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