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2005 Texas Occupations Code CHAPTER 1703. POLYGRAPH EXAMINERS
OCCUPATIONS CODE CHAPTER 1703. POLYGRAPH EXAMINERS SUBCHAPTER A. GENERAL PROVISIONS § 1703.001. SHORT TITLE. This chapter may be cited as the Polygraph Examiners Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.002. LIBERAL CONSTRUCTION. This chapter shall be liberally construed to regulate: (1) a person who claims to be able to use an instrument to detect deception or verify the truth of a statement; and (2) the instrument used by that person. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.003. DEFINITIONS. In this chapter: (1) "Board" means the Polygraph Examiners Board. (2) "Department" means the Department of Public Safety of the State of Texas. (3) "Instrument" means a device used to test a subject to detect deception or verify the truth of a statement by recording visually, permanently, and simultaneously a subject's cardiovascular and respiratory patterns. The term includes a lie detector, polygraph, deceptograph, or any other similar or related device. (4) "Polygraph examiner" means a person licensed under this chapter to use an instrument to detect deception or verify the truth of a statement. (5) "Polygraph examiner internship" means a course of study of polygraph examinations and of the administration of polygraph examinations by a trainee under the personal supervision and control of a polygraph examiner as prescribed by the board at the beginning of the internship. (6) "Trainee" means a person who holds a polygraph examiner internship license under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.004. EFFECT OF CHAPTER. This chapter may not be interpreted to permit the results of a truth or polygraph examination to be introduced or admitted as evidence in court. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.005. APPLICATION OF SUNSET ACT. The Polygraph Examiners Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2009. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1481, § 4.01, eff. Sept. 1, 2001.SUBCHAPTER B. POLYGRAPH EXAMINERS BOARD § 1703.051. BOARD MEMBERSHIP. (a) The Polygraph Examiners Board consists of seven members appointed by the governor with the advice and consent of the senate as follows: (1) two polygraph examiner members who are qualified polygraph examiners for a governmental law enforcement agency; (2) two polygraph examiner members who are qualified polygraph examiners in the commercial field; and (3) three members who represent the public. (b) A member must have been a United States citizen and a resident of this state for at least two years before the date of appointment. (c) A polygraph examiner member must: (1) be actively engaged as a polygraph examiner on the date of appointment; and (2) have been engaged as a polygraph examiner for at least five consecutive years before the date of appointment. (d) Two board members may not be employed by the same person. (e) Appointments to the board shall be made without regard to the race, creed, sex, religion, or national origin of the appointee. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1170, § 32.01, eff. Sept. 1, 2003. § 1703.052. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse: (1) is licensed by an occupational regulatory agency in the field of polygraph examining; (2) is employed by or participates in the management of an agency or business entity related to the field of polygraph examining; or (3) has, other than as a consumer, a financial interest in a business entity related to the field of polygraph examining. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) An officer, employee, or paid consultant of a trade association in the polygraph examining field may not be a member or employee of the board. (b) A member or employee of the board may not be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the polygraph examining field. (c) A person may not serve as a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.054. TERMS; VACANCY. (a) Board members serve staggered six-year terms. (b) If a vacancy occurs on the board, the governor shall appoint a successor to fill the unexpired term. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.055. OFFICERS. The board shall elect from among its members a presiding officer, assistant presiding officer, and secretary. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member: (1) does not have at the time of appointment the qualifications required by Sections 1703.051 and 1703.052 for appointment to the board; (2) does not maintain during service on the board the qualifications required by Sections 1703.051 and 1703.052 for appointment to the board; (3) violates a prohibition established by Section 1703.053; or (4) fails to attend at least half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year. (b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by legislative appropriation for each day the member engages in the business of the board. (b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER C. BOARD POWERS AND DUTIES § 1703.101. ADMINISTRATION OF CHAPTER. The board shall contract with the department to perform the board's administrative functions, including the collection of all money due and the payment of all expenses, including board member transportation expenses. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.102. FEES. (a) The board shall establish reasonable and necessary fees for the administration of this chapter in amounts not to exceed: (1) $225 for a polygraph examiner license; (2) $115 for a polygraph examiner internship license; (3) $40 for a duplicate license; (4) $210 for renewal of a polygraph examiner license; (5) $40 for extension or renewal of a polygraph examiner internship license; and (6) $75 for a license examination. (b) A governmental agency that employs a polygraph examiner may pay the fees required by this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.103. RULES; FORMS. The board shall adopt rules and prescribe forms to administer and enforce this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices by the license holder. (b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that: (1) restricts the license holder's use of any advertising medium; (2) restricts the license holder's personal appearance or use of the license holder's voice in an advertisement; (3) relates to the size or duration of an advertisement by the license holder; or (4) restricts the license holder's advertisement under a trade name. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.105. PROOF OF BOARD SIGNATURES AND QUALIFICATIONS. An order or a certified copy of an order, over the board seal and purporting to be signed by the board members, is prima facie proof that: (1) the signatures are those of the board members; and (2) the board members are qualified to act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.106. ANNUAL REPORT. Not later than January 1 of each year, the department shall submit to the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the department under this chapter during the preceding year. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES § 1703.151. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of consumer interest describing the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board. (b) The board shall make the information available to the public and appropriate state agencies. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.152. INFORMATION INCLUDED IN CONTRACT FOR SERVICES AND WAIVER OF LIABILITY. Each written contract for a polygraph examiner's services in this state and each waiver of liability signed by the subject of a polygraph examination must contain the board's name, mailing address, and telephone number. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.153. COMPLAINT INFORMATION. (a) The board shall keep an information file about each complaint relating to a license holder that is filed with the board. (b) If a written complaint relating to a license holder is filed with the board, the board, at least quarterly and until final disposition of the complaint, shall notify the complainant of the status of the complaint unless the notice would jeopardize an undercover investigation. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER E. LICENSE REQUIREMENTS § 1703.201. LICENSE REQUIRED. (a) A person may not use an instrument, including a polygraph, to detect deception or verify the truth of a statement unless the person is licensed under this chapter. (b) A person may not represent that the person is a polygraph examiner or refer to the person by another title that indicates or is intended to indicate that the person is qualified to use an instrument to detect deception or verify the truth of a statement unless the person is licensed under this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.202. LICENSE APPLICATION. An application for a polygraph examiner license must: (1) be made to the board's secretary in writing under oath on a form prescribed by the board; (2) be accompanied by the required nonrefundable fee; and (3) include any information the board considers necessary to evaluate the applicant's qualifications. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.203. QUALIFICATIONS FOR LICENSE. (a) A person is qualified for a polygraph examiner license if the person: (1) has not been convicted of a misdemeanor involving moral turpitude or a felony; (2) either: (A) holds a baccalaureate degree from a college or university accredited by an organization designated by the board that the board determines has accreditation standards ensuring a high level of student scholarship; or (B) has active investigative experience during the five years preceding the date of application; (3) either: (A) is a graduate of a board-approved polygraph examiners course and has satisfactorily completed at least six months of a polygraph examiner internship; or (B) has satisfactorily completed at least 12 months of a polygraph examiner internship; and (4) has passed an examination conducted by or under the supervision of the board to determine the person's competency for a license. (b) The board by rule shall establish the criteria by which the board evaluates an applicant's compliance with the active investigative experience requirement established by Subsection (a)(2)(B). (c) The board shall provide for an examination under this chapter to be administered in three-month intervals. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.204. EXAMINATION RESULTS. (a) The board shall notify each examinee of the examination results not later than the 30th day after the examination date. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the examination results not later than the 14th day after the date the board receives the results from the testing service. (b) If notice of the examination results graded or reviewed by a national testing service will be delayed for more than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day. (c) If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.205. ISSUANCE OF LICENSE; SURETY BOND OR INSURANCE POLICY REQUIREMENT. (a) Before a polygraph examiner license is issued, the person to whom the license is to be issued must provide to the board evidence of a surety bond or insurance policy that: (1) is in the amount of $5,000; and (2) requires the obligor on the bond or policy to pay, to the extent of the face amount of the bond or policy, all judgments recovered against the license holder for any wrongful or illegal act committed by the license holder in the course of administering a polygraph examination. (b) Each license must be signed by the board members and issued under the board seal. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.206. NONRESIDENT APPLICANT FOR LICENSE. (a) An applicant for the issuance or renewal of a polygraph examiner license who is not a resident of this state, in addition to meeting all other requirements for a license, must file with the board an irrevocable consent to have: (1) an action against the applicant filed in a court of a county or municipality of this state in which: (A) the plaintiff resides; or (B) a part of the transaction out of which the alleged cause of action arose occurred; and (2) process in the action served on the applicant by leaving two copies of the process with the board's secretary. (b) The consent must stipulate that service of process in the manner described by Subsection (a)(2) is binding for all purposes. (c) The board's secretary shall immediately send by registered or certified mail a copy of the process to the applicant at the address shown on board records. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.207. APPLICANT WITH OUT-OF-STATE LICENSE. The board may waive any license requirement for an applicant who holds a license from another state that has license requirements substantially equivalent to those of this state. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.208. POLYGRAPH EXAMINER INTERNSHIP LICENSE. (a) A person who holds a polygraph examiner internship license may engage in a polygraph examiner internship. (b) On board approval, the secretary of the board shall issue a polygraph examiner internship license to an applicant who applies for the license and pays the required fee at least 10 days before the date the internship begins. The application must contain any information required by the board. (c) A polygraph examiner internship license expires on the first anniversary of the date of issuance. On good cause shown to the board, the license may be extended or renewed for not more than six months. (d) After the expiration of the original term of a polygraph examiner internship license and any extension or renewal of that license granted by the board, a trainee may not hold another internship license before the first anniversary of the date the trainee's previous internship license expired. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER F. LICENSE RENEWAL § 1703.251. ANNUAL RENEWAL REQUIRED. A polygraph examiner license is issued for a one-year term and may be renewed annually. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.252. LICENSE EXPIRATION DATE. (a) The board by rule may adopt a system under which polygraph examiner licenses expire on various dates during the year. (b) For a year in which the license expiration date is changed, license fees payable on the original expiration date shall be prorated on a monthly basis so that the license holder pays only the portion of the fee that is allocable to the number of months the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.253. LICENSE RENEWAL. (a) A person may renew an unexpired polygraph examiner license by paying the required renewal fee to the board before the license expiration date. (b) 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 half of the amount of the license examination fee. A person whose license has been expired for more than 90 days but less than two years may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee. (c) Except as provided by Section 1703.254, a person whose license has been expired for two years or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.254. LICENSE RENEWAL RELATED TO MILITARY SERVICE. (a) A person may renew an expired polygraph examiner license without submitting to reexamination if: (1) the license expired while the person was engaged in: (A) active duty with a United States military service; (B) service or training with the national guard; or (C) training or education under the supervision of the United States, before induction into a United States military service; and (2) termination of the service, training, or education occurred under an honorable condition. (b) A person eligible for license renewal under Subsection (a) must, before the second anniversary of the date the service, training, or education terminates, pay to the board the required renewal fee and provide to the board an affidavit stating that: (1) the person was engaged in the service, training, or education; and (2) termination of the service, training, or education occurred under an honorable condition. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.255. CONTINUING EDUCATION. (a) The board may recognize, prepare, or implement continuing education programs for polygraph examiners and trainees. (b) Participation in a program is voluntary. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER G. PRACTICE BY LICENSE HOLDER § 1703.301. LICENSE HOLDER INFORMATION. (a) A polygraph examiner shall notify the secretary of the board in writing of a change in the examiner's principal business location not later than the 30th day after the date the change is made. (b) Failure to notify the secretary as required by Subsection (a) results in automatic suspension of the examiner's license. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.302. REGISTRATION WITH COUNTY CLERK. (a) A polygraph examiner shall register with the county clerk of the county in which the examiner maintains a business address. (b) The county clerk of each county shall maintain a list of each polygraph examiner registered in the county. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.303. DISPLAY OF LICENSE. A polygraph examiner or trainee shall prominently display the person's license at the person's place of business or place of internship, as appropriate. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.304. LICENSE REQUIRED TO MAINTAIN ACTION OR COUNTERCLAIM. A person may not maintain an action or counterclaim in a court in this state with respect to an agreement for or the performance of a service for which a license is required by this chapter, including the recovery of any compensation under the agreement or for the service, unless the person alleges and proves that the person was licensed at the time of making the agreement or performing the service. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.305. MINIMUM INSTRUMENTATION REQUIREMENTS. (a) An instrument used by a polygraph examiner, in addition to recording visually, permanently, and simultaneously a subject's cardiovascular and respiratory patterns, may also record patterns of other physiological changes. (b) A polygraph examiner who uses an instrument that does not comply with the instrumentation requirements of Subsection (a) is subject to penalties and may be enjoined in the manner provided by this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.306. CONFIDENTIALITY OF EXAMINATION RESULTS. (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than: (1) the examinee or any other person specifically designated in writing by the examinee; (2) the person that requested the examination; (3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities; (4) another polygraph examiner in private consultation; or (5) any other person required by due process of law. (b) The board or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information. (c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER H. LICENSE DENIAL AND DISCIPLINARY PROCEDURES § 1703.351. LICENSE DENIAL AND DISCIPLINARY ACTION. (a) The board shall take action authorized under Subsection (b) against an applicant or license holder who: (1) wilfully violates this chapter or a rule adopted under this chapter; (2) violates Section 1703.306(a); (3) wilfully aids or abets another to violate this chapter or a rule adopted under this chapter; (4) allows the person's license issued under this chapter to be used by an unlicensed person in violation of this chapter; (5) makes a material misstatement in an application for the issuance or renewal of a license; (6) makes a wilful misrepresentation or false promise or causes the printing of a false or misleading advertisement to directly or indirectly obtain business or trainees; (7) fails to inform a subject to be examined: (A) of the nature of the examination; and (B) that the subject's participation in the examination is voluntary; (8) fails to inform the subject of an examination of the examination results on request; (9) violates Section 51.151, Family Code; (10) wilfully makes a false report concerning an examination for polygraph examination purposes; (11) fails to provide within a reasonable time information requested by the board's secretary as the result of a formal complaint to the board alleging a violation of this chapter; (12) demonstrates unworthiness or incompetency to act as a polygraph examiner; (13) is convicted of a misdemeanor involving moral turpitude or a felony; or (14) is found to be incapacitated as provided by the Probate Code. (b) On determining that an applicant or license holder has engaged in an act listed in Subsection (a), the board shall: (1) refuse to issue a license to the applicant; (2) revoke or suspend the person's license; or (3) reprimand the person. (c) The board may probate a license suspension. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.352. ADMINISTRATIVE HEARING. (a) If the board proposes to refuse to issue a license to a person or to suspend or revoke a person's license, the person is entitled to a hearing before the board. (b) A proceeding for the refusal, suspension, or revocation of a license is governed by Chapter 2001, Government Code. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.353. SURRENDER OF LICENSE. (a) A license holder whose license is suspended or revoked shall immediately surrender the license to the board's secretary. (b) The board's secretary shall restore a suspended or revoked license to the license holder on the board's written recommendations. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.354. EFFECT OF VIOLATION ON EMPLOYER. If a polygraph examiner or trainee engages in an unlawful act or a violation of this chapter, the board may not revoke the license of the polygraph examiner who employed the examiner or trainee unless the board is satisfied that the employer wilfully or negligently aided or abetted the examiner or trainee in the unlawful act or violation. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.355. JUDICIAL REVIEW. (a) A person may appeal an action of the board, including the refusal to issue a license to the person or the suspension or revocation of the person's license, by timely filing a petition in a district court in the county in which the person resides or in Travis County. (b) An appeal of a board action is governed by Chapter 2001, Government Code. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS § 1703.401. INJUNCTION. (a) If a person violates this chapter, the board's secretary, on direction of a majority of the board and through the attorney general, shall apply in the state's name in district court for an order to enjoin the violation of or to enforce compliance with this chapter. (b) On a finding by a district court in which a verified petition is filed that a person has violated this chapter, the court may issue, without notice or bond, a temporary injunction enjoining a continued violation of this chapter. If it is established at a hearing on the matter that the person has violated or is violating this chapter, the court may issue a permanent injunction to enjoin the violation of or to enforce compliance with this chapter. (c) A proceeding under this section is in addition to any other remedy or penalty provided by this chapter. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.402. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person: (1) violates this chapter other than Section 1703.306; or (2) falsely represents that the person: (A) has been or is a polygraph examiner or trainee; or (B) is qualified to use an instrument to detect deception or verify the truth of a statement. (b) An offense under this section is a misdemeanor punishable by: (1) a fine of not less than $100 or more than $1,000; (2) confinement in county jail for a term not to exceed six months; or (3) both the fine and confinement. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. § 1703.403. VIOLATION OF CONFIDENTIALITY; OFFENSE. A person commits an offense if the person, with criminal negligence, violates Section 1703.306. 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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