TDLR Proposes Administrative Rules

Chapter 60. Procedural Rules of the Commission and the Department
Proposal Filed: May 21, 2021 – Published in the Texas Register: June 4, 2021
Deadline for Public Comment: July 5, 2021

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The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter B, §60.22, General Powers and Duties of the Department and the Executive Director, regarding the issuance of emergency licenses by the Department. These proposed changes are referred to as the “proposed rule.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC, Chapter 60, Procedural Rules of the Commission and the Department, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation.

On March 13, 2020, the Governor of Texas issued a disaster proclamation under Texas Government Code §418.014 certifying that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas. The Department implemented safety measures and work from home initiatives to minimize the effects of COVID-19 on agency operations. However, due to the limited availability of staff and several positive tests for COVID-19 among Department staff, delays in Department operations occurred. To minimize the impacts of these delays, the Texas Commission of Licensing and Regulation (Commission) adopted rules on an emergency basis to permit the executive director of the Department to issue emergency licenses. The most recent emergency rule at 16 TAC §60.22 was adopted on May 6, 2021, to be effective on May 22, 2021. The text of this proposed rule is identical to the text of the emergency rule adopted on May 6, 2021.

The Department issues licenses for many different professions that serve essential roles for the people of Texas. Delays in license renewal may prevent certain license holders from providing essential public health services or construction and repair services necessary for health and safety. Additionally, license holders cannot legally provide services after the expiration of their license, placing these individuals in the precarious position of violating the law to continue employment during a disaster.

Based upon the experience the Department gained during the COVID-19 disaster and subsequent emergency rulemakings, the Department has determined that a permanent rule is necessary and will help to minimize delays and disruption in future disasters. The proposed rule addresses these issues by permitting the Department’s executive director to issue emergency licenses under Chapter 51 of the Occupations Code whenever a disaster has been declared by the governor. Adopting the identical text of the emergency rule as this permanent rule will ensure that policies the Department has already developed can remain in place as needed for the current COVID-19 disaster, and will be available for any future disaster.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §60.22 by creating new subsection (e) to permit the executive director to issue emergency licenses under Texas Occupations Code §51.408 for any license that expires during a state of disaster declared by the governor, or the following recovery period. The proposed rule also permits the executive director to implement policies as necessary to administer this subsection, and clarifies that the holder of an emergency license is not required to post or display the emergency license.

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 rule is 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 rule. All work necessary to implement the proposed rule has already been performed. Additionally, the Department does not anticipate printing and issuing emergency licenses. Instead, the Department would update its website so that license holders and the public may verify that an emergency license has been issued.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule. The proposed rule does not affect fees to be paid to the Department.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule 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 also has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be that the proposed rule would authorize the Department’s executive director to issue an emergency license to license holders whose license expires during a declared state of disaster or the following recovery period. If the Department should experience any delay in issuing license renewals because of the disaster, the proposed rule and emergency licenses would ensure license holders do not experience a lapse in licensure due to no fault of their own. Additionally, certain Department licensees provide essential public health services or construction and repair services necessary for health and safety, and emergency licenses authorized by this rule would allow licensees to continue to provide these services while waiting for their regular license to be renewed.

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 rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no cost or fee associated with issuing emergency licenses under the proposed rule, and the license holder is not required to post or display the emergency license.

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 rule. There is no cost or fee associated with issuing emergency licenses under the proposed rule. Since the agency has determined that the proposed rule 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.

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

The proposed rule does 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 rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

  1. The proposed rule does not create or eliminate a government program.
  2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
  3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.
  4. The proposed rule does not require an increase or decrease in fees paid to the agency.
  5. The proposed rule does not create a new regulation.
  6. The proposed rule does expand, limit, or repeal an existing regulation. Existing 16 TAC §60.22 is expanded to include an additional subsection granting the Department’s executive director the authority to issue emergency licenses as necessary following a disaster declaration by the governor.
  7. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability.
  8. The proposed rule does 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 rule and the proposed rule does 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 rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule 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 rule is proposed under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by the proposed rule.

§60.22 General Powers and Duties of the Department and the Executive Director.

(a) The Executive Director shall have primary responsibility to manage the operations and administration of the Department as provided by Texas Occupations Code Chapter 51 and other applicable law, including but not limited to:

(1) issuing licenses;

(2) resolving complaints;

(3) conducting investigations and inspections;

(4) imposing agreed order sanctions and administrative penalties; and

(5) administering exams.

(b) The Executive Director may approve agreed orders in contested cases and shall have authority to issue other orders as provided by law or as delegated by the Commission.

(c) The Executive Director may propose rules for publication in the Texas Register as delegated by the Commission.

(d) The Executive Director may implement any emergency orders or proclamations issued by the Governor to suspend or amend existing statutes and rules. The Executive Director will notify the Commission of the Department's actions to comply with the Governor's emergency orders or proclamations.

(e) For any license that expires during a state of disaster declared by the governor under Texas Government Code, Chapter 418, or the following recovery period, the Executive Director may issue to the license holder an emergency license under Texas Occupations Code §51.408. The Executive Director may implement policies as necessary to administer this subsection. The holder of an emergency license issued under this subsection is not required to post or display the emergency license.

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 May 21, 2021.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation