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H.B. No. 2036
AN ACT
relating to the regulation of sex offender treatment providers and
the treatment of sex offenders; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1, Health and Safety Code, is amended by
adding Section 1.005 to read as follows:
Sec. 1.005. DEFINITION. In this code, "licensed
practitioner" includes a sex offender treatment provider who is
licensed under Chapter 110, Occupations Code.
SECTION 2. Subchapter B, Chapter 109, Occupations Code, is
amended by adding Section 109.054 to read as follows:
Sec. 109.054. TREATMENT INFORMATION. In this subchapter,
information concerning the treatment of a sex offender includes:
(1) criminal history;
(2) the discharge summary;
(3) the official offense report;
(4) progress reports;
(5) test results;
(6) victim statements; and
(7) any other information necessary for the treatment
of the sex offender.
SECTION 3. Section 110.001, Occupations Code, is amended by
adding Subdivision (3-a) to read as follows:
(3-a) "Executive director" means the executive
director of the council.
SECTION 4. Section 110.051(b), Occupations Code, is amended
to conform to Section 42.01, Chapter 1170, Acts of the 78th
Legislature, Regular Session, 2003, and further amended to read as
follows:
(b) The council consists of seven [six] part-time members,
appointed by the governor with the advice and consent of the senate
as follows:
(1) three [two] representatives of the public; and
(2) four members each of whom meets the requirements
for a license [registration] as a sex offender treatment provider
under this chapter.
SECTION 5. Section 110.052, Occupations Code, is amended to
read as follows:
Sec. 110.052. PUBLIC MEMBERSHIP ELIGIBILITY. A person is
not eligible for appointment as a public member if:
(1) the person meets the requirements for a license
[registration] as a sex offender treatment provider under this
chapter; or
(2) the person or the person's spouse:
(A) is registered, certified, or licensed by an
occupational regulatory agency in the field of sex offender
treatment;
(B) is employed by or participates in the
management of a business entity or other organization regulated by
the council or receiving funds from the council;
(C) owns or controls, directly or indirectly,
more than a 10 percent interest in a business entity or other
organization regulated by the council or receiving funds from the
council; or
(D) uses or receives a substantial amount of
tangible goods, services, or funds from the council, other than
compensation or reimbursement authorized by law for council
membership, attendance, or expenses.
SECTION 6. Section 110.054, Occupations Code, is amended to
conform to Section 42.02, Chapter 1170, Acts of the 78th
Legislature, Regular Session, 2003, to read as follows:
Sec. 110.054. TERMS. Members of the council serve
staggered six-year terms. The terms of two or three members expire
on February 1 of each odd-numbered year.
SECTION 7. Section 110.151, Occupations Code, is amended to
read as follows:
Sec. 110.151. TREATMENT FOR SEX OFFENDERS. The council
shall:
(1) develop treatment strategies for sex offenders by
evaluating in-state and out-of-state programs for sex offender
treatment;
(2) set standards for treatment of sex offenders that
must be met by sex offender treatment providers to be eligible for a
license under this chapter [inclusion in the council's registry];
and
(3) recommend to licensing and regulatory boards and
to the directors of current programs methods of improving programs
to meet council standards.
SECTION 8. Section 110.152, Occupations Code, is amended to
read as follows:
Sec. 110.152. LIST [REGISTRY] AND LICENSE [REGISTRATION]
REQUIREMENTS. The council shall:
(1) maintain a list of sex offender treatment
providers under Section 110.161 [registry]; and
(2) develop and implement by rule under Subchapter G:
(A) license [registration] requirements; and
(B) procedures for sex offender treatment
providers [in the registry].
SECTION 9. Section 110.159(b), Occupations Code, is amended
to read as follows:
(b) Fees charged and collected by the council under this
section may include:
(1) sex offender treatment provider license
[registration] and renewal fees;
(2) training fees;
(3) publication fees; and
(4) fees for providing continuing education and other
services to sex offender treatment providers.
SECTION 10. Section 110.161, Occupations Code, is amended
to read as follows:
Sec. 110.161. PUBLICATION OF LIST [REGISTRY]. (a) The
council shall prepare annually a list of [registered] sex offender
treatment providers.
(b) The council by rule shall establish procedures for
developing and distributing the list of [registered] sex offender
treatment providers.
(c) The council, on request, shall make the list of
[registered] sex offender treatment providers available on payment
of a reasonable fee in an amount sufficient to cover the costs of
printing and distribution.
SECTION 11. Section 110.253, Occupations Code, is amended
to read as follows:
Sec. 110.253. COMPLAINTS. The council by rule shall
establish methods by which consumers and service recipients are
notified of the name, mailing address, and telephone number of the
council for the purpose of directing complaints to the council. The
council may provide for that notice:
(1) on each license [registration] form, application,
or written contract for services of a person regulated under this
chapter;
(2) on a sign prominently displayed in the place of
business of each person regulated under this chapter; or
(3) in a bill for service provided by a person
regulated under this chapter.
SECTION 12. The heading to Subchapter G, Chapter 110,
Occupations Code, is amended to read as follows:
SUBCHAPTER G. SEX OFFENDER TREATMENT PROVIDER LICENSE [REGISTRY]
SECTION 13. Section 110.301, Occupations Code, is amended
to read as follows:
Sec. 110.301. LICENSE [USE OF TITLE; REGISTRATION]
REQUIRED. (a) A person may not provide a rehabilitation service or
act as a sex offender treatment provider unless the person is
licensed under this chapter.
(b) A person may not claim to be a sex offender treatment
provider, or use the title "sex offender treatment provider" or a
similar title or an abbreviation that implies the person is a sex
offender treatment provider, unless the person is licensed under
this chapter [listed in the registry].
SECTION 14. Section 110.302, Occupations Code, is amended
to read as follows:
Sec. 110.302. LICENSE REQUIREMENTS [ELIGIBILITY FOR
REGISTRATION]. (a) The council by rule shall develop procedures
and eligibility and other requirements for issuance of a license
under this chapter [inclusion in the registry], including, if
appropriate, requirements related to clinical practice experience
and assessment, continuing education, and supervision.
(b) In developing the rules, the council shall coordinate
with the Texas Department of Criminal Justice, the Texas Youth
Commission, and the Texas Juvenile Probation Commission.
(c) The Texas Board of Criminal Justice or the governing
board of the Texas Youth Commission may vote to exempt employees of
the Texas Department of Criminal Justice or the Texas Youth
Commission, as appropriate, from a specific licensing requirement
imposed under this section if the board determines that the
requirement causes financial or operational hardship on the agency.
SECTION 15. Section 110.303, Occupations Code, is amended
to read as follows:
Sec. 110.303. LICENSE [REGISTRATION] OF OUT-OF-STATE
APPLICANTS. The council may waive any prerequisite to a license
[registration] for an applicant after reviewing the applicant's
credentials and determining that the applicant holds a valid
license [registration] from another state that has license
[registration] requirements substantially equivalent to those of
this state.
SECTION 16. Section 110.304, Occupations Code, is amended
to read as follows:
Sec. 110.304. CONVICTION OR DEFERRED ADJUDICATION
INFORMATION. The council may receive from a law enforcement agency
information about the conviction or deferred adjudication of a
person who has applied for a license [registration] or renewal of a
license [registration].
SECTION 17. Section 110.305, Occupations Code, is amended
to read as follows:
Sec. 110.305. LICENSE [REGISTRATION] EXPIRATION. (a) The
council by rule may adopt a system under which licenses
[registrations] expire on various dates during the year.
(b) For the year in which the license [registration]
expiration date is changed, license [registration] fees shall be
prorated on a monthly basis so that each person pays only that
portion of the license [registration] fee allocable to the number
of months during which the license [registration] is valid.
(c) On renewal of a license [registration] on the new
expiration date, the total license [registration] renewal fee is
payable.
SECTION 18. Section 110.306, Occupations Code, is amended
to read as follows:
Sec. 110.306. LICENSE [REGISTRATION] RENEWAL REQUIRED. A
person whose license [registration] has expired may not engage in
activities that require a license [registration] until the license
[registration] is renewed.
SECTION 19. Section 110.307, Occupations Code, is amended
to read as follows:
Sec. 110.307. PROCEDURE FOR RENEWAL. (a) Not later than
the 30th day before the expiration date of a person's license
[registration], the council shall send written notice of the
license [registration] expiration to the person at the person's
last known address according to the records of the council.
(b) A person who is otherwise eligible to renew a license
[registration] may renew an unexpired license [registration] by
paying the required license [registration] fee to the council
before the license [registration] expiration date.
(c) A person who is otherwise eligible to renew a license
[registration] and whose license [registration] has been expired
for:
(1) 90 days or less, may renew the license
[registration] by paying to the council a fee equal to one and
one-half times the required renewal fee; and
(2) longer than 90 days but less than one year, may
renew the license [registration] by paying to the council a fee
equal to two times the required renewal fee.
(d) Except as provided by Section 110.308, a person whose
license [registration] has been expired for one year or longer may
not renew the license [registration]. The person may obtain a new
license [registration] by submitting to reexamination and
complying with the requirements and procedures for obtaining an
original license [registration].
SECTION 20. Section 110.308, Occupations Code, is amended
to read as follows:
Sec. 110.308. RENEWAL OF EXPIRED LICENSE [REGISTRATION] BY
OUT-OF-STATE PRACTITIONER. A person whose license [registration]
has been expired for one year or longer may renew the license
[registration] without complying with the requirements of Section
110.307(d) by paying to the council a fee equal to two times the
required renewal fee if the person:
(1) was licensed [registered] in this state;
(2) moved to another state; and
(3) has been licensed [registered] and in practice in
the other state for two years preceding the date of application for
renewal.
SECTION 21. Section 110.309, Occupations Code, is amended
to read as follows:
Sec. 110.309. DENIAL OF LICENSE [REGISTRATION]. The
council may deny an application for a license [registration] if:
(1) the council determines that a previous criminal
conviction or deferred adjudication indicates the applicant is not
qualified or suitable; or
(2) the applicant fails to provide the information
described by Section 110.156(a)(1).
SECTION 22. Section 110.351, Occupations Code, is amended
to read as follows:
Sec. 110.351. DISCIPLINARY POWERS OF COUNCIL. The council
shall revoke, suspend, or refuse to renew a license [registration],
place on probation a person whose license [registration] has been
suspended, or reprimand a person who is licensed under this chapter
[listed in the registry] if the person violates this chapter or a
rule of the council.
SECTION 23. Section 110.352, Occupations Code, is amended
to read as follows:
Sec. 110.352. PROBATION. If the suspension of a person's
license [registration] is probated, the council may require the
person to:
(1) report regularly to the council on matters that
are the basis of the probation;
(2) limit the person's practice to the areas
prescribed by the council; or
(3) continue or review professional education until
the person attains a degree of skill satisfactory to the council in
those areas that are the basis of the probation.
SECTION 24. Section 110.353(a), Occupations Code, is
amended to read as follows:
(a) If the council proposes to revoke, suspend, or refuse to
renew a person's license [registration], the person is entitled to
a hearing conducted by the State Office of Administrative Hearings.
SECTION 25. Subchapter H, Chapter 110, Occupations Code, is
amended to conform to Section 27, Chapter 326, Acts of the 78th
Legislature, Regular Session, 2003, by adding Section 110.354, and
Section 110.354 is further amended to read as follows:
Sec. 110.354. EMERGENCY SUSPENSION. (a) The council or a
three-member committee of council members designated by the council
shall temporarily suspend the license of a person licensed under
this chapter if the council or committee determines from the
evidence or information presented to it that continued practice by
the person would constitute a continuing and imminent threat to the
public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 26. Chapter 110, Occupations Code, is amended to
conform to Section 27, Chapter 326, Acts of the 78th Legislature,
Regular Session, 2003, by adding Subchapter J, and Subchapter J is
further amended to read as follows:
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 110.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The
council may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
Sec. 110.452. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 110.453. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the executive director determines that a violation
occurred, the executive director may issue to the council a report
stating:
(1) the facts on which the determination is based; and
(2) the executive director's recommendation on the
imposition of an administrative penalty, including a
recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
executive director shall give written notice of the report to the
person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 110.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Within 20 days after the date the person receives the notice, the
person in writing may:
(1) accept the determination and recommended
administrative penalty of the executive director; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the executive director, or fails to respond in a timely
manner to the notice, the council by order shall approve the
determination and impose the recommended penalty.
Sec. 110.455. HEARING. (a) If the person requests a
hearing, the executive director shall set a hearing and give
written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the council a proposal
for a decision about the occurrence of the violation and the amount
of a proposed administrative penalty.
Sec. 110.456. DECISION BY COUNCIL. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the council by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the council's order given to the person
must include a statement of the right of the person to judicial
review of the order.
Sec. 110.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the council's order becomes
final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the council's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
executive director by certified mail.
(c) If the executive director receives a copy of an
affidavit under Subsection (b)(2), the executive director may file
with the court, within five days after the date the copy is
received, a contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 110.458. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 110.459. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 110.460. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 110.461. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 27. The heading to Section 110.401, Occupations
Code, is amended to read as follows:
Sec. 110.401. OFFENSE[: MISUSE OF TITLE].
SECTION 28. Section 110.401(b), Occupations Code, is
amended to read as follows:
(b) An offense under this section is a Class A [C]
misdemeanor.
SECTION 29. Chapter 110, Occupations Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. ADULT DYNAMIC RISK ASSESSMENT PILOT PROGRAM
Sec. 110.501. DYNAMIC RISK ASSESSMENT. (a) This section
applies only to adult sex offenders who are treated in a county with
a population of one million or more.
(b) The council shall work directly with the appropriate
entities to develop, implement, research, and deploy dynamic risk
assessment tools and protocols for use under this subchapter by
persons licensed under this chapter. Costs incurred under this
section shall be included with costs required to be paid under
Section 11(i), Article 42.12, Code of Criminal Procedure.
(c) This section expires September 1, 2007.
Sec. 110.502. REPORT AND STUDY ON PILOT PROGRAM. (a) Not
later than November 1, 2006, the council shall report to the
criminal justice division of the governor's office on the progress
of implementing the pilot program under this subchapter. The report
must include information on the program's use of all dynamic risk
assessment tools, including plethysmograph and visual reaction
time assessments, and the use of dynamic risk assessment protocols.
(b) After filing the report, the council shall work with the
Legislative Budget Board to study the recidivism of sex offenders
treated under the pilot program, including a study comparing the
various dynamic risk assessment tools and protocols.
Sec. 110.503. EXPIRATION DATE. This subchapter expires
December 1, 2009.
SECTION 30. Section 411.1388(a), Government Code, is
amended to read as follows:
(a) The [Interagency] Council on Sex Offender Treatment is
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person
who:
(1) is licensed [registered] to provide mental health
or medical services for the rehabilitation of sex offenders under
Chapter 110, Occupations Code [462, Acts of the 68th Legislature,
Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
Statutes)]; or
(2) has applied for a license [registration] or
renewal of a license [registration] to provide mental health or
medical services for the rehabilitation of sex offenders under
Chapter 110, Occupations Code [462, Acts of the 68th Legislature,
Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
Statutes)].
SECTION 31. The following are repealed:
(1) Section 110.001(4), Occupations Code;
(2) Section 27, Chapter 326, Acts of the 78th
Legislature, Regular Session, 2003; and
(3) Sections 42.01 and 42.02, Chapter 1170, Acts of
the 78th Legislature, Regular Session, 2003.
SECTION 32. The changes in law made by this Act to the
qualifications of a member of the Council on Sex Offender Treatment
do not affect the entitlement of a member serving on the council
immediately before the effective date of this Act to continue to
serve as a member for the remainder of the member's term. The
changes in law made by this Act apply only to a member appointed on
or after the effective date of this Act. This Act does not prohibit
a person who is a member of the council on the effective date of this
Act from being reappointed to the council if the person has the
qualifications required for a member under Section 110.051,
Occupations Code, as amended by this Act.
SECTION 33. A person who holds a registration issued under
Chapter 110, Occupations Code, on the effective date of this Act is
considered to hold a license under Chapter 110, Occupations Code,
as amended by this Act. All provisions of Chapter 110, Occupations
Code, including renewal requirements, apply to the person as if the
person was issued a license under that chapter.
SECTION 34. (a) The change in law made by this Act to
Section 110.401, Occupations Code, applies only to an offense
committed on or after the effective date of this Act.
(b) An offense committed before the effective date of this
Act is governed by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
(c) For purposes of this section, an offense is committed
before the effective date of this Act if any element of the offense
occurs before that date.
SECTION 35. To the extent of any conflict, this Act prevails
over another Act of the 79th Legislature, Regular Session, 2005,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 36. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2036 was passed by the House on May 9,
2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2036 was passed by the Senate on May
25, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor