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AN ACT
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relating to the regulation of polygraph examiners by the Texas |
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Department of Licensing and Regulation and the abolition of the |
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Polygraph Examiners Board. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1703.003, Occupations Code, is amended |
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by amending Subdivisions (1), (2), and (5) and adding Subdivision |
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(1-a) to read as follows: |
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(1) "Commission" means the Texas Commission of |
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Licensing and Regulation. |
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(1-a) "Committee" ["Board"] means the Polygraph |
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Advisory Committee [Examiners Board]. |
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(2) "Department" means the Texas Department of |
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Licensing and Regulation [Public Safety of the State of Texas]. |
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(5) "Polygraph examiner internship" means a course of |
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study of polygraph examinations and of the administration of |
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polygraph examinations by a trainee under the personal supervision |
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and control of a polygraph examiner as prescribed by the department |
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[board] at the beginning of the internship. |
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SECTION 2. The heading to Subchapter B, Chapter 1703, |
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Occupations Code, is amended to read as follows: |
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SUBCHAPTER B. POLYGRAPH ADVISORY COMMITTEE [EXAMINERS BOARD] |
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SECTION 3. The heading to Section 1703.051, Occupations |
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Code, is amended to read as follows: |
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Sec. 1703.051. COMMITTEE [BOARD] MEMBERSHIP. |
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SECTION 4. Subsections (a), (c), (d), and (e), Section |
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1703.051, Occupations Code, are amended to read as follows: |
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(a) The Polygraph Advisory Committee [Examiners Board] |
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consists of five [seven] members appointed by the presiding officer |
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of the commission, with the approval of the commission, [governor
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with the advice and consent of the senate] as follows: |
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(1) two polygraph examiner members who are qualified |
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polygraph examiners for a governmental law enforcement agency; |
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(2) two polygraph examiner members who are qualified |
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polygraph examiners in the commercial field; and |
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(3) one member [three members] who represents |
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[represent] the public. |
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(c) A polygraph examiner member must[:
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[(1)] be actively engaged as a polygraph examiner on |
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the date of appointment[; and
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[(2)
have been engaged as a polygraph examiner for at
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least five consecutive years before the date of appointment]. |
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(d) Two committee [board] members may not be employed by the |
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same person. |
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(e) Appointments to the committee [board] shall be made |
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without regard to the race, color, disability [creed], sex, |
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religion, or national origin of the appointee. |
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SECTION 5. Section 1703.054, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.054. TERMS; VACANCY. (a) Committee [Board] |
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members serve staggered six-year terms. |
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(b) If a vacancy occurs on the committee [board], the |
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presiding officer of the commission, with the commission's |
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approval, [governor] shall appoint a successor to fill the |
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unexpired term. |
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SECTION 6. Section 1703.055, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.055. PRESIDING OFFICER [OFFICERS]. The presiding |
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officer of the commission, with the commission's approval, [board] |
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shall appoint a member of the committee to serve as [elect from
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among its members a] presiding officer of the committee for a |
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two-year term[, assistant presiding officer, and secretary]. |
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SECTION 7. Subchapter B, Chapter 1703, Occupations Code, is |
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amended by adding Section 1703.058 to read as follows: |
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Sec. 1703.058. COMMITTEE DUTIES. The committee shall |
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advise the commission on: |
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(1) educational requirements for a polygraph |
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examiner; |
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(2) the contents of a licensing examination; |
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(3) technical issues related to a polygraph |
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examination; |
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(4) the specific offenses for which a conviction would |
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constitute grounds for the department to take action under Section |
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53.021; and |
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(5) administering and enforcing this chapter. |
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SECTION 8. Section 1703.202, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.202. LICENSE APPLICATION. An application for a |
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polygraph examiner license must: |
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(1) be made to the department [board's secretary in
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writing under oath] on a form prescribed by the department [board]; |
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(2) be accompanied by the required nonrefundable fee; |
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and |
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(3) include any information the department [board] |
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considers necessary to evaluate the applicant's qualifications. |
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SECTION 9. Section 1703.203, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person |
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is qualified for a polygraph examiner license if the person: |
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(1) has not been convicted of an offense that directly |
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relates to the duties and responsibilities of a polygraph examiner |
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[a misdemeanor involving moral turpitude or a felony]; |
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(2) either: |
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(A) holds a baccalaureate degree from a college |
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or university accredited by an organization designated by the |
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department [board] that the department [board] determines has |
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accreditation standards ensuring a high level of student |
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scholarship; or |
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(B) has active investigative experience during |
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the five years preceding the date of application; |
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(3) either: |
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(A) is a graduate of a department-approved |
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[board-approved] polygraph examiners course and has satisfactorily |
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completed at least six months of a polygraph examiner internship; |
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or |
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(B) has satisfactorily completed at least 12 |
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months of a polygraph examiner internship; and |
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(4) has passed an examination conducted by, [or] under |
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the supervision of, or approved by the department [board] to |
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determine the person's competency for a license. |
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(b) The commission [board] by rule shall establish: |
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(1) the specific offenses that disqualify an applicant |
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under Subsection (a)(1); and |
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(2) the criteria by which the department [board] |
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evaluates an applicant's compliance with the active investigative |
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experience requirement established by Subsection (a)(2)(B). |
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(c) The department [board] shall provide for an examination |
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under this chapter to be administered in three-month intervals. |
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SECTION 10. Section 1703.205, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR |
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INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner |
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license is issued, the person to whom the license is to be issued |
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must provide to the department [board] evidence of a surety bond or |
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insurance policy that: |
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(1) is in the amount of $5,000; and |
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(2) requires the obligor on the bond or policy to pay, |
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to the extent of the face amount of the bond or policy, all |
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judgments recovered against the license holder for any wrongful or |
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illegal act committed by the license holder in the course of |
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administering a polygraph examination. |
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(b) Each license must be [signed by the board members and] |
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issued by [under] the department [board seal]. |
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SECTION 11. Subsections (a) and (c), Section 1703.206, |
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Occupations Code, are amended to read as follows: |
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(a) An applicant for the issuance or renewal of a polygraph |
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examiner license who is not a resident of this state, in addition to |
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meeting all other requirements for a license, must file with the |
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department [board] an irrevocable consent to have: |
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(1) an action against the applicant filed in a court of |
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a county or municipality of this state in which: |
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(A) the plaintiff resides; or |
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(B) a part of the transaction out of which the |
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alleged cause of action arose occurred; and |
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(2) process in the action served on the applicant by |
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leaving two copies of the process with the department [board's
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secretary]. |
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(c) The department [board's secretary] shall immediately |
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send by registered or certified mail a copy of the process to the |
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applicant at the address shown on department [board] records. |
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SECTION 12. Section 1703.207, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The |
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executive director [board] may waive any license requirement for an |
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applicant who holds a license from another state that has license |
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requirements substantially equivalent to those of this state. |
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SECTION 13. Subsections (b), (c), and (d), Section |
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1703.208, Occupations Code, are amended to read as follows: |
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(b) The department may [On board approval, the secretary of
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the board shall] issue a polygraph examiner internship license to |
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an applicant who applies for the license and pays the required fee |
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[at least 10 days before the date the internship begins]. The |
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application must contain any information required by the department |
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[board]. |
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(c) A polygraph examiner internship license expires on the |
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first anniversary of the date of issuance and[. On good cause shown
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to the board, the license] may be [extended or] renewed once [for
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not more than six months]. |
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(d) After the expiration of the original term of a polygraph |
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examiner internship license and any extension or renewal of that |
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license granted by the department [board], a trainee may not hold |
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another internship license before the first anniversary of the date |
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the trainee's previous internship license expired. |
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SECTION 14. Subsection (a), Section 1703.252, Occupations |
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Code, is amended to read as follows: |
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(a) The commission [board] by rule may adopt a system under |
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which polygraph examiner licenses expire on various dates during |
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the year. |
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SECTION 15. Subsection (b), Section 1703.254, Occupations |
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Code, is amended to read as follows: |
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(b) A person eligible for license renewal under Subsection |
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(a) must, before the second anniversary of the date the service, |
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training, or education terminates, pay to the department [board] |
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the required renewal fee and certify [provide] to the department |
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[board an affidavit stating] that: |
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(1) the person was engaged in the service, training, |
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or education; and |
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(2) termination of the service, training, or education |
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occurred under an honorable condition. |
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SECTION 16. Subsection (a), Section 1703.255, Occupations |
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Code, is amended to read as follows: |
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(a) The department [board] may recognize, prepare, or |
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implement continuing education programs for polygraph examiners |
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and trainees. |
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SECTION 17. Section 1703.301, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.301. LICENSE HOLDER INFORMATION. [(a)] A |
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polygraph examiner shall notify the department [secretary of the
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board] in writing of a change in the examiner's principal business |
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location not later than the 30th day after the date the change is |
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made. |
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[(b)
Failure to notify the secretary as required by
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Subsection (a) results in automatic suspension of the examiner's
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license.] |
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SECTION 18. Subsection (b), Section 1703.306, Occupations |
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Code, is amended to read as follows: |
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(b) The department [board] or any other governmental agency |
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that acquires information from a polygraph examination under this |
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section shall maintain the confidentiality of the information. |
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SECTION 19. Subchapter G, Chapter 1703, Occupations Code, |
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is amended by adding Section 1703.307 to read as follows: |
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Sec. 1703.307. INFORMATION INCLUDED IN CONTRACT FOR |
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SERVICES AND WAIVER OF LIABILITY. A written contract for a |
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polygraph examiner's services and a waiver of liability signed by |
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the subject of a polygraph examination must: |
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(1) inform the subject of the procedures to file a |
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complaint against the examiner with the department; and |
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(2) contain the name, mailing address, and telephone |
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number of the department. |
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SECTION 20. Section 1703.351, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION. |
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(a) The department may [board shall] take action authorized under |
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Subsection (b) against an applicant or license holder who: |
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(1) wilfully violates this chapter or a rule adopted |
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under this chapter; |
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(2) violates Section 1703.306(a); |
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(3) wilfully aids or abets another to violate this |
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chapter or a rule adopted under this chapter; |
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(4) allows the person's license issued under this |
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chapter to be used by an unlicensed person in violation of this |
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chapter; |
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(5) makes a material misstatement in an application |
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for the issuance or renewal of a license; |
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(6) makes a wilful misrepresentation or false promise |
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or causes the printing of a false or misleading advertisement to |
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directly or indirectly obtain business or trainees; |
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(7) fails to inform a subject to be examined: |
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(A) of the nature of the examination; and |
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(B) that the subject's participation in the |
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examination is voluntary; |
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(8) fails to inform the subject of an examination of |
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the examination results on request; |
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(9) violates Section 51.151, Family Code; |
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(10) wilfully makes a false report concerning an |
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examination for polygraph examination purposes; |
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(11) fails to provide within a reasonable time |
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information requested by the department [board's secretary] as the |
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result of a formal complaint to the department [board] alleging a |
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violation of this chapter; |
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(12) demonstrates unworthiness or incompetency to act |
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as a polygraph examiner; |
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(13) is convicted of an offense that directly relates |
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to the duties and responsibilities of a polygraph examiner [a
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misdemeanor involving moral turpitude or a felony]; or |
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(14) is found to be incapacitated as provided by the |
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Probate Code. |
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(b) On determining that an applicant or license holder has |
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engaged in an act listed in Subsection (a), the department [board] |
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shall: |
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(1) deny [refuse to issue] a license to the applicant; |
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(2) revoke or suspend the person's license; or |
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(3) reprimand the person. |
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(c) The department [board] may probate a license |
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suspension. |
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SECTION 21. Section 1703.353, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.353. SURRENDER OF LICENSE. [(a)] A license |
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holder whose license is suspended or revoked shall immediately |
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surrender the license to the department [board's secretary]. |
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[(b)
The board's secretary shall restore a suspended or
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revoked license to the license holder on the board's written
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recommendations.] |
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SECTION 22. Section 1703.354, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a |
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polygraph examiner or trainee engages in an unlawful act or a |
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violation of this chapter, the department [board] may not revoke |
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the license of the polygraph examiner who employed the examiner or |
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trainee unless the department [board] is satisfied that the |
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employer wilfully or negligently aided or abetted the examiner or |
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trainee in the unlawful act or violation. |
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SECTION 23. Section 1703.355, Occupations Code, is amended |
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to read as follows: |
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Sec. 1703.355. ADMINISTRATIVE PROCEDURE [JUDICIAL REVIEW]. |
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The administrative procedures under Sections 51.310, 51.353, and |
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51.354 apply to a disciplinary action taken under this chapter. |
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[(a)
A person may appeal an action of the board, including the
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refusal to issue a license to the person or the suspension or
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revocation of the person's license, by timely filing a petition in a
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district court in the county in which the person resides or in
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Travis County.
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[(b)
An appeal of a board action is governed by Chapter
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2001, Government Code.] |
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SECTION 24. Subchapter H, Chapter 1703, Occupations Code, |
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is amended by adding Section 1703.356 to read as follows: |
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Sec. 1703.356. APPEAL. (a) An appeal of a department |
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action under this chapter is governed by Chapter 2001, Government |
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Code. |
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(b) The standard of review is under the substantial evidence |
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rule. |
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SECTION 25. Subsection (a), Section 1703.401, Occupations |
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Code, is amended to read as follows: |
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(a) If a person violates this chapter, the department, |
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[board's secretary, on direction of a majority of the board and] |
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through the attorney general, shall apply in the state's name in |
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district court for an order to enjoin the violation of or to enforce |
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compliance with this chapter. |
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SECTION 26. Subsection (d), Section 411.122, Government |
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Code, is amended to read as follows: |
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(d) The following state agencies are subject to this |
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section: |
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(1) Texas Appraiser Licensing and Certification |
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Board; |
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(2) Texas Board of Architectural Examiners; |
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(3) Texas Board of Chiropractic Examiners; |
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(4) State Board of Dental Examiners; |
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(5) Texas Board of Professional Engineers; |
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(6) Texas Funeral Service Commission; |
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(7) Texas Board of Professional Geoscientists; |
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(8) Department of State Health Services, except as |
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provided by Section 411.110, and agencies attached to the |
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department, including: |
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(A) Texas State Board of Examiners of Dietitians; |
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(B) Texas State Board of Examiners of Marriage |
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and Family Therapists; |
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(C) Midwifery Board; |
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(D) Texas State Board of Examiners of |
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Perfusionists; |
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(E) Texas State Board of Examiners of |
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Professional Counselors; |
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(F) Texas State Board of Social Worker Examiners; |
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(G) State Board of Examiners for Speech-Language |
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Pathology and Audiology; |
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(H) Advisory Board of Athletic Trainers; |
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(I) State Committee of Examiners in the Fitting |
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and Dispensing of Hearing Instruments; |
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(J) Texas Board of Licensure for Professional |
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Medical Physicists; and |
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(K) Texas Board of Orthotics and Prosthetics; |
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(9) Texas Board of Professional Land Surveying; |
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(10) Texas Department of Licensing and Regulation, |
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except as provided by Section 411.093; |
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(11) Texas Commission on Environmental Quality; |
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(12) Texas Board of Occupational Therapy Examiners; |
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(13) Texas Optometry Board; |
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(14) Texas State Board of Pharmacy; |
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(15) Texas Board of Physical Therapy Examiners; |
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(16) Texas State Board of Plumbing Examiners; |
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(17) Texas State Board of Podiatric Medical Examiners; |
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(18) [Polygraph Examiners Board;
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[(19)] Texas State Board of Examiners of |
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Psychologists; |
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(19) [(20)] Texas Real Estate Commission; |
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(20) [(21)] Board of Tax Professional Examiners; |
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(21) [(22)] Texas Department of Transportation; |
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(22) [(23)] State Board of Veterinary Medical |
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Examiners; |
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(23) [(24)] Texas Department of Housing and Community |
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Affairs; |
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(24) [(25)] secretary of state; |
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(25) [(26)] state fire marshal; |
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(26) [(27)] Texas Education Agency; and |
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(27) [(28)] Department of Agriculture. |
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SECTION 27. Subsection (a), Section 2054.352, Government |
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Code, is amended to read as follows: |
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(a) The following licensing entities shall participate in |
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the system established under Section 2054.353: |
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(1) Texas Board of Chiropractic Examiners; |
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(2) Court Reporters Certification Board; |
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(3) State Board of Dental Examiners; |
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(4) Texas Funeral Service Commission; |
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(5) Texas Board of Professional Land Surveying; |
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(6) Texas Medical Board; |
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(7) Texas Board of Nursing; |
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(8) Texas Optometry Board; |
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(9) Department of Agriculture, for licenses issued |
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under Chapter 1951, Occupations Code; |
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(10) Texas State Board of Pharmacy; |
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(11) Executive Council of Physical Therapy and |
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Occupational Therapy Examiners; |
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(12) Texas State Board of Plumbing Examiners; |
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(13) Texas State Board of Podiatric Medical Examiners; |
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(14) Board of Tax Professional Examiners; |
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(15) [Polygraph Examiners Board;
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[(16)] Texas State Board of Examiners of |
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Psychologists; |
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(16) [(17)] State Board of Veterinary Medical |
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Examiners; |
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(17) [(18)] Texas Real Estate Commission; |
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(18) [(19)] Texas Appraiser Licensing and |
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Certification Board; |
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(19) [(20)] Texas Department of Licensing and |
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Regulation; |
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(20) [(21)] Texas State Board of Public Accountancy; |
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(21) [(22)] State Board for Educator Certification; |
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(22) [(23)] Texas Board of Professional Engineers; |
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(23) [(24)] Department of State Health Services; |
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(24) [(25)] Texas Board of Architectural Examiners; |
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(25) [(26)] Texas Racing Commission; |
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(26) [(27)] Commission on Law Enforcement Officer |
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Standards and Education; and |
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(27) [(28)] Texas Private Security Board. |
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SECTION 28. The following laws are repealed: |
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(1) Section 1703.005, Occupations Code; |
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(2) Section 1703.052, Occupations Code; |
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(3) Section 1703.053, Occupations Code; |
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(4) Section 1703.056, Occupations Code; |
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(5) Section 1703.057, Occupations Code; |
|
(6) Subchapters C and D, Chapter 1703, Occupations |
|
Code; |
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(7) Section 1703.204, Occupations Code; |
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(8) Section 1703.253, Occupations Code; and |
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(9) Section 1703.352, Occupations Code. |
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SECTION 29. As soon as possible after the effective date of |
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this Act, the presiding officer of the Texas Commission of |
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Licensing and Regulation shall appoint the members of the Polygraph |
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Advisory Committee in accordance with Chapter 1703, Occupations |
|
Code, as amended by this Act. In making the initial appointments, |
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the presiding officer shall designate two members for terms |
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expiring February 1, 2011, two members for terms expiring February |
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1, 2013, and one member for a term expiring February 1, 2015. |
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SECTION 30. (a) The Polygraph Examiners Board is abolished |
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but continues in existence until January 1, 2010, for the sole |
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purpose of transferring obligations, property, full-time |
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equivalent positions, rights, powers, and duties to the Texas |
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Department of Licensing and Regulation. The department assumes all |
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of the obligations, property, full-time equivalent positions, |
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rights, powers, and duties of the board as it exists immediately |
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before the effective date of this Act. All unexpended funds |
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appropriated to the board are transferred to the department. The |
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transfer of the obligations, property, full-time equivalent |
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positions, rights, powers, and duties of the board to the |
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department must be completed not later than January 1, 2010. |
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(b) All rules of the Polygraph Examiners Board are continued |
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in effect as rules of the Texas Commission of Licensing and |
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Regulation until superseded by a rule of the commission. A license |
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issued by the board is continued in effect as provided by the law in |
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effect immediately before the effective date of this Act. A |
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complaint, investigation, contested case, or other proceeding |
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pending on the effective date of this Act is continued without |
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change in status of the parties after the effective date of this |
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Act. An activity conducted by the board is considered to be an |
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activity conducted by the department. |
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(c) A reference in another law or an administrative rule to |
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the Polygraph Examiners Board means the Texas Department of |
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Licensing and Regulation. |
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(d) Before July 15, 2009, the Department of Public Safety of |
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the State of Texas and the Texas Department of Licensing and |
|
Regulation shall develop and enter into a memorandum of |
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understanding relating to the transfer of functions relating to |
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polygraph examiners from the Department of Public Safety to the |
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Texas Department of Licensing and Regulation as provided by this |
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Act. The memorandum must include a transition plan with a timetable |
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with specific steps and deadlines needed to complete the transfer. |
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SECTION 31. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
|
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I hereby certify that S.B. No. 1005 passed the Senate on |
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April 2, 2009, by the following vote: Yeas 31, Nays 0; and that the |
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Senate concurred in House amendment on May 18, 2009, by the |
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following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 1005 passed the House, with |
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amendment, on May 13, 2009, by the following vote: Yeas 137, |
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Nays 0, one present not voting. |
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Chief Clerk of the House |
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Approved: |
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Governor |