H.B. No. 1155
AN ACT
relating to the continuation and functions of the Texas State Board
of Examiners of Dietitians.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 701.002(1) and (2), Occupations Code,
are amended to read as follows:
(1) "Commissioner" means the commissioner of state
health services [public health].
(2) "Department" means the [Texas] Department of State
Health Services.
SECTION 2. Section 701.003, Occupations Code, is amended to
read as follows:
Sec. 701.003. APPLICATION OF SUNSET ACT. The Texas State
Board of Examiners of Dietitians is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the board is abolished September 1,
2017 [2005].
SECTION 3. Section 701.053, Occupations Code, is amended to
read as follows:
Sec. 701.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)
In this section, "Texas trade association" means a [nonprofit,]
cooperative[,] and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
(b) A person [An officer, employee, or paid consultant of a
Texas trade association in the field of dietetics] may not be a
dietitians board member and may not be an employee of the department
employed 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.) if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of dietetics;
or
(2) the person's spouse is [board who is exempt from
the state's position classification plan or is compensated at or
above the amount prescribed by the General Appropriations Act for
step 1, salary group A17, of the position classification salary
schedule.
[(c) A person who is the spouse of] an officer, manager, or
paid consultant of a Texas trade association in the field of
dietetics [may not be a dietitians board member and may not be an
employee of the board who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group A17, of the position classification salary schedule].
(c) [(d)] A person may not be [serve as] a member of the
dietitians board or act as the general counsel to the board or the
department 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.
SECTION 4. Sections 701.055(a) and (c), Occupations Code,
are amended to read as follows:
(a) It is a ground for removal from the dietitians board
that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 701.051(a)
[for appointment to the board];
(2) does not maintain during service on the board the
qualifications required by Section 701.051(a) [for appointment to
the board];
(3) is ineligible for membership under Section 701.052
or 701.053 [violates a prohibition established by this chapter];
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved[, unless the
absence is excused] by a majority vote of the board.
(c) If the executive secretary has knowledge that a
potential ground for removal exists, the executive secretary shall
notify the presiding officer of the dietitians board of the ground.
The presiding officer shall then notify the governor and the
attorney general that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
executive secretary shall notify the assistant presiding officer,
who shall then notify the governor and the attorney general that a
potential ground for removal exists.
SECTION 5. The heading to Section 701.056, Occupations
Code, is amended to read as follows:
Sec. 701.056. [PER DIEM;] REIMBURSEMENT.
SECTION 6. Section 701.056(b), Occupations Code, is amended
to read as follows:
(b) A member is entitled to reimbursement for travel
[transportation] expenses as provided by the General
Appropriations Act.
SECTION 7. Section 701.057, Occupations Code, is amended to
read as follows:
Sec. 701.057. OFFICERS. (a) The governor shall designate a
member of the dietitians board as the presiding officer of the board
to serve in that capacity at the pleasure of the governor.
(b) Not later than the 30th day after the date the governor
appoints new board members, the dietitians board shall meet to
elect an [a presiding officer and] assistant presiding officer, who
holds [hold] office according to board rules.
SECTION 8. Sections 701.059(a), (b), and (c), Occupations
Code, are amended to read as follows:
(a) A person who is appointed to and qualifies for office as
a member of the dietitians board may not vote, deliberate, or be
counted as a member in attendance at a meeting of the board until
the person completes [Before a dietitians board member may assume
the member's duties and before the member may be confirmed by the
senate, the member must complete at least one course of] a training
program that complies with [established by the board under] this
section.
(b) The training program [established by the dietitians
board] must provide the person with information [to a participant]
regarding:
(1) this chapter and the dietitians board's programs,
functions, rules, and budget;
(2) [the programs operated by the board;
[(3) the role and functions of the board;
[(4) the rules of the board, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
[(5) the current budget for the board;
[(6)] the results of the most recent formal audit of
the board;
(3) [(7)] the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts-of-interest [Chapters 551, 552, 2001, and 2002,
Government Code;
[(8) the requirements of the conflict of interest laws
and other laws relating to public officials]; and
(4) [(9)] any applicable ethics policies adopted by
the board or the Texas Ethics Commission.
(c) A person appointed to the dietitians board is entitled
to reimbursement, as provided by the General Appropriations Act,
for 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 [In developing the
training program, the dietitians board shall consult with the
governor, the attorney general, and the Texas Ethics Commission].
SECTION 9. Section 701.104, Occupations Code, is amended to
read as follows:
Sec. 701.104. DIVISION OF RESPONSIBILITIES. The dietitians
board shall develop and implement policies that clearly separate
[define] the policymaking [respective] responsibilities of the
board and the management responsibilities of the executive
secretary and the staff of the department [board].
SECTION 10. Subchapter D, Chapter 701, Occupations Code, is
amended by adding Section 701.1535 to read as follows:
Sec. 701.1535. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. (a) The dietitians board shall adopt rules necessary
to comply with Chapter 53.
(b) In its rules under this section, the dietitians board
shall list the specific offenses for which a conviction would
constitute grounds for the board to take action under Section
53.021.
SECTION 11. Subchapter D, Chapter 701, Occupations Code, is
amended by adding Sections 701.159, 701.160, and 701.161 to read as
follows:
Sec. 701.159. DELEGATION TO COMMITTEE. The dietitians
board may delegate a function or activity required by this chapter
to a committee of board members on a permanent or temporary basis if
the board agrees to the delegation.
Sec. 701.160. USE OF TECHNOLOGY. The dietitians board
shall implement a policy requiring the board to use appropriate
technological solutions to improve the board's ability to perform
its functions. The policy must ensure that the public is able to
interact with the board on the Internet.
Sec. 701.161. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The dietitians board shall develop
and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the board's
jurisdiction.
(b) The dietitians board's procedures relating to
alternative dispute resolution must conform, to the extent
possible, to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
(c) The dietitians board shall designate a trained person
to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the board.
SECTION 12. Section 701.203, Occupations Code, is amended
to read as follows:
Sec. 701.203. RECORDS OF COMPLAINTS. (a) The dietitians
board shall maintain a system to promptly and efficiently act on
complaints filed with the board. The board shall maintain:
(1) information about the parties to the complaint and
the subject matter of the complaint;
(2) a summary of the results of the review or
investigation of the complaint; and
(3) information about the disposition of the complaint
[keep an information file about each complaint filed with the
board. The information file must be kept current and contain a
record for each complaint of:
[(1) each person contacted in relation to the
complaint;
[(2) a summary of findings made at each step of the
complaint process;
[(3) an explanation of the legal basis and reason for a
complaint that is dismissed;
[(4) the schedule established for the complaint under
Section 701.204(b) and a notation of any change in the schedule; and
[(5) other relevant information].
(b) The dietitians board shall make information available
describing its procedures for complaint investigation and
resolution.
(c) The dietitians board shall periodically notify the
parties of the status of the complaint until final disposition of
the complaint. [If a written complaint is filed with the dietitians
board that the board or department has authority to resolve, the
board, at least quarterly and until final disposition of the
complaint, shall notify the parties to the complaint of the status
of the complaint unless notice would jeopardize an undercover
investigation.]
SECTION 13. Subchapter E, Chapter 701, Occupations Code, is
amended by adding Section 701.206 to read as follows:
Sec. 701.206. COMPLAINT COMMITTEE. The dietitians board
shall appoint at least one public member to any board committee
established to review a complaint filed with the board or review an
enforcement action against a license holder related to a complaint
filed with the board.
SECTION 14. The heading to Section 701.253, Occupations
Code, is amended to read as follows:
Sec. 701.253. LICENSE EXAMINATION.
SECTION 15. Section 701.253(b), Occupations Code, is
amended to read as follows:
(b) Except as provided by Subsection (f), an applicant must
pass a license [competency] examination to qualify for a license
under this chapter.
SECTION 16. The heading to Section 701.256, Occupations
Code, is amended to read as follows:
Sec. 701.256. LICENSING EXAMINATION RESULTS.
SECTION 17. Section 701.256(a), Occupations Code, is
amended to read as follows:
(a) The department shall notify each examinee of the
licensing examination results not later than the 30th day after the
date the examination is administered. If an examination is graded
or reviewed by a national or state testing service, the department
shall notify each examinee of the examination results not later
than the 14th day after the date the department receives the results
from the testing service.
SECTION 18. Section 701.257, Occupations Code, is amended
to read as follows:
Sec. 701.257. REEXAMINATION FOR LICENSING EXAMINATION. An
applicant who fails the licensing examination three times must
provide evidence to the dietitians board that the applicant has
successfully completed credit hours in the applicant's areas of
weakness before the applicant may apply for reexamination.
SECTION 19. Subchapter F, Chapter 701, Occupations Code, is
amended by adding Section 701.2575 to read as follows:
Sec. 701.2575. JURISPRUDENCE EXAMINATION. (a) The
dietitians board shall develop and administer at least twice each
calendar year a jurisprudence examination to determine an
applicant's knowledge of this chapter, board rules, and any other
applicable laws of this state affecting the applicant's dietetics
practice.
(b) In addition to the license examination required by
Section 701.253, an applicant must pass a jurisprudence examination
to qualify for a license under this chapter.
(c) The dietitians board shall adopt rules to implement this
section, including rules related to the development and
administration of the examination, examination fees, guidelines
for reexamination, grading the examination, and providing notice of
examination results.
SECTION 20. Sections 701.301(a) and (d), Occupations Code,
are amended to read as follows:
(a) A license is valid for two years [one year] after the
date of issuance and may be renewed biennially [annually].
(d) A person whose license has been expired for 90 days or
less may renew the license by paying to the dietitians board [the
required renewal fee and] a fee that is equal to 1-1/4 times [half]
the amount of the renewal [examination] fee for the license. If a
license has been expired for more than 90 days but less than one
year, the person may renew the license by paying to the board [all
unpaid renewal fees and] a fee that is equal to 1-1/2 times the
amount of the renewal fee for the license.
SECTION 21. Subchapter G, Chapter 701, Occupations Code, is
amended by adding Section 701.304 to read as follows:
Sec. 701.304. GROUNDS FOR REFUSING RENEWAL. The dietitians
board may refuse to renew the license of a person who fails to pay an
administrative penalty imposed under Subchapter K, unless
enforcement of the penalty is stayed or a court has ordered that the
administrative penalty is not owed.
SECTION 22. Section 701.401, Occupations Code, is amended
to read as follows:
Sec. 701.401. GROUNDS FOR DISCIPLINARY ACTION. The
dietitians board shall refuse to renew a license, revoke or suspend
a license, place on probation a person whose license has been
suspended, or reprimand a license holder for a violation of this
chapter or a rule or code of ethics adopted by the board.
SECTION 23. Section 701.402(a), Occupations Code, is
amended to read as follows:
(a) If the dietitians board proposes to refuse to renew a
license, revoke, or suspend a person's license, the person is
entitled to a hearing before the board.
SECTION 24. The heading to Subchapter J, Chapter 701,
Occupations Code, is amended to read as follows:
SUBCHAPTER J. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
SECTION 25. Subchapter J, Chapter 701, Occupations Code, is
amended by adding Sections 701.452 and 701.453 to read as follows:
Sec. 701.452. CEASE AND DESIST ORDER. (a) If it appears to
the dietitians board that a person who is not licensed under this
chapter is violating this chapter or a rule adopted under this
chapter, the board after notice and opportunity for a hearing may
issue a cease and desist order prohibiting the person from engaging
in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this chapter.
Sec. 701.453. INJUNCTION. (a) The dietitians board may
apply to a district court in any county for an injunction to
restrain a violation of Section 701.251 by a person.
(b) At the request of the board, the attorney general shall
initiate and conduct an action in a district court in the state's
name to obtain an injunction under this section.
SECTION 26. Section 701.502, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The dietitians board by rule shall adopt an
administrative penalty schedule based on the criteria listed in
Subsection (b) for violations of this chapter or board rules to
ensure that the amounts of penalties imposed are appropriate to the
violation. The board shall provide the administrative penalty
schedule to the public on request.
SECTION 27. Subchapter K, Chapter 701, Occupations Code, is
amended by adding Section 701.512 to read as follows:
Sec. 701.512. REFUND. (a) Subject to Subsection (b), the
dietitians board may order a license holder to pay a refund to a
consumer as provided in an agreement resulting from an informal
settlement conference instead of or in addition to imposing an
administrative penalty under this chapter.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the license holder for a
service regulated by this chapter. The board may not require
payment of other damages or estimate harm in a refund order.
SECTION 28. Sections 701.056(a) and 701.059(d),
Occupations Code, are repealed.
SECTION 29. (a) Not later than January 1, 2006, the Texas
State Board of Examiners of Dietitians shall:
(1) develop and implement the policies required by
Sections 701.160 and 701.161, Occupations Code, as added by this
Act; and
(2) adopt the rules required by Chapter 701,
Occupations Code, as amended by this Act.
(b) Not later than March 1, 2006, the Texas State Board of
Examiners of Dietitians shall develop the jurisprudence
examination required by Section 701.2575, Occupations Code, as
added by this Act.
SECTION 30. (a) The changes in law made by Sections
701.053, 701.055, and 701.059, Occupations Code, as amended by this
Act, regarding the prohibitions on or qualifications of members of
the Texas State Board of Examiners of Dietitians do not affect the
entitlement of a member serving on the board immediately before
September 1, 2005, to continue to serve and function as a member of
the board for the remainder of the member's term. The changes in
law made by those sections apply only to a member appointed on or
after September 1, 2005.
(b) The changes in law made by this Act with respect to
conduct that is grounds for imposition of a disciplinary sanction
or for obtaining an injunction apply only to conduct that occurs on
or after the effective date of this Act. Conduct that occurs before
the effective date of this Act is governed by the law in effect on
the date the conduct occurred, and the former law is continued in
effect for that purpose.
(c) The change in law made by Section 701.2575, Occupations
Code, as added by this Act, regarding the jurisprudence
examination, applies only to an application for a license filed
with the Texas State Board of Examiners of Dietitians under Chapter
701, Occupations Code, as amended by this Act, on or after September
1, 2006.
SECTION 31. Notwithstanding Section 701.301, Occupations
Code, as amended by this Act, the fee for an applicant renewing an
expired license under Chapter 701, Occupations Code, before
September 1, 2007, is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose. An applicant who renews an
expired license under Chapter 701, Occupations Code, on or after
September 1, 2007, is subject to the fees provided by Section
701.301, Occupations Code, as amended by this Act.
SECTION 32. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1155 was passed by the House on April
19, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1155 was passed by the Senate on May
12, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor