scope of work a restricted license would cover.

Department Response: There are no application requirements for a restricted license. A person seeking a particular license, or renewal thereof, would apply in the regular fashion. In the event that the Commission or Executive Director saw fit to issue the person a restricted license instead of denying the application, the Commission or Executive Director would place reasonable restrictions on the license. The restrictions could, in theory, limit the scope or location of the license holder’s practice. See Texas Occupations Code §51.357. The Department did not make any changes to the proposed rules in response to this comment.

COMMISSION ACTION

The Department staff recommended that the Commission adopt the proposed rules as published in the Texas Register without changes. At its meeting on December 20, 2019, the Commission adopted the proposed rules without changes as recommended.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 401, 402, 1302, and 1305. No other statutes, articles, or codes are affected by the adopted rules.

SUBCHAPTER B. POWERS AND RESPONSIBILITIES.

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

(a) The commission or executive director may sanction a license holder, applicant, or other person, if the person:

(1) obtains or attempts to obtain a license by fraud or false representation;

(2) falsifies any document submitted to the department or commission;

(3) refuses to permit inspection or interferes with an inspection or investigation by an authorized representative of the commission or department;

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

(5) has been convicted of, or placed on deferred adjudication for, an offense identified in Texas Occupations Code, §53.021(a); or

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

(b) The commission or executive director may:

(1) issue a written reprimand;

(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) refuse to renew the person's license; or

(6) impose administrative penalties against 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 or executive director may require the person to:

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

(2) limit practice to the areas prescribed by the commission or executive director;

(3) complete professional education until the person attains a degree of skill satisfactory to the commission or 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 administrative penalties, the department may place a hold on the person's license and the person may not 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.

SUBCHAPTER I. CONTESTED CASES.

§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 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) After receiving a notice proposing denial of an application or a notice proposing denial of an opportunity to take an examination, an applicant may request a hearing in writing within twenty days of receipt of the notice or forfeit the right to a hearing unless otherwise provided by applicable law. There is a rebuttable presumption that notice is received three days after the notice was mailed.

(d) Any document served upon a party is prima facie evidence of receipt if it is directed to the party's last known complete, correct address as shown by the department's records. This presumption is rebuttable. Failure to claim properly addressed certified or registered mail will not support a finding of non-delivery.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 202, 401, 402, 1302, and 1305. No other statutes, articles, or codes are affected by the adopted rules.

[ §60.302. Notice of alleged violation. ]

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