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2005 Texas Occupations Code CHAPTER 1951. STRUCTURAL PEST CONTROL
OCCUPATIONS CODE SUBTITLE B. PRACTICES RELATED TO HEALTH AND SAFETY CHAPTER 1951. STRUCTURAL PEST CONTROL SUBCHAPTER A. GENERAL PROVISIONS § 1951.001. SHORT TITLE. This chapter may be cited as the Texas Structural Pest Control Act. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.002. DEFINITIONS. In this chapter: (1) "Apartment building" means a building that contains at least two dwelling units that are rented primarily for nontransient permanent dwelling purposes, with rental paid by intervals of one week or longer. (2) "Board" means the Texas Structural Pest Control Board. (3) "Certified applicator" means a certified commercial applicator or a certified noncommercial applicator. (4) "Certified commercial applicator" means a person who holds a certified commercial applicator's license. (5) "Certified noncommercial applicator" means a person who holds a certified noncommercial applicator's license. (6) "Day-care center" has the meaning assigned by Section 42.002, Human Resources Code. (7) "Device" means an instrument or contrivance that is designed for trapping, destroying, repelling, or mitigating the effects of a pest or another form of plant or animal life, other than human beings or bacteria, viruses, or other microorganisms that live on or in human beings or animals. The term does not include: (A) a firearm; or (B) equipment used for the application of pesticides that is sold separately from a device. (8) "Hospital" has the meaning assigned by Section 241. 003, Health and Safety Code. (9) "Institution of higher education" has the meaning assigned by Section 61.003, Education Code. (10) "Nursing home" means an institution as that term is defined by Section 242.002, Health and Safety Code. (11) "Person" means an individual, firm, partnership, corporation, association, or other organization, any combination of those persons, or any type of business entity. (12) "Restricted-use pesticide" means a pesticide classified for restricted or limited use by the administrator of the United States Environmental Protection Agency. (13) "School" means a: (A) public primary or secondary school; or (B) private or parochial primary or secondary school that is accredited by an accreditation body that is a member of the Texas Private School Accreditation Commission. (14) "State-limited-use pesticide" means a pesticide classified for restricted or limited use by the commissioner of agriculture. (15) "Structural pest control business license" means a license issued under Section 1951.301. (16) "Technician" means a person who, under the direct supervision of a certified noncommercial applicator or as an employee of a holder of a structural pest control business license, performs supervised pesticide applications, maintains or uses structural pest control devices, makes sales presentations, or identifies pest infestation or damage. The term does not include a person whose duties are solely clerical or are otherwise completely disassociated with pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.003. BUSINESS OF STRUCTURAL PEST CONTROL. In this chapter, a person is engaged in the "business of structural pest control" if the person performs, offers to perform, or advertises for or solicits the person's performance of any of the following services for compensation, including services performed as a part of the person's employment: (1) identifying infestations or making inspections for the purpose of identifying or attempting to identify infestations of: (A) arthropods, including insects, spiders, mites, ticks, and related pests, wood-infesting organisms, rodents, weeds, nuisance birds, and any other obnoxious or undesirable animals that may infest households, railroad cars, ships, docks, trucks, airplanes, or other structures or their contents; or (B) pests or diseases of trees, shrubs, or other plantings in a park or adjacent to a residence, business establishment, industrial plant, institutional building, or street; (2) making oral or written inspection reports, recommendations, estimates, or bids with respect to an infestation described by Subdivision (1); or (3) making contracts, or submitting bids for services or performing services designed to prevent, control, or eliminate an infestation described by Subdivision (1) by the use of insecticides, pesticides, rodenticides, fumigants, allied chemicals or substances, or mechanical devices. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.004. DIRECT SUPERVISION. In this chapter, a pesticide is applied under direct supervision if the application is made by a person acting under the instructions and control of a certified commercial applicator responsible for the actions of the person and available if needed for consultation or assistance. The certified commercial applicator is not required to be physically present at the time and place of the pesticide application. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.005. LOCAL REGULATION OF PESTICIDE SALE OR USE. (a) Except as provided by this section, a municipality or other political subdivision of this state may not adopt an ordinance or rule regarding pesticide sale or use. (b) This section does not limit the authority of a municipality or county to: (1) encourage locally approved and provided educational material concerning a pesticide; (2) zone for the sale or storage of pesticide products; (3) adopt fire or building regulations, including regulations governing the storage of pesticide products or governing fumigation and thermal insecticidal fogging operations, as preventative measures to protect the public and emergency services personnel from an accident or emergency involving pesticide products; (4) provide or designate sites for the disposal of pesticide products; (5) route hazardous materials; or (6) regulate discharge to sanitary sewer systems. (c) A municipality or other political subdivision may take any action otherwise prohibited by this section to: (1) comply with any federal or state requirements; (2) avoid a federal or state penalty or fine; or (3) attain or maintain compliance with federal or state environmental standards, including state water quality standards. (d) This section does not affect Subchapter G, Chapter 76, Agriculture Code. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.006. APPLICABILITY OF FEES TO GOVERNMENT EMPLOYEES. A person employed by a governmental entity is not exempt from a fee imposed under this chapter. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.007. APPLICATION OF SUNSET ACT. The Texas Structural Pest Control 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, 2007. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 1276, § 14A.451(a), eff. Sept. 1, 2003.SUBCHAPTER B. EXEMPTIONS § 1951.051. INDIVIDUAL PERFORMING PEST CONTROL WORK ON OWN OR EMPLOYER'S PREMISES. (a) An individual who does not hold a license under this chapter may use insecticides, pesticides, rodenticides, fumigants, or allied chemicals or substances or mechanical devices designed to prevent, control, or eliminate pest infestations unless: (1) that use is prohibited by state law or rule; (2) that use is prohibited by rule of the United States Environmental Protection Agency; or (3) the substance used is labeled as a restricted-use pesticide or a state-limited-use pesticide. (b) An individual may act under Subsection (a) only on premises: (1) owned by the individual; (2) in which the individual owns a partnership or joint venture interest; or (3) of a person who employs the individual primarily to perform services other than pest control. (c) Subsection (b)(3) does not apply to: (1) an apartment building; (2) a day-care center; (3) a hospital; (4) a nursing home; (5) a hotel, motel, or lodge; (6) a warehouse; (7) a food-processing establishment; (8) a facility owned by the state or a political subdivision of the state, except as provided by Section 1951.303(b)(1); or (9) a school. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.052. PERSON PERFORMING PEST CONTROL WORK ON PERSON'S DWELLING. (a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to a person who performs pest control work on property that the person owns or leases as the person's dwelling. (b) A person described by Subsection (a) is not considered to be engaged in the business of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.053. PERSON PERFORMING PEST CONTROL WORK REGULATED BY DEPARTMENT OF AGRICULTURE. (a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to: (1) a person who performs pest control work on growing plants, trees, shrubs, grass, or other horticultural plants if the person: (A) holds a florist or nursery registration certificate from the Department of Agriculture under Section 71.043, Agriculture Code, other than a registration certificate that permits the sale, lease, or distribution of nursery products or floral items only at a temporary market; and (B) holds a commercial or noncommercial applicator license from the Department of Agriculture that covers the pest control work; or (2) a person who performs pest control work on growing plants, trees, shrubs, grass, or other horticultural plants or rights-of-way if the person: (A) is employed by a political subdivision or a cemetery; (B) is engaged in pest control work or vegetation management for the political subdivision or cemetery; (C) holds a commercial or noncommercial applicator license from the Department of Agriculture that covers pest control work or is under the direct supervision of a person who holds a commercial or noncommercial applicator license from the Department of Agriculture that covers pest control work; and (D) complies with annual continuing education required by the Department of Agriculture. (b) A person described by Subsection (a) is not considered to be engaged in the business of structural pest control. (c) Neither this section nor any other law shall prohibit a political subdivision from reducing the number of hours of training or other requirements for an employee conducting larval mosquito control on property owned or controlled by the political subdivision using biological pesticides approved for general use by the Texas Department of Health, provided the employee is given instructions adequate to ensure the safe and effective use of such pesticides. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 884, § 2, eff. June 20, 2003. § 1951.054. PERSON PERFORMING PEST CONTROL WORK ON AGRICULTURAL LAND. (a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to a person or the person's employee who is engaged in the business of agriculture or aerial application or custom application of pesticides to agricultural lands. (b) A person described by Subsection (a) is not considered to be engaged in the business of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.055. PERSON USING PEST CONTROL CHEMICALS FOR HOUSEHOLD USE. ( a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to a person who uses pest control chemicals that are for household use and are available for purchase in retail food stores, such as aerosol bombs and spray cans, if the insecticide is used in accordance with the label directions on the insecticide or with board rules or guidelines or as provided by Section 1951.303 and is: (1) used by the owner of a building or the owner's employee or agent in an area occupied by the owner in a residential building; or (2) used in a place that is vacant, unused, and unoccupied. (b) A person described by Subsection (a) is not considered to be engaged in the business of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.056. BEEKEEPERS. (a) Except as provided by Sections 1951.212 and 1951.457(c), this chapter does not apply to a person acting as a beekeeper, as defined by Section 131.001, Agriculture Code, who: (1) is registered with the board and with the chief apiary inspector as provided by Subchapter C, Chapter 131, Agriculture Code; (2) does not use pesticides or electrical devices other than conventional bee smokers or equipment as defined by Section 131.001, Agriculture Code; and (3) collects, removes, or destroys honey bees not attached to a dwelling or structure occupied by the public. (b) A person described by Subsection (a) is not considered to be engaged in the business of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER C. TEXAS STRUCTURAL PEST CONTROL BOARD § 1951.101. BOARD MEMBERSHIP. (a) The Texas Structural Pest Control Board consists of nine members. (b) Six members are appointed by the governor with the advice and consent of the senate as follows: (1) three members who: (A) have been engaged in the business of structural pest control for at least the five years preceding the date of appointment; and (B) are not representatives of the same business entity; and (2) three public members. (c) The commissioner of agriculture, the commissioner of public health, and the chair of the Department of Entomology at Texas A&M University or their designated representatives are also members of the board. (d) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.102. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if: (1) the person is licensed under this chapter; or (2) the person or the person's spouse: (A) is registered, certified, or licensed by an occupational regulatory agency in the field of pest control; (B) is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds from the board; (C) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the board or receiving funds from the board; or (D) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined 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) An officer, employee, or paid consultant of a Texas trade association in the field of pest control may not be a member of the board and may not be an employee 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 pest control may not be a member of the board and may not be an employee 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 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, because of the person's activities for compensation on behalf of a profession related to the operation of the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.104. TERMS. Appointed members of the board serve staggered six-year terms, with the terms of one business and one public member expiring February 1 of each odd-numbered year. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.105. PRESIDING OFFICER. The governor shall designate a member of the board as presiding officer. The presiding officer serves in that capacity at the pleasure of the governor. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.106. 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 Section 1951.101 or 1951.102, as applicable; (2) does not maintain during service on the board the qualifications required by Section 1951.101 or 1951.102, as applicable; (3) violates a prohibition established by Section 1951.103; (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 meetings of the board that the member is eligible to attend during a calendar year unless that absence is excused by a majority vote of the board. (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. (c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the ground. The presiding officer shall notify the governor that a potential ground for removal exists. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.107. COMPENSATION; REIMBURSEMENT. A board member serves without compensation but is entitled to reimbursement for actual expenses incurred in performing board functions. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER D. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL § 1951.151. EXECUTIVE DIRECTOR. (a) The board shall appoint an executive director. (b) The executive director shall receive a salary in an amount determined by the board to be paid from money available to the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.152. GENERAL DUTIES OF EXECUTIVE DIRECTOR. The executive director shall administer this chapter and rules adopted by the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.153. LEGAL COUNSEL. The executive director shall employ a legal counsel who shall: (1) report to the executive director; and (2) enforce rules adopted under this chapter. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.154. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.155. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their: (1) qualifications for office or employment under this chapter; and (2) responsibilities under applicable laws relating to standards of conduct for state officers or employees. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.156. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting. (b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.157. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel; (2) a comprehensive analysis of the board workforce that meets federal and state guidelines; (3) procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and (4) reasonable methods to appropriately address those areas of underuse. (b) A policy statement prepared under Subsection (a) must: (1) cover an annual period; (2) be updated at least annually; and (3) be filed with the governor. (c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.158. COMPENSATION OF ADVISORY COMMITTEE MEMBERS. A member of an advisory committee created under this chapter is not entitled to compensation but is entitled to reimbursement for actual and necessary expenses incurred in performing committee functions. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER E. BOARD POWERS AND DUTIES § 1951.201. SOLE LICENSING AUTHORITY. The board is the sole authority in this state for licensing persons engaged in the business of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.202. BYLAWS. The board shall adopt bylaws governing the conduct of the board's affairs. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.203. STANDARDS AND CRITERIA FOR LICENSES. The board shall develop standards and criteria for issuing: (1) a structural pest control business license to a person engaged in the business of structural pest control; (2) a certified commercial applicator's license to an individual engaged in the business of structural pest control; (3) a certified noncommercial applicator's license to an individual; and (4) a technician license to an individual. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.204. SUBPOENA AUTHORITY. (a) The board may request and, if necessary, compel by subpoena: (1) the attendance of witnesses for examination under oath; and (2) the production for inspection and copying of records, documents, and other evidence relevant to the investigation of an alleged violation of this chapter. (b) The board, acting through the attorney general, may bring an action to enforce a subpoena issued under Subsection (a) against a person who fails to comply with the subpoena. (c) Venue for an action brought under Subsection (b) is in a district court in: (1) Travis County; or (2) the county in which the board may hold a hearing. (d) The court shall order compliance with the subpoena if the court finds that good cause exists to issue the subpoena. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.205. ENVIRONMENTAL RULES. (a) The board shall adopt rules governing the methods and practices of structural pest control that the board determines are necessary to protect the public's health and welfare and prevent adverse effects on human life and the environment. (b) A rule relating to the use of economic poisons must comply with applicable standards of the federal government and the commissioner of agriculture governing the use of such substances. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.206. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) Except as provided by Subsection (b), the board may not adopt a rule restricting advertising or competitive bidding by a person regulated by the board. (b) The board may adopt rules restricting advertising or competitive bidding to prohibit false, misleading, or deceptive practices by a person regulated by the board. A rule adopted under this subsection may not: (1) restrict the use of any medium for advertising; (2) restrict a person's personal appearance or use of a person's voice in an advertisement; (3) relate to the size or duration of an advertisement by a person; or (4) restrict a person's advertisement under a trade name. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.207. INSPECTION OF LICENSE HOLDERS. (a) The board by rule shall adopt a policy that: (1) requires a business holding a structural pest control business license to be inspected by a field inspector at least once every two years; (2) provides for initiating inspections more frequently than once every two years for a business or an applicator that has violated this chapter or a rule adopted under this chapter; and (3) provides that the executive director may waive the inspection requirement on a case-by-case basis if an emergency arises or to accommodate complaint investigation schedules. (b) The board by rule shall adopt a policy and guidelines for conducting an investigation, including: (1) procedures for investigating a complaint concerning misuse of pesticides, including contamination by pesticides and human exposure to pesticides; (2) the circumstances in which a case should be referred to the: (A) Department of Agriculture; (B) Texas Department of Health; (C) Texas Natural Resource Conservation Commission; or (D) United States Environmental Protection Agency; (3) recommendations to consumers and applicators regarding cleanup after a spill or misapplication; and (4) procedures for residue sampling, including the circumstances in which to take a residue sample and the time in which the sample should be taken. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.208. MISAPPLICATION OF PESTICIDES. (a) If an investigation shows that a misapplication of pesticides has occurred on the premises of a consumer, the board shall immediately notify the consumer and the applicator of the misapplication. (b) On a finding of misapplication, the board shall keep records of health injuries and property damages resulting from the misapplication reported to the board by a: (1) certified applicator; (2) physician; (3) person holding a structural pest control business license; (4) technician; (5) consumer; or (6) state agency. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.209. AVAILABILITY OF CERTAIN INFORMATION. The board may make available to the Texas Department of Health under the occupational condition reporting program established under Chapter 84, Health and Safety Code, any information the board receives concerning an exposure to a pesticide caused by a person licensed under this chapter that results in a medically verifiable illness. The board and the Texas Board of Health shall adopt joint rules for making that information available to the Texas Department of Health. The rules must require the board to make that information available to an institution of higher education that conducts research in urban entomology, epidemiology, or other areas related to structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.210. PRETREATMENT INSPECTION SERVICE; FEES; LIABILITY. (a) The board may provide a pretreatment inspection service to consumers. A pretreatment inspection is limited to a determination of whether there is an infestation of pests on the premises inspected. (b) On the request of a consumer, the board may make available an inspector employed by the board to inspect the premises of the consumer if the consumer has obtained, from at least two pest control companies: (1) a determination that there is an infestation of pests on the premises; and (2) an estimate of the cost of the treatment. (c) The board shall charge a fee for a pretreatment inspection in an amount sufficient to pay the cost of providing the service. (d) The board is not liable for any damages that may arise as a result of an inspection made under this section that is subsequently found to be incorrect. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.211. CONSULTATION WITH INTEGRATED PEST MANAGEMENT TECHNIQUES EXPERT. The board may contract with the Department of Agriculture or an institution of higher education for the services of an expert in integrated pest management to consult with the board, the board's staff, license holders, and the public regarding integrated pest management techniques. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.212. INTEGRATED PEST MANAGEMENT PROGRAMS FOR SCHOOL DISTRICTS. (a) The board shall establish standards for an integrated pest management program for the use of pesticides, herbicides, and other chemical agents to control pests, rodents, insects, and weeds at the school buildings and other facilities of school districts. (b) The board shall use an existing advisory committee or create a new advisory committee to assist the board in developing the standards for the integrated pest management program. In developing the standards, the advisory committee shall consult with a person knowledgeable in the area of integrated pest management in schools. (c) The board shall include in standards adopted under this section: (1) a requirement to use the least toxic methods available to control pests, rodents, insects, and weeds; and (2) a list of products that a school district is allowed to use in its applications. (d) The board shall require that a pesticide may be applied to a school building or on school grounds only when students are not expected to be present for normal academic instruction or organized extracurricular activities for at least 12 hours after the application. (e) A school district shall adopt an integrated pest management program that incorporates the standards established by the board under this section. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER F. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES § 1951.251. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board. (b) The board shall make the information available to the public and appropriate state agencies. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.252. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice: (1) on each license form, application, or written contract for services of a person regulated under this chapter; (2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or (3) in a bill for services provided by a person regulated under this chapter. (b) The board shall keep an information file about each complaint filed with the board that the board has authority to resolve. (c) 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. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.253. PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction. (b) The board shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability can be provided reasonable access to the board's programs. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.254. PUBLIC INFORMATION PROGRAM. (a) The board shall establish a public information program as provided by this section and Sections 1951.453-1951.456 to inform the public about the practice and regulation of structural pest control. (b) The board may create a public information program advisory committee to assist in the development of a public information program. (c) The board shall make available to the public and other appropriate state agencies the information compiled as part of the program. (d) The public information program must: (1) include the adoption and distribution, in a manner that the board considers appropriate, of a standard complaint form; and (2) inform prospective applicants for licensing under this chapter about the qualifications and requirements for licensing. (e) The board shall develop a clear, factual, and balanced information sheet of one or more pages containing information on: (1) the pest control industry; (2) chemicals used in structural pest control; (3) general health and safety issues relating to structural pest control; (4) precautions to take before, during, and after application; (5) steps to take if a misapplication, including an underapplication or an overapplication, is suspected; and (6) any other matters determined by the board. (f) The information sheet must include: (1) the names and telephone numbers of the board, the Department of Agriculture, and the Texas Department of Health; (2) the telephone number of any pesticide hotline established by a state or federal agency or by a state university; (3) a statement of a consumer's rights under Chapter 39, Business & Commerce Code, to cancel a home solicitation transaction; and (4) information concerning the availability of any pretreatment inspection service that may be provided by the board under Section 1951.210. (g) The board shall develop a sign to be posted in the area of an indoor treatment that contains: (1) the date of the planned treatment; and (2) any other information required by the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER G. LICENSE REQUIREMENTS, ISSUANCE, AND RENEWAL § 1951.301. STRUCTURAL PEST CONTROL BUSINESS LICENSE REQUIRED. (a) In this section, "branch office" means any place of business, other than the primary office or a facility serving solely as a telephone answering service, that has at least one employee during normal business hours who is capable of: (1) answering customers' normal questions; (2) scheduling normal inspections or work; or (3) performing structural pest control functions. (b) A person may not engage in the business of structural pest control unless the person: (1) meets the standards set by the board; and (2) holds a structural pest control business license issued under this chapter. (c) A structural pest control business license entitles a person and the person's employees to engage in the business of structural pest control under the direct supervision of a certified commercial applicator. (d) A person engaged in the business of structural pest control must hold a structural pest control business license for each place of business, including each branch office. (e) Each structural pest control business license holder shall employ a certified commercial applicator at all times. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.302. CERTIFIED COMMERCIAL APPLICATOR'S LICENSE. The board must determine that an individual is competent to use or supervise the use of a restricted-use pesticide or state-limited-use pesticide covered by the individual's certified commercial applicator's license. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.303. CERTIFIED NONCOMMERCIAL APPLICATOR'S LICENSE. (a) In this section, "incidental use situation" means a pesticide application, including treating wasps in an area adjacent to a utility meter, treating fire ants in a transformer box, or the treating of ants by a janitor or clerical employee in a break area, that: (1) is on an occasional, isolated, site-specific basis; (2) is incidental to the performance of a primary duty that is not pest control by an employee; and (3) involves the use of general use pesticides after instruction, as provided by rules adopted by the board. (b) An individual who does not hold a certified commercial applicator's license may not engage in the business of structural pest control unless the individual holds a certified noncommercial applicator's or technician license and: (1) is employed by the state or a political subdivision of the state and engages in the business of structural pest control other than by applying a general use pesticide in an incidental use situation; or (2) engages in the business of structural pest control as an employee of a person who owns, operates, or maintains a building that is: (A) an apartment building; (B) a day-care center; (C) a hospital; (D) a nursing home; (E) a hotel, motel, or lodge; (F) a warehouse; (G) a food-processing establishment, other than a restaurant, retail food, or food service establishment; or (H) a school. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.304. TECHNICIAN LICENSE. The board may designate different classes or categories for technicians. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.305. APPLICATION. (a) A person must apply for a license under this chapter on a form prescribed and provided by the board. (b) Each applicant must provide the information the board requires to determine the applicant's qualifications. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.306. WAIVER FOR APPLICANT LICENSED IN ANOTHER STATE. (a) The board may waive any license requirement under this chapter for an applicant who holds a license issued by another state that has license requirements substantially equivalent to those of this state. (b) The board may issue an endorsement of license to a person who: (1) establishes residence in this state; and (2) has been determined by the board to meet the qualifications of a certified applicator by taking the appropriate examination in another state. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.307. LICENSE RENEWAL. A person may renew a license by submitting an application to the board and paying the required renewal fees. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.308. LICENSE EXPIRATION. (a) The board by rule may adopt a system under which licenses expire on various dates during the year. (b) For the year in which the license expiration date is changed, license fees payable on December 31 shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.309. FEE FOR INITIAL OR RENEWAL LICENSE. (a) An applicant for an initial or renewal structural pest control business license or for an initial or renewal endorsement of license under Section 1951.306 must submit with the person's application: (1) a fee of not more than $180, as determined by the board, for each license or endorsement; and (2) a fee of not more than $84, as determined by the board, for a license for each technician the applicant employs. (b) An applicant for an initial or renewal certified applicator's license must deliver with the person's application: (1) a fee of not more than $112.50, as determined by the board, for each license; and (2) a fee of not more than $84, as determined by the board, for a license for each technician the applicant employs. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.310. LATE RENEWAL OF LICENSE. (a) The board may retroactively renew a license issued under this chapter. (b) If the person files a renewal application with the board not later than the 30th day after the date the person's license expires, the person must pay a late renewal fee of $37.50. (c) If the person files a renewal application with the board later than the 30th day but not later than the 60th day after the date the person's license expires, the person must pay a late renewal fee of $75. (d) A person who applies for a renewal license after the 60th day after the date the person's license expires must be reexamined by the board to obtain a license. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.311. REPLACEMENT LICENSE; FEE. The board shall issue to a license holder whose license has been lost or destroyed or whose name has been changed a replacement license if the license holder submits to the board: (1) an appropriate application; and (2) a fee of not more than $30, as determined by the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.312. LIABILITY INSURANCE; EXCEPTIONS. (a) The board may not issue or renew a structural pest control business license until the license applicant: (1) files with the board a policy or contract of insurance, approved as sufficient by the board, in an amount not less than $200,000 for bodily injury and property damage coverage, with a minimum total aggregate of $300,000 for all occurrences, insuring the applicant against liability for damage to persons or property occurring as a result of operations performed in the course of the business of structural pest control on premises or any other property under the applicant's care, custody, or control; (2) in the case of an applicant who has an unexpired and uncanceled insurance policy or contract on file with the board, files with the board a certificate or other evidence from an insurance company stating that: (A) the policy or contract insures the applicant against liability for acts and damage as described in Subdivision (1); and (B) the amount of insurance coverage is in the amount approved by the board; (3) files with the board a bond, certificate of deposit, or other proof acceptable to the board of sufficient funds in an amount not less than $300,000 for payment of claims of damage to persons or property occurring as a result of operations performed negligently in the course of the business of structural pest control on premises or any other property under the applicant's care, custody, or control; or (4) files with the board evidence satisfactory to the board of coverage under a general liability insurance policy, in an amount not less than $200,000 for bodily injury and property damage coverage, with a minimum total aggregate of $300,000 for all occurrences, if the applicant operates solely as a wood treater who treats wood on commercial property owned by the applicant. (b) A structural pest control business license holder shall at all times maintain the insurance policy or contract or the security described by Subsection (a)(3) in the amount approved by the board. Failure to renew the policy or contract or maintain it or the security in the required amount is a ground for suspension or revocation of the license and a violation of this section. (c) The board by rule may require different amounts of insurance coverage for different classifications of operations under this chapter. (d) The board may adopt insurance requirements for certified noncommercial applicators or technicians. (e) An applicant who files proof under Subsection (a)(3) must designate a third party not affiliated with the applicant to handle the processing of damage claims regarding that security. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 537, § 1, 2, eff. Sept. 1, 2003. § 1951.313. MEMORANDUM OF AGREEMENT. The board may enter into a memorandum of agreement with a political subdivision other than an institution of public or private education concerning licensing requirements. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.314. LICENSE NOT TRANSFERABLE. A license issued by the board is not transferable. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER H. TRAINING § 1951.351. TECHNICIAN TRAINING PROGRAM. (a) The board shall: (1) develop or approve a training program for licensed technicians and for applicants to become licensed technicians; and (2) require that an applicant for a technician license complete the training program. (b) The board shall develop the educational and training materials for the training program with the Texas Agricultural Extension Service or any other institution of higher education. The board shall publish and distribute, in conjunction with the Texas Agricultural Extension Service, the materials developed as a part of the training program. (c) The training program must include instruction in: (1) recognition of pests and pest damage; (2) pesticide labels and label comprehension; (3) pesticide safety; (4) environmental protection; (5) procedures for the immediate reporting of spills and misapplications; (6) application equipment and techniques; (7) pesticide formulations and actions; (8) emergency procedures and pesticide cleanup; (9) state and federal law relating to structural pest control; (10) basic principles of mathematics, chemistry, toxicology, and entomology; (11) nonchemical pest control techniques, including biological, mechanical, and prevention techniques; and (12) any other topic the board considers necessary. (d) The board may create a technician training program advisory committee to assist the board in developing the training program required by this section. (e) The board may approve a training program that has not been developed by the board if the program meets the standards adopted by the board for the program. Completion of a training program approved by the board under this subsection satisfies Subsection (a)(2). Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.352. NEW DEVELOPMENTS; PROOF OF STUDY. If the board determines that new developments in pest control have occurred that are so significant that proper knowledge of the developments is necessary to protect the public, the board may require of each applicant proof of study by: (1) attending approved training courses; or (2) taking additional examinations on the new developments only. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.353. FEES RELATED TO TRAINING PROGRAMS. (a) The board may charge a fee to a person to purchase or borrow materials developed for the technician training program under Section 1951.351. The board shall set the fee in an amount that will recover the costs of the program. (b) The board may charge a fee not to exceed $75 for each course considered for approval under Section 1951.352. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER I. EXAMINATIONS § 1951.401. EXAMINATION FOR CERTIFIED APPLICATOR'S LICENSE. The board may require a person to qualify for a certified applicator's license by passing an examination demonstrating the person's competence in the field of structural pest control. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.402. EXAMINATION FOR TECHNICIAN LICENSE. The board shall require an applicant for a technician license to pass an examination developed and administered by the board or a person designated by the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.403. EXAMINATION FEE. Each time a person applies to take an examination for a license, the person shall pay the board an examination fee of not more than $50, as determined by the board, for each category of examination to be taken. Except as provided by board rule, an examination fee is not refundable. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.404. LIST OF STUDY MATERIALS AND SEMINARS. The board shall make public a list of study materials and educational seminars that are available to help applicants successfully complete any examination administered under this chapter. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.405. EXAMINATION RESULTS. (a) Not later than the 30th day after the date a licensing examination is administered under this chapter, the board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service. (b) If notice of the results of an examination 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 a licensing examination administered under this chapter, the board shall provide to the person an analysis of the person's performance on the examination. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER J. PRACTICE BY LICENSE HOLDER § 1951.451. CONTRACT FOR PEST CONTROL SERVICES. A written contract under which a license holder under this chapter agrees to perform structural pest control services in this state must include: (1) the board's mailing address and telephone number; and (2) a statement that the board has jurisdiction over individuals licensed under this chapter. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.452. RECORDS OF LICENSE HOLDER. (a) The board may require each license holder to make records, as prescribed by the board, of the license holder's use of pesticides. (b) Subject to Subsection (c), a record required under Subsection (a) shall be: (1) maintained for at least two years on the license holder's business premises; and (2) made available for inspection by the board and its authorized agents during normal business hours. (c) A certified noncommercial applicator shall maintain required records on the premises of the person's employer for at least two years. The records shall be made available for inspection by the board and its authorized agents during the employer's normal operating hours. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.453. PEST CONTROL INFORMATION FOR INDOOR TREATMENTS: RESIDENTIAL PROPERTY. (a) For an indoor treatment at a private residence that is not rental property, a certified applicator or technician shall: (1) give a pest control information sheet developed under Section 1951.254 to the owner of the residence before each treatment begins; or (2) if the owner is not available at the time treatment begins, leave the information sheet in a conspicuous place in the residence. (b) For an indoor treatment at a residential rental property with fewer than five rental units, a certified applicator or technician shall leave a pest control information sheet developed under Section 1951.254 in each unit at the time of each treatment. (c) For an indoor treatment at a residential rental property with five or more rental units, a certified applicator or technician shall provide a pest control information sheet developed under Section 1951.254 and a pest control sign developed under that section to the owner or manager of the property. The owner or manager or an employee or agent of the owner or manager, other than the certified applicator or technician, shall notify residents who live in the direct area of the treatment or in an adjacent area by: (1) posting the sign in an area of common access at least 48 hours before each planned treatment; or (2) leaving the information sheet on the front door of each unit or in a conspicuous place inside each unit at least 48 hours before each planned treatment. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.454. PEST CONTROL INFORMATION FOR INDOOR TREATMENTS: WORKPLACE. For an indoor treatment at a workplace, a certified applicator or technician shall provide a pest control information sheet developed under Section 1951.254 and a pest control sign developed under that section to the employer or the building manager. The employer or building manager or an employee or agent of the owner or manager, other than the certified applicator or technician, shall notify the persons who work at the workplace of the date of the planned treatment by: (1) posting the sign in an area of common access that the persons are likely to check on a regular basis at least 48 hours before each planned treatment; and (2) providing the information sheet to any person working in the building on a request made by the person during normal business hours. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.455. PEST CONTROL INFORMATION FOR INDOOR TREATMENTS: CERTAIN OTHER BUILDINGS. (a) For an indoor treatment at a building that is a hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, school, or day-care center, a certified applicator or technician shall provide a pest control information sheet developed under Section 1951.254 and a pest control sign developed under that section to the chief administrator or building manager. The chief administrator or building manager shall notify the persons who work in the building of the treatment by: (1) posting the sign in an area of common access that the persons are likely to check on a regular basis at least 48 hours before each planned treatment; and (2) providing the information sheet to a person working in the building on request of the person. (b) Personnel at a school or day-care center shall inform the parent, guardian, or managing conservator of each child attending the school or center, at the time the child is registered, that: (1) the school or center periodically applies pesticides indoors; and (2) information on the application of the pesticides is available at the request of the parent, guardian, or managing conservator. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.456. PEST CONTROL INFORMATION FOR INDOOR TREATMENTS; RULES; EXCEPTION. (a) The board shall develop a policy to implement and enforce Sections 1951.453-1951.455. (b) Under rules adopted by the board, a requirement under Sections 1951.453-1951.455 that notice of a treatment be given at least 48 hours before the treatment may be waived for emergency treatments. (c) A person is not considered in violation of Section 1951.453, 1951.454, or 1951.455 or a rule adopted under this section for not posting a pest control sign developed under Section 1951.254 if the sign is posted as required by Section 1951.453, 1951.454, or 1951.455 or a rule adopted under this section but is removed by an unauthorized person. (d) For the purposes of Sections 1951.453-1951.455, a treatment is an indoor treatment even though the treatment may include an outside perimeter treatment of the building if the primary purpose of the treatment is to treat the inside of the building. The board shall by rule define a perimeter treatment and shall adopt the definitions provided in federal law. (e) The signage, advance notice, and information sheet requirements of Sections 1951.453-1951.455 do not apply to space that is vacant, unused, and unoccupied as a residence, workplace, or other use covered by Sections 1951.453-1951.455. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.457. PEST CONTROL INFORMATION FOR OUTDOOR TREATMENTS. (a) For an outdoor treatment at a private residence that is not rental property, a certified applicator or technician shall leave a pest control information sheet developed under Section 1951.254 at the residence before the treatment begins. (b) For an outdoor treatment at a residential rental property with fewer than five rental units, a certified applicator or technician shall leave a pest control information sheet at each unit at the time of treatment. (c) The board may adopt rules to require the distribution of a pest control information sheet for an outdoor treatment other than an outdoor treatment described by this section if the board determines that the distribution or posting, or both, would protect the public's health, safety, and welfare. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.458. PRACTICE BY NONCOMMERCIAL APPLICATOR OR TECHNICIAN. (a) A person who holds a certified noncommercial applicator's or technician license may not engage in the business of structural pest control outside the scope of the employment for which the person is licensed as a certified noncommercial applicator or technician unless the person becomes licensed as otherwise provided by this chapter. (b) A person who holds a certified noncommercial applicator's or technician license may engage in the business of structural pest control without association with a business that holds a structural pest control business license. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.459. PEST CONTROL SERVICES FOR CERTAIN BUILDINGS. The owner of a building that is an apartment building, day-care center, hospital, nursing home, hotel, motel, lodge, warehouse, school, or food-processing establishment, other than a restaurant, retail food, or food service establishment, may obtain pest control services for that building from a person only by: (1) contracting with a person who holds a license to perform the services; or (2) requiring a person employed by the owner who is licensed as a certified noncommercial applicator or technician to perform the services. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER K. DISCIPLINARY PROCEDURES § 1951.501. DISCIPLINARY POWERS OF BOARD. (a) In this section, "parent company" means an individual or a partnership, corporation, or other business entity holding one or more structural pest control business licenses. (b) On a determination that an applicant or structural pest control business license holder under a parent company has substantially failed to comply with the standards and rules established by the board, after notice and a hearing, the board may refuse to: (1) examine the applicant; (2) issue a license to the applicant; or (3) issue a business license to the parent company. (c) On a determination that a person has violated this chapter or a board rule, the board may: (1) revoke the person's license; (2) suspend the person's license; (3) place on probation a person whose license has been suspended; or (4) reprimand a license holder. (d) The board may require a person whose license suspension is probated to: (1) report regularly to the board on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the board; or (3) continue or renew professional education until the license holder 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. 1421, § 4, eff. June 1, 2003. § 1951.502. RIGHT TO HEARING. (a) If the board proposes to suspend or revoke a person's license, the person is entitled to a hearing before the board or a hearings officer appointed by the board. (b) The board shall establish procedures by which a decision to suspend or revoke a license is made by or is appealable to the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.503. JUDICIAL REVIEW. (a) An applicant or license holder may appeal from an order or other action of the board by bringing an action in a district court of Travis County. (b) Notice of appeal must be filed not later than the 30th day after the date the board issues the order. (c) The hearing in district court is under the substantial evidence rule. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.504. SETTLEMENT OF CONTESTED CASES. (a) A settlement of a contested case under Chapter 2001, Government Code, must be approved by the board. (b) The board by rule shall establish guidelines for the settlement of a contested case under Chapter 2001, Government Code. (c) The board may authorize its representatives to conduct informal settlement negotiations between the board and a license holder to resolve a complaint, other than a complaint involving a misapplication, by a consumer against the license holder. (d) An informal settlement reached under Subsection (c): (1) may not require the license holder to: (A) refund money to the consumer in an amount greater than the amount provided under the original contract for services by the license holder; or (B) perform any services that the license holder did not agree to perform in the original contract; and (2) does not release the license holder from any liability for a misapplication. (e) The board by rule shall establish guidelines for the informal settlement of consumer complaints as provided by Subsections (c) and (d). Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.505. EFFECT OF REVOCATION. (a) A license revoked under Section 1951.501 may not be renewed. (b) A person whose license is revoked may not apply for a new license until the first anniversary of the effective date of the revocation. A new license may not be issued without the approval of the board. (c) If the board revokes the license of a certified applicator in one category, the board may place the applicator on probation for any other category in which the applicator is licensed. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER L. ADMINISTRATIVE PENALTY § 1951.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person who violates this chapter or a rule adopted or order issued by the board. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 a day for each violation. Each day a violation continues or occurs may be considered a separate violation for purposes of penalty assessment. (b) In determining the amount of the penalty, the board shall consider: (1) the seriousness of the violation, including: (A) the nature, circumstances, extent, and gravity of any prohibited act; and (B) the hazard or potential hazard created to the health or safety of the public; (2) the economic damage to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter future violations; (5) efforts to correct the violation; and (6) any other matter that justice may require. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If, after investigation of a possible violation and the facts surrounding that possible violation, the executive director determines that a violation has occurred, the executive director may issue a violation report: (1) stating the facts on which the conclusion that a violation occurred is based; (2) recommending that an administrative penalty under this subchapter be imposed on the person charged; and (3) recommending the amount of the proposed penalty. (b) The executive director must base the recommended amount of the proposed penalty on the seriousness of the violation determined after considering the factors set forth in Section 1951.552(b). (c) Not later than the 14th day after the date on which the report is issued, the executive director shall give written notice of the report to the person charged. The notice must include: (1) a brief summary of the charges; (2) a statement of the amount of the penalty recommended; and (3) a statement of the right of the person charged to a hearing on the occurrence of the violation, the amount of the penalty, or both. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.554. 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 executive director's determination, including the recommended administrative penalty; or (2) make a written request for a hearing on the determination. (b) If the person charged accepts the executive director's determination, the board shall issue an order approving the determination and ordering the payment of the recommended penalty. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.555. HEARING; DECISION BY BOARD. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the board shall set a hearing and give notice of the hearing. (b) The hearing shall be held by a hearings examiner designated by the board. The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision as to the occurrence of the violation, including a recommendation as to the amount of any proposed administrative penalty. (c) Based on the findings of fact, conclusions of law, and recommendations of the hearings examiner, the board by order may: (1) determine that a violation occurred and impose a penalty; or (2) determine that a violation did not occur. (d) A proceeding under this section is subject to Chapter 2001, Government Code. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.556. NOTICE OF ORDER. The board shall give notice of the order to the person. The notice must include: (1) the findings of fact and conclusions of law, separately stated; (2) the amount of any administrative penalty imposed; (3) a statement of the person's right to judicial review of the board's order; and (4) any other information required by law. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall: (1) pay the administrative penalty; or (2) file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both. (b) Within the period prescribed by Subsection (a), a person who acts under Subsection (a)(2) may stay enforcement of the penalty by: (1) paying the penalty to the board for placement in an escrow account; (2) giving the board a supersedeas bond in a form approved by the board that: (A) is for the amount of the penalty; and (B) is effective until judicial review of the board's order is final; or (3) filing with the board an affidavit stating that the person is financially unable to either pay the penalty or give the bond. (c) A person who fails to take action as provided by this section waives the right to judicial review of the board's order. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.558. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the board may refer the matter to the attorney general for collection of the penalty. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.559. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or is not upheld by the court, the board shall: (1) remit the appropriate amount, plus accrued interest, to the person against whom the penalty is imposed, if the person paid the penalty; or (2) execute a release of the bond, if the person gave a supersedeas bond. (b) Interest accrues under Subsection (a)(1) at 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. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS § 1951.601. ENFORCEMENT ACTION FOR MISAPPLICATION OF PESTICIDES. If the board finds that an applicator has misapplied pesticides, the board shall institute an enforcement action against the applicator. The board by rule shall adopt a policy to implement this section. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.602. CIVIL PENALTY; INJUNCTION. (a) A person who violates this chapter or a rule, license, or order of the board is subject to a civil penalty of not less than $50 or more than $2,000 for each act of violation and for each day of violation. (b) If it appears that a person has violated or is threatening to violate this chapter or a rule, license, or order of the board, the board, or the executive director if authorized by the board, may have a civil action instituted in a district court for: (1) injunctive relief to restrain the person from continuing the violation or threat of violation; (2) the assessment and recovery of a civil penalty under Subsection (a); or (3) both injunctive relief and the civil penalty. (c) On application for injunctive relief and a finding that a person is violating or threatening to violate this chapter or a rule, license, or order of the board, the district court shall grant injunctive relief as the facts warrant. (d) At the request of the board, or the executive director if authorized by the board, the attorney general shall institute and conduct an action in the name of the state for the injunctive relief, to recover the civil penalty, or both. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003. § 1951.603. CRIMINAL PENALTY. (a) A person commits an offense if the person: (1) violates this chapter; (2) violates a rule adopted under Section 1951.205 or 1951.206; or (3) intentionally makes a false statement in an application for a license or otherwise fraudulently obtains or attempts to obtain a license. (b) Each day a violation occurs is a separate offense. (c) Except as otherwise provided by this subsection, an offense under this section is a Class C misdemeanor. An offense under this section is a Class B misdemeanor if the person has been convicted previously of an offense under this section. Added by Acts 2001, 77th Leg., ch. 1421, § 4, eff. June 1, 2003.
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