HBA-MPA H.B. 1248 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 1248 By: Farrar Licensing & Administrative Procedures 7/13/1999 Enrolled BACKGROUND AND PURPOSE H.B. 1248 changes the laws regulating the practice of architecture, landscape architecture, and interior design in the state of Texas as follows: _requires proof of continuing education from architects, allows payment by credit card, and allows the Texas Board of Architectural Examiners (board) to subpoena witnesses in investigations of violations; _eliminates a $200 registration fee; _eliminates the ability to become a registered architect without formal education; _allows the board to impose fines for violations by non-architects, specifies appeal procedures; _requires proof of continuing education as a condition of registration renewal, allows the board to set fees for late registration renewal; _clarifies the types of buildings that require a registered architect; _eliminates the ability to become a landscape architect without formal education; _requires proof of continuing education from landscape architects, requires landscape architects to apply an official seal to their work and prohibits non-landscape architects from using such a seal, and allows the board to subpoena witnesses on investigation of violations; _requires interior design registration applicants to complete educational programs before becoming registered; _requires proof of continuing education from interior designers, and allows the board to set fees for late registration renewal; _provides for certificates of registration to be held in inactive status; and _provides for administrative penalties RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Architectural Examiners in SECTION 1.06 (Section 5, Article 249a,V.T.C.S.), SECTION 1.10 (Section 7A, Article 249a,V.T.C.S.), SECTION 1.13 (Section 11A, Article 249a,V.T.C.S.), SECTION 2.03 (Section 6A, Article 249c,V.T.C.S.), and SECTION 3.04 (Section 13A, Article 249e,V.T.C.S.), of this bill. SECTION BY SECTION ANALYSIS ARTICLE 1. REGULATION OF PRACTICE OF ARCHITECTURE SECTION 1.01. Amends Sections 2(a), (e), (g), and (h), Article 249a, V.T.C.S., to set forth the membership of the Texas Board of Architectural Examiners (board). Makes nonsubstantive changes. SECTION 1.02. Amends Section 3, Article 249a,V.T.C.S., by amending Subsections (a), (e), (h), and (i), and adding Subsection (j), as follows: (a) Requires the bond filed by the secretary-treasurer to be paid from the general revenue, rather than architectural examiners, fund. (e) Requires the board to require, rather than authorizes it to recognize, prepare, or administer, continuing education programs for architects, interior designers, and, rather than or, landscape architects, and authorizes it to include courses applicable to health, safety, or welfare as a condition of license renewal. Authorizes the board to recognize the programs of nationally acknowledged organizations involved in providing, recording, or approving postgraduate education. Authorizes the board to recognize any other sponsoring organization or individual whose presentations are approved by the board as qualifying in design or construction health, safety, or welfare, including barrier free design. Provides that participation in the program selected under this provision is mandatory, rather than voluntary. (h) Authorizes the board to accept payment of a fee by electronic means. Authorizes the board to charge a fee for processing the payment by electronic means, if a fee is paid by electronic means. Requires the board to set the processing fee in an amount that is reasonably related to the expense incurred by the board in processing the payment by electronic means, not to exceed five percent of the amount of the fee. (i) Updates statutory references. (j) Authorizes the board to request and, if necessary, compel by subpoena the attendance of witnesses for examination under oath and the production for inspection and copying of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of alleged violations of this article. Authorizes the board, acting through the attorney general, to file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the board may be held, if a person fails to comply with a subpoena issued under this subsection. Requires the court, if it determines that good cause exists for the issuance of the subpoena, to order compliance with the requirements of the subpoena. Authorizes failure to obey the order of the court to be punished by the court as contempt. SECTION 1.03. Amends Section 4(a), Article 249a, V.T.C.S., to require all fees collected or money derived to be received and accounted for by the executive director, rather than secretary-treasurer, and paid daily, rather than weekly, to the comptroller. Deletes procedure for handling money for the architectural examiners fund. SECTION 1.04. Amends Section 4A, Article 249a,V.T.C.S., to make conforming changes. SECTION 1.05. Amends Section 4C(a), Article 249a, V.T.C.S., to delete from a list of fees increased by $200 a fee for application for examination, and a fee for out-of-state application for examination, and makes nonsubstantive changes. SECTION 1.06. Amends Section 5(d), Article 249a,V.T.C.S., to require the board to adopt rules to prevent a person regulated by the board from submitting a competitive bid to, or soliciting a competitive bid on behalf of, a governmental entity that is prohibited by Subchapter A (Professional Services), Chapter 2254, Government Code, from making a selection or awarding a contract on the basis of competitive bids, and prohibits the board from otherwise adopting rules restricting competitive bidding or truthful advertising. SECTION 1.07. Amends Section 5A(a), Article 249a,V.T.C.S., to make a conforming change. SECTION 1.08. Amends Section 6(a), Article 249a,V.T.C.S., to make a conforming change. SECTION 1.09. Amends Section 7, Article 249a, V.T.C.S., to delete a provision requiring the board to accept for examination an applicant who has not graduated who can present satisfactory evidence of eight years satisfactory experience. SECTION 1.10. Amends Article 249a, V.T.C.S., by adding Section 7A, as follows: Sec. 7A. (a) Requires the board to deposit $10 of each certificate of registration renewal fee collected under Section 11A(b) or 12(c) to the credit of the scholarship fund for architectural examination applicants. Provides that the scholarship fund for architectural examination applicants (fund) is an account in the general revenue fund that may be appropriated only to provide scholarships and pay associated administrative costs. (b) Requires interest earned on the fund to be credited to the fund. (c) Prohibits the board from using more than 15 percent of the amount appropriated to the fund for administrative costs. (d) Provides that the amount of each scholarship is the lesser of $500 or the prescribed fee for the examination. (e) Sets forth legislative findings. (f) Requires the board to establish and administer scholarships in the manner it determines best serves the public purpose of the scholarships, and that at a minimum it consider the financial need of each person applying for a scholarship. (g) Requires the board to adopt rules as necessary for the administration of this section. SECTION 1.11. Amends Section 8(b), Article 249a, V.T.C.S., to require all applications under this section to be accompanied by a fee prescribed by the board in an amount that is reasonable and necessary to cover the cost of, rather than $150 payable to the Texas Board of Architectural Examiners for, processing and investigating the application and issuing the certificate. Make nonsubstantive changes. SECTION 1.12. Amends Sections 11(b), (i), (l), (n), (o), and (q), Article 249a, V.T.C.S., as follows: (b) Authorizes the board to assess an administrative penalty to a person regardless of the person's registration status based on enumerated conditions. Makes a conforming change. (i) Provide that all proceedings under this subsection relating to a person charged who holds a registration certificate issued by the board are subject to Chapter 2001 (Administrative Procedure), Government Code. Makes conforming changes. (l) Provides that the board's order becomes final, if the person charged holds a registration certificate, as provided by Section 2001.144 (Decisions; When Final), Government Code, and on the 20th day after the order is rendered if the person does not hold a registration certificate. (n) Deletes provision providing that failure to comply timely with the requirements to file a petition requesting judicial review results in a waiver of all legal rights to judicial review . (o) Makes a conforming change. (q) Makes a nonsubstantive change. SECTION 1.13. Amends Article 249a, V.T.C.S., by adding Section 11A, as follows: Sec. 11A. (a) Requires the board, by rule, to adopt a system by which a registered architect may place the person's certificate of registration on inactive status. Provides that application for inactive status must be made before the person's certificate of registration expires. (b) Provides that a $10 certificate of registration renewal fee must be paid to maintain such inactive status on a date and in a manner prescribed by board rule. (c) Prohibits a registered architect whose certificate of registration is on inactive status from performing any activity regulated under this article. (d) Requires a registered architect whose certificate of registration is on inactive status and who wishes to return to active practice to notify the board in writing. Requires the board to remove such an architect's certificate of registration from inactive status upon payment of an administrative fee and compliance with educational and other requirements established by board rules. SECTION 1.14. Amends Sections 12(c), (d), (e), (f), (g), and (h), Article 249a, V.T.C.S., and adds Subsection (j), to require the board to set the required renewal fee for residents and nonresidents in an amount reasonable and necessary to cover administrative costs determined by the board. Requires the board to issue to the registered architect a certificate of renewal of his or her registration certificate for the term of one year upon receipt of proof satisfactory to the board of compliance with the continuing education requirement of the board. Requires that a registered architect who meets certain criteria and is engaged in teaching architecture is exempt from the continuing education requirements of this article. Makes conforming and nonsubstantive changes. SECTION 1.15. Amends Section 14, Article 249a, V.T.C.S., to require a person to be exempt from the provisions of this article if the person prepares plans for a building that does not exceed a square footage of 20,000 square feet and meets certain enumerated conditions. Makes conforming changes. ARTICLE 2. REGULATION OF PRACTICE OF LANDSCAPE ARCHITECTURE SECTION 2.01. Amends Section 4(b), Article 249c, V.T.C.S., to authorize the board to accept payment of a fee by electronic means. Authorizes the board to charge a fee for processing the payment by electronic means, if a fee is paid by electronic means. Requires the board to set the processing fee in an amount that is reasonably related to the expense incurred by the board in processing the payment by electronic means, not to exceed five percent of the amount of the fee. SECTION 2.02. Amends Section 5(a), Article 249c,V.T.C.S., to require that no person represent himself as a landscape architect unless such person holds a certificate of registration as a landscape architect issued by the board. Provides that a person must satisfactorily pass the examination as prescribed by the board. Authorizes any person who has graduated from a landscape architectural program recognized and approved by the board and has had satisfactory experience in landscape architecture as required by rules adopted by the board to apply for examination. Deletes the limit on the registration fee to no more than $250. SECTION 2.03. Amends Article 249c,V.T.C.S., by adding Section 6A, as follows: Sec. 6A. INACTIVE STATUS. (a) Requires the board, by rule, to adopt a system by which a registered landscape architect may place the person's certificate of registration on inactive status. Provides that application for inactive status must be made before the person's certificate of registration expires. (b) Provides that no renewal fee must be paid to maintain such inactive status. (c) Prohibits a registered landscape architect whose certificate of registration is on inactive status from performing any activity regulated under this article. (d) Requires a registered landscape architect whose certificate of registration is on inactive status and who wishes to return to active practice to notify the board in writing. Requires the board to remove such an architect's certificate of registration from inactive status upon payment of an administrative fee and compliance with educational and other requirements established by board rules. SECTION 2.04. Amends Sections 7(d), (e), (f), (g), and (h), Article 249c,V.T.C.S., and adds Subsection (i), to require that a registered landscape architect who meets certain criteria and is engaged in teaching landscape architecture is exempt from the continuing education requirements of this article. Makes conforming and nonsubstantive changes. SECTION 2.05. Amends Section 8, Article 249c, V.T.C.S., as follows: (a) Authorizes, rather than requires, the board to revoke or suspend a certificate of registration, place persons on probation, reprimand persons, or assess an administrative penalty against a person, regardless of the person's registration status, in an amount not to exceed $1,000 on enumerated grounds. (b) Makes no change. (c) Deletes provision that the statement changing grounds for discipline must be filed with three copies. Makes nonsubstantive changes. (d) Deletes existing language providing for hearing procedures for a person whose certificate has been suspended. Deletes existing Subsection (e) providing for a person to appeal the decision of the board to a district court. (e) Authorizes the executive director of the board (executive director) to issue a report stating the facts on which the determination that a ground exists for a sanction is based, recommending that an administrative penalty under this section be imposed on the person charged, and recommending the amount of that proposed penalty, if after an investigation of the facts surrounding an allegation of grounds for sanctions the executive director finds such grounds to exist. Requires the executive director to base the recommended amount of the proposed penalty on the seriousness of the determined ground. Requires the seriousness of the ground to be determined by consideration of the factors prescribed by Subsection (j) of this section. (f) Requires the executive director to give written notice of the report to the person charged not later than the 14th day after the date on which the report is issued. Requires the notice to include a brief summary of the charges, a statement of the amount of the penalty recommended, and a statement of the right of the person charged to a hearing on the occurrence of a ground for the penalty or on the amount of the penalty, or both the occurrence of the ground and the amount of the penalty. (g) Authorizes the person charged to accept the determination of the executive director, including the recommended penalty, or to make a request for a hearing on the determination not later than the 20th day after the date on which the notice is received. (h) Requires the board to issue an order approving the determination and ordering the payment of the recommended penalty if the person charged accepts the determination of the executive director. (i) Requires the board to set a hearing and give notice of the hearing if the person charged requests a hearing or fails timely to respond to the notice. Provides that all proceedings under this subsection relating to a person charged who holds a registration certificate issued by the board are subject to Chapter 2001, Government Code. (j) Requires the board to consider in determining the amount of the penalty: (1) the seriousness of the conduct that is the source of the ground, including consideration of the nature, circumstances, extent, and gravity of any relevant acts or omissions, and of the hazard or potential hazard created to the health or safety of the public; (2) the economic damage to property caused by the conduct; (3) the charged person's history concerning previous grounds for sanction; (4) the amount necessary to deter future grounds for sanction; (5) efforts to correct the ground for sanction; and (6) any other matter justice may require. (k) Requires the executive director to give notice of the board's order to the person charged including certain specified information. (l) Provides that the board's order becomes final, if the person charged holds a registration certificate, as provided by Section 2001.144, Government Code, and on the 20th day after the order is rendered if the person does not hold a registration certificate. Requires the person charged with the penalty to pay the penalty in full unless the person has filed a petition for judicial review of the order. (m) Requires, if the person files a petition for judicial review contesting the amount of the penalty or the occurrence of the ground for sanction, the person to, within 30 days after the date on which the board's order becomes final: (1) forward the amount of the penalty to the board for placement in an escrow account; (2) post with the board a supersedeas bond in a form approved by the board for the amount of the penalty, the bond to be effective until all judicial review of the order or decision is final; or (3) file with the board an affidavit sworn by the person charged stating that the person is financially unable to forward the amount of the penalty or to post the bond. (n) Authorizes the board to forward the matter to the attorney general for enforcement if the person charged fails to pay the penalty in full as provided by Subsection (l) of this section or to timely comply with Subsection (m) of this section. (o) Requires the judicial review of the order or decision of the board assessing the penalty to be under the substantial evidence rule and shall be instituted by filing a petition with a district court in Travis County, as provided by Subchapter G (Contested Cases: Judicial Review), Chapter 2001, Government Code. (p) Requires the board to remit to the person charged the appropriate amount plus accrued interest if the penalty has been paid or execute a release of the bond if a supersedeas bond has been posted if a penalty is reduced or is not assessed by the reviewing court. Requires the accrued interest on amounts remitted by the board under this subsection to be paid at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank and to be paid for the period beginning on the date the penalty is paid to the board under Subsection (l) of this section and ending on the date the fine is remitted. (q) Requires a penalty collected under this section to be deposited in the state treasury to the credit of the general revenue fund. SECTION 2.06. Amends Article 249c, V.T.C.S., by adding Section 8D, as follows: Sec. 8D. SEAL. (a) Requires each landscape architect to obtain and keep a seal with which the person shall stamp or impress each drawing or specification issued from the person's office for use in this state. (b) Requires the board to prescribe the form of the seal. Requires the design of the seal to be the same as that used by the board, except that it shall bear the words "Registered Landscape Architect, State of Texas" instead of "Texas Board of Architectural Examiners." (c) Prohibits a person from using or attempting to use a seal described by Subsection (b) of this section, a similar seal, or a replica of a seal described by Subsection (b) of this section unless the use is by and through a landscape architect. (d) Prohibits a landscape architect from authorizing or permitting the use of the landscape architect's seal by an unregistered person without the landscape architect's personal supervision. Authorizes the board to cancel the registration certificate of a landscape architect who violates this subsection. SECTION 2.07. Amends Section 9(a), Article 249c, V.T.C.S., to prohibit a person from representing the person to be a landscape architect without being registered or exempted from registering, presenting or attempting to use the certificate of registration or seal of another, giving any false or forged evidence, or violating any other provision of this article. Provides that a person who violates this section is subject to penalties provided by Section 8 of this article, rather than shall be fined not less that $25 nor more than $200. Requires each day of such violation to be a separate violation, rather than offense. SECTION 2.08. Amends Section 10(b), Article 249c, V.T.C.S., to make a conforming change. SECTION 2.09. Amends Article 249c, V.T.C.S., by adding Section 11, as follows: Sec. 11. SUBPOENA. (a) Authorizes the board to request and, if necessary, compel by subpoena the attendance of witnesses for examination under oath and the production for inspection and copying of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of alleged violations of this article. (b) Authorizes the board, acting through the attorney general, to file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the board may be held if a person fails to comply with a subpoena issued under this section. Requires the court, if it determines that good cause exists for the issuance of the subpoena, to order compliance with the requirements of the subpoena. Authorizes the court to punish failure to obey the order of the court as contempt. ARTICLE 3. REGULATION OF PRACTICE OF INTERIOR DESIGN SECTION 3.01. Amends Section 5, Article 249e,V.T.C.S., by amending Subsection (d) and adding Subsection (h) as follows: (d) Makes a nonsubstantive change. (h) Authorizes the board to request and, if necessary, compel by subpoena the attendance of witnesses for examination under oath and the production for inspection and copying of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of alleged violations of this article. Authorizes the board, acting through the attorney general, to file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the board may be held, if a person fails to comply with a subpoena issued under this subsection. Requires the court, if it determines that good cause exists for the issuance of the subpoena, to order compliance with the requirements of the subpoena. Authorizes the court to punish failure to obey the order of the court as contempt. SECTION 3.02. Amends Section 6, Article 249e,V.T.C.S., by amending Subsections (a) and (b), and adding Subsection (d), to authorize the board to accept payment of a fee by electronic means. Authorizes the board to charge a fee for processing the payment by electronic means. Requires the board to set the processing fee in an amount that is reasonably related to the expense incurred by the board in processing the payment by electronic means, not to exceed five percent of the amount of the fee. Deletes fee limits. Makes conforming and nonsubstantive changes. SECTION 3.03. Amends Sections 9(b), (c), and (d), Article 249e, V.T.C.S., to delete a provision that an applicant for admission to the registration examination must provide evidence of professional education in interior design and experience in the field of interior design. Makes conforming and nonsubstantive changes. SECTION 3.04. Amends Article 249e,V.T.C.S., by adding Section 13A, as follows: Sec. 13A. INACTIVE STATUS. (a) Requires the board, by rule, to adopt a system by which a registered interior designer may place the person's certificate of registration on inactive status. Provides that application for inactive status must be made before the person's certificate of registration expires. (b) Provides that no renewal fee must be paid to maintain such inactive status. (c) Prohibits a registered interior designer whose certificate of registration is on inactive status from performing any activity regulated under this article. (d) Requires a registered interior designer whose certificate of registration is on inactive status and who wishes to return to active practice to notify the board in writing. Requires the board to remove such an architect's certificate of registration from inactive status upon payment of an administrative fee and compliance with educational and other requirements established by board rules. SECTION 3.05. Amends Sections 14(b), (c), and (e), Article 249e,V.T.C.S., and adds Subsection (f), to provide that the board may determine a penalty fee for renewal of an expired registration certificate. Authorizes a person to renew a registration certificate by submitting to the board satisfactory proof of compliance with continuing education requirements. Requires that a registered interior designer who meets certain criteria and is engaged in teaching interior design is exempt from the continuing education requirements of this article. Deletes text tying the additional fee for the renewal of an expired registration certificate to the amount of the registration examination fee. Makes conforming and nonsubstantive changes. SECTION 3.06. Amends Article 249e,V.T.C.S., by adding Section 17, as follows: Sec. 17. ADMINISTRATIVE PENALTY. (a) Authorizes the board to assess an administrative penalty against a person on a ground provided by Section 15(a) (Revocation, Suspension, or Denial of Registration; Discipline of Registrants) of this article, including Section 3 (Prohibitions). (b) Authorizes the executive director to issue a report stating the facts on which the determination that a ground exists for a sanction is based, recommending that an administrative penalty under this section be imposed on the person charged, and recommending the amount of that proposed penalty if, after investigation of the facts surrounding an allegation of a ground for a sanction provided by Section 15(a), including Section 3, of this article the executive director determines that a ground exists for a sanction. Requires the executive director to base the recommended amount of the proposed penalty on the seriousness of the determined ground. Requires the seriousness of the ground to be determined by consideration of the factors prescribed by Subsection (g) of this section. (c) Requires the executive director to give written notice of the report to the person charged not later than the 14th day after the date on which the report is issued. Requires the notice to include a brief summary of the charges, a statement of the amount of the penalty recommended, and a statement of the right of the person charged to a hearing on the occurrence of a ground for the penalty or on the amount of the penalty, or both the occurrence of the ground and the amount of the penalty. (d) Authorizes the person charged to accept the determination of the executive director not later than the 20th day after the date on which the notice is received, including the recommended penalty, or make a request for a hearing on the determination. (e) Requires the board to issue an order approving the determination and ordering the payment of the recommended penalty if the person charged accepts the determination of the executive director. (f) Requires the board to set a hearing and give notice of the hearing if the person charged requests a hearing or fails timely to respond to the notice. Provides that all proceedings under this subsection relating to a person charged who holds a registration certificate issued by the board are subject to Chapter 2001, Government Code. (g) Requires the board to consider in determining the amount of the penalty: (1) the seriousness of the conduct that is the source of the ground, including consideration of the nature, circumstances, extent, and gravity of any relevant acts or omissions, and of the hazard or potential hazard created to the health or safety of the public; (2) the economic damage to property caused by the conduct; (3) the charged person's history concerning previous grounds for sanction; (4) the amount necessary to deter future grounds for sanction; (5) efforts to correct the ground for sanction; and (6) any other matter justice may require. (h) Requires the executive director to give notice of the board's order to the person charged including certain specified information. (i) Provides that the board's order becomes final, if the person charged holds a registration certificate, as provided by Section 2001.144, Government Code, and on the 20th day after the order is rendered if the person does not hold a registration certificate. Requires the person charged with the penalty to pay the penalty in full unless the person has filed a petition for judicial review of the order. (j) Requires the person, within 30 days after the date on which the board's order becomes final, if the person files a petition for judicial review contesting the amount of the penalty or the occurrence of the ground for sanction, or both, to: (1) forward the amount of the penalty to the board for placement in an escrow account; (2) post with the board a supersedeas bond in a form approved by the board for the amount of the penalty, the bond to be effective until all judicial review of the order or decision is final; or (3) file with the board an affidavit sworn by the person charged stating that the person is financially unable to forward the amount of the penalty or to post the bond. (k) Authorizes the board to forward the matter to the attorney general for enforcement if the person charged fails to pay the penalty in full as provided by Subsection (i) of this section or to timely comply with Subsection (j) of this section. (l) Requires the judicial review of the order or decision of the board assessing the penalty to be under the substantial evidence rule and shall be instituted by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code. (m) Requires the board to remit to the person charged the appropriate amount plus accrued interest if the penalty has been paid or shall execute a release of the bond if a supersedeas bond has been posted if a penalty is reduced or is not assessed by the reviewing court. Requires the accrued interest on amounts remitted by the board under this subsection to be paid at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank and to be paid for the period beginning on the date the penalty is paid to the board under Subsection (i) of this section and ending on the date the fine is remitted. (n) Requires a penalty collected under this section to be deposited to the credit of the general revenue fund. ARTICLE 4. TRANSITION; EFFECTIVE DATE; EMERGENCY SECTION 4.01. (a) Makes application of Section 7(c), Article 249a,V.T.C.S., prospective. (b) Makes application of Section 5(a), Article 249c,V.T.C.S., prospective. (c) Makes application of Section 9(b)(1), Article 249e,V.T.C.S., prospective. SECTION 4.02. Effective date: September 1, 1999. SECTION 4.03. Emergency clause.