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2005 Texas Occupations Code CHAPTER 352. OPTICIANS
OCCUPATIONS CODE CHAPTER 352. OPTICIANS SUBCHAPTER A. GENERAL PROVISIONS § 352.001. SHORT TITLE. This chapter may be cited as the Opticians' Registry Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.002. DEFINITIONS. In this chapter: (1) "Board" means the Texas Board of Health. (2) "Contact lens dispensing" means fabricating, ordering, mechanically adjusting, dispensing, selling, and delivering to a consumer contact lenses in accordance with a prescription from a physician, optometrist, or therapeutic optometrist, along with appropriate instructions for the care and handling of the lenses. The term does not include, unless directed or approved by a physician: (A) taking any measurements of the eye or the cornea; or (B) evaluating the physical fit of contact lenses. (3) "Contact lens prescription" means a written specification from a physician, optometrist, or therapeutic optometrist for therapeutic, corrective, or cosmetic contact lenses that states the refractive power of the product and other information required to be in the specification by the physician, optometrist, therapeutic optometrist, Texas State Board of Medical Examiners, or Texas Optometry Board. (4) "Department" means the Texas Department of Health. (5) "Dispensing optician" or "ophthalmic dispenser" means a person who provides or offers to provide spectacle or contact lens dispensing services or products to the public. (6) "Spectacle dispensing" means designing, verifying, fitting, adjusting, selling, or delivering to a consumer fabricated and finished ophthalmic devices, including spectacle lenses and frames but excluding contact lenses, in accordance with a prescription from a physician, therapeutic optometrist, or optometrist. The term includes: (A) prescription analysis and interpretation; (B) the measurement of the face, including interpupillary distances, to determine the size, shape, and specifications of the spectacle lenses or frames best suited to the wearer's needs; (C) the preparation and delivery of a work order to a laboratory technician engaged in grinding lenses and fabricating spectacles; (D) the verification of the quality of finished spectacle lenses; (E) the adjustment of spectacle lenses or frames to the wearer's face; and (F) the adjustment, repair, replacement, or reproduction of a previously prepared, specially fabricated ophthalmic device. (7) "Spectacle prescription" means a written specification by a physician, therapeutic optometrist, or optometrist for therapeutic or corrective lenses that states the refractive power of the lenses and other information included in the specification by the physician, therapeutic optometrist, or optometrist. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.003. EFFECT OF CHAPTER. (a) This chapter does not: (1) authorize a dispensing optician to perform an act on the optician's own authority that the optician is not otherwise authorized to perform, including an act that constitutes the practice of medicine, therapeutic optometry, or optometry; (2) prevent or restrict a person licensed in this state under another law from engaging in the profession or occupation for which the person is licensed without being registered under this chapter; (3) prevent or restrict an employee of a person licensed in this state from performing an employment duty required by the licensed person without being registered under this chapter; (4) prevent or restrict an individual, firm, or corporation from employing a person registered under this chapter or from engaging in spectacle or contact lens dispensing through a person registered under this chapter who is employed at the location at which the dispensing occurs; (5) prevent or restrict an individual, firm, or corporation from employing a person as an assistant, trainee, or apprentice to: (A) engage in spectacle or contact lens dispensing; or (B) provide instruction in the care and handling of contact lenses; (6) prohibit the Texas State Board of Medical Examiners, the Texas Optometry Board, the attorney general, or another person authorized by law from bringing an appropriate action to enforce a state statute relating to the practice of medicine, therapeutic optometry, or optometry without a license; or (7) require that a person be registered: (A) under this chapter to sell or dispense contact lenses; or (B) as a contact lens dispenser to work in a contact lens manufacturing facility that does not sell its finished product directly to the public. (b) This chapter or another state law relating to a dispensing optician does not prevent or restrict a physician from: (1) treating or prescribing for a patient; or (2) directing or instructing a person under the physician's control or supervision to aid or minister to the needs of a patient according to a specific direction, order, instruction, or prescription. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT AND BOARD § 352.051. ADMINISTRATION OF CHAPTER. The department shall administer this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.052. DEPARTMENT STAFF. The department may employ administrative and clerical staff as necessary to carry out this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.053. RULEMAKING. (a) The board shall adopt procedural rules to implement the registration procedures under this chapter. (b) The board may adopt substantive and procedural rules relating to: (1) establishing minimum requirements for the registration of a dispensing optician; (2) suspending, denying, or revoking a certificate of registration or placing a certificate holder on probation; (3) prescribing fees under this chapter; and (4) adopting forms required by this chapter. (c) The board may not adopt substantive rules relating to this chapter other than substantive rules described by Subsection (b) of this section, Section 352.055, and Section 352.153. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.158(a), eff. Sept. 1, 2001. § 352.054. FEES. The board by rule shall prescribe fees in reasonable amounts sufficient to cover the costs of administering this chapter, including fees for: (1) an initial application for a certificate of registration; (2) issuance of a certificate of registration; (3) issuance of a renewal certificate of registration; and (4) issuance of a duplicate certificate of registration or duplicate renewal certificate of registration. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1196, § 1, eff. Sept. 1, 2001. § 352.055. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a registrant except to prohibit false, misleading, or deceptive practices. (b) In its rules to prohibit false, misleading, or deceptive practices, the board may not include a rule that: (1) restricts the use of any medium for advertising; (2) restricts the use of a registrant's personal appearance or voice in an advertisement; (3) relates to the size or duration of an advertisement by the registrant; or (4) restricts the registrant's advertisement under a trade name. Added by Acts 2001, 77th Leg., ch. 1420, § 14.159(a), eff. Sept. 1, 2001.SUBCHAPTER C. CERTIFICATE OF REGISTRATION § 352.101. REPRESENTATION TO PUBLIC. (a) A person may not represent to the public that the person is a "Registered Dispensing Optician" or "Registered Spectacle Dispenser" unless the person is registered as a spectacle dispensing optician and complies with this chapter. (b) A person may not represent to the public that the person is a "Registered Contact Lens Dispenser" or "Registered Contact Lens Technician" unless the person is registered as a contact lens dispenser and complies with this chapter. (c) A person may not use abbreviations or other letters to represent that the person is registered. (d) A person properly registered under this chapter may represent to the public that the person is a "Registered Dispensing Optician," "Registered Spectacle Dispenser," "Registered Contact Lens Technician," or "Registered Contact Lens Dispenser." Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a) The department shall issue a certificate of registration to an applicant who: (1) applies and pays a registration fee; (2) presents evidence satisfactory to the department that the applicant has successfully completed the number of classroom hours of training required by the board; and (3) passes the appropriate examination required under Section 352.103. (b) The board may not require more than 30 classroom hours of training as a prerequisite to registration. (c) A person may qualify and be registered as a spectacle dispenser, contact lens dispenser, or both. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.103. EXAMINATIONS. (a) At least once a year, the department shall administer to applicants for certificates of registration a written qualifying spectacle dispensing examination and a written qualifying contact lens dispensing examination. (b) The examinations shall be professionally constructed and validated and objectively administered and scored. (c) A person who fails an examination may apply to take a subsequent examination. A person who fails two successive examinations may not apply to take a subsequent examination until the person completes remedial work required by the department. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.1031. NOTICE OF EXAMINATION RESULTS. (a) Not later than the 30th day after the date a person takes a qualifying examination under this chapter, the department shall notify the person of the results of the examination. (b) If the examination is graded or reviewed by a testing service: (1) the department shall notify the person of the results of the examination not later than the 14th day after the date the department receives the results from the testing service; and (2) if notice of the examination results will be delayed for longer than 90 days after the examination date, the department shall notify the person of the reason for the delay before the 90th day. (c) The department may require a testing service to notify a person of the results of the person's examination. (d) If requested in writing by a person who fails a qualifying examination administered under this chapter, the department shall provide to the person an analysis of the person's performance on the examination. Added by Acts 2001, 77th Leg., ch. 1420, § 14.160(a), eff. Sept. 1, 2001. § 352.104. CERTIFICATE DISPLAY; SURRENDER. (a) A person issued a certificate of registration shall publicly display the certificate in an appropriate manner specified by board rule. (b) The certificate is the property of the department and shall be surrendered on demand. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER D. RENEWAL OF CERTIFICATE OF REGISTRATION § 352.151. TERM OF CERTIFICATE. (a) A certificate of registration is valid for one year after the date of issuance. (b) The department shall adopt a system under which certificates of registration expire and are renewed on various dates. (c) Not later than the 30th day before the date a person's certificate of 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. (d) A person whose certificate of registration has expired may not make a representation for which a certificate of registration is required under Section 352.101 until the certificate has been renewed. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.161(a), eff. Sept. 1, 2001. § 352.152. RENEWAL OF CERTIFICATE. (a) To renew a certificate of registration, a person must submit an application for renewal in the manner prescribed by the board. (b) The application must be accompanied by evidence that the applicant has successfully completed the continuing education courses required by board rule. (c) A person who is otherwise eligible to renew a certificate of registration may renew an unexpired certificate by paying the required renewal fee to the department before the expiration date of the certificate. (d) A person whose certificate of registration has been expired for 90 days or less may renew the certificate 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 certificate of registration has been expired for more than 90 days but less than one year may renew the certificate by paying to the department a renewal fee that is equal to two times the normally required renewal fee. (f) A person whose certificate of registration has been expired for one year or more may not renew the certificate. The person may obtain a new certificate of registration by complying with the requirements and procedures, including the examination requirements, for an original certificate. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.161(b), eff. Sept. 1, 2001. § 352.153. CONTINUING EDUCATION. (a) The board shall recognize, prepare, or administer continuing education programs for its registrants. A person registered under this chapter must participate in the programs to the extent required by the board to keep the person's certificate of registration. (b) The board may not require more than 10 classroom hours of continuing education courses each year. Added by Acts 2001, 77th Leg., ch. 1420, § 14.161(c), eff. Sept. 1, 2001. § 352.154. RENEWAL OF EXPIRED CERTIFICATE BY OUT-OF-STATE PRACTITIONER. (a) A person who was registered in this state, moved to another state, and is currently licensed or registered and has been in practice in the other state for the two years preceding the date of application may obtain a new certificate of registration without reexamination. (b) The person must pay to the department a fee that is equal to two times the normally required renewal fee for the certificate. Added by Acts 2001, 77th Leg., ch. 1420, § 14.161(c), eff. Sept. 1, 2001.SUBCHAPTER E. PRACTICE BY CERTIFICATE HOLDER § 352.201. DIRECTIONS FOR DISPENSING OPTICIAN. A physician's directions, instructions, or orders may be performed or a physician's prescription may be filled by a registered dispensing optician who is separate from and independent of the physician's office only if the directions, instructions, orders, or prescription is: (1) in writing; (2) of a scope and content and communicated to the dispensing optician in a form and manner that, in the physician's professional judgment, best serves the health, safety, and welfare of the physician's patient; and (3) in a form and detail consistent with the particular dispensing optician's skill and knowledge. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.202. CONTACT LENS DISPENSING. (a) A person registered under this chapter may not dispense contact lenses other than from a contact lens prescription that specifies that the prescription is for contact lenses. (b) Except as provided by Section 351.005 or 352.203, a registered contact lens dispenser may not: (1) dispense contact lenses from the prescription of a physician, optometrist, or therapeutic optometrist in a manner that adjusts or alters the specific, written instructions of the prescribing practitioner; or (2) unless directed or approved by a physician: (A) take any measurements of the eye or the cornea; or (B) evaluate the physical fit of contact lenses. (c) A person who violates this section is considered to be practicing medicine or optometry or therapeutic optometry without a license. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.203. DELEGATION BY PHYSICIAN. A registered contact lens dispenser may take measurements of the eye or cornea and evaluate the physical fit of lenses for a patient of a physician if the physician has delegated in writing to the dispenser those responsibilities for that specific patient in accordance with Sections 351.005 and 352.201. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER F. DISCIPLINARY PROCEDURES § 352.251. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. The department shall deny an application for a certificate of registration, suspend or revoke a certificate of registration, or reprimand a person who is registered under this chapter if the person: (1) obtains a certificate of registration by means of fraud, misrepresentation, or concealment of a material fact; (2) sells, barters, or offers to sell or barter a certificate of registration; (3) violates a rule adopted by the board; (4) violates Section 352.101; or (5) practices medicine, therapeutic optometry, or optometry without a license. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.162(a), eff. Sept. 1, 2001. § 352.252. INVESTIGATION. The department shall investigate: (1) a person who engages in a practice that violates this chapter; and (2) each complaint filed with the department against a person registered under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.2525. PROBATION. The board may place on probation a person whose certificate of registration is suspended. If the suspension is probated, the 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 board; or (3) continue or review professional education until the person attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. Added by Acts 2001, 77th Leg., ch. 1420, § 14.162(b), eff. Sept. 1, 2001. § 352.253. HEARING. (a) A person whose application for a certificate of registration is denied, whose certificate of registration is suspended or revoked, or who is reprimanded is entitled to a hearing before the department if the person submits to the department a written request for the hearing. (b) A hearing is governed by department rules for a contested hearing and by Chapter 2001, Government Code. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.162(c), eff. Sept. 1, 2001. § 352.254. EMERGENCY SUSPENSION. (a) The department shall temporarily suspend the certificate of registration of a certificate holder if the department determines from the evidence or information presented to it that continued practice by the certificate holder would constitute a continuing and imminent threat to the public welfare. (b) A 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. (c) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine if there is probable cause to believe that a continuing and imminent threat to the public welfare still exists. A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension. Added by Acts 2003, 78th Leg., ch. 326, § 2, eff. Sept. 1, 2003.SUBCHAPTER G. ADMINISTRATIVE PENALTY § 352.301. IMPOSITION OF PENALTY. The department may assess an administrative penalty against a person who violates this chapter or a rule adopted under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.302. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day of a continuing violation is a separate violation. (b) The amount shall be based on: (1) the seriousness of the violation; (2) the history of previous violations; (3) the amount necessary to deter a future violation; (4) efforts made to correct the violation; and (5) any other matter that justice requires. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.303. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice must: (1) include a brief summary of the alleged violation; (2) state the amount of the proposed administrative penalty based on the factors set forth in Section 352.302(b); and (3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may: (1) accept the department's determination and proposed administrative penalty; or (2) make a written request for a hearing on that determination. (b) If the person accepts the department's determination, the commissioner of public health or the commissioner's designee by order shall approve the determination and assess the proposed penalty. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.305. HEARING. (a) If the person requests a hearing in a timely manner, the department shall: (1) set a hearing; (2) give written notice of the hearing to the person; and (3) designate a hearings examiner to conduct the hearing. (b) The hearings examiner shall: (1) make findings of fact and conclusions of law; and (2) promptly issue to the commissioner of public health or the commissioner's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.306. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commissioner of public health or the commissioner's designee by order may determine that: (1) a violation occurred and assess 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 assessed; and (3) a statement of the person's right to judicial review of the order. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order becomes final, the person shall: (1) pay the administrative penalty; (2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or (3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both. (b) Not later than the 30th day after the date the order is final, a person who acts under Subsection (a)(3) may: (1) stay enforcement of the penalty by: (A) paying the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond approved by the court that: (i) is for the amount of the penalty; and (ii) is effective until judicial review of the order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the department by certified mail. (c) If the department receives a copy of an affidavit under Subsection (b)(2), the department may file with the court, not later than the fifth day after the date the department receives the copy, a contest to the affidavit. (d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.308. DETERMINATION BY COURT. (a) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty. (b) If the court does not sustain the occurrence of the violation, the court shall order that a penalty is not owed. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.309. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final: (1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the amount of the penalty; or (2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond. (b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.310. COLLECTION OF PENALTY. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses. (b) If the person does not pay the amount of the administrative penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty. (c) 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 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. (d) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.311. ADMINISTRATIVE PROCEDURE. A proceeding for the assessment of an administrative penalty under this subchapter is subject to Chapter 2001, Government Code. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER H. OTHER PENALTIES AND ENFORCEMENT PROVISIONS § 352.351. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a) The board, the attorney general, or the district or county attorney for the county in which an alleged violation of this chapter occurs shall, on receipt of a verified complaint, bring an appropriate administrative or judicial proceeding to enforce this chapter or a rule adopted under this chapter. (b) The attorney general or an attorney representing the state may initiate an action for an injunction to prohibit a person from violating this chapter or a rule adopted under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.352. CIVIL PENALTY. In addition to any other remedy provided by law, including injunctive relief, a court may impose a civil penalty for a violation of this chapter or a rule adopted under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 352.353. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter. (b) An offense under this section is a Class B misdemeanor. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
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