TITLE 22. EXAMINING BOARDS

PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS

CHAPTER 131. ORGANIZATION AND ADMINISTRATION

The Texas Board of Professional Engineers (Board) proposes amendments to §131.15, concerning Committees; §131.43, concerning Public Participation; new §131.87, concerning Negotiated Rule Making Procedures; and new §131.113, concerning Mediation and Alternative Dispute Resolution.

The proposed amendments to §131.15 would remove an unrequired restriction on the way Committees of the Board are established.

The proposed amendments to §131.43 would clarify that public comment at open meetings may be restricted to prevent ex parte communication prohibited under Texas Government Code section 2001.061.

The proposed additions of §131.87 and §131.113 would put statutory requirements regarding alternative dispute resolution into Board Rules as mandated by Texas Occupations Code section 1001.215. Proposed new §131.113 will fall under a new subchapter H, Alternative Dispute Resolution.

David Howell, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed rules are in effect, there is no adverse fiscal impact for the state and local government or rural communities in Texas as a result of enforcing or administering the sections as proposed. There is no additional cost to licensees or other individuals and this change would not affect the number of regulated persons. There is no adverse fiscal impact to the small and micro businesses regulated by the Board and will not affect the Texas economy. A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.

These proposed rules do not create or eliminate a government program and do not increase fees collected by the agency. They will not result in an increase or decrease in the number of agency employees. As a designated Self Directed, Semi-Independent agency of Texas, the Board receives no legislative appropriations.

Mr. Howell has also determined that for the first five years the proposed rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be more efficient and transparent Board activities.

Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to David Howell, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 S. Interstate 35, Austin, Texas 78741, faxed to his attention at (512) 440-0417 or sent by email to rules@engineers.texas.gov.

SUBCHAPTER A. ORGANIZATION OF THE BOARD

22 TAC §131.15

The amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§131.15.Committees.

(a) The board chair shall appoint the following standing committees as stated in paragraphs (1) - (5) of this subsection, composed of four board members at least one of whom is a public member. A committee quorum shall consist of three members. Committee appointments shall be made by the chair for a term of two years but may be terminated at any point by the chair. Committee members may be re-appointed at the discretion of the chair. The board chair shall appoint a committee chair.

(1) General Issues Committee. The committee shall meet as required to evaluate issues and possibly develop proposed actions for the full board on issues of importance to the board and the profession. Such issues might include engineering ethics, professionalism in practice, legislation, board management, and engineering business issues. [The vice chair of the board shall be a committee member and shall chair the committee during his or her elected term.]

(2) - (5) (No change.)

(b) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704903

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER C. MEETINGS

22 TAC §131.43

The amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§131.43.Public Participation.

(a) The board shall include "public comment" as a topic on the agenda for each regularly scheduled board or committee meeting.

(b) A person may address the board regarding any issue related to the jurisdiction of the board other than open complaints filed with the board pursuant to Subchapter F of the Texas Engineering Practice Act, matters concerning cases pending at the State Office of Administrative Hearings, or cases deemed confidential. A person wishing to address the board about any subject under the board's jurisdiction shall fill out a Public Comment form prior to the start of the meeting and submit the form to the chair.

(c) The chair will recognize those requests to address the board during the "public comment" portion of a meeting.

(d) [A person may address the board regarding any issue related to the jurisdiction of the board.] The chair or executive director may impose a time limit for those wishing to address or make a presentation to the board. The allotted period for a person addressing the board may only be extended by board vote and may not be extended by another person delegating, ceding, passing or otherwise granting allotted comment time in lieu of addressing the board.

(e) - (f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704904

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER F. ADMINISTRATION

22 TAC §131.87

The new rule is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed new rule.

§131.87.Negotiated Rule Making Procedures.

Notice of a proposed new rule or amendment of any existing rule shall be made in accordance with the provisions of §2001.023 and §2001.024 of the Texas Government Code. The board's policy is to encourage the use of negotiated rulemaking for the adoption of board rules in appropriate situations.

(1) The Executive Director shall designate the board's negotiated rulemaking coordinator (NRC). The NRC shall perform the following functions, as required:

(A) coordinate the implementation of the policy set out in this subsection, and in accordance with the Negotiated Rulemaking Act, Chapter 2008, Government Code;

(B) serve as a resource for any staff training or education needed to implement negotiated rulemaking procedures; and

(C) collect data to evaluate the effectiveness of negotiated rulemaking procedures implemented by the board.

(2) The Board, a committee of the Board, or the Executive Director may direct the NRC to begin negotiated rulemaking procedures on a specified subject.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704905

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER H. ALTERNATIVE DISPUTE RESOLUTION

22 TAC §131.113

The new rule is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed new rule.

§131.113.Mediation and Alternative Dispute Resolution.

It is the Board's policy to encourage the resolution and early settlement of all disputed matters, internal and external, through voluntary settlement procedures.

(1) The Executive Director shall designate a board employee as the board's Alternative Dispute Resolution Director to perform the following functions:

(A) maintain necessary agency records of alternative dispute resolution procedures while maintaining the confidentiality of participants;

(B) establish a method for the appointment of impartial third party mediators, moderators or arbitrators for alternative dispute resolution proceedings;

(C) provide information about available alternative dispute resolution processes to agency employees, potential users, and users of the alternative dispute resolution program;

(D) arrange training or education necessary to implement alternative dispute resolution processes; and

(E) establish a system to evaluate the alternative dispute resolution program and mediators.

(2) The Board, a committee of the Board, a respondent in a disciplinary matter pending before the board pursuant to §139.31 of this title (relating to Enforcement Actions for Violations of the Act), the Executive Director of the Board or a board employee engaged in a dispute with the Executive Director may request that a contested matter be submitted for alternative dispute resolution through mediation as described in §154.023 of the Texas Civil Practice and Remedies Code, moderated settlement conference as described in §154.025 of the Texas Civil Practice and Remedies Code, and non-binding arbitration as described in §154.027 of the Texas Civil Practice and Remedies Code by making a written request for alternative dispute resolution that states the type of alternative dispute resolution requested and sets forth the issues to be submitted for alternative dispute resolution. A respondent in a disciplinary proceeding may not request mediation until a recommendation regarding that disciplinary matter has been made and a Consent Order has been offered in accordance with Board Rule §139.19 (relating to Final Resolution of Complaint). The request must be delivered to the Alternative Dispute Resolution Director at the board's office.

(3) The party who requests alternative dispute resolution shall pay the cost of the impartial third party mediator, moderators or arbitrators and shall otherwise bear their own costs of alternative dispute resolution.

(4) Any resolution reached as a result of an alternative dispute resolution procedure is intended to be through the voluntary agreement of all of the parties. The resolution of a contested matter reached as a result of an alternative dispute resolution procedure must be in writing, signed by all of the parties, and is enforceable in the same manner as any other written contract; provided however, that any signed resolution that purports to bind the board must be ratified by the board and may be made public depending upon the terms of the agreed resolution.

(5) A communication relating to the subject matter made by a party in an alternative dispute resolution procedure is confidential, is not subject to disclosure, and may not be used as evidence in any further proceeding. Any notes or record made of an alternative dispute resolution procedure are confidential, and parties, including impartial third party mediators, moderators, or arbitrators may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute or under consideration. An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable only if it is admissible or discoverable independent of the procedure. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to a judge or administrative law judge in Travis County, Texas to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704906

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


CHAPTER 133. LICENSING

The Texas Board of Professional Engineers (Board) proposes amendments to §133.13, concerning Branches of Engineering; §133.21, concerning Application for Standard License; §133.23, concerning Applications from Former Standard License Holders; §133.25, concerning Applications from Engineering Educators; §133.27, concerning Application for Temporary License for Engineers Currently Licensed Outside the United States; §133.43, concerning Experience Evaluation; §133.83, concerning Executive Director Review, Evaluation and Processing of Applications; §133.93, concerning Personal Interviews of Applicants; §133.97, concerning Issuance of License; and §133.99, concerning Processing of Applications with a Criminal Conviction.

The proposed amendments generally clarify the intent of rules and address some inconsistencies.

The proposed amendment to §133.13 would add Welding as a recognized discipline of engineering. The Board has received requests to add it from several customers.

The proposed amendments to §§133.21, 133.23, 133.25, 133.27, and 133.93 would clarify in rule that the Board, the Licensing Committee and staff may ask for additional information or documentation to ensure eligibility of an applicant and make the rules more consistent with current practice.

The proposed amendment to §133.43 would clarify to ability to claim experience credit for an advanced engineering degree from an accredited if the applicant has another prior engineering degree and make it more consistent with current practice.

The proposed amendment to §133.83 would clarify the expectations for applicants regarding the review and processing of an application and make it more consistent with current practice.

The proposed amendment to §133.97 would eliminate a reference to a fee that is no longer collected.

The proposed amendment to §133.99 would put into rule the currently used Board-approved policy regarding how the Board and staff will handle and process applications when the applicant has a reportable criminal incident on his or her record.

David Howell, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed amendments are in effect, there will be no adverse fiscal impact for the state government, local government, or rural communities in Texas as a result of enforcing or administering the sections as amended. There will be no additional cost to licensees or other individuals and this change will not affect the number of regulated persons. There will be no adverse fiscal impact to the small and micro businesses regulated by the Board and no effect on the Texas economy. A Regulatory Flexibility Analysis is not needed because there will be no adverse economic effect to small or micro businesses.

This proposed amendment does not create or eliminate a government program and does not increase fees collected by the agency. It will not result in an increase or decrease in the number of agency employees. As a designated Self Directed, Semi-Independent agency of Texas, the Board receives no legislative appropriations.

Mr. Howell has also determined that for the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments is more efficient licensing of qualified engineers to practice in Texas.

Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to David Howell, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 S. Interstate 35, Austin, Texas 78741, faxed to his attention at (512) 440-0417 or sent by email to rules@engineers.texas.gov.

SUBCHAPTER B. PROFESSIONAL ENGINEER LICENSES

22 TAC §133.13

The amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§133.13.Branches of Engineering.

The board recognizes the following list of disciplines to assist in determining an applicant's competency. Those branches in which a National Council of Examiners for Engineering and Surveying (NCEES) examination is offered are followed by the acronym (NCEES).

(1) - (26) (No change.)

(27) Welding;

(28) [(27)] Other.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704907

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER C. PROFESSIONAL ENGINEER LICENSE APPLICATION REQUIREMENTS

22 TAC §§133.21, 133.23, 133.25, 133.27

The amendments are proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendments.

§133.21.Application for Standard License.

(a) - (h) (No change.)

(i) Once an application under this section is accepted for review, the board will follow the procedures in §133.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications) to review and approve or deny the application. The board may request additional information or require additional documentation to clarify an application and ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

§133.23.Applications from Former Standard License Holders.

(a) - (d) (No change.)

(e) Once an application under this section is accepted for review, the board will follow the procedures in §133.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications) to review and approve or deny the application. The board may request additional information or require additional documentation to clarify an application and ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

§133.25.Applications from Engineering Educators.

(a) - (e) (No change.)

(f) Once an application under this section is accepted for review, the board will follow the procedures in §133.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications) to review and approve or deny the application. The board may request additional information or require additional documentation to clarify an application and ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

§133.27.Application for Temporary License for Engineers Currently Licensed Outside the United States.

(a) - (b) (No change.)

(c) Once an application under this section is accepted for review, the board will follow the procedures in §133.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications) [§133.85 of this chapter (relating to Board Review of and Action on Applications)] to review and approve or deny the application. The board may request additional information or require additional documentation to clarify an application and ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's [holders] status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704908

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER E. EXPERIENCE

22 TAC §133.43

The amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§133.43.Experience Evaluation.

(a) - (b) (No change.)

(c) One year of experience credit may be granted for each post-baccalaureate engineering degree earned by an applicant, provided:

(1) the applicant has a baccalaureate or other post-baccalaureate degree in engineering; and

(2) the post-baccalaureate degree is from an engineering program where either the graduate or undergraduate degree in the same discipline is accredited or approved by one of the organizations listed in §133.31(a)(1) of this chapter (concerning Educational Requirements for Applicants). Experience credit for all post-baccalaureate degrees is limited to a total of two years.

(d) - (f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704909

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER H. REVIEW PROCESS OF APPLICATIONS AND LICENSE ISSUANCE

22 TAC §§133.83, 133.93, 133.97, 133.99

The amendments are proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendments.

§133.83.Executive Director Review, Evaluation and Processing of Applications.

All references to the executive director in this section shall allow for the delegation of authority by the executive director to other staff members. An application for licensure shall be handled in the following manner and order:

(1) The application is received at the board office.

(2) The executive director shall review the application for completeness.

(3) The executive director shall:

(A) accept the application as complete for processing and evaluating; or

(B) accept the application and notify the applicant at the earliest possible time of deficient information and give the applicant 60 calendar days [45 days] to complete the application. The [Upon receipt of an applicant's written request, the] executive director or designee may grant the applicant an [one] additional 30 day period to submit any information identified [by the executive director] as necessary to complete the application. If the applicant does not submit all documents required in the time allowed for such submittals, the application shall be administratively withdrawn and further processing performed in accordance with §133.89 of this chapter (relating to Processing of Administratively Withdrawn Applications).

(4) - (7) (No change.)

§133.93.Personal Interviews of Applicants.

(a) (No change.)

(b) The Licensing Committee or the board's designated representative shall make recommendations to the full board at the next available board meeting to approve or deny an application.

(c) The Licensing Committee may request additional information or require additional documentation to clarify an application and ensure eligibility pursuant to §1001.302 of the Act.

(d) [(c)] Another personal interview with the full board may be scheduled with a written request in accordance with subsection (a)(2)(A) - (C) of this section. This interview with the full board shall constitute the last administrative appeal available to the applicant.

§133.97.Issuance of License.

(a) - (f) (No change.)

(g) The printed license shall be uniform and of a design approved by the board. Any new designs for a printed license shall be made available to all license holders upon request [and payment of a replacement certificate fee].

(h) - (k) (No change.)

§133.99.Processing of Applications with a Criminal Conviction.

(a) The board may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination consistent with the requirements of Chapter 53 of the Texas Occupations Code.

(b) For purposes of licensure under this chapter, the Board shall consider the following:

(1) The nature and seriousness of the crime;

(2) The relationship of the crime to the board's statutory responsibility to ensure that a person practicing as a Professional Engineer in Texas protects the health, safety, and welfare of the public;

(3) The relationship of the crime to the competence, ability, capacity, fitness or professional judgment required to perform the duties and discharge the responsibilities of an engineer;

(4) The outcome or resolution of criminal charges and any associated judgment, deferral of judgment, penalty or punishment, whether completed or on-going;

(5) The date of completion and resolution of the terms of any judgment, deferral of judgment, penalty or punishment; and

(6) The extent to which issuance of a license will allow a person to engage in further criminal activity of the same type as that which the applicant previously had been involved.

(c) In determining the present fitness of an applicant or license holder who has been convicted of a crime, the board will consider the following evidence:

(1) the extent and nature of the past criminal activity;

(2) the age at the time of the commission of the crime;

(3) the amount of time that has elapsed since the last criminal activity;

(4) the conduct and work activity prior to and following the criminal activity;

(5) evidence of rehabilitation or rehabilitative effort while incarcerated or following release; and

(6) other evidence of present fitness including letters of recommendation from:

(A) prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility;

(B) the sheriff and chief of police in the community where the applicant or license holder resides; and

(C) any other person in contact with the applicant or license holder.

(d) It shall be the responsibility of the applicant or license holder to the extent possible to secure and provide the board the recommendations of the prosecution, law enforcement, and correctional authorities, as well as evidence, in the form required by the board, relating to whether the applicant has maintained a record of steady employment, has supported his or her dependents and otherwise maintained a record of good conduct, and is current on the payment of all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which the person has been convicted.

(e) Pursuant to Texas Occupations Code §53.102, before applying for a license, a person may request the Board to determine the prospective applicant's potential eligibility by submitting the request in a format prescribed by the Board. Upon receiving such a request, the Board may request additional supporting materials. Requests will be processed under the same standards as applications for a license.

(f) Pursuant to §133.93 of this Chapter (relating to Personal Interviews of Applicants), applicants will be referred to the Licensing Committee to obtain additional information and make recommendations for final action. The Licensing Committee may consider applications if any of the following conditions apply:

(1) Any reportable criminal judgments discovered by staff through the Criminal History Records Check that were not reported in the application materials by the applicant.

(2) Any direct relationship of a reportable criminal judgment to the applicant's fitness to practice as a Professional Engineer in Texas.

(3) Multiple reportable misdemeanor or felony judgments that occurred within 10 years of the date of application that indicate a pattern of unethical behavior.

(4) Any reportable felony judgment for which the date of completion and resolution of the terms is within 10 years of the date of application.

(g) Pursuant to Texas Occupations Code §53.025(a), the Board considers that the following crimes directly relate to the practice of engineering due to the adverse impact each of these crimes has on the special trust and ethical duties a Professional Engineer owes to the client and the public involving honesty, integrity, fidelity and the exercise of good judgment and character:

(1) Any felony or misdemeanor which involves a disregard for the health, safety or welfare of the general public or individuals, including violent crimes or crimes involving drugs or alcohol;

(2) Any felony or misdemeanor of which theft, fraud or deceit is an essential element;

(3) Any felony or misdemeanor which demonstrates a lack of professional judgment expected of a Professional Engineer;

(4) Any felony or misdemeanor involving financial or other loss for a client(s) or the public; and

(5) Any other felony or misdemeanor reflecting adversely upon the applicant's fitness to practice engineering.

(h) No currently incarcerated individual is eligible to obtain or renew a license. A person's license will be revoked upon the person's imprisonment following a felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory suspension.

(i) A person may administratively appeal, pursuant to Texas Occupations Code chapter 2001, a decision by the board to suspend or revoke a license or deny a license or an opportunity to take a licensing examination.

[The board shall follow the requirements of Chapter 53, Texas Occupations Code, regarding an applicant for a license and may deny a license or deny a request for an examination on the grounds that a person has been convicted of a felony or misdemeanor that directly relates to the duties of an engineer or the occupation of engineering.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704910

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


CHAPTER 137. COMPLIANCE AND PROFESSIONALISM

SUBCHAPTER A. INDIVIDUAL AND ENGINEER COMPLIANCE

22 TAC §§137.7, 137.15, 137.17

The Texas Board of Professional Engineers (Board) proposes amendments to §137.7, concerning License Expiration and Renewal; §137.15, concerning Replacement or New Design Certificates; and §137.17, concerning Continuing Education Program.

The proposed amendments to §137.7 would clarify that only an International Temporary license issued by the Board is covered by this rule. Emergency temporary licenses issued by the Board may not be renewed.

The proposed amendments to §137.15 would remove the reference to a fee that is no longer collected by the Board.

The proposed amendments to §137.17 would clarify the continuing education exemption and credit that may be claimed by licensees for passing the Principles and Practice of Engineering exam.

David Howell, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed amendments are in effect, there is no adverse fiscal impact for the state and local government or rural communities in Texas as a result of enforcing or administering the sections as amended. There is no additional cost to licensees or other individuals and this change would not affect the number of regulated persons. There is no adverse fiscal impact to the small and micro businesses regulated by the Board and will not affect the Texas economy. A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.

The proposed amendments do not create or eliminate a government program and does not increase fees collected by the agency. It will not result in an increase or decrease in the number of agency employees. As a designated Self Directed, Semi-Independent agency of Texas, the Board receives no legislative appropriations.

Mr. Howell has also determined that for the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be greater clarity and more efficient Board activities.

Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to David Howell, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 S. Interstate 35, Austin, Texas 78741, faxed to his attention at (512) 440-0417 or sent by email to rules@engineers.texas.gov.

The amendments are proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendments.

§137.7.License Expiration and Renewal.

(a) - (d) (No change.)

(e) A temporary license applied for in accordance with §133.27 of this title (regarding Application for Temporary License for Engineers Currently Licensed Outside the United States) may only be renewed twice for a total duration of three years, after which the former license holder may apply for [a new temporary or] a standard license as provided in the current Act and applicable board rules.

(f) (No change.)

§137.15.Replacement of Printed Licenses or [New Design] Certificates.

[(a)] Each license holder will be issued a printed [only one] license or certificate. A license holder may obtain a new printed license or certificate to replace any license or certificate lost, destroyed, or mutilated or obtain a certificate in a new design by submitting a request in a format prescribed by the Board. [on payment of the established fee and verification of the status of the original license.] [A license holder requesting a replacement license under this section will, if possible, surrender any remaining portions of the original license to the board and shall file a written statement with original signature explaining the reasons for the request for a new certificate so that the board records will document the reason for issuance of a new license.] Replacement licenses or certificates will reflect the original serial number of the license or certificate [holder].

[(b) In the event the license design for professional engineers is changed by the board, a license holder may obtain a license of the new design upon payment of a fee to be established by the board and surrender of the original license certificate.]

§137.17.Continuing Education Program.

(a) - (e) (No change.)

(f) PDH units may be earned as follows:

(1) - (10) (No change.)

(11) A passing score on the NCEES Principles and Practice of Engineering examination in accordance with §133.73 of this title (relating to Examination Results and Analysis).

(g) All activities described in subsection (f) of this section [§137.17(f) of this title] shall be relevant to the practice of a technical profession and may include educational, technical, ethical, or managerial content.

(h) The conversion of other units of credit to PDH units is as follows:

(1) - (10) (No change.)

(11) A passing score on the NCEES Principles and Practice of Engineering examination in accordance with §133.73 of this title - 14 PDH.

(i) - (m) (No change.)

(n) A license holder may be exempt from the professional development educational requirements for one of the following reasons listed in paragraphs (1) - (4) of this subsection:

(1) New license holders [by way of examination] shall be exempt for their first renewal period if the NCEES Principles and Practice of Engineering exam was taken within 1 calendar year of the license issuance date.

(2) - (5) (No change.)

(o) - (p) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704911

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER C. PROFESSIONAL CONDUCT AND ETHICS

22 TAC §137.57, §137.63

The Texas Board of Professional Engineers (Board) proposes amendments to §137.57, concerning Engineers Shall Be Objective and Truthful; and §137.63, concerning Engineers' Responsibility to the Profession.

The proposed amendments to §137.57 would clarify the rule to reemphasize that an engineer must be objective and truthful in the practice of engineering. The changes also clarify the wording regarding expected actions when the potential for a conflict of interest exists.

The proposed amendments to §137.63 would clarify that engineers are expected to be honest and ethical in the practice of engineering, which is more consistent with statutory limits and current practices.

David Howell, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed amendments are in effect, there is no adverse fiscal impact for the state and local government or rural communities in Texas as a result of enforcing or administering the sections as amended. There is no additional cost to licensees or other individuals and this change would not affect the number of regulated persons. There is no adverse fiscal impact to the small and micro businesses regulated by the Board and will not affect the Texas economy. A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.

These proposed amendments do not create or eliminate a government program and do not increase fees collected by the agency. They will not result in an increase or decrease in the number of agency employees. As a designated Self Directed, Semi-Independent agency of Texas, the Board receives no legislative appropriations.

Mr. Howell has also determined that for the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be more clarity in Board enforcement activities.

Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to David Howell, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 S. Interstate 35, Austin, Texas 78741, faxed to his attention at (512) 440-0417 or sent by email to rules@engineers.texas.gov.

The amendments are proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendments.

§137.57.Engineers Shall Be Objective and Truthful.

(a) Engineers shall issue statements only in an objective and truthful manner. The issuance of oral or written assertions in the practice of engineering shall not be:

(1) fraudulent;

(2) deceitful; or

(3) misleading or shall not in any manner whatsoever tend to create a misleading impression.

(b) Engineers should strive to make affected parties aware of the engineers' professional concerns regarding particular actions or projects, and of the consequences of engineering decisions or judgments that are overruled or disregarded.

[(b) The issuance of oral or written assertions in the practice of engineering shall not be:]

[(1) fraudulent,]

[(2) deceitful, or]

[(3) misleading or shall not in any manner whatsoever tend to create a misleading impression.]

(c) The engineer shall disclose a potential [possible] conflict of interest to a potential or current client or employer upon discovery of the possible conflict.

(d) A potential conflict of interest exists when an engineer accepts employment when a reasonable probability exists that the engineer's own financial, business, property, or personal interests may affect any professional judgment, decisions, or practices exercised on behalf of the client or employer. An engineer may accept such an employment only if all parties involved in the potential conflict of interest are fully informed in writing and the client or employer confirms the knowledge of the potential conflict in writing. An engineer in a potential conflict of interest employment shall maintain the interests of the client and other parties as provided by §137.61 of this title (relating to Engineers Shall Maintain Confidentiality of Clients) and other rules and statutes.

§137.63.Engineers' Responsibility to the Profession.

(a) Engineers shall engage in professional and business activities related to the practice of engineering in an honest and ethical manner. [Engineers should strive to promote responsibility, commitment, and ethics both in the education and practice phases of engineering. They should attempt to enhance society's awareness of engineers' responsibilities to the public and encourage the communication of these principles of ethical conduct among engineers.]

(b) - (c) (No change.)

(d) Engineers should strive to promote responsibility, commitment, and ethics both in the education and practice phases of engineering. They should attempt to enhance society's awareness of engineers' responsibilities to the public and encourage the communication of these principles of ethical conduct among engineers.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704912

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


CHAPTER 139. ENFORCEMENT

The Texas Board of Professional Engineers (Board) proposes amendments to §139.19, concerning Final Resolution of Complaint; and §139.35, concerning Sanctions and Penalties.

The proposed amendments to §139.19 would clarify that alternative dispute resolution is an option to resolve Board enforcement matters in accordance with Texas Occupations Code section 1001.215(a)(2).

The proposed amendments to §139.35 would update rule references in the table of proposed sanctions to match the proposed rule revisions in other chapters.

David Howell, P.E., Deputy Executive Director for the Board, has determined that for the first five-year period the proposed amendments are in effect, there is no adverse fiscal impact for the state and local government or rural communities in Texas as a result of enforcing or administering the sections as amended. There is no additional cost to licensees or other individuals and this change would not affect the number of regulated persons. There is no adverse fiscal impact to the small and micro businesses regulated by the Board and will not affect the Texas economy. A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.

The proposed amendments do not create or eliminate a government program and do not increase fees collected by the agency. They will not result in an increase or decrease in the number of agency employees. As a designated Self Directed, Semi-Independent agency of Texas, the Board receives no legislative appropriations.

Mr. Howell has also determined that for the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be more clarity in Board enforcement activities.

Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to David Howell, P.E., Deputy Executive Director, Texas Board of Professional Engineers, 1917 S. Interstate 35, Austin, Texas 78741, faxed to his attention at (512) 440-0417 or sent by email to rules@engineers.texas.gov.

SUBCHAPTER B. COMPLAINT PROCESS AND PROCEDURES

22 TAC §139.19

This amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§139.19.Final Resolution of Complaint.

(a) Upon the completion of an investigation, the board staff shall present to the executive director a report of investigation and recommendation of final resolution of the complaint. If sufficient evidence and documentation exists to substantiate one or more violations of the Act or board rules has occurred, the board shall proceed as prescribed in §139.31 of this chapter (relating to Enforcement Actions for Violations of the Act). These actions may include, but are not limited to, one or more of the following:

(1) enter into an agreement of voluntary compliance;

(2) agree to informal Consent Order or Agreed Board Order that may include an administrative penalty and/or compliance requirements;

(3) agree to mediation and alternative dispute resolution prescribed in §131.113 of this title (relating to Mediation and Alternative Dispute Resolution);

(4) [(3)] referral of injunctive or criminal actions to the proper authorities;

(5) [(4)] referral to the State Office of Administrative Hearings; or

(6) [(5)] other action as provided by law.

(b) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704913

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


SUBCHAPTER C. ENFORCEMENT PROCEEDINGS

22 TAC §139.35

This amendment is proposed pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the Board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state.

No other statutes, articles or codes are affected by the proposed amendment.

§139.35.Sanctions and Penalties.

(a) (No change.)

(b) The following is a table of suggested sanctions the board may impose against license holders for specific violations of the Act or board rules. NOTE: In consideration of subsection (a)(1) - (6) of this section, the sanction issued could be less than or greater than the suggested sanctions shown in the following table. Also, for those suggested sanctions that list "suspension", all or any portion of the sanction could be probated depending on the severity of each violation and the specific case evidence.

Figure: 22 TAC §139.35(b) (.pdf)

(c) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 4, 2017.

TRD-201704914

Lance Kinney, Ph.D., P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 442-1414


PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 461. GENERAL RULINGS

22 TAC §461.7

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §461.7, License Statuses. The proposed amendment is to more accurately describe what happens to a licensee’s license when it is not renewed. Under the current Board rule if a licensee fails to renew when required then the license becomes delinquent for twelve months after which the license is void. Under the statutory structure found in §501.301 and §501.302 of the Tex. Occ. Code a license expires instead of being described as going void. The term void in the Board rule was intended to be synonymous with expire in the Tex. Occ. Code statutes. Some licensees have expressed confusion since the terms are not identical. Therefore the proposed amendment replaces the term void with the term expire to clear up any future confusion or misinterpretation, while the scope and effect of the Board rule stays the same.

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule amendments are in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule. Additionally, Mr. Spinks has determined that enforcing or administering the rule does not have foreseeable implications relating to the costs or revenues of state or local government.

PUBLIC BENEFIT. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be a benefit to licensees and the general public because the proposed rule amendments will provide greater clarity regarding what happens when a licensee’s license is not renewed. Mr. Spinks has also determined that for each year of the first five years the rules is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

PROBABLE ECONOMIC COSTS. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no additional economic costs to persons required to comply with this rule.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO-BUSINESSES AND RURAL COMMUNITIES. Since Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities then the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov’t Code §2006.002.

LOCAL EMPLOYMENT IMPACT STATEMENT. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov’t Code §2001.022.

REQUIREMENT FOR RULES INCREASING COSTS TO REGULATED PERSONS. The proposed amendment do not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to the Tex. Gov’t Code §2001.0045, no repeal or amendment of another rule is required because the proposed amendment is necessary to protect the health, safety, and welfare of the residents of this state and the licensing and because regulatory costs imposed by the Board on licensees is not expected to increase.

GOVERNMENT GROWTH IMPACT STATEMENT. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed amendment will have no effect on government growth. The proposed amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation (amend an existing regulation); it does not expand or repeal an existing regulation (clarify existing regulation); it does not increase or decrease the number of individuals subject to the rule’s applicability; and it does not positively or adversely affect the state’s economy.

TAKINGS IMPACT ASSESSMENT. Mr. Spinks has determined that there are no private real property interests affect by the proposed rule amendment. Thus the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov’t Code §2007.043.

REQUEST FOR PUBLIC COMMENTS. Comments on the proposed amendment may be submitted to Brenda Skiff, Public Information Officer, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Ste 2-450, Austin, Texas 78701, within 30 days of publication of this proposal in the Texas Register. Comments may also be submitted via fax to (512) 305-7701, or via email to Open.Records@tsbep.texas.gov.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses; if the proposed amendment is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted, finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See §2006.002(c) and (c-1) of the Tex. Gov’t Code.

STATUTORY AUTHORITY. The amendment is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Board proposes the amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

The Board also proposes the amendment pursuant to the authority found in §501.301(b) of the Tex. Occ. Code which vests the Board with the authority to adopt rules under which licenses expire on various dates during the year.

No other code, articles or statutes are affected by this section.

§461.7.License Statuses.

(a) Active Status. Any licensee with a license on active status may practice psychology pursuant to that license. Any license that is not on inactive, delinquent, retired, resigned, expired [void] or revoked status is considered to be on active status. Active status is the only status under which a licensee may engage in the practice of psychology.

(b) Inactive Status.

(1) A licensee may elect inactive status by applying to the Board and paying the fee set in Board rule §473.5(b) of this title (relating to Miscellaneous Fees (Not Refundable)).

(2) Licensees who seek inactive status must return their license to the Board. A licensee may not practice psychology under an inactive license.

(3) A licensee may place his/her active license on inactive status for a period of two years. Reactivation of this license may occur at any time during this two-year period without the person having to take an exam provided that the person has notified the Board and has paid the required fees. At the end of the two-year period, if the license has not been reactivated, the license will expire. [automatically becomes void.] The inactive status may be extended for additional increments of two years if, prior to the end of each two-year period, the person notifies the Board in writing that an extension is requested and submits proof to the Board of continuous licensure by a psychology licensing board in this or another jurisdiction for the past two-year period and payment of all required fees. Licensees may indefinitely remain on inactive status if he/she is licensed in this or another jurisdiction and complies with the extension requirements set forth in this paragraph. Any licensee wishing to reactivate his/her license that has been on inactive status for four years or more must take and pass the Jurisprudence Exam with the minimum acceptable score as set forth in Board rule §463.14 of this title (relating to Written Examinations) unless the licensee holds another license on active status with this Board.

(4) Any licensee who returns to active status after having been on inactive status must provide proof of compliance with Board rule §461.11 of this title (relating to Professional Development) before reactivation will occur.

(5) A licensee with a pending complaint may not place a license on inactive status. If disciplinary action is taken against a licensee's inactive license, the licensee must reactivate the license until the action has been terminated.

(6) Inactive status may be extended for two additional years upon the Board's review and approval of medical documentation of a catastrophic medical condition of the licensee. The request for this extension must be received in writing before the end of the current inactive status period and requires payment of the $100 inactive status fee.

(c) Delinquent Status. A licensee who fails to renew his/her license for any reason when required is considered to be on delinquent status. Any license delinquent for more than 12 consecutive months shall expire. [be void (non-payment).] A licensee may not engage in the practice of psychology under a delinquent license. The Board may sanction a delinquent licensee for violations of Board rules.

(d) Restricted status. Any license that is currently suspended, on probated suspension, or is currently required to fulfill some requirements in a Board order is considered to be on restricted status. A licensee practicing under a restricted license must comply with any restrictions placed thereon by the Board.

(e) Retirement Status. A licensee who is on active or inactive status with the Board may retire his/her license by notifying the Board in writing prior to the renewal date for the license. A licensee with a delinquent status may also retire his/her license by notifying the Board in writing prior to the license expiring. [going void.] However, a licensee with a pending complaint or restricted license may not retire his/her license. A licensee who retires his/her license shall be reported to have retired in good standing.

(f) Resignation Status. A licensee may resign only upon express agreement by the Board. A licensee who resigns shall be reported as:

(1) Resigned in lieu of adjudication if permitted to resign while a complaint is pending; or

(2) Resigned in lieu of further disciplinary action if permitted to resign while the license is subject to restriction.

(g) Expired Status. A [Void (Non-Payment) Status. The Board may void any] license that has been delinquent for 12 months or more or any inactive license that is not renewed or reactivated is considered to be expired. [has expired.] An individual may not engage in the practice of psychology under an expired license. [a void license.] A license that has expired [been voided] may not be reinstated for any reason. A licensee whose license has expired [been voided] must submit a new application if he or she wishes to obtain a new license with the Board.

(h) Revoked Status. A license is revoked pursuant to Board Order requiring revocation as a disciplinary action.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 28, 2017.

TRD-201704821

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 305-7706


CHAPTER 463. APPLICATIONS AND EXAMINATIONS

22 TAC §463.30

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.30, Licensing for Military Service Members, Veterans and Spouses. The proposed amendment is necessary because the agency no longer has the resources needed to administer the oral examination. Without these changes, doctoral level applicants otherwise qualified for independent practice would be unable to achieve licensure as a psychologist.

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule as amended. Additionally, Mr. Spinks has determined that enforcing or administering the rule as amended, does not have foreseeable implications relating to the costs or revenues of state or local government.

PUBLIC BENEFIT. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be a benefit to licensees and the general public because the proposed rule amendments have become necessary because the agency no longer has the resources needed to administer the oral examination. Mr. Spinks has also determined that for each year of the first five years the rules is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

PROBABLE ECONOMIC COSTS. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no additional economic costs to persons required to comply with this rule.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO-BUSINESSES AND RURAL COMMUNITITES. Since Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities then the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov’t Code §2006.002.

LOCAL EMPLOYMENT IMPACT STATEMENT. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov’t Code §2001.022.

REQUIREMENT FOR RULES INCREASING COSTS TO REGULATED PERSONS. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to the Tex. Gov’t Code §2001.0045, no repeal or amendment of another rule is required because the proposed amendment is necessary to protect the health, safety, and welfare of the residents of this state and the licensing and because regulatory costs imposed by the Board on licensees is not expected to increase.

GOVERNEMENT GROWTH IMPACT STATEMENT. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed amendment will have no effect on government growth. The proposed amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand or repeal an existing regulation; it does not increase or decrease the number of individuals subject to the rule’s applicability; and it does not positively or adversely affect the state’s economy.

TAKINGS IMPACT ASSESSMENT. Mr. Spinks has determined that there are no private real property interests affect by the proposed rule amendment. Thus the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov’t Code §2007.043.

REQUEST FOR PUBLIC COMMENTS. Comments on the proposed amendment may be submitted to Brenda Skiff, Public Information Officer, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Ste 2-450, Austin, Texas 78701, within 30 days of publication of this proposal in the Texas Register. Comments may also be submitted via fax to (512) 305-7701, or via email to Open.Records@tsbep.texas.gov.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses; if the proposed amendment is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted, finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See §2006.002(c)and (c-1) of the Tex. Gov’t Code.

STATUTORY AUTHORITY. The amendment is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Board proposes the amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

No other code, articles or statutes are affected by this section.

§463.30.Licensing for Military Service Members, Veterans and Spouses.

(a) Military Service Members, Veterans and Spouses.

(1) A license may be issued to a military service member, military veteran, or military spouse, as those terms are defined by Chapter 55, Occupations Code, provided that the following documentation is provided to the Board:

(A) if the applicant is a military spouse, proof of marriage to a military service member; and

(B) proof that the applicant holds a current license in another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state; or

(C) proof that within the five years preceding the application date, the spouse held the license in Texas.

(2) An applicant applying for licensure under paragraph (1) of this subsection must provide documentation from all other jurisdictions in which the applicant is licensed that indicate that the applicant has received no disciplinary action from those jurisdictions regarding a mental health license.

(3) As part of the application process, the Executive Director may waive any prerequisite for obtaining a license under this rule, other than paragraph (1)(B) and (C) of this subsection and the jurisprudence examination, if it is determined that the applicant's education, training, and experience provide reasonable assurance that the applicant has the knowledge and skills necessary for entry-level practice under the license sought. When making this determination, the Executive Director must consult with the Board's Applications Committee and consider the committee's input and recommendations. In the event the Executive Director does not follow a recommendation of the Applications Committee, he or she must submit a written explanation to the Applications Committee explaining why its recommendation was not followed. No waiver may be granted where a military service member or military veteran holds a license issued by another jurisdiction that has been restricted, or where the applicant has an unacceptable criminal history.

(4) Alternative demonstrations of competency to meet the requirements for licensure. The following provisions provide alternative demonstrations of competency to the Board's licensing standards.

(A) Licensed Specialist in School Psychology. An applicant who meets the requirements of paragraph (1) of this subsection is considered to have met the following requirements for this type of license: submission of an official transcript, and evidence of the required coursework or National Association of School Psychologists certification, and passage of the National School Psychology Examination. All other requirements for licensure are still required.

(B) Licensed Psychological Associate. An applicant who meets the requirements of paragraph (1) of this subsection is considered to have met the following requirements for this type of license: submission of an official transcript, 450 internship hours, and passage of the Examination for Professional Practice in Psychology (EPPP) at the Texas cut-off. All other requirements for licensure are still required.

(C) Provisionally Licensed Psychologist. An applicant who meets the requirements of paragraph (1) of this subsection is considered to have met the following requirements for this type of license: submission of an official transcript, and passage of the EPPP at the Texas cut-off. All other requirements for licensure are still required.

(D) Licensed Psychologist. An applicant who meets the requirements of paragraph (1) of this subsection is considered to have met the following requirements for this type of license: two years of supervised experience. All other requirements for licensure, including the requirements of this paragraph, are still required.

(5) Determination of substantial equivalency for licensing requirements in another state. The applicant must provide to the Board proof that the state in which the applicant is licensed has standards for licensure that are substantially equivalent to the requirements of this Board for the applicable license type:

(A) Licensed Specialist in School Psychology.

(i) The completion of a training program in school psychology approved/accredited by the American Psychological Association or the National Association of School Psychologists or a master's degree in psychology with specific course work as set forth in Board rule §463.9 of this title (relating to Licensed Specialist in School Psychology); and

(ii) Passage of the National School Psychology Examination.

(B) Licensed Psychological Associate.

(i) Graduate degree that is primarily psychological in nature and consisting of at least 42 semester credit hours in total with at least 27 semester credit hours in psychology courses;

(ii) Passage of the EPPP at the Texas cut-off score; and

(iii) A minimum of 6 semester credit hours of practicum, internship, or experience in psychology, under the supervision of a licensed psychologist.

(C) Provisionally Licensed Psychologist.

(i) Doctoral degree in psychology; and

(ii) Passage of the EPPP at the Texas cut-off score.

(D) Licensed Psychologist.

(i) Doctoral degree in psychology;

(ii) Passage of the EPPP at the Texas cut-off score; and

(iii) Two years or a minimum of 3,000 hours of supervised experience under a licensed psychologist.[; and]

[(iv) Passage of an oral examination.]

(6) Renewal of License Issued to Military Service Members, Veterans, and Spouses. A license issued pursuant to this rule shall remain active until the last day of the licensee's birth month following a period of one year from the date of issuance of the license, at which time it will be subject to all renewal requirements.

(b) Applicants with Military Experience.

(1) A military service member or military veteran, as defined by Chapter 55, Occupations Code, shall receive credit toward the following licensing requirements for verified military service, training, or education:

(A) Licensed Specialist in School Psychology. A military service member or military veteran who was engaged in or who has been engaged in the delivery of psychological services within the military, for at least one year, is considered to have met the following requirements for this type of license: a practicum and 600 internship hours. All other requirements for licensure are still required.

(B) Licensed Psychological Associate. A military service member or military veteran who was engaged in or who has been engaged in the delivery of psychological services within the military, for at least one year, is considered to have met the following requirements for this type of license: 1,750 hours of supervised experience. All other requirements for licensure are still required.

(C) Licensed Psychologist. A military service member or military veteran who was engaged in or who has been engaged in the delivery of psychological services within the military, for at least one year following conferral of a doctoral degree, is considered to have met the following requirements for this type of license: one year or a minimum of 1,750 hours of supervised experience. All other requirements for licensure are still required.

(2) A military service member or military veteran may not receive credit toward licensing requirements due to military service, training, or education if they hold a license issued by another jurisdiction that has been restricted, or they have an unacceptable criminal history.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 28, 2017.

TRD-201704822

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 305-7706