H.B. No. 1283
AN ACT
relating to the continuation and functions of the Texas State Board
of Examiners of Professional Counselors; providing an
administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 503.002, Occupations Code, is amended by
adding Subdivision (1-a) and amending Subdivision (2) to read as
follows:
(1-a) "Commissioner" means the commissioner of the
department.
(2) "Department" means the [Texas] Department of State
Health Services.
SECTION 2. Section 503.005, Occupations Code, is amended to
read as follows:
Sec. 503.005. APPLICATION OF SUNSET ACT. The Texas State
Board of Examiners of Professional Counselors is subject to Chapter
325, Government Code (Texas Sunset Act). Unless continued in
existence as provided by that chapter, the board is abolished
September 1, 2017 [2005].
SECTION 3. Section 503.101, Occupations Code, is amended to
read as follows:
Sec. 503.101. BOARD MEMBERSHIP. (a) The Texas State Board
of Examiners of Professional Counselors consists of nine members
appointed by the governor with the advice and consent of the senate
as follows:
(1) five licensed professional counselor members, at
least three of whom are in private practice and at least one of whom
is a counselor educator; and
(2) four members who represent the public.
(b) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointee.
SECTION 4. Section 503.103, Occupations Code, is amended to
read as follows:
Sec. 503.103. ELIGIBILITY OF PUBLIC MEMBERS. A person is
not eligible for appointment as a public member of the board if:
(1) the person [or the person's spouse:
[(1)] is registered, certified, or licensed by an
occupational regulatory agency in the field of health care;
(2) the person's spouse is registered, certified, or
licensed by an occupational regulatory agency in the field of
mental health; or
(3) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization receiving
funds from the board;
(B) [(3)] owns or controls, directly or
indirectly, more than a 10 percent interest in a business entity or
other organization receiving funds from the board; or
(C) [(4)] uses or receives a substantial amount
of funds from the board, other than compensation or reimbursement
authorized by law for board membership, attendance, or expenses.
SECTION 5. Section 503.104, Occupations Code, is amended to
read as follows:
Sec. 503.104. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)
In this section, "Texas trade association" means a [nonprofit,]
cooperative[,] and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
(b) A person [An officer, employee, or paid consultant of a
Texas trade association in the field of health care] may not be a
member of the board and may not be a department [an] employee
employed in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an
exemption to the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:
(1) the person is an officer, employee, manager, or
paid consultant of a Texas trade association in the field of health
care; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of mental
health [of the department who carries out the functions of the board
who is exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule].
(c) [A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of health
care may not be a member of the board and may not be an employee of
the department who carries out the functions of the board who is
exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule.
[(d)] A person may not be [serve as] a member of the board or
act as the general counsel to the board or the department if the
person is required to register as a lobbyist under Chapter 305,
Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the board.
SECTION 6. Sections 503.107(a) and (c), Occupations Code,
are amended to read as follows:
(a) It is a ground for removal from the board that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 503.102 [for
appointment to the board];
(2) does not maintain during the service on the board
the qualifications required by Section 503.102 [for appointment to
the board];
(3) is ineligible for membership under [violates a
prohibition established by] Section 503.103 or [Section]
503.104[(b) or (c)];
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved by a [unless the
absence is excused by] majority vote of the board.
(c) If the executive director has knowledge that a potential
ground for removal [of a board member] exists, the executive
director shall notify the presiding officer of the board of the
potential ground. The presiding officer shall then notify the
governor and the attorney general that a potential ground for
removal exists. If the potential ground for removal involves the
presiding officer, the executive director shall notify the next
highest ranking officer of the board, who shall then notify the
governor and attorney general that a potential ground for removal
exists.
SECTION 7. Section 503.108, Occupations Code, is amended to
read as follows:
Sec. 503.108. [PER DIEM;] REIMBURSEMENT. [(a) A board
member is entitled to a per diem as set by the General
Appropriations Act for each day the member engages in the business
of the board.
[(b)] A board member may receive reimbursement for expenses
as provided by the General Appropriations Act.
SECTION 8. Sections 503.110(a), (b), and (c), Occupations
Code, are amended to read as follows:
(a) A person who is appointed to and qualifies for office as
a member of the [Before a] board may not vote, deliberate, or be
counted as a member in attendance at a meeting until the person
completes [member may assume the member's duties and before the
member may be confirmed by the senate, the member must complete at
least one course of] a training program that complies with
[established by the board under] this section.
(b) The training program must provide the person with
information [to a participant] regarding:
(1) this chapter and the board's programs, functions,
rules, and budget;
(2) [the programs operated by the board;
[(3) the role and functions of the board;
[(4) the rules of the board, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
[(5) the current budget for the board;
[(6)] the results of the most recent formal audit of
the board;
(3) [(7)] the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts-of-interest; and
(4) [Chapters 551, 552, 2001, and 2002, Government
Code;
[(8) the requirements of the conflict of interest laws
and other laws relating to public officials; and
[(9)] any applicable ethics policies adopted by the
board or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office [In developing the
training program, the board shall consult with the governor, the
attorney general, and the Texas Ethics Commission].
SECTION 9. Section 503.154, Occupations Code, is amended to
read as follows:
Sec. 503.154. DIVISION OF RESPONSIBILITIES. The board
shall develop and implement policies that clearly separate [define]
the policymaking [respective] responsibilities of the board and the
management responsibilities of the executive director and staff of
the department [board].
SECTION 10. Subchapter E, Chapter 503, Occupations Code, is
amended by adding Section 503.2045 to read as follows:
Sec. 503.2045. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. (a) The board shall adopt rules necessary to comply
with Chapter 53.
(b) In its rules under this section, the board shall list
the specific offenses for which a conviction would constitute
grounds for the board to take action under Section 53.021.
SECTION 11. Section 503.205, Occupations Code, is amended
to read as follows:
Sec. 503.205. DELEGATION TO [INDIVIDUAL MEMBER OR]
COMMITTEE. The board may delegate a function or activity required
by this chapter [to an individual board member or] to a committee of
board members on a permanent or temporary basis if[:
[(1)] the board agrees to the delegation[; and
[(2) the person clearly possesses the professional
and personal qualifications to carry out the delegation].
SECTION 12. Subchapter E, Chapter 503, Occupations Code, is
amended by adding Sections 503.210 and 503.211 to read as follows:
Sec. 503.210. USE OF TECHNOLOGY. The board shall implement
a policy requiring the board to use appropriate technological
solutions to improve the board's ability to perform its functions.
The policy must ensure that the public is able to interact with the
board on the Internet.
Sec. 503.211. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The board shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the board's
jurisdiction.
(b) The board's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
for the use of alternative dispute resolution by state agencies.
(c) The board shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the board.
SECTION 13. Section 503.253, Occupations Code, is amended
to read as follows:
Sec. 503.253. RECORDS OF COMPLAINTS. (a) The board shall
maintain a system to promptly and efficiently act on complaints
filed with the board. The board shall maintain:
(1) information about the parties to the complaint and
the subject matter of the complaint;
(2) a summary of the results of the review or
investigation of the complaint; and
(3) information about the disposition of the complaint
[keep an information file about each complaint filed with the
board. The information file must be kept current and contain a
record for each complaint of:
[(1) each person contacted in relation to the
complaint;
[(2) a summary of findings made at each step of the
complaint process;
[(3) an explanation of the legal basis and reason for
dismissal of a complaint;
[(4) the schedule established for the complaint under
Section 503.255 and a notation of any change in the schedule; and
[(5) other relevant information].
(b) The board shall make information available describing
its procedures for complaint investigation and resolution.
(c) The board shall periodically notify the parties of the
status of the complaint until final disposition of the
complaint [If a written complaint is filed with the board that the
board has authority to resolve, the board, at least quarterly and
until final disposition of the complaint, shall notify the parties
to the complaint of the status of the complaint unless the notice
would jeopardize an undercover investigation].
SECTION 14. Subchapter F, Chapter 503, Occupations Code, is
amended by adding Section 503.2555 to read as follows:
Sec. 503.2555. COMPLAINT COMMITTEE. The board shall
appoint at least one public member to any board committee
established to review a complaint filed with the board or review an
enforcement action against a license holder related to a complaint
filed with the board.
SECTION 15. Section 503.302(a), Occupations Code, is
amended to read as follows:
(a) A person qualifies for a license under this chapter if
the person:
(1) is at least 18 years old;
(2) has a master's or doctoral degree in counseling or
a related field;
(3) has successfully completed a graduate degree at a
regionally accredited institution of higher education and the
number of [a planned graduate program of 48] graduate semester
hours required by board rule, which may not be less than 48 hours
and must include [including] 300 clock hours of supervised
practicum that:
(A) is primarily counseling in nature; and
(B) meets the specific academic course content
and training standards established by the board;
(4) has completed the number of supervised experience
hours required by board rule, which may not be less than [36 months
or] 3,000 hours [of supervised experience] working in a counseling
setting that meets the requirements established by the board after
the completion of the graduate program described by Subdivision
(3);
(5) except as provided by Subsection (b), passes the
license examination and jurisprudence examination required by this
chapter;
(6) submits an application as required by the board,
accompanied by the required application fee; and
(7) meets any other requirement prescribed by the
board.
SECTION 16. Section 503.305(b), Occupations Code, is
amended to read as follows:
(b) The [As determined by the] board shall contract with a
nationally recognized testing organization to develop and
administer a written professional counselor licensing examination
to applicants who apply for a license under this chapter [for each
applicant, the license examination may be:
[(1) a field examination using questionnaires
answered by the applicant's instructors, employers, supervisors,
references, and others who are competent, in the board's judgment,
to evaluate the applicant's professional competence; or
[(2) another type of examination as prescribed by the
board].
SECTION 17. Subchapter G, Chapter 503, Occupations Code, is
amended by adding Section 503.3055 to read as follows:
Sec. 503.3055. JURISPRUDENCE EXAMINATION. (a) The board
shall develop and administer at least twice each calendar year a
jurisprudence examination to determine an applicant's knowledge of
this chapter, board rules, and any other applicable laws of this
state affecting the applicant's professional counseling practice.
(b) The board shall adopt rules to implement this section,
including rules related to the development and administration of
the examination, examination fees, guidelines for reexamination,
grading the examination, and providing notice of examination
results.
SECTION 18. Section 503.306, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) Notwithstanding the other provisions of this section,
the board may notify an applicant of the applicant's examination
results in the manner provided in a contract between the board and a
testing organization selected by the board under Section 503.305.
SECTION 19. Section 503.310(b), Occupations Code, is
amended to read as follows:
(b) An applicant for a provisional license must:
(1) be licensed in good standing as a counselor or art
therapist in another state, territory, or jurisdiction that has
licensing requirements substantially equivalent to the
requirements of this chapter;
(2) have passed the required license [a national or
other] examination [recognized by the board relating to counseling
or art therapy]; and
(3) be sponsored by a person licensed under this
chapter with whom the applicant may practice under a provisional
license.
SECTION 20. Section 503.351, Occupations Code, is amended
to read as follows:
Sec. 503.351. [ANNUAL] RENEWAL; ELIGIBILITY. A person
licensed under this chapter may renew the license biennially
[annually] if the person:
(1) is not in violation of this chapter when the person
applies for renewal; and
(2) fulfills the continuing education requirements
established by the board.
SECTION 21. Sections 503.354(c) and (d), Occupations Code,
are amended to read as follows:
(c) A person whose license has been expired for 90 days or
less may renew the license by paying to the board [the required
renewal fee and] a fee that is equal to 1-1/4 times [half of] the
amount of the renewal [license examination] fee.
(d) If a person's license has been expired for more than 90
days but less than one year [because the person did not pay the
renewal fee or did not meet continuing education requirements], the
person may renew the license by[:
[(1)] paying to the board [all unpaid renewal fees
and] a fee that is equal to 1-1/2 times the amount of the renewal
[license examination] fee[; and
[(2) providing the board with proof that the person
has completed the required continuing education].
SECTION 22. Subchapter I, Chapter 503, Occupations Code, is
amended by adding Section 503.407 to read as follows:
Sec. 503.407. REFUND. (a) Subject to Subsection (b), the
board may order a license holder to pay a refund to a consumer as
provided in an agreement resulting from an informal settlement
conference instead of or in addition to imposing an administrative
penalty under this chapter.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the license holder for a
service regulated by this chapter. The board may not require
payment of other damages or estimate harm in a refund order.
SECTION 23. Subchapter J, Chapter 503, Occupations Code, is
amended by adding Section 503.454 to read as follows:
Sec. 503.454. CEASE AND DESIST ORDER. (a) If it appears to
the board that a person who is not licensed under this chapter is
violating this chapter, a rule adopted under this chapter, or
another state statute or rule relating to the practice of
professional counseling, the board after notice and opportunity for
a hearing may issue a cease and desist order prohibiting the person
from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this chapter.
SECTION 24. Section 503.502, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board by rule shall adopt an administrative penalty
schedule based on the criteria listed in Subsection (b) for
violations of this chapter or board rules to ensure that the amounts
of penalties imposed are appropriate to the violation. The board
shall provide the administrative penalty schedule to the public on
request.
SECTION 25. The following sections are repealed:
(1) Section 503.053, Occupations Code;
(2) Section 503.110(d), Occupations Code;
(3) Sections 503.302(b) and (c), Occupations Code;
(4) Section 503.303(c), Occupations Code;
(5) Sections 503.305(c), (d), and (e), Occupations
Code; and
(6) Section 503.309, Occupations Code.
SECTION 26. (a) Not later than January 1, 2006, the Texas
State Board of Examiners of Professional Counselors shall:
(1) adopt the policies required by Sections 503.210
and 503.211, Occupations Code, as added by this Act; and
(2) adopt the rules required by Chapter 503,
Occupations Code, as amended by this Act.
(b) Not later than March 1, 2006, the Texas State Board of
Examiners of Professional Counselors shall:
(1) develop the jurisprudence examination required by
Section 503.3055, Occupations Code, as added by this Act; and
(2) contract with a nationally recognized testing
organization for the administration of the license examination as
required by Section 503.305(b), Occupations Code, as amended by
this Act.
SECTION 27. (a) The changes in law made by Sections 503.104,
503.107, and 503.110, Occupations Code, as amended by this Act,
regarding the prohibitions on or qualifications of members of the
Texas State Board of Examiners of Professional Counselors do not
affect the entitlement of a member serving on the board immediately
before September 1, 2005, to continue to serve and function as a
member of the board for the remainder of the member's term. The
changes in law made by those sections apply only to a member
appointed on or after September 1, 2005.
(b) The changes in law made by this Act related to the filing
or investigation of a complaint under Chapter 503, Occupations
Code, as amended by this Act, apply only to a complaint filed with
the Texas State Board of Examiners of Professional Counselors on or
after the effective date of this Act. A complaint filed before the
effective date of this Act is governed by the law as it existed
immediately before that date, and the former law is continued in
effect for that purpose.
(c) The changes in law made by this Act governing the
eligibility of a person for a license under Chapter 503,
Occupations Code, apply only to an application for a license filed
with the Texas State Board of Examiners of Professional Counselors
under Chapter 503, Occupations Code, as amended by this Act, on or
after the effective date of this Act. A license application filed
before the effective date of this Act is governed by the law in
effect at the time the application was filed, and the former law is
continued in effect for that purpose.
(d) The change in law made by this Act with respect to
conduct that is grounds for imposition of a disciplinary sanction,
including a refund, temporary license suspension, or cease and
desist order, applies only to conduct that occurs on or after the
effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
(e) The change in law made by Section 503.302(a),
Occupations Code, as amended by this Act, and Section 503.3055,
Occupations Code, as added by this Act, regarding the jurisprudence
examination, applies only to an application for a license filed
with the Texas State Board of Examiners of Professional Counselors
under Chapter 503, Occupations Code, as amended by this Act, on or
after the effective date of this Act.
SECTION 28. Notwithstanding Section 503.354, Occupations
Code, as amended by this Act, the fees for an applicant renewing an
expired license under Chapter 503, Occupations Code, before
September 1, 2007, are governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose. An applicant who renews an
expired license under Chapter 503, Occupations Code, on or after
September 1, 2007, is subject to the fees provided by Section
503.354, Occupations Code, as amended by this Act.
SECTION 29. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1283 was passed by the House on May 9,
2005, by the following vote: Yeas 146, Nays 0, 2 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1283 was passed by the Senate on May
24, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor