H.B. No. 2696




AN ACT
relating to the licensing and regulation of massage therapy and massage establishments and certain services related to massage; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 455.001, Occupations Code, is amended by amending Subdivisions (1), (2), (3), (5), (6), (7), and (9) and adding Subdivision (11) to read as follows: (1) ["Board" means the Texas Board of Health. [(2)] "Department" means the [Texas] Department of State Health Services. (2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (3) "Instructor" means a person who instructs a student in any section of the course of instruction required for [registration as] a massage therapist license. (5) "Massage establishment" means a place of business that advertises or offers massage therapy or other [offers] massage services. The term includes a place of business that advertises or offers any service described by a derivation of the terms "massage therapy" or "other massage services." [therapy as a service.] (6) "Massage school" means an entity that: (A) teaches at a minimum the course of instruction required for [registration as] a massage therapist license; and (B) has at least two instructors. (7) "Massage therapist" means a person who practices or administers massage therapy or other massage services to a client for compensation. The term includes a licensed [registered] massage therapist, therapeutic massage practitioner, massage technician, masseur, masseuse, myotherapist, body massager, body rubber, or any derivation of those titles. (9) "Massage therapy instructor" means a licensed [registered] massage therapist who provides to one or more students instruction approved by the department in massage therapy. (11) "Other massage services" include any services offered or performed for compensation at a massage establishment that involve physical contact with a client, and may include the use of oil, lubricant, salt glow, a heat lamp, a hot and cold pack, or a tub, shower, jacuzzi, sauna, steam, or cabinet bath. SECTION 2. Section 455.004, Occupations Code, is amended to read as follows: Sec. 455.004. APPLICABILITY OF CHAPTER. This chapter does not apply to: (1) a person licensed in this state as a physician, chiropractor, occupational therapist, physical therapist, nurse, cosmetologist, or athletic trainer or as a member of a similar profession subject to state licensing while the person is practicing within the scope of the license; (2) a school approved by the Texas Education Agency or otherwise approved by the state; or (3) an instructor otherwise approved by the state to teach in an area of study included in the required course of instruction for issuance of [registration as] a massage therapist license. SECTION 3. Section 455.005, Occupations Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows: (b) This chapter does not affect a local regulation that: (1) relates to zoning requirements or other similar regulations for massage establishments; (2) authorizes or requires an investigation into the background of an owner or operator of, or an investor in, a massage establishment; or (3) does not relate directly to the practice of massage therapy as performed by a licensed [registered] massage therapist, including a regulation related to a license holder listed in Section 455.004, while the therapist: (A) performs under the applicable licensing law; and (B) works with a licensed [registered] massage therapist. (d) This chapter may not be construed to limit a municipality's authority to regulate establishments that offer bathing or showering services. SECTION 4. Subchapter B, Chapter 455, Occupations Code, is amended to read as follows:
SUBCHAPTER B. POWERS AND DUTIES OF EXECUTIVE COMMISSIONER
[BOARD]
Sec. 455.051. GENERAL RULEMAKING AUTHORITY. The executive commissioner [board] shall adopt rules consistent with this chapter as necessary for the performance of [its] duties under this chapter. Sec. 455.052. RULES REGARDING MASSAGE ESTABLISHMENTS. Rules adopted under this chapter relating to a massage establishment must contain minimum standards for: (1) the issuance, denial, renewal, suspension, revocation, or probation of a license [certificate of registration] under this chapter; (2) the qualifications of professional personnel; (3) the supervision of professional personnel; (4) the equipment essential to the health and safety of massage establishment personnel and the public; (5) the sanitary and hygienic conditions of a massage establishment; (6) the provision of massage therapy or other massage services by a massage establishment; (7) the records kept by a massage establishment; (8) the organizational structure of a massage establishment, including the lines of authority and the delegation of responsibility; (9) fire prevention and safety in a massage establishment; (10) the inspection of a massage establishment; and (11) any other aspect of the operation of a massage establishment necessary to protect massage establishment personnel or the public. Sec. 455.053. RULES REGARDING MASSAGE SCHOOLS. Rules adopted under this chapter relating to a massage school must contain minimum standards for: (1) the issuance, denial, renewal, suspension, revocation, or probation of a license [certificate of registration] under this chapter; (2) the qualifications of professional personnel; (3) the supervision of professional personnel; (4) the equipment essential to the education, health, and safety of students, massage school personnel, and the public; (5) the sanitary and hygienic conditions of a massage school; (6) the provision of massage therapy or other massage services by a massage school or student; (7) the maximum number of hours a student may accumulate in a massage school's internship program before the student is required to be licensed [register] under this chapter; (8) the educational and clinical records kept by a massage school; (9) the organizational structure of a massage school, including the lines of authority and the delegation of responsibility; (10) fire prevention and safety in a massage school; (11) the massage school's curriculum and educational material; (12) massage school inspections; and (13) any other aspect of the operation of a massage school that the executive commissioner [board] considers necessary to protect students, massage school personnel, or the public. Sec. 455.054. RULES REGARDING MASSAGE THERAPISTS. Rules adopted under this chapter relating to a massage therapist must contain minimum standards for: (1) the issuance, denial, renewal, suspension, revocation, or probation of a license [certificate of registration] under this chapter; (2) the qualifications of a massage therapist; (3) the sanitary and hygienic conditions of the physical environment in which a massage therapist practices massage therapy; (4) the records kept by a massage therapist; (5) the inspection of the records, equipment, and sanitary and hygienic conditions of the physical environment used by a massage therapist in practicing massage therapy; and (6) any other aspect of the practice of a massage therapist necessary to protect the public. Sec. 455.055. RULES REGARDING MASSAGE THERAPY INSTRUCTORS. Rules adopted under this chapter relating to a massage therapy instructor must contain minimum standards for: (1) the issuance, denial, renewal, suspension, revocation, or probation of a license [certificate of registration] under this chapter; (2) the qualifications of a massage therapy instructor; (3) the supervision of a student by a massage therapy instructor; (4) the maximum number of hours a student may accumulate in an internship program under the supervision of a massage therapy instructor before the student is required to be licensed [register] under this chapter; (5) the equipment essential to the education, health, and safety of students and the public; (6) the sanitary and hygienic conditions of the physical environment in which a massage therapy instructor teaches; (7) the provision of massage therapy or other massage services by a student or a massage therapy instructor; (8) the educational and clinical records kept by a massage therapy instructor; (9) the curriculum taught and educational material used by a massage therapy instructor; (10) the inspection of the records, equipment, and physical environment of a massage therapy instructor; and (11) any other aspect of a massage therapy instructor's instruction or operation of any portion of the course of instruction required for [registration as] a massage therapist license. Sec. 455.056. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING [BY REGISTRANT]. (a) The executive commissioner [board] may not adopt rules restricting advertising or competitive bidding by a person licensed [registered] under this chapter except to prohibit false, misleading, or deceptive practices. (b) In [its] rules to prohibit false, misleading, or deceptive practices, the executive commissioner [board] may not include a rule that: (1) restricts the use of any medium for advertising; (2) restricts the use of a licensed [registered] person's personal appearance or voice in an advertisement; (3) relates to the size or duration of an advertisement by the licensed [registered] person; or (4) restricts the licensed [registered] person's advertisement under a trade name. Sec. 455.057. CONTINUING EDUCATION. The executive commissioner [board] shall recognize, prepare, or administer continuing education programs for persons licensed [registered] under this chapter. A licensed [registered] person must participate in the programs to the extent required by the executive commissioner [board] to keep the person's license [certificate of registration]. SECTION 5. Section 455.103(b), Occupations Code, is amended to read as follows: (b) A memorandum must: (1) be adopted by rule; and (2) limit the total amount of the fees charged by the department and the Texas Education Agency for licensing [registering] a massage school to an amount equal to the amount of the fees the department would charge for licensing [registering] the massage school in the absence of the memorandum. SECTION 6. Section 455.104, Occupations Code, is amended to read as follows: Sec. 455.104. INSPECTIONS; INVESTIGATIONS. (a) The department or its authorized representative may enter the premises of an applicant for a license [certificate of registration] or a license [certificate] holder at: (1) reasonable times to conduct an inspection incidental to the issuance of a license [certificate of registration]; and (2) other times that the department considers necessary to ensure compliance with this chapter and the rules adopted under this chapter. (b) A peace officer appointed or employed by a law enforcement agency of a political subdivision of this state may enter the premises of a massage establishment to ensure compliance with this chapter and rules adopted under this chapter. SECTION 7. Subchapter C, Chapter 455, Occupations Code, is amended by adding Section 455.105 to read as follows: Sec. 455.105. REGISTRY. (a) The department shall annually prepare a registry of licensed massage therapists. (b) The department shall make the registry available to the public, license holders, other state agencies, and peace officers. SECTION 8. The heading to Subchapter D, Chapter 455, Occupations Code, is amended to read as follows:
SUBCHAPTER D. LICENSING [REGISTRATION]
SECTION 9. Sections 455.151 and 455.152, Occupations Code, are amended to read as follows: Sec. 455.151. LICENSE [REGISTRATION] REQUIRED. (a) Unless the person is exempt from the licensing [registration] requirement, a person may not act as a massage therapist, massage school, massage therapy instructor, or massage establishment unless the person holds an appropriate license [certificate of registration] issued under this chapter. (b) Unless the person is exempt from the licensing [registration] requirement, a person may not represent that the person is a massage therapist unless the person holds a license [certificate of registration] under this chapter. Sec. 455.152. INELIGIBILITY FOR LICENSE [REGISTRATION]. (a) A person is not eligible for a license [registration] as a massage establishment, massage school, massage therapist, or massage therapy instructor if the person is an individual and has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication for an offense involving prostitution or another sexual offense. (b) A person convicted of a violation of this chapter is ineligible for a license [registration] as a massage establishment, massage school, massage therapist, or massage therapy instructor until the fifth anniversary of the date of the conviction. SECTION 10. Subchapter D, Chapter 455, Occupations Code, is amended by adding Section 455.1525 to read as follows: Sec. 455.1525. CRIMINAL BACKGROUND CHECKS. (a) On receipt of an application for a license under this chapter, the department shall conduct a criminal background check on the applicant. (b) An applicant is not eligible for a license under this chapter if the applicant, in the five years preceding the date of the application, has been finally convicted of a misdemeanor involving moral turpitude or a felony. SECTION 11. Sections 455.153-455.156, Occupations Code, are amended to read as follows: Sec. 455.153. APPLICATION FOR LICENSE [REGISTRATION]. An applicant for a license [registration] under this chapter must: (1) submit an application form provided by the department; and (2) include with the application the application fee set by the department. Sec. 455.154. GENERAL PROVISIONS RELATING TO LICENSES [REGISTRATION]. (a) The holder of a license [certificate of registration] may exercise all professional rights, honors, and privileges relating to the practice of massage therapy. (b) A license [certificate of registration] is the property of the department and must be surrendered on demand. Sec. 455.155. LICENSE [REGISTRATION] EXEMPTION [FOR MASSAGE ESTABLISHMENT]. (a) Section 455.151 does not apply to an establishment or person that: (1) holds a license, permit, certificate, or other credential issued by this state under another law; and (2) offers or performs massage therapy under the scope of that credential. (b) A licensed [registered] massage therapist who practices as a solo practitioner is not required to hold a license [register] as a massage establishment. (c) The executive commissioner [board] by rule shall provide for a fair and reasonable procedure to grant exemptions from the licensing [registration] requirements of this chapter [section]. The rules must provide that a person is exempt if the person shows that the advertising or provision of massage therapy services is incidental to the person's primary enterprise. (d) A sexually oriented business may not: (1) hold a license [register] under this chapter; or (2) operate as a massage establishment under this chapter. Sec. 455.156. LICENSE [REGISTRATION] REQUIREMENTS FOR MASSAGE THERAPIST. (a) The department shall issue a license [certificate of registration] to each qualified applicant who applies for [registration as] a massage [message] therapist license. (b) An applicant for a license [registration] under this section must be an individual and: (1) present evidence satisfactory to the department [board] that the person: (A) has satisfactorily completed massage therapy studies in a 300-hour, supervised course of instruction provided by a massage therapy instructor, a licensed [registered] massage school, a state-approved educational institution, or any combination of instructors or schools, in which: (i) 125 hours are dedicated to the study of Swedish massage therapy techniques and taught by a massage therapy instructor; (ii) 50 hours are dedicated to the study of anatomy; (iii) 25 hours are dedicated to the study of physiology; (iv) 15 hours are dedicated to the study of hydrotherapy; (v) 15 hours are dedicated to the study of business practices and professional ethics standards; (vi) 20 hours are dedicated to the study of health and hygiene; and (vii) 50 hours are spent in an internship program; or (B) has practiced massage therapy as a profession for not less than five years in another state or country that the department determines does not maintain standards and requirements of practice and licensing or registration that substantially conform to the standards and requirements of this state; [and] (2) pass the practical and written portions of the state examination; and (3) be at least 18 years of age. SECTION 12. Sections 455.1565(a) and (d), Occupations Code, are amended to read as follows: (a) Not later than the 30th day after the date a person takes a licensing [registration] examination under this chapter, the department shall notify the person of the results of the examination. (d) If requested in writing by a person who fails a licensing [registration] examination administered under this chapter, the department shall furnish the person with an analysis of the person's performance on the examination. SECTION 13. Sections 455.1571-455.158, Occupations Code, are amended to read as follows: Sec. 455.1571. APPLICANT LICENSED [REGISTERED] IN ANOTHER JURISDICTION. (a) The department [board] may waive any prerequisite to obtaining a license [certificate of registration] for an applicant for licensing [registration] as a massage therapist or massage therapy instructor after reviewing the applicant's credentials and determining that the applicant holds a license or certificate of registration issued by another jurisdiction that has licensing or registration requirements substantially equivalent to those of this state. (b) The department [board] may waive any prerequisite to obtaining a license [certificate of registration] for an applicant for licensing [registration] as a massage therapist or massage therapy instructor who holds a license or certificate of registration issued by another jurisdiction with which this state has a reciprocity agreement. The department [board] may make an agreement, subject to the approval of the governor, with another state to allow for licensing [registration] by reciprocity. Sec. 455.1572. PROVISIONAL LICENSE [REGISTRATION]. (a) The department [board] may issue a provisional license [certificate of registration] to an applicant for licensing [registration] as a massage therapist or massage therapy instructor currently licensed or registered in another jurisdiction who seeks a license [certificate of registration] in this state and who: (1) has been licensed or registered in good standing as a massage therapist or massage therapy instructor, as applicable, for at least two years in another jurisdiction, including a foreign country, that has licensing or registration requirements substantially equivalent to the requirements of this chapter; (2) has passed a national or other examination recognized by the department [board] relating to the practice of massage therapy; and (3) is sponsored by a person licensed [registered] by the department [board] under this chapter with whom the provisional license holder [registrant] will practice during the time the person holds a provisional license [certificate of registration]. (b) The department [board] may waive the requirement of Subsection (a)(3) for an applicant if the department [board] determines that compliance with that subsection would be a hardship to the applicant. (c) A provisional license [certificate of registration] is valid until the date the department [board] approves or denies the provisional license [certificate] holder's application for licensing [registration]. The department [board] shall issue a license [certificate of registration] under this chapter to the provisionally licensed [registered] person if the person: (1) is eligible for a license [certificate of registration] under Section 455.1571; or (2) passes the part of the examination under Section 455.101 that relates to the applicant's knowledge and understanding of the laws and rules relating to the practice of massage therapy in this state and: (A) the department [board] verifies that the person meets the academic and experience requirements for licensing [registration] under this chapter; and (B) the person satisfies any other licensing [registration] requirements under this chapter. (d) The department [board] must approve or deny a provisionally licensed [registered] person's application for a license [certificate of registration] not later than the 180th day after the date the provisional license [certificate of registration] is issued. The department [board] may extend the 180-day period if the results of an examination have not been received by the department [board] before the end of that period. (e) The department [board] may establish a fee for a provisional license [certificate of registration] in an amount reasonable and necessary to cover the cost of issuing the license [certificate of registration]. Sec. 455.158. STUDENT EXEMPTION FROM LICENSING [REGISTRATION] REQUIREMENTS. A student who provides massage therapy as part of an internship program or without compensation is exempt from licensing [registration] under this chapter if the student is enrolled in a state-approved course of instruction that consists of at least 300 hours. SECTION 14. Section 455.159(a), Occupations Code, is amended to read as follows: (a) An internship program must: (1) meet the qualifications established by the department [board]; (2) provide a student with a minimum of 40 hours of hands-on massage therapy experience; and (3) be conducted on the school grounds or in a clinic or classroom setting provided by the massage school or massage therapy instructor. SECTION 15. Sections 455.160 and 455.161, Occupations Code, are amended to read as follows: Sec. 455.160. LICENSE [REGISTRATION] RENEWAL. (a) A person licensed [registered] under this chapter must periodically renew the person's license [certificate of registration]. The license [certificate] expires unless the license [certificate] holder submits an application for renewal accompanied by the renewal fee prescribed by the department or by the late fee prescribed by this section. (b) The department shall adopt a system under which licenses [certificates of registration] expire on various dates during the year. Fees must be prorated so that a licensed [registered] person pays only for that part of the renewal period for which the license [registration] is issued until the expiration date of the license [registration]. (c) A person who is otherwise eligible to renew a license [certificate of registration] may renew an unexpired license [registration] by paying the required renewal fee to the department before the expiration date of the license [registration]. A person whose license [registration] has expired may not engage in activities that require a license [registration] until the license [registration] has been renewed. (d) A person whose license [registration] has been expired for 90 days or less may renew the license [registration] by paying to the department a renewal fee that is equal to 1-1/2 times the normally required renewal fee. (e) A person whose license [registration] has been expired for more than 90 days but less than one year may renew the license [registration] by paying to the department a renewal fee that is equal to two times the normally required renewal fee. (f) A person whose license [registration] has been expired for one year or more may not renew the license [registration]. The person may obtain a license [register] by complying with the requirements and procedures, including the examination requirements, for obtaining a new license [originally registering]. (g) Not later than the 30th day before the date a person's license [registration] is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department. (h) On receipt of a request for a renewal of a license issued under this chapter, the department may conduct a criminal background check under Section 455.1525. Sec. 455.161. RENEWAL OF EXPIRED LICENSE [REGISTRATION] OF OUT-OF-STATE PRACTITIONER. (a) A person who was registered or licensed in this state, moved to another state, and is currently registered or licensed and has been in practice in the other state for the two years preceding the date of application may obtain a license [register] without reexamination. (b) The person must pay to the department a fee that is equal to two times the normally required license renewal fee [for registration]. SECTION 16. The heading to Subchapter E, Chapter 455, Occupations Code, is amended to read as follows:
SUBCHAPTER E. PRACTICE BY LICENSE [CERTIFICATE] HOLDERS
SECTION 17. Sections 455.201 and 455.202, Occupations Code, are amended to read as follows: Sec. 455.201. REFERRAL FROM PHYSICIAN. A person issued a license [certificate of registration] may receive referrals from a physician to administer massage therapy. Sec. 455.202. PRACTICE BY MASSAGE ESTABLISHMENT. (a) A massage establishment may employ only licensed [registered] massage therapists to perform massage therapy or other massage services. (b) A massage establishment may not: (1) employ an individual who is not a United States citizen or a legal permanent resident with a valid work permit; (2) employ a minor unless the minor's parent or legal guardian authorizes in writing the minor's employment by the establishment; (3) allow a nude or partially nude employee to provide massage therapy or other massage services to a customer; (4) allow any individual, including a client, student, license holder, or employee, to engage in sexual contact in the massage establishment; or (5) allow any individual, including a student, license holder, or employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual. (c) A massage establishment shall: (1) properly maintain and secure for each client the initial consultation documents, all session notes, and related billing records; and (2) make available to the department on request the information kept as provided by Subdivision (1). (d) For purposes of this section: (1) "Nude" means a person who is: (A) entirely unclothed; or (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts or any portion of the genitals or buttocks. (2) "Sexual contact" includes: (A) any touching of any part of the genitalia or anus; (B) any touching of the breasts of a female without the written consent of the female; (C) any offer or agreement to engage in any activity described in Paragraph (A) or (B); (D) kissing without the consent of both persons; (E) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotions of prostitution as described in Chapters 21, 22, and 43, Penal Code, or any offer or agreement to engage in such activities; (F) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or (G) inappropriate sexual comments about or to a client, including sexual comments about a person's body. SECTION 18. Sections 455.203(a), (b), and (c), Occupations Code, are amended to read as follows: (a) A massage school must meet the minimum standards of operation established by executive commissioner [board] rule. (b) An instructor must meet the minimum requirements established by executive commissioner [board] rule. (c) A massage school or massage therapy instructor licensed [registered] under this chapter shall give each prospective student a notice that clearly states the number of course hours that the student must successfully complete before the student is eligible to hold [register as] a massage therapist license under this chapter. SECTION 19. Section 455.204, Occupations Code, is amended to read as follows: Sec. 455.204. DISPLAY OF LICENSE [CERTIFICATE]. (a) A person who holds a license [certificate of registration] shall publicly display the license [certificate] as specified by the department [board]. (b) Each massage establishment must post in plain sight the license [certificate of registration] for each massage therapist who practices in the massage establishment. (c) Each massage school, massage establishment, massage therapy instructor, or massage therapist shall present the person's license [certificate of registration] on the request of the department, an authorized representative of the department, or a peace officer. SECTION 20. Section 455.205, Occupations Code, is amended by amending Subsections (b), (c), and (d) and adding Subsection (e) to read as follows: (b) A massage school or a massage therapy instructor may not require the successful completion of more course hours than the number of hours required for licensing [registration] as a massage therapist under this chapter. (c) A person who is not licensed [registered] under this chapter may not use the word "massage" on any form of advertising unless the person is expressly exempt from the licensing [registration] requirements of this chapter. (d) A sexually oriented business may not use the word "massage" or "bath" on a sign or any form of advertising. (e) A person advertising massage therapy or other massage services is presumed to be engaging in conduct regulated by this chapter. SECTION 21. Subchapter E, Chapter 455, Occupations Code, is amended by adding Section 455.206 to read as follows: Sec. 455.206. ESTABLISHMENT CHANGE OF LOCATION PROHIBITED. A massage establishment may not change the location of the establishment without obtaining a new massage establishment license under this chapter. SECTION 22. The heading to Subchapter F, Occupations Code, is amended to read as follows:
SUBCHAPTER F. LICENSE [REGISTRATION] DENIAL OR
DISCIPLINARY PROCEDURES
SECTION 23. Section 455.251, Occupations Code, is amended to read as follows: Sec. 455.251. GROUNDS FOR LICENSE [REGISTRATION] DENIAL OR DISCIPLINARY ACTION. (a) The department [board] may refuse to issue a license [certificate of registration] to a person and shall suspend, revoke, or refuse to renew the license [certificate of registration] of a person or shall reprimand a person licensed [registered] under this chapter if the person: (1) obtains a license [certificate of registration] by fraud, misrepresentation, or concealment of material facts; (2) sells, barters, or offers to sell or barter a license [certificate of registration]; (3) violates a rule adopted by the executive commissioner [board]; (4) engages in unprofessional conduct as defined by executive commissioner [board] rule that endangers or is likely to endanger the health, welfare, or safety of the public; (5) violates an order or ordinance adopted by a political subdivision under Chapter 243, Local Government Code; or (6) violates this chapter. (b) The department shall revoke the license [certificate of registration] of a person licensed [registered] as a massage therapist or massage therapy instructor if: (1) the person is convicted of, enters a plea of nolo contendere or guilty to, or receives deferred adjudication for an offense involving prostitution or another sexual offense; or (2) the department determines the person has practiced or administered massage therapy at or for a sexually oriented business. (c) The department shall revoke the license [certificate of registration] of a person licensed [registered] as a massage school or massage establishment if the department determines that: (1) the school or establishment is a sexually oriented business; or (2) an offense involving prostitution or another sexual offense that resulted in a conviction for the offense, a plea of nolo contendere or guilty to the offense, or a grant of deferred adjudication for the offense occurred on the premises of the school or establishment. SECTION 24. Section 455.252(a), Occupations Code, is amended to read as follows: (a) A person whose application for a license [certificate of registration] is denied, whose license [certificate of registration] is suspended or revoked, or who has been reprimanded is entitled to a hearing before the department if the person submits a written request to the department. SECTION 25. Section 455.253, Occupations Code, is amended to read as follows: Sec. 455.253. PROBATION. The department [board] may place on probation a person, including a massage school, massage therapy instructor, or massage establishment, whose license [certificate of registration] is suspended. If a license [registration] suspension is probated, the department [board] may require the person to: (1) report regularly to the department on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the department [board]; or (3) continue or review professional education until the person attains a degree of skill satisfactory to the department [board] in those areas that are the basis of the probation. SECTION 26. Sections 455.254(a) and (b), Occupations Code, are amended to read as follows: (a) The department shall temporarily suspend the license [certificate of registration] of a license [certificate] holder if the department determines from the evidence or information presented to it that continued practice by the license [certificate] holder would constitute a continuing and imminent threat to the public welfare. (b) A license [certificate of registration] 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. SECTION 27. Section 455.304(b), Occupations Code, is amended to read as follows: (b) If the person accepts the department's determination, the executive commissioner [of public health] or the commissioner's designee by order shall approve the determination and require the person to pay the recommended penalty. SECTION 28. Section 455.305(b), Occupations Code, is amended to read as follows: (b) The hearings examiner shall: (1) make findings of fact and conclusions of law; and (2) promptly issue to the executive commissioner [of public health] or the commissioner's designee a proposal for decision as to the occurrence of the violation, and, if the examiner determines a penalty is warranted, the amount of the proposed administrative penalty. SECTION 29. Section 455.306, Occupations Code, is amended to read as follows: Sec. 455.306. DECISION BY EXECUTIVE COMMISSIONER. (a) Based on the findings of fact, conclusions of law, and recommendations of the hearings examiner, the executive commissioner [of public health] or the commissioner's designee by order may determine that: (1) a violation occurred and may impose an administrative penalty; or (2) a violation did not occur. (b) The department shall give notice of the order to the person. The notice must include: (1) separate statements of the findings of fact and conclusions of law; (2) the amount of any penalty imposed; and (3) a statement of the right of the person to judicial review of the order. SECTION 30. Section 455.310(b), Occupations Code, is amended to read as follows: (b) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the executive commissioner [of public health] or the commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of expenses and costs. SECTION 31. Sections 455.351(a) and (b), Occupations Code, are amended to read as follows: (a) The attorney general, a district or county attorney, a municipal attorney, or the department may institute an action for injunctive relief to restrain a violation by a person who: (1) appears to be in violation of or threatening to violate this chapter or a rule adopted [by the board] under this chapter; or (2) is operating an establishment that offers massage therapy or other massage services regulated by this chapter and is not licensed under this chapter. (b) The attorney general, a district or county attorney, a municipal attorney, or the department may institute an action to collect a civil penalty from a person who appears to be in violation of this chapter or a rule adopted [by the board] under this chapter. The amount of a civil penalty shall be not less than $1,000 [$100] or more than $10,000 [$1,000] for each violation. SECTION 32. Section 455.352, Occupations Code, is amended by amending Subsections (a), (b), and (d) and adding Subsection (a-1) to read as follows: (a) A person commits an offense if the person is required to be licensed [registered] under this chapter and the person: (1) knowingly violates Section 455.151, 455.159, 455.202(b) [455.202], 455.203(a) or (c), 455.204(b) or (c), or 455.205(b), (c), or (d) [455.205]; or (2) collects a fee or any other form of compensation for massage therapy without being licensed [registered] under this chapter. (a-1) A person commits an offense if the person is required to be licensed under this chapter and the person knowingly violates Section 455.205(a). An offense under this subsection is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this subsection, in which event it is a Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this subsection, the offense is a state jail felony. (b) An owner or operator of a massage establishment commits an offense if the person knowingly violates Section 455.151(a), 455.155(d), 455.202(a) [455.202], 455.204(b) or (c), or 455.205(d) [455.205 (c) or (d)]. An offense under this subsection is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this subsection, in which event it is a Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this subsection, the offense is a state jail felony. (d) Except as provided by Subsections (a-1), (b), and [Subsection] (e), an offense under this section is a Class C misdemeanor. SECTION 33. Section 411.110, Government Code, is amended to read as follows: Sec. 411.110. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: [TEXAS] DEPARTMENT OF STATE HEALTH SERVICES. (a) The [Texas] Department of State Health Services is entitled to obtain from the department criminal history record information maintained by the department that relates to: (1) a person who is: (A) [(1)] an applicant for a license or certificate under the Emergency Medical Services Act (Chapter 773, Health and Safety Code); (B) [(2)] an owner or manager of an applicant for an emergency medical services provider license under that Act; or (C) [(3)] the holder of a license or certificate under that Act; or (2) an applicant for a license, the owner or manager of an applicant for a massage establishment license, or a license holder under Chapter 455, Occupations Code. (b) Criminal history record information obtained by the [Texas] Department of State Health Services under Subsection (a) may not be released or disclosed to any person except on court order, with the written consent of the person or entity that is the subject of the criminal history record information, or as provided by Subsection (e). (c) After an entity is licensed or certified, the [Texas] Department of State Health Services shall destroy the criminal history record information that relates to that entity. (d) The Department of State Health Services [Texas Board of Health] shall destroy criminal history record information that relates to an applicant that is not certified. (e) The Department of State Health Services [Texas Board of Health] is not prohibited from disclosing criminal history record information obtained under Subsection (a) in a criminal proceeding or in a hearing conducted by the [Texas] Department of State Health Services. SECTION 34. Sections 455.102 and 455.157, Occupations Code, are repealed. SECTION 35. (a) Not later than December 31, 2005, the Department of State Health Services shall prescribe the forms and procedures and the executive commissioner of the Health and Human Services Commission shall adopt the rules that are necessary to implement Chapter 455, Occupations Code, as amended by this Act. (b) The changes in law made by this Act with regard to the requirements for issuing a license under Chapter 455, Occupations Code, apply only to an application filed with the Department of State Health Services on or after January 1, 2006. An application filed before that date is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose. (c) The Department of State Health Services shall treat a person who holds a certificate of registration under Chapter 455, Occupations Code, immediately before the effective date of this Act, as if the person holds a license under Chapter 455, Occupations Code, as amended by this Act. A person who holds a certificate of registration under Chapter 455, Occupations Code, on the effective date of this Act is entitled to issuance of a license on expiration of the certificate of registration if the person otherwise meets the requirements for renewal of a license. (d) A person who holds a certificate of registration under Chapter 455, Occupations Code, immediately before the effective date of this Act, or is issued a certificate of registration under Subsection (b) of this section, and otherwise complies with Chapter 455 is not subject to disciplinary action or penalties, including a criminal penalty under Section 455.352, Occupations Code, as amended by this Act, for failure to hold a license under Chapter 455 until the certificate of registration's expiration date. SECTION 36. The change in law made by this Act to Section 455.351, Occupations Code, regarding a violation of Chapter 455, Occupations Code, or the rules adopted under that chapter, applies only to a violation that occurs on or after the effective date of this Act. A violation of Chapter 455, Occupations Code, that occurs before the effective date of this Act is governed by the law in effect on the date the violation occurred, and the former law is continued in effect for that purpose. SECTION 37. (a) The change in law made by this Act to Section 455.352, Occupations Code, applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. (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. SECTION 38. This Act takes effect September 1, 2005. ______________________________ ______________________________ President of the Senate Speaker of the House I certify that H.B. No. 2696 was passed by the House on May 10, 2005, by a non-record vote. ______________________________ Chief Clerk of the House I certify that H.B. No. 2696 was passed by the Senate on May 25, 2005, by the following vote: Yeas 31, Nays 0. ______________________________ Secretary of the Senate APPROVED: _____________________ Date _____________________ Governor