HBA-ALS, ALS H.B. 2155 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2155 By: Yarbrough Licensing & Administrative Procedures 3/30/1999 Introduced BACKGROUND AND PURPOSE Under current law, different governmental entities have the authority to issue licenses for plumbing, boiler operations, air conditioning and refrigeration contracting, and backflow prevention. As a result, a contractor who wishes to perform this type of work must obtain a necessary license from various boards under the Department of Licensing and Regulation, the State Board of Plumbing Examiners, and the Texas Natural Resource Conservation Commission. The purpose of this bill is to create a more effective and efficient system of licensing and to promote uniform and regular inspections in these professions. H.B. 2155 creates the Texas Board of Plumbing and Mechanical Work (board). This bill sets forth rules relating to the designation of board members, terms of board members, officers of the board, board meetings, board member compensation, board membership restrictions, grounds for removal of a board member, and restrictions on certain lobbying activities of board members. This bill requires the board to enforce and administer enumerated laws and to issue specified licenses and permits. This bill sets forth administrative penalties for violations under this Act to be assessed by the board. In addition, this bill abolishes certain existing regulatory boards, commissions, and councils and transfers their functions to the Texas Board of Plumbing and Mechanical Work. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Plumbing and Mechanical Work in SECTION 1 (Sections 17 and 23, Article 9150, V.T.C.S.), of this bill. SECTION BY SECTION ANALYSIS HBA-ALS H.B. 2155 76(R) SECTION 1. Amends the V.T.C.S. by adding Title 132B, as follows: TITLE 132B. TEXAS BOARD OF PLUMBING AND MECHANICAL WORK ARTICLE 9150. TEXAS BOARD OF PLUMBING AND MECHANICAL WORK Sec. 1. DEFINITION. Defines "board" as the Texas Board of Plumbing and Mechanical Work. Sec. 2. BOARD. Sets forth the composition of the board. Provides that members of the board are appointed by the governor with the advice and consent of the senate. Requires board appointments to be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees. Sec. 3. OFFICERS; MEETINGS; COMPENSATION. (a) Requires the governor to designate a board member as the board's presiding officer to serve at the will of the governor. Requires the board annually to select an assistant presiding officer and a secretary-treasurer. (b) Requires the board to hold at least two regular meetings each year. Prohibits the board from holding more than four meetings each year unless at least three-fifths of the board members submit a written request to the presiding officer to call additional meetings. (c) Entitles a member of the board to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board. Prohibits a member from receiving compensation for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act. Sec. 4. TERMS. Provides that the members of the board are appointed for staggered six-year terms, with five members' terms expiring on February 1 of each odd-numbered year. Requires a member appointed to fill a vacancy to hold office for the remainder of that term. Sec. 5. PUBLIC MEMBERSHIP RESTRICTION. Prohibits a person from being a public member of the board if the person or the person's spouse: (1) is registered, certified, or licensed by a regulatory agency in the field of plumbing or mechanical work; (2) is employed by or participates in the management of a business entity or other organization regulated by or receiving money from the board; (3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving money from the board; or (4) uses or receives a substantial amount of tangible goods, services, or money from the board other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. Sec. 6. CONFLICT OF INTEREST RESTRICTIONS. (a) Defines "Texas trade association." (b) Prohibits a person from being a member of the board and from being a board employee in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments, if the person or the person's spouse meets certain characteristics. (c) Prohibits a person from being a member of the board or acting as the general counsel to the board, if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. Sec. 7. EFFECT OF LOBBYING ACTIVITY. Prohibits a person from serving as a member of the board or acting as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. Sec. 8. GROUNDS FOR REMOVAL FROM BOARD. (a) Specifies the grounds for removal of a board member. (b) Provides that the validity of a board's action is not affected by the fact that it is taken when a ground for removal of a board member exists. (c) Requires the executive director of the Texas Department of Licensing and Regulation. (executive director) to notify the board's presiding officer that a potential ground for removal exists and requires the presiding officer to then notify the governor and the attorney general. Requires the executive director, if the potential ground for removal involves the presiding officer, to notify the next highest ranking officer of the board who is required to then notify the governor and the attorney general. Sec. 9. STAFF. (a) Requires the board to employ an executive director and administrative and clerical employees as necessary to carry out the board's functions. Requires the board to develop and implement policies that clearly separate the board's policymaking responsibilities and the management responsibilities of the executive director and the staff of the board. Sec. 10. REGULATORY STATUTES ADMINISTERED. Requires the board to administer and enforce specified statutes relating to the regulation of plumber licensing, boilers, air conditioning and refrigeration contractor licenses, and irrigators. Sec. 11. ADVISORY COMMITTEES. Requires the board to appoint separate advisory committees on plumbing, irrigation, boilers, air conditioning and refrigeration, and backflow prevention. Authorizes the board to appoint additional advisory committees as determined to be necessary by a majority of the board. Provides that a member of an advisory committee appointed under this section serves a two-year term. Provides that an advisory committee member is not entitled to compensation but entitles an advisory committee member to reimbursement for actual and necessary expenses, including travel expenses, incurred in performing duties as a member of the advisory committee. Sec. 12. SEPARATE LICENSES. Requires the board to issue separate licenses, certificates, permits, or registrations for the programs under Section 10 of this article. Authorizes the board to issue more than one type of license, certificate, permit, or registration to a person who is qualified to hold each of the licenses, certificates, permits, or registrations issued. Requires the board to adopt rules relating to the issuance of multiple licenses, certificates, permits, or registrations to a person under laws administered by the board. Sec. 13. EXPENDITURES; AUDIT. Authorizes the board to authorize disbursements from appropriated funds that are necessary to carry out this article and the laws and programs listed in Section 10 of this article. Provides that the financial transactions of the board are subject to audit by the state auditor in accordance with Chapter 321, Government Code. Sec. 14. ANNUAL FINANCIAL REPORT. Requires the board to annually file with the governor and the presiding officer of each house of the legislature a detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year. Provides that the annual report must be in the form and reported in the time provided under the General Appropriations Act. Sec. 15. PERSONNEL POLICIES. Requires the executive director or the executive director's designee to develop an intra-agency career ladder program requiring intra-agency posting of all nonentry level positions concurrently with any public posting. Requires the executive director or the executive director's designee to develop a system of annual performance evaluations based on measurable job tasks and on the system established under this subsection. Sec. 16. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. Requires the executive director or the executive director's designee to prepare and maintain a written policy statement implementing an equal employment opportunity program to ensure that personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. Specifies the information that is required to be contained in a policy statement. Provides that a policy statement must be updated annually, be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1), and be filed with the governor's office. Sec. 17. PUBLIC INTEREST INFORMATION. (a) Requires the board to prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board. Requires the board to make the information available to the public and appropriate state agencies. (b) Requires the board, by rule, to establish methods to notify consumers and service recipients of the board's name, mailing address, and telephone number for the purpose of directing complaints to the board. Specifies the means by which the board is authorized to provide notification. (c) Requires the board to list, along with its regular telephone number, the toll-free telephone number for complaints about a health professional, if the toll-free number is established under other state law. Sec. 18. PUBLIC PARTICIPATION IN BOARD HEARINGS. Requires the board to develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board. Sec. 19. PROGRAM ACCESSIBILITY. Requires the board to prepare and maintain a written plan describing how reasonable access to the board's programs can be provided to a person who does not speak English. Requires the board to comply with federal and state laws for program and facility accessibility. Sec. 20. BOARD MEMBER TRAINING; STANDARDS OF CONDUCT INFORMATION. Prohibits a person who is appointed to and qualifies for office as a member of the board from voting, deliberating, or being counted as an attending member at a board meeting, until the person completes a training program under this section. Specifies the type of information that the training program must provide a person. Entitles a board member to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program, regardless of whether the attendance at the program occurs before or after the person qualifies for office. Requires the executive director or the executive director's designee to provide to members of the board and to board employees, as often as necessary, information regarding the requirements for office or employment under this article. Sec. 21. SUNSET PROVISION. Provides that the Texas Board of Plumbing and Mechanical Work is subject to Chapter 325, Government Code (Texas Sunset Act) and the board is abolished and this article expires September 1, 2011, unless its existence is continued as provided by that chapter. Sec. 22. ADMINISTRATIVE PENALTIES. (a) Authorizes the board to assess an administrative penalty against a person who violates a provision of this article, a law administered by the board, or a rule or order adopted by the board as provided by this section. (b) Prohibits a penalty from exceeding $1,000 for each violation. Authorizes the consideration of each day a violation continues or occurs as a separate violation for purposes of penalty assessment. (c) Requires the board to consider specified factors in determining the amount of the penalty. (d) Authorizes the director, if after investigation of a possible violation the director determines that a violation has occurred, to issue a violation report stating the facts on which the conclusion is based, recommending that an administrative penalty, and recommending the amount of that proposed penalty. Requires the executive director to base the amount of the proposed penalty on the seriousness of the violation by considering of the factors set forth in Subsection (c) of this section. (e) Requires the executive director to give written notice of the report to the person charged, no later than the 14th day after the date on which the report is issued. Requires that the notice 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 the violation or the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (f) Authorizes the person charged to accept the executive director's determination, including the recommended penalty, or to make a written request for a hearing on the determination, no later than the 20th day after the date on which notice is received (g) Requires the board to issue an order approving the determination and ordering the payment of the recommended penalty if the person charged accepts the executive director's determination. (h) Requires the executive director to set a hearing and give notice of the hearing if the person charged requests hearing or fails to timely respond to the notice. Requires the hearing to be held by a hearing examiner designated by the board. Requires the hearing examiner to make findings of fact and conclusions of law and promptly issue to the board a proposal for decision as to the violation, including a recommendation as to the amount of the proposed penalty. Authorizes the board, by order, based on the findings of fact, conclusions of law, and recommendations of the hearing examiner, to find that a violation has or has not occurred and to assess a penalty for a violation. Provides that all proceedings under this subsection are subject to Chapter 2001, Government Code. (i) Requires the board to give notice of the board's order to the person charged. Specifies the information required to be contained in the notice. (j) Requires the person charged with the penalty, within a specified time period, to pay the penalty in full, or if the person files a petition for judicial review contesting certain findings, to forward the amount to the board for placement in an escrow account or in lieu of payment into escrow, post with the board a supersedeas bond in a form approved by the board for the amount of the penalty to be effective until all judicial review of the order or decision is final. (k) Authorizes a person charged who is financially unable to either forward the amount of the penalty for placement in an escrow account or post a supersedeas bond, to satisfy the file with the board an sworn affidavit stating that the person is financially unable to either forward the amount of the penalty or post a bond. (l) Authorizes the board, if the person charged fails to pay the penalty in full, or forward the money, post the bond, or file the affidavit as provided by Subsection (j) or (k) of this section, to forward the matter to the attorney general for enforcement. (m) Requires judicial review of the order or decision of the board assessing the penalty to be under the substantial evidence rule and to be instituted by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code. (n) Requires the board, if the penalty is reduced or not assessed by the court, to remit to the person charged the appropriate amount plus accrued interest if the penalty has been paid or to execute a release of the bond if a supersedeas bond has been posted. Requires the payment of accrued interest on amounts remitted by the board to be paid at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank for the period beginning on the date the penalty is paid to the board under Subsection (j) of this section and ending on the date the penalty is remitted. (o) Requires a penalty collected under this section to be deposited in the general revenue fund. Sec. 23. EFFECT OF FEDERAL REGULATIONS. Requires the board to adopt rules for a law or program regulated by the board in order to comply with any federal regulation that imposes standards or requirements on that law or program. SECTION 2. Amends the Plumbing License Law, Article 6243-101, V.T.C.S., by adding Section 1A , as follows: Sec. 1A. FUNCTIONS TRANSFERRED; BOARD ABOLISHED. Provides that this Act is administered by the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C..S.. Provides that to the extent of a conflict between this Act and Article 9150, V.T.C.S., that article prevails. Provides that any reference in this Act to the Texas State Board of Plumbing Examiners means the Texas Board of Plumbing and Mechanical Work. Abolishes the Texas State Board of Plumbing Examiners and provides that the functions of that board are exercised by the Texas Board of Plumbing and Mechanical Work. SECTION 3. Amends the Air Conditioning and Refrigeration Contractor License Law, Article 8861, V.T.C.S., by adding Section 1A, as follows: Sec. 1A. FUNCTIONS TRANSFERRED; ADVISORY BOARD ABOLISHED. (a) Provides that this Act is administered by the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C.S.. Provides that to the extent of a conflict between this Act and Article 9150, V.T.C.S., that article prevails. (b) Provides that any reference in this Act to the Texas Department of Licensing and Regulation, the commissioner of licensing and regulation, or the Air Conditioning and Refrigeration Contractors Advisory Board means the Texas Board of Plumbing and Mechanical Work. (c) Abolishes the Air Conditioning and Refrigeration Contractors Advisory Board and provides that the functions of that board and the functions, under this Act, of the Texas Department of Licensing and Regulation and the commissioner of licensing and regulation are exercised by the Texas Board of Plumbing and Mechanical Work. SECTION 4. Amends Chapter 372, Health and Safety Code, by adding Section 372.0015, as follows: Sec. 372.0015. FUNCTIONS TRANSFERRED. Provides that this chapter is administered by the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C.S.. Provides that to the extent of a conflict between this chapter and Article 9150, V.T.C.S., that article prevails. Provides that any reference in this chapter to the Texas Natural Resource Conservation Commission means the Texas Board of Plumbing and Mechanical Work. SECTION 5. Amends Subchapter A, Chapter 755, Health and Safety Code, by adding Section 755.002, as follows: Sec. 755.002. FUNCTIONS TRANSFERRED; BOARD ABOLISHED. (a) Provides that this chapter is administered by the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C.S.. Provides that to the extent of a conflict between this chapter and Article 9150, V.T.C.S, that article prevails. (b) Provides that any reference in this chapter to the Texas Department of Licensing and Regulation, the commissioner of licensing and regulation, or the Board of Boiler Rules means the Texas Board of Plumbing and Mechanical Work. (c) Abolishes the Board of Boiler Rules and the functions of that board and provides that the functions, under this chapter, of the Texas Department of Licensing and Regulation and the commissioner of licensing and regulation are exercised by the Texas Board of Plumbing and Mechanical Work. SECTION 6. Amends Chapter 34, Water Code, by adding Section 34.0015, as follows: Sec. 34.0015. FUNCTIONS TRANSFERRED; COUNCIL ABOLISHED. (a) Provides that this chapter is administered by the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C.S.. Provides that to the extent of a conflict between this chapter and Article 9150, V.T.C.S., that article prevails. (b) Provides that any reference in this chapter to the Texas Natural Resource Conservation Commission or the Texas irrigators advisory council means the Texas Board of Plumbing and Mechanical Work. (c) Abolishes the Texas irrigators advisory council and provides that the functions of that board and the functions, under this chapter, of the Texas Natural Resource Conservation Commission are exercised by the Texas Board of Plumbing and Mechanical Work. SECTION 7. (a) Requires the governor, as soon as possible after the effective date of this Act, to appoint the initial members of the Texas Board of Plumbing and Mechanical Work in accordance with Article 9150, V.T.C.S., as added by this Act. (b) Provides that a person who is serving on the day immediately before the effective date of this Act as a member of the governing body of an agency abolished by this Act is not eligible for appointment to the Texas Board of Plumbing and Mechanical Work. (c) Requires the governor, in making the initial appointments to the Texas Board of Plumbing and Mechanical Work, to designate: (1) one master plumber member, one licensed backflow prevention specialist member, one plumbing inspector member, one irrigator member, and one public member to serve terms expiring February 1, 2001; (2) one journeyman plumber member, one industrial boiler plant operator or building engineer member, one air conditioning and refrigeration contractor member, one engineer member, and one public member to serve terms expiring February 1, 2003; and (3) one plumbing contractor member, one boiler installer or servicer member, one air conditioning and refrigeration license holder member, and two public members to serve terms expiring February 1, 2005. (d) Prohibits the Texas Board of Plumbing and Mechanical Work from taking any action until and is not created until the day after the date the last appointee to the initial board takes office. Provides that on the creation date, the board assumes its functions and: (1) the Air Conditioning and Refrigeration Contractors Advisory Board, Texas State Board of Plumbing Examiners, Board of Boiler Rules, and Texas irrigators advisory council are abolished; (2) the obligations, rights, contracts, records and other property, and personnel of, and unspent money appropriated to or for, the abolished boards and council or the governing body for the laws or programs transferred to the new board under this Act are transferred to the Texas Board of Plumbing and Mechanical Work; (3) the rules of the abolished boards and council or the governing body for the laws or programs transferred to the new board under this Act are continued in effect as rules of the Texas Board of Plumbing and Mechanical Work until superseded by rule of the new board; (4) the licenses, certificates, permits, or registrations in effect that were issued by the abolished boards or council or the governing body for the laws or programs transferred to the new board under this Act are continued in effect as licenses, certificates, permits, or registrations of the Texas Board of Plumbing and Mechanical Work; (5) a complaint or investigation pending before the abolished boards or council or the governing body for the laws or programs transferred to the new board under this Act is transferred without change in status to the Texas Board of Plumbing and Mechanical Work; (6) a contested case pending before the abolished boards and council or the governing body for the laws or programs transferred to the new board under this Act is transferred to the Texas Board of Plumbing and Mechanical Work and actions taken in the proceeding are treated as if taken by the Texas Board of Plumbing and Mechanical Work; and (7) any reference in a law to the abolished boards or council means the Texas Board of Plumbing and Mechanical Work. (e) Provides that the boards and council continue in existence and requires them to administer their functions under the law that governed the boards and council before the effective date of this Act, and provides that the prior law is continued in effect for that purpose, regardless of the changes in law made by this Act, until the date that the Air Conditioning and Refrigeration Contractors Advisory Board, Texas State Board of Plumbing Examiners, Board of Boiler Rules, and Texas irrigators advisory council are abolished as provided by this section. (f) Requires the Texas Board of Plumbing and Mechanical Work to adopt rules under this Act no later than December 1, 1999. SECTION 8. Repealer: Sections 4, 4a, 5A, 6, and 7, Article 6243-101, V.T.C.S. (The Plumbing License Law); Subchapter B, Chapter 755, Health and Safety Code (Board of Boiler Rules); Section 3A, Article 8861, V.T.C.S. (Air Conditioning and Refrigeration Contractor License Law); and Section 34.003, Water Code (Irrigators Advisory Council).. SECTION 9.Effective date: September 1, 1999. SECTION 10.Emergency clause.