HBA-MPA H.B. 1248 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1248 By: Farrar Licensing & Administrative Procedures 4/20/1999 Introduced 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; and _requires proof of continuing education from interior designers, and allows the board to set fees for late registration renewal. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS ARTICLE 1. REGULATION OF PRACTICE OF ARCHITECTURE SECTION 1.01. Amends Section 3, Article 249a,V.T.C.S., by amending Subsections (e) and (h) and adding Subsection (j) as follows: (e) Requires , rather than authorizes, the Texas Board of Architectural Examiners (board) to recognize, prepare, or administer continuing education programs for architects, interior designers, and, rather than or, landscape architects, including programs relating to the requirements of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and Article 9102, V.T.C.S. Provides that participation in the programs is mandatory, rather than voluntary. (h) Authorizes the board to accept payment of a fee by credit card. If a fee is paid by credit card, and to charge a fee for processing the payment by credit card. 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 credit card, not to exceed five percent of the amount of the fee. (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 1.02. 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 1.03. Amends Section 7, Article 249a, V.T.C.S., to delete a provision requiring the ARboard to accept for examination an applicant who has not graduated can present satisfactory evidence of eight years satisfactory experience. SECTION 1.04. Amends Sections 11(b) and (n), Article 249a, V.T.C.S., to delete the provision that the board may assess an administrative penalty to a person registered under this article based on enumerated conditions. 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. SECTION 1.05. Amends Sections 12(d), (e), (f), (g), and (h), Article 249a, V.T.C.S., to require 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. Makes conforming and nonsubstantive changes. SECTION 1.06. 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 credit card. Authorizes the board to charge a fee for processing the payment by credit card, if a fee is paid by credit card. 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 credit card, 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 make a conforming change. SECTION 2.03. Amends Sections 7(d), (e), (f), (g), and (h), Article 249c,V.T.C.S., to make conforming and nonsubstantive changes. SECTION 2.04. Amends, Article 249c,V.T.C.S., by adding Sections 8D, 8E, and 11 as follows: Sec. 8D. ADMINISTRATIVE PENALTY. (a) Authorizes the L.S.-board to assess an administrative penalty against a person on a ground provided by Section 8(a) (Revocation and Suspension; Reprimand of Certificates), of this article. (b) 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 facts on 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 (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, 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. (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 are subject to Chapter 2001 (Administrative Procedure), 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) 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, 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. (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 (Contested Cases: Judicial Review), 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 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 in the state treasury to the credit of the general revenue fund. Sec. 8E. 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. 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 adding Subsection (h) as follows: (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 adding Subsection (d), to authorize the board to accept payment of a fee by credit card. Authorizes the board to charge a fee for processing the payment by credit card. 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 credit card, not to exceed five percent of the amount of the fee. 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 may be accompanied by evidence of professional education in interior design and has experience in the field of interior design. Makes conforming and nonsubstantive changes. SECTION 3.04. Amends Sections 14(b), (c), and (e), Article 249e,V.T.C.S., 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. Deletes text tying the additional fee for the renewing of expired registration certificate to the amount of the legislation examination fee. Makes conforming and nonsubstantive changes. SECTION 3.05. 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. (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) 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 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) 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 within the 30 days after the date on which the board's order becomes final as provided by Section 2001.144 (Decisions; When Final), Government Code. (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 in the state treasury 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 249a,V.T.C.S., prospective (c) Makes application of Section 9(b)(1), Article 249a,V.T.C.S., prospective SECTION 4.02. Effective date: September 1, 1999. SECTION 4.03. Emergency clause.